AB & Ors v Ministry of Defence

In a group personal-injury action arising from historic nuclear tests, limitation issues had to be determined individually. The court held that the relevant injury under the Limitation Act 1980 is not necessarily the first injury alleged, particularly where later injuries may have distinct mechanisms and emerge much later. Knowledge requires more than a vague suspicion: the claimant must know, or be fixed with knowledge, that a significant injury was attributable in whole or in part to the defendant’s acts or omissions. The discretion under section 33 is unfettered and requires a fair assessment of all the circumstances, including the possibility of a fair trial. At a preliminary stage, claims should not be struck out as bound to fail on causation where causation, divisibility and the applicable legal approach remain fact-sensitive and the evidence is incomplete.

The claim concerned 1,011 former service personnel and other participants in British atmospheric nuclear tests conducted between 1952 and 1958, together with claims by estates and dependants. Ten lead cases were selected to determine limitation issues. The Ministry of Defence contended that the claims were statute-barred under the Limitation Act 1980 and that the causation cases were bound to fail under the ordinary principles in Wilsher v Essex Area Health Authority. The claimants relied, among other matters, on later scientific evidence concerning radiation exposure, fallout and chromosomal translocations. The central questions were when each claimant acquired the statutory knowledge required by sections 11, 12 and 14, whether section 33 should be applied, and whether any claims should be struck out before a substantive trial.

1. Disposition. The court refused to strike out any claim as having no reasonable prospect of success. Five lead cases were held not to be statute-barred. Five were held statute-barred, but the discretion under section 33 was exercised in every such case in favour of allowing the claim to proceed. The claims could therefore continue to trial.
2. Knowledge. The statutory test requires knowledge that the injury was significant and attributable in whole or in part to the relevant act or omission. A generalised suspicion is insufficient, although a sufficiently firm belief may amount to knowledge even without expert confirmation. Constructive knowledge depends on what it was reasonable for the particular claimant to ascertain and do. The court’s preferred view was that credible evidence of exposure above background radiation, and of a connection with the alleged injuries, emerged only with the Rowland study. The authorities did not permit that view to be applied uniformly, so each lead case had to be determined on its facts.
3. The injury in question. The first injury does not invariably determine limitation for every later injury. In an unusual case involving potentially distinct injuries and mechanisms, the court may identify the later injury relied upon by the claimant as the relevant injury under section 14. The approach in KR v Bryn Alyn Community Holdings Ltd was not treated as establishing an inflexible universal rule.
4. Section 33. The discretion is unfettered and means no more, but no less, than fairness. The court must consider all the circumstances, including delay, evidential cogency, the defendant’s conduct, the claimant’s promptness and advice received. Here, the extensive contemporaneous documentation, prior public scrutiny and the burden of proof on the claimants meant that a fair trial remained possible despite the deaths of many witnesses. The emergence of the Rowland report was a material factor supporting the exercise of the discretion.
5. Causation and strike out. Causation is essentially a question of fact, while the applicable legal test may develop incrementally. The divisibility or indivisibility of an injury may itself be fact-sensitive. Where the evidence is incomplete and the legal position may involve an analogical development of Fairchild v Glenhaven Funeral Services Ltd, summary disposal is inappropriate. The court made no final findings on breach, exposure or causation.