New judgment: MoD v AB & Ors  UKSC 9
14 Wednesday Mar 2012
On appeal from:  EWCA Civ 1317
Between Oct 1952 and Sep 1958, the British Government carried out 21 atmospheric nuclear tests in Australia and on Christmas Island in the Pacific Ocean. A group of 1011 claimants, the majority of them servicemen involved in the tests or their representatives, claimed damages for the adverse consequences to health allegedly resulting from exposure to ionising radiation. The claims were made subject to a Group Litigation Order because they gave rise to common or related issues of fact or law, and a group of ten lead claimants was selected for trial on the limitation issue. The claimants argued that their claims could not be time-barred under the provisions of the Limitation Act 1980, s 11(4) because they did not have the requisite knowledge to bring claims until June 2007, when a report by Dr Rowland demonstrated abnormal chromosomal changes in blood samples of some of the servicemen involved in the nuclear testing. At first instance five claimants were held to have issued within the limitation period and Foskett J exercised his discretion under the Limitation Act 1980, s 33 to allow these claims to proceed. The Court of Appeal held that nine of the claimants had acquired the requisite knowledge more than three years before proceedings were commenced, and that none of these nine claims should be allowed to proceed. The claimants appealed.
The Supreme Court had to determine (1) how knowledge was to be defined for the purposes of the Limitation Act 1980, s 11(4); (2) whether it was possible for a claimant to commence proceedings before acquiring the information that would normally cause the limitation period to run, and if so what the Court’s approach to those proceedings should be; and (3) in the event the nine claims had not been commenced within the limitation period, whether the Court should exercise its discretion and allow them under the Limitation Act 1980, s 33.
The Supreme Court dismissed the appeal by a 4-3 majority (Hale, Kerr and Phillips dissenting). It was held that it was a legal impossibility for a claimant to lack knowledge of attributability for the purposes of the Limitation Act 1980 after issuing a claim, and that the correct test for when a claimant was likely to have developed the requisite state of mind to amount to “knowledge” for the purposes of s 14 of the 1980 Act was when he first came to reasonably believe the link between the facts and his injury, that is to say, held a belief which is more than a mere suspicion and is held with sufficient confidence to justify that he should reasonably begin an investigation into whether he had a valid claim.
Application of this test to the facts of the nine lead cases concluded that the claimants each reasonably believed their injuries were capable of being attributed to the nuclear tests more than three years before the claims were issued, particularly in the light of their private and public claims about the cause of their conditions and also that it was common knowledge from at least the 1980s that exposure to fallout could cause many forms of cancer and other serious illnesses. The Rowland Report was held to be evidential, rather than assisting the claimants in acquiring knowledge of the essence of their claim. It was also noted that the claimants had great difficulties in establishing causation, and it would be absurd to allow their claims to proceed on the limitation issue only to then inevitably be struck out.
The dissenting judgments considered that knowledge and belief were different concepts and that a claimant’s subjective belief was not a sensible basis for deciding whether a claim is time-barred. A claimant should be said to have “knowledge” only when that reasonable belief is based on known fact.