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

Veterans of British nuclear tests claimed injuries from radiation exposure. The Supreme Court considered whether their claims were time-barred under the Limitation Act 1980, specifically examining when 'knowledge' of attributability arose for limitation purposes. The majority held that subjective belief could constitute knowledge, dismissing the appeals.

Facts

Between 1952 and 1958, the Ministry of Defence conducted 21 thermonuclear device tests in Australia and the South Pacific, involving approximately 22,000 servicemen. Many veterans subsequently developed illnesses, including cancers, which they attributed to radiation exposure during the tests. A group of over 1,000 claimants commenced proceedings, with nine lead cases selected for determination of limitation issues. The veterans alleged breach of duty by the MoD in exposing them to radiation. The MoD denied that veterans were exposed to harmful radiation levels and that any exposure caused their injuries.

The Rowland Report

In 2007, a study on New Zealand veterans (the Rowland report) showed chromosome aberrations indicative of exposure to low-dose radioactive fallout, providing the first objective scientific evidence supporting the possibility of radiation exposure.

Issues

The principal issues were:

• Whether ‘knowledge’ for the purposes of sections 11 and 14 of the Limitation Act 1980 could be equated with subjective belief, or whether it required belief founded on objective facts
• Whether claims commenced before the claimant had acquired such knowledge were time-barred
• Whether discretion under section 33 should be exercised to permit the claims to proceed

Judgment

Majority Decision (Lords Wilson, Walker, Brown and Mance)

The majority dismissed all nine appeals, holding that the veterans’ claims were time-barred. Lord Wilson, delivering the leading majority judgment, held that ‘knowledge’ for section 14 purposes means ‘reasonable belief’ held with sufficient confidence to justify embarking on the preliminaries to issuing proceedings. He rejected the proposition that knowledge required belief founded on objective evidence.

Lord Wilson stated that it was a legal impossibility for a claimant to lack knowledge of attributability after issuing proceedings. By verifying their claim form with a statement that they believed the facts to be true, claimants necessarily asserted the requisite knowledge.

Applying this test, the majority found that each appellant had acquired the requisite knowledge more than three years before commencing proceedings, based on their longstanding beliefs, membership of the British Nuclear Tests Veterans Association, applications for war pensions, and public statements about their conditions.

On section 33, the majority upheld the Court of Appeal’s refusal to exercise discretion. Lord Wilson noted that the claims had no real prospect of success on causation, and it would have been aberrant to permit them to proceed only to face summary judgment.

Minority Decision (Lords Phillips, Kerr and Lady Hale)

The minority would have allowed the appeals. Lord Phillips held that knowledge under section 14 requires belief founded on known fact, not mere subjective belief however firmly held. Since there was no scientific evidence supporting the veterans’ beliefs until the Rowland report, they lacked the requisite knowledge when proceedings were commenced, and their claims were not time-barred.

Lord Kerr agreed, emphasising that the statute requires knowledge of facts, and that firm belief without objective factual foundation cannot constitute such knowledge.

Implications

This decision confirms that for limitation purposes under the Limitation Act 1980, ‘knowledge’ of attributability can be equated with reasonable belief held with sufficient confidence to justify embarking on investigations into a claim. The decision emphasises that once proceedings are issued, a claimant cannot assert lack of knowledge. The case also illustrates the difficulties facing group litigation claimants where scientific evidence of causation remains uncertain, and confirms that lack of realistic prospects of success is relevant to the exercise of discretion under section 33.

Verdict: Appeals dismissed. The majority held that all nine claims were time-barred under sections 11 and 14 of the Limitation Act 1980, and that the Court of Appeal was correct to decline to exercise discretion under section 33 to permit the claims to proceed.

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