News

Atomic Veterans in Court of Appeal
22 November 2010

Mark James acted for the claimants in a group action against the Ministry of Defence arising out of alleged exposure of over one thousand servicemen to ionising radiation from atomic and hydrogen bomb tests on Christmas Island and in Australia during the 1950s. Limitation was tried as a preliminary issue using ten lead cases. Last year Foskett J. held that five of the lead cases were not statute barred at all (due to their late 'date of knowledge'). While the other five were out of time, the judge exercised his discretion under s. 33 of the Limitation Act 1980 to permit them to proceed. For good measure the judge said that, if he was wrong on the five 'date of knowledge' cases he would have exercised his s. 33 discretion to permit them to proceed. The Court of Appeal allowed the Ministry of Defence's appeal in nine out of the ten appeals. Foskett J.'s findings of fact on the 'date of knowledge' point were overturned. On the s. 33 point, the Court of Appeal agreed with the judge that a fair trial was still possible (because of the extensive archive of documents relating to the tests) but it was held that Foskett J. had failed to give adequate weight to the broad merits of the claim and that, since all nine of the cases were weak on causation, he should have refused to exercise the s. 33 discretion. In the one case that succeeded the Court of Appeal rejected the MoD's submission that it should have been summarily dismissed because it was so weak on causation. The claimants are considering whether to appeal to the Supreme Court.  The case may be found at [2010] EWCA Civ 1317.