The law on limitation could be described as tidal. A judgement comes along that seemingly creates a clear, defined coastline, before another judgement comes along that reveals new pitfalls and considerations.
Two fairly recent group litigation cases – known as The Atomic Veterans Litigation and the Miner’s Knee Litigation, could be described as those types of judgements that go on to reveal more hidden depths and considerations.
Between 1952 and 1958, the Ministry of Defence (MOD) carried out experimental nuclear tests of atmospheric explosions, involving service personnel. A group litigation action, of 1,011 claimants, was made against the MOD alleging that radiation from the tests had caused health issues in the service personnel, and in some cases, death. Limitation was tried as a preliminary issue through the medium of 10 lead cases.
At first instance, Foskett J (in June 2009) held that five cases were still in time and five were statute-barred but could proceed due to his exercise of the discretion under s33 of the Limitation Act 1980 (the Act). He declined to strike out or give summary judgment on the claims of his own volition. The MOD appealed in relation to nine of the lead cases.
In November 2010, the Court of Appeal (CoA) unanimously allowed the appeal finding all the appealed claims to be out of time. Its decision under s.33 focused principally, though not exclusively, on the merits, and noted that the claims, “faced very great difficulties,” on causation. The claimants appealed.
The Supreme Court was asked to consider when the claimant’s knowledge had arisen – and, in this context, whether a reasonable belief could be construed as knowledge of injury, as well as the merit focused decision of the CoA.
The Miners Knee Litigation
This case involved eight miners who brought claims against the Secretary of State for Energy and Climate Change following working conditions in coalmines between 1954 to 1994. The miners alleged that working conditions in the mines had caused osteoarthritis of the knee.
The claims were issued in 2008, and all the limitation periods for the claims had expired. The remaining issue was the exercise of discretion under s33 of the Limitation Act 1980. At first instance, the court declined to extend the limitation period and the litigation proceeded to the CoA.
In any claim for limitation, the court will be concerned with the following key matters:
(i) When did the claimant’s cause of action accrue?
(ii) Was this within three years of the date of issue of proceedings?
(iii) If not, when was the claimant’s date of knowledge within the meaning of s14 of the Limitation Act 1980, arise?
(iv) Was that more than three years ago? If so, is it equitable to exercise the discretion vested in the court pursuant to s33 of the Act?
With regards to point (iv) the court would consider in general;
In the Atomic Veterans Litigation, the Supreme Court considered, by majority, that belief could be equated to knowledge, provided it was held with a reasonable degree of confidence. A claimant could be said to have acquired knowledge within the meaning of s14 of the Limitation Act, when he reasonably held a belief as to the cause of his injury. There was a dissenting view within the Supreme Court, that belief could not be equated with knowledge and that time could not be said to start running simply because a claimant had belief of an injury.
The MOD argued that it was common knowledge, from at least the 1980s, that exposure to radiation could cause health problems, and there were various statements about the condition. It was reasonable for the claimants to believe their injuries were attributable to the nuclear testing before the three years of the issue of their claims. This view was upheld by the court.
The Supreme Court also went on to express doubts as to the overall merits of the claims. The majority, Lord Kerr dissenting, agreed with the actions taken by the CoA in considering the merits of the claims in detail.
This was a remarkable step. The analysis of the evidence was clearly a decisive factor in both courts' refusing to exercise their discretion.
Previously, all a court was required to do was take a broad brush approach to the overall merits of the case: Dale v British Coal Corporation [1992] PIQR P373, CA per Stuart-Smith LJ at P381:
“But where as here the limitation issue is tried and determined before the merits of the claim, the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this type of litigation should have no difficulty in doing so.”
Both higher courts went a step further. They provided their view, prior to a full trial, on the likelihood of success of the claimants.
The Miners Knee Litigation saw a re-affirmation by the court that the overall prospects of success of the claim should be taken into account when considering s33. If a claim is weak there will likely be significant prejudice to the defendant in allowing the claim to proceed, whilst a strong claim ought to be allowed.
The CoA again considered both causation and breach. The cogency of the evidence had been affected – the working environment, the ever-changing working procedures and the dearth of available witnesses.
Less emphasis was placed on causation, and more on the difficulties the claimants would have faced in proving breach of duty if the claim was brought in time. he delay meant it would be impossible to try the claim fairly, especially in view of the closure of the mines, redundancy of the workforce and lack of documentary evidence.
So what conclusions can be drawn from these two cases? Overall, they must be considered positive for defendants, given that the claims did not proceed.
Lord Walker noted in Atomic Veterans that s14 is not a mechanism by which claimants can, “keep their claims on ice.” Similarly, The CoA in the Miners’ Knee Litigation also commented that, “it is not the function of s33 to preserve indefinitely the ability to bring a claim.”
In preparing for a limitation trial, a defendant should investigate causation, rather than limiting enquiries to the availability of documents or witnesses as many investigations do.
Medical evidence could also be a useful tool, even if limited to an initial review of the claimant’s records, if it raises significant doubt as to the merits of the claim. he more a claimant’s case can be undermined evidentially, the less likely the court will permit it to continue.
The clarification in respect of knowledge is also useful. The statements so commonly seen – “I did not know I had a claim until I saw my solicitor (or medical expert, or an advert in the paper etc)”, previously seen as tenuous, are now clearly unsustainable. A reasonable belief must be demonstrated and can be readily inferred through actions such as the use and provision of protective equipment, or matters that must be stated to be of common knowledge – i.e exposure to noise could cause deafness.
Limitation remains a useful tool for defendants and their insurers, despite the ever-shifting sands on which it is based.
Helen Tinsley
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