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On 28 July 2011, the Supreme Court granted permission to appeal to a number of ex-servicemen who claim that they were made ill following exposure to radiation during their involvement in British nuclear testing in Australia, Christmas Island and the Pacific Ocean from 1952 to 1958.

In a highly-publicised decision the Supreme Court found that the claims for damages, previously struck out by the Court of Appeal on the grounds that the relevant limitation period for bringing a claim had expired, should be heard by the Supreme Court.

The facts

Throughout the 1950s, around 22,000 service personnel were involved in 21 atmospheric nuclear tests carried out by the British government in the Pacific region. In the following years, many of the servicemen began to experience various health problems, including cancer, skin defects and fertility problems. In December 2004, a total of 1011 former servicemen and civilians issued claims against the Ministry of Defence. Ten lead cases were selected upon which the preliminary issues would be decided.

The main preliminary issue was whether the claims were brought within the relevant limitation period. Pursuant to s 11 of the Limitation Act 1980, claims for personal injury must be brought within three years of the date on which the cause of action accrued or, if later, the date of knowledge of the person injured (as defined by s 14 of the Limitation Act 1980). Alternatively, s 33 of the Limitation Act 1980 provides a discretionary power for the courts to allow a claim to continue where it appears equitable to do so, notwithstanding the fact that the relevant limitation period had expired.

The High Court

The decision of Foskett J in the High Court at first instance found in favour of the claimants. It was held that five of the ten lead claimants did not possess the requisite knowledge of the possible cause of action before the three year limitation period had commenced. The claims of the other five lead claimants were also allowed to proceed under the discretionary power set out at s 33 of the Limitation Act 1980, on the basis that, inter alia, to prevent the claims from continuing would prevent the ventilation of important issues and lead to an apparent injustice in the eyes of the claimants.

The High Court also dismissed an application from the Ministry of Defence for summary judgment, which had been made on the grounds that there would be no viable method by which the claimants would be able to establish causation between the health problems they had suffered and the damage that may have been caused by any exposure to radiation.

The Court of Appeal

The Ministry of Defence subsequently appealed against the decision of the High Court. Partially allowing the appeal, a Court of Appeal panel of Smith LJ, Leveson LJ and Sir Mark Waller once again dismissed the application for summary judgment on procedural grounds but found against the claimants on the points on limitation. On the issue of perceived knowledge of the claim, the Court found that for the purposes of s 14 of the Limitation Act 1980, a claimant need only have ‘enough knowledge for it to be reasonable to expect him to set about investigation‘. It was held that the claimants, having been exposed to radiation and knowing that such exposure could lead to health problems, would all have had the knowledge necessary to start the limitation period once the various symptoms had started to develop.

Further, the High Court had erred when applying the s 33 discretionary power by taking into account any perception of injustice which may or may not have been held by the claimants had their claim not been allowed to continue. The primary consideration in deciding whether to exercise the s 33 discretion should be a ‘broad merits test’. In the claimants’ cases, the level of difficulty in establishing causation was held to be a determining factor in this test, and accordingly it would not be equitable to utilise the s 33 power. Consequently, as only one of the ten lead claimants commenced his claim within the requisite limitation period (i.e. within three years of diagnosis), the other nine lead claimants were statute-barred and should not be allowed to continue with their claims.

Issues

The decision of the Supreme Court to grant permission to appeal represents another step towards resolution of a dispute that has its roots over fifty years ago. Whilst the decision to grant permission undoubtedly represents a blow struck in favour of the claimants, Lord Phillips was equally keen to avoid giving the claimants any false optimism, emphasising the fact that the decision of the Court of Appeal had not been overturned. Nevertheless, the Supreme Court will be asked to provide clarity on the following issues:

1.                   The correct legal test to be applied in ascertaining knowledge for the purposes of s 14 of the Limitation Act 1980; and

2.                   The correct legal test to be applied in the exercise of the discretionary power set out at s 33 of the Limitation Act 1980.