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On 4 to 17 November 2011, the Supreme Court heard an appeal in the case of Ministry of Defence v AB & Ors [2010] EWCA Civ 1317, the factual background to which concerns the carrying out of atmospheric nuclear tests by the British Government between 1952 and 1958 in the region of the Pacific Ocean.

At issue is whether a group of 1,011 war veterans are statute-barred under The Limitation Act 1980 from claiming damages for the adverse consequences to their health, including various cancers and infertility, allegedly caused by exposure to ionising radiation during those tests.

The issues before the Supreme Court were whether the Court of Appeal: (1) applied the wrong legal test for knowledge under s 14 of the Act, and (2) adopted the wrong legal approach to the exercise of discretion under s 33 of the Act.

The appeal was heard and will be considered by Lady Hale and Lords Phillips, Walker, Brown, Mance, Kerr and Wilson.

The Act

S 11 of the Act provides a special limitation period in cases of personal injury, being three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured (s 11(4) of the Act).  If the injured person dies before the expiration of the period set out in s 11(4), the applicable limitation period is three years from the later of the date of death or the date of the personal representative’s knowledge (s 11(5) of the Act).

S 14 of the Act provides guidance as to how references in ss 11 and 12 to a person’s date of knowledge are to be interpreted.

S 33 of the Act allows the court to exercise its discretion to allow an action to proceed if it considers it equitable to do so, having regard to, inter alia, all circumstances of the case and in particular to various factors set out in s 33(3) of the Act.

First Instance Decision

At first instance a Group Litigation Order (“GLO”) was made and 10 of the claimants had their claims tried as lead cases in order to decide the limitation issues. On 5 June 2009, Foskett J held that all ten claims could proceed to trial.  Five of the claims were able to do so as of right, as the caimants were deemed to have acquired the relevant knowledge within three years of commencing proceedings, thereby complying with ss 11 and 14 of the Act.  The other five claims were held to be statute-barred for bringing their claims too late, however, the judge exercised his discretion under s 33 of the Act so as to disapply s 11 and allow the actions to proceed.

The defendant Ministry of Defence appealed on the basis that:

1. the provisions of the Act prevented the claims from being valid, as the claims were not brought within the appropriate time frames;

2. the claimants could not demonstrate that the conditions they suffered from were caused by their exposure to ionising radiation; and

3. the claims should be struck out under CPR 3.4 and/or summarily dismissed under CPR 24.2 as there was no reasonable cause of action nor a reasonable prospect of success.

Court of Appeal Decision

In a lengthy and detailed judgment in the Court of Appeal, Smith & Leveson LJJ and Sir Mark Waller ruled against the claimants, blocking 9 of the 10 claims, on the grounds that they had brought their claims too late.  One of the lead claims was allowed to proceed as of right, as the proceedings commenced within 3 years of the diagnosis of illness.  On the question of when knowledge was acquired, the Court of Appeal contended that if a claimant believed that there was a causal connection between his condition and the matters complained of, and that belief was of such strength that it was reasonable to expect him to start investigating his claim, it would amount to knowledge for the purpose of s 14.

It was also determined that in exercising his discretion under s 33 Foskett LJ had given too much consideration to the subjective wishes of the claimants, and failed to take a sufficiently objective approach.   With regard to the strength of the cases, the Court of Appeal suggested that the claimants would have difficulty in establishing causation, as they would have to satisfy the “but for” test and show that the defendant’s tort was more likely than not to be the cause of the injuries, both of which were not straightforward given the medical evidence available at the time.

The prevailing view regarding four of the lead claims was that the judge had set too high a threshold for knowledge.  Further, in those and the other lead cases it was deemed inequitable to exercise the discretion under s 33, primarily because the claims were so weak on the issue of causation.  The Court of Appeal did, however, consider there to be reasonable grounds for bringing the claims, thereby ruling out the possibility of a strike out.  It was also decided that summary judgment should be refused on procedural grounds, as no formal notice had been given.

Appeal before the Supreme Court

Despite the Court of Appeal ruling overwhelmingly in favour of the Defendant, the claimants applied for permission to appeal to the Supreme Court in respect of the interpretation of the Act.  That permission was granted on 28 July 2011, although Lord Phillips urged caution on the part of the claimants, emphasising that it was only permission to appeal that had been granted and nothing more.

Nevertheless, the appeal is of some significance.  Firstly, it will determine whether the test claimants may proceed to a full trial in order to recover damages from the Defendant. Importantly, this will have a direct impact on the remaining parties to the GLO, to whom any findings of law in these test cases are applicable.

In addition, it marks the first consideration at Supreme Court level of the law of limitation in the context of group actions.  The specific issues are:

1. what level of knowledge a claimant must have, under s 14(1)(b) of the Act, in order to determine that his injury was attributable to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

2. the extent to which a court should take the individual merits of a claim in to account as part of its exercise of discretion under s 33 of the Act.