News

Atomic veterans granted permission to appeal to the Supreme Court on various limitation issues
29 July 2011

This is a group action involving 1,011 claimants who allege that they were exposed to ionising radiation during the course of the British atom bomb and hydrogen bomb tests in Australian and the South Pacific in the 1950s. The defendant (Ministry of Defence) took a preliminary limitation point. Ten lead cases were selected for the trial of the limitation issue. On 5 June 2009 Foskett J. held that five of the claimants did not have 'knowledge' [within s. 14 of the Limitation Act 1980] more than 3 years before the issue of proceedings; that five of them did have knowledge but the court would exercise its discretion to extend time. In the alternative, the judge held that, if he was wrong on the 'knowledge' point, he would have exercised his s. 33 discretion in favour of the five claimants whose claims he had held were not statute barred: [2009] EWHC 1225 (QB). On 22 November 2010 the Court of Appeal held that Foskett J. had applied too high a standard for 'knowledge' and had wrongly exercised his discretion under s. 33 of the Limitation Act 1980. Applying the correct test the Court of Appeal held that nine of the ten cases were issued out of time and refused to extend time under s. 33 in all nine cases: [2010] EWCA Civ 1317.

On 28 July 2011 a panel consisting of Lord Philips, Baroness Hale and Lord Brown granted the nine claimants permission to appeal to the full Supreme Court. The principal points raised are (a) whether a claimant is fixed with 'knowledge' [within s. 14 of the Limitation Act 1980] when he believes that his injury is capable of being caused by the defendant's negligence but contemporary medical science did not support a link and where the link was only established much later, when medical science moved on; and, (b) whether the Court of Appeal (reversing the trial judge) was right to hold that the weakness of the claimants' case on causation should be the determining factor when refusing to exercise the discretion to extend time under s. 33 of the Limitation Act 1980 notwithstanding the finding (of both the trial judge and the Court of Appeal) that a fair trial was still possible. The Supreme Court will also consider whether the trial judge's 'preferred view' that a claimant did not have 'knowledge' until there was some credible expert evidence that he had been exposed to ionising radiation and until he appreciated that such exposure could have occurred by the inhalation and ingestion, well after the detonation, of material or products contaminated by fall-out.

A seven judge panel will hear the full appeal in November 2011.