Queen’s Bench Division

Published June 9, 2009

AB and Others v Ministry of Defence

Before Mr Justice Foskett

Judgment June 5, 2009

Claims for compensation by former servicemen in relation to exposure to ionising radiation as a result of nuclear tests carried out in the 1950s were not to be struck out either as time-barred or as having no reasonable prospect of success.

Mr Justice Foskett so held in the Queen’s Bench Division when determining preliminary issues in 10 lead cases within a group action brought on December 23, 2004, or, in some cases, later dates, by 1,011 claimants, or, in some cases, the dependants or estates of deceased persons, against the Ministry of Defence for compensation for injury, disability or death in consequence of exposure to ionising radiation as a result of their presence near, or involvement in the aftermath of nuclear tests carried out by the British Government in the 1950s.

Mr Benjamin Browne, QC, Ms Catherine Foster and Mr Mark James for the claimants; Mr Charles Gibson, QC, Miss Leigh-Ann Mulcahy, QC and Mr Adam Heppinstall for the ministry.

MR JUSTICE FOSKETT emphasised that at this stage factual matters had not been tested by reference to a full analysis of the evidence; the current task necessarily involving making a number of assumptions about what might be established at a future trial.

The broad nature of the limitation issues was that a claimant had three years from the commencement of the period specified in the Limitation Act 1980 in which to institute proceedings, and similar rules applied to dependants and personal representatives. The start of the period depended on when relevant knowledge had been acquired.

Where a claim was statute-barred, the court had a discretion under section 33 of the 1980 Act to disapply the time limit. Separately, the court had power to strike out a claim as having no reasonable prospect of success.

His Lordship considered the background history, including the underlying science relating to nuclear physics and to essential cytogenetics, and several broad areas of the evidence.

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