Four members of 1 Crown Office Row (David Evans, Richard Mumford, Matthew Donmall and Isabel McArdle) formed part of a team of counsel acting for the Ministry of Defence in the Atomic Veterans Litigation.
The Supreme Court has handed down a seminal judgment, agreeing with the MoD’s argument that 9 of the 10 lead cases selected for the preliminary issue of limitation are time-barred and should not be allowed to proceed.
The Supreme Court was divided on the issue – Lord Wilson giving the lead judgment with Lords Walker, Brown and Mance concurring and Lord Phillips (President), Lady Hale and Lord Kerr dissenting. One of the key threads that unite the majority opinions is, in the words of Lord Wilson, that “it is a legal impossibility for a claimant to lack knowledge of attributability for the purpose of section 14(1) [of the Limitation Act 1980] at a time after the date of issue of his claim.” It is also of note that even in the view of Lord Phillips, dissenting, the veterans’ claims did not have a reasonable prospect of success.
Between October 1952 and September 1958, the British Government carried out 21 atmospheric nuclear tests in Australia and on Christmas Island in the Pacific Ocean. A group of 1011 claimants claim damages for the adverse consequences to health allegedly resulting from exposure to ionising radiation.
The defendant MoD denies liability and relies on the Limitation Act 1980. The parties agreed that there should be a hearing to decide the limitation issues in ten individual lead cases. At that hearing, Foskett J held that all ten claims could proceed. The judge held that five of the claims were not statute-barred and exercised his discretion to allow the other five to proceed.
The Court of Appeal allowed the MoD’s appeal in all the lead cases except that of the late Mr Sinfield and held that all the other lead cases are statute-barred.
The Supreme Court has now upheld the Court of Appeal’s approach. It is likely that the exact reasoning uniting the majority as well as the strong dissent, including that of the President, will be a topic of legal debate for a considerable time to come.
The judgment of the Supreme Court can be found here.
The judgment of the Court of Appeal can be found here.
The judgment of Foskett J can be found here.