Ministry of Defence v AB and others

For limitation purposes, an injury is attributable to an act or omission when there is a real, rather than fanciful, possibility of a causal link. Knowledge does not require evidence sufficient to prove causation. It ordinarily exists when the claimant reasonably believes in that possibility with enough confidence and substance to justify investigating a claim.

A claimant pursuing issued personal injury proceedings cannot maintain that the knowledge necessary to start time running remained absent when the proceedings were issued. When considering whether to disapply the time limit under section 33 of the Limitation Act 1980, the court may give decisive weight to the absence of any real prospect of proving causation.

Servicemen who had participated in atmospheric nuclear tests, and representatives of deceased servicemen, alleged that exposure to ionising radiation had caused cancer and other injuries. Nine lead claims were selected from group litigation for determination of limitation issues.

Foskett J held that five claims were brought in time and exercised the discretion under section 33 of the Limitation Act 1980 in favour of the other five lead claims before him. The Court of Appeal, [2010] EWCA Civ 1317, held that each of the nine claims before the Supreme Court was out of time and declined to disapply the limitation period.

The central questions were what amounts to knowledge that an injury is attributable to an alleged act or omission under sections 11 and 14, and whether the claims should nevertheless proceed under section 33.

1. Appeals dismissed by a majority of four to three. Lord Wilson, Lord Walker, Lord Brown and Lord Mance concluded that all nine appellants had acquired the knowledge required by sections 11 and 14 of the Limitation Act 1980 more than three years before the relevant dates. The Court of Appeal was also entitled to refuse relief under section 33.

2. Knowledge that an injury is attributable to an alleged act or omission concerns a real possibility of causal connection. It does not require evidence capable of proving causation at trial. The claimant ordinarily has the requisite knowledge when a reasonable belief is held with sufficient confidence and substance to justify embarking on the preliminary investigation of a claim. The later difficulty of collecting evidence or establishing causation does not postpone the limitation period.

3. Per Lord Wilson, supported principally by Lord Mance and Lord Brown, the limitation inquiry assumes for its purposes the cause of action and the relevant pleaded facts. A claimant who issues and pursues a personal injury claim cannot thereafter contend that the knowledge of attributability necessary to start time running was still absent when the claim was issued. Lord Walker reached the same practical conclusion, although he regarded the assumption of a cause of action as unnecessary to the statutory analysis.

4. Section 14(3) forms an integral part of the inquiry. Actual knowledge concerns the claimant's state of mind, while constructive knowledge includes facts reasonably observable or ascertainable, with appropriate expert help where reasonably required. Consulting a solicitor or expert does not automatically establish the date of knowledge. The relevant distinction is between expert assistance needed to acquire knowledge of the statutory facts and evidence later obtained to prove the claim.

5. Each appellant's statements, compensation campaign, pension application or proceedings demonstrated, before the relevant three-year period, a reasoned belief that the injury was capable of being caused by exposure during the tests. The later Rowland report was evidential rather than essential to knowledge.

6. The Court of Appeal was entitled to re-exercise the discretion under section 33. The available material showed that the claims had no real prospect of establishing causation. Permitting them to proceed would merely have exposed them to likely summary judgment.

7. Lord Phillips, Lady Hale and Lord Kerr dissented. They considered that belief required an objective factual or evidential foundation before it could become knowledge. They would have held that the claims were not time-barred, although they differed over whether the Rowland report supplied the necessary foundation.

1. United Kingdom Supreme Court: By a majority of four to three, dismissed the nine appeals and affirmed the Court of Appeal's conclusions on limitation and section 33.
2. Court of Appeal: In [2010] EWCA Civ 1317, held that all nine claims were commenced after expiry of the relevant limitation periods, re-exercised the section 33 discretion, and refused to permit them to proceed.
3. High Court: Foskett J held five of the ten lead claims to be in time and disapplied the limitation period in the other five. The claim concerning Mr Sinfield was subsequently accepted not to be time-barred and was not before the Supreme Court.