Case of the week: Civil procedure

Nuclear testing case ran aground due to the Limitation Act
Nuclear testing case ran aground due to the Limitation Act

It was a legal impossibility for a claimant to lack such knowledge after they had issued proceedings.
Appeals dismissed

The appellants challenged the 2010 Court of Appeal (CoA) ruling that their personal injury claims against the MoD were time-barred.

The nine lead claimants represented more than 1,000 veteran servicemen who had been involved in thermonuclear tests carried out by the MoD in the South Pacific in the 1950s. They claimed that during the testing they had been exposed to radiation and that as a result they had suffered illness, disability or death.

The MoD denied that they had been exposed to radiation and denied that their injuries had been caused by exposure to radiation. Most of the claims had been issued in 2005, by which time the veterans had come to believe that they had been exposed to radiation. However, they asserted that it was not until 2007, when
an expert’s report provided some evidence of their having been exposed to radiation, that they acquired the knowledge required by the Limitation Act 1980.

Limitation was determined as a preliminary issue. At first instance the judge held that the claims were not time-barred. The CoA overturned that ruling, holding that the claimants had acquired the relevant knowledge more than three years before issuing their claims. The issues were: whether it was possible for a claimant to begin proceedings before having acquired the knowledge required by the Limitation Act 1980 that their injuries were attributable to the defendant’s negligence; what ’knowledge’ meant for the purposes of the Limitation Act; and whether the claims were time-barred.
Appeals dismissed

By the time a claimant issued proceedings they have to have knowledge of the fact that their injuries were attributable to the defendant’s negligence, nuisance
or breach of duty. It was a legal impossibility for a claimant to lack such knowledge after they had issued proceedings.

It was heretical to assert that a claimant could escape the time bar by establishing that, even after their claim had been issued, they remained in a state of ignorance
as to whether their injuries were attributable to the defendant.

As to the meaning of knowledge, Lord Donaldson’s formulation in Halford v Brookes (No 1) (1991) was to be endorsed: a claimant was likely to have acquired knowledge of the required facts when they first came reasonably to believe them, Halford approved. A claimant’s belief had to have been held with sufficient confidence to justify embarking on the preliminaries to the issue of proceedings.

There was a distinction between a claimant’s knowledge that they had a real possibility of a claim, and the assembly by them and their legal team, with the help of experts, of material justifying the commencement of proceedings with a reasonable prospect of success.

While it was undesirable for a court deciding a limitation issue to have detailed regard to the evidence that the claimant put forward, the CoA had been in the unusual position of having before it a mass of material that enabled it to assess with confidence the claimants’ prospects of establishing causation. The claims had no real prospect of success.

This case was brought by servicemen who claimed injuries from radiation following their presence at nuclear weapon tests in the 1950s.

Although they all suffered from cancers and although it had been known since the 1950s that fallout from radiation could cause such illness, the claimants had no reasonable prospect of proving that their cancers had derived from radiation exposure during the tests. This is a problem in any toxic tort case.

The claimant is exposed to a chemical or other toxin. They become ill. Naturally they attribute their illness to the exposure. They may be able to show fairly easily that the chemical to which they were exposed is capable of causing the illness from which they suffer. But it is much harder to show that the relevant exposure actually did cause that illness.

Attribution for limitation purposes is a much lower test.

The majority of the court considered that the claimant does not need evidence to back up their knowledge. The test of “reasonable belief” is to be preferred: a belief sufficient to justify embarking on a claim.

The result for a toxic tort claimant is that while they may easily come to a reasonable belief shortly after becoming ill, it may take decades to be in a position to prove their case. The courts have ruled out an extension to the Fairchild principle. Thus, unless legislation is enacted to deal with this situation, toxic tort claimants are unlikely to succeed in a claim.

John Bates, barrister,
Old Square Chambers

For the appellant
AB & Ors

l James Dingemans QC,
3 Hare Court
l Catherine Foster,
Crown Office Chambers
l Nadia Whittaker,
Crown Office Chambers
l Mark James,
Temple Garden Chambers
l Neil Sampson,

For the respondent
Ministry of Defence

l Charles Gibson QC,
Henderson Chambers
l Leigh-Ann Mulcachy QC,
4 New Square
l Adam Heppinstall,
Henderson Chambers’
l David Evans,
One Crown Office Row