Dear Colleagues,

The UK Supreme Court has today given judgment in Ministry of Defence v AB & Ors [2012] UKSC 9 (html version here: http://www.bailii.org/uk/cases/UKSC/2012/9.html), a case involving veterans of nuclear tests from the 1950s. It is an important decision on the law of limitation. By a majority of 4:3 (with lengthy dissenting opinions), the Court holds that the veterans’ claims are barred by ss 11 and 14 the Limitation Act. The case turns on the interpretation of “knowledge” under the Act. Lord Wilson for the majority concludes at [25]:

In my view the Court of Appeal was correct to conclude that all nine of the appellants had the requisite knowledge prior to the period of three years relevant to them. For the facts of each case which I have distilled in the above paragraphs drive a conclusion that, prior to the relevant period, each reasonably believed that the injury was able to be attributed to the nuclear tests conducted by the respondent between 1956 and 1958. Their many private and public statements down the years about the cause of their conditions; the nation-wide campaign for compensation pursued for so long and with such vigour through the BNTVA; the applications for war pensions; and the applications to the ECtHR: all these were the product of reasonable beliefs. The appellants held them with sufficient confidence to have made it reasonable for them to begin to investigate whether they had valid claims against the respondent. In asking the court to allow them further time in which to obtain it, Mr. Dingemans concedes that even today the appellants lack evidence with which to establish a credible case that the injuries were caused by the tests; and so it follows that, irrespective of when they began to investigate whether they had valid claims against the respondent, they would probably have learned that, as remains the position today, their claims had no reasonable prospect of success. But that is entirely irrelevant to an inquiry under sections 11(4) and 14(1): once the requisite knowledge has arisen, the difficulty of actually establishing the claim confers no right thereunder to a further, open-ended, extension of the time within which the action must be brought. In so saying I have returned to the irrelevance of evidence to an inquiry under the subsections.

Nor was it an appropriate case to exercise the s 33 discretion. The minority (Lord Phillips, Lady Hale and Lord Kerr) would have permitted the claims to proceed, by virtue of various inventive interpretations of the knowledge requirement.

Best wishes,

James

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James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple

Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom
 
Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk

Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx