Ministry of Defence v AB [2012] UKSC 9 (14 March 2012)

Veterans exposed to radiation during 1950s nuclear tests sued the Ministry of Defence for resulting illnesses. The MoD argued the claims were time-barred. The Supreme Court ruled against the veterans, clarifying that the limitation period begins when a claimant has reasonable belief, not certainty, that their injury is attributable to the defendant's actions.

Facts

The claimants were veterans of the British nuclear testing programme conducted in Australia and the South Pacific between 1952 and 1967. They, or their relatives, brought claims against the Ministry of Defence (MoD) alleging that exposure to ionising radiation during their service had caused various illnesses, primarily cancers and other serious conditions, as well as affecting their children. The claims were initiated between 2004 and 2009. The MoD applied to have the claims struck out, arguing they were time-barred under the Limitation Act 1980, as the three-year limitation period for personal injury claims had long expired.

Issues

The central legal issues before the Supreme Court were:

1. The proper construction of the ‘date of knowledge’ test under section 14 of the Limitation Act 1980. Specifically, when did the claimants have the requisite knowledge that their injuries were ‘significant’ and ‘attributable in whole or in part’ to the acts or omissions of the MoD?
2. Whether, if the claims were found to be statute-barred, the court should exercise its discretion under section 33 of the Limitation Act 1980 to disapply the time limit, considering the balance of prejudice between the claimants and the defendant.

Judgment

The Supreme Court, by a 3-2 majority, allowed the MoD’s appeal, holding that the claims were statute-barred and that it would not be equitable to disapply the time limit.

Date of Knowledge (Section 14)

Lord Wilson, giving the lead judgment, clarified the meaning of ‘knowledge’ for the purposes of starting the limitation clock. He distinguished between knowledge that an injury is attributable to the defendant and knowledge that one has a legally viable case. The test is the former. He held that a claimant possesses the necessary knowledge when they have a belief, held with reasonable confidence, that their injury could be attributed to the defendant’s acts or omissions, sufficient to justify embarking on an investigation.

In order to start time running, the claimant’s knowledge must be such that he is no longer in a state of blissful, or equally of anxious, ignorance. He must have a confidence in his belief that his injury is capable of being attributed to the defendant’s act or omission which is reasonable for him to have, not when he has been able to assemble all the evidence for a successful claim…

Applying this test, the majority found that the lead claimants had acquired the requisite knowledge more than three years before they issued proceedings. Public discourse, media reports, and the activities of veterans’ associations over many years meant that the claimants knew enough to begin investigating a potential claim well before the relevant limitation cut-off dates.

Discretion to Disapply (Section 33)

The Court then considered whether to exercise its discretion under section 33 to allow the claims to proceed. This required balancing the prejudice to the claimants of being unable to pursue their claims against the prejudice to the MoD in defending a ‘stale’ claim. Lord Wilson emphasised the extreme evidential difficulties the MoD would face in defending claims relating to events that occurred up to 60 years prior.

The irretrievable loss of the MoD’s evidence seems to me extreme… Not only can a defendant not properly defend a claim without access to the relevant documents; but he cannot properly explore the prospects of settlement of it… the cogency of the evidence likely to be adduced by the claimants must be gravely diminished by the passage of time and… the evidence likely to be adduced by the MoD must suffer from a similar, and in my view far more serious, diminution.

The majority concluded that the prejudice to the MoD was so severe that a fair trial would not be possible for most of the claims, and therefore it would not be equitable to disapply the time limits.

Dissenting Judgments

Lady Hale and Lord Kerr dissented. Lady Hale argued for a more fact-sensitive and claimant-friendly approach, suggesting that the point at which a claimant’s ‘anxious ignorance’ turns into knowledge is a high threshold. She highlighted the unique vulnerability of the claimants and the power imbalance between them and the state. She would have allowed the claims to proceed to trial to determine the limitation issues based on full evidence and would have been more willing to exercise the section 33 discretion in their favour.

Implications

The decision provides significant clarification on the ‘date of knowledge’ for limitation purposes in complex personal injury claims. It establishes that the clock starts running from a point of reasonable belief and justification for investigation, rather than from a point where a claimant has gathered sufficient evidence to be confident of success. The judgment also underscores the difficulty claimants face in persuading a court to exercise its section 33 discretion to disapply time limits in very old (‘stale’) claims, where the defendant can demonstrate significant evidential prejudice caused by the delay.

Verdict: The Ministry of Defence’s appeal was allowed, and the claimants’ cross-appeal was dismissed. The claims were struck out as statute-barred under the Limitation Act 1980.

Source: Ministry of Defence v AB [2012] UKSC 9 (14 March 2012)