AB & Others v Ministry of Defence (No 2)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT,Mr Justice Foskett |
| Judgment Date | 05 June 2009 |
| Neutral Citation | [2009] EWHC 1225 (QB) |
| Docket Number | Case No: TLQ/08/0023 |
| Court | Queen's Bench Division |
| Date | 05 June 2009 |
[2009] EWHC 1225 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Justice Foskett
Case No: TLQ/08/0023
Benjamin Browne QC and Catherine Foster & Mark James (instructed by Rosenblatt Solicitors) for the Claimants
Charles Gibson QC and Leigh-Ann Mulcahy QC, David Evans & Adam Heppinstall (instructed by Treasury Solicitors) for the Defendants
Hearing dates: 21 st, 22 nd, 23 rd, 26 th, 27 th, 28 th, 29 th January and 4 th, 5 th, and 6 th February 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
CONTENTS OF JUDGMENT
| Section | Item | Paragraph Number(s) |
| 1 | The Issue | 1–11 |
| 2 | The historical context | 12–29 |
| 3 | The relevant nuclear tests | 30–36 |
| 4 | The men who went to the tests and the scale of the operations | 37–45 |
| 5 | The commencement of these proceedings and the broad nature of the limitation issues | 46–55 |
| 6 | The essential case that the Claimants seek to advance | 56–87 |
| 7 | The Defendant's essential response to the Claimants' case | 88–91 |
| 8 | The evidence underlying these proceedings | 92–98 |
| 9 | Breach of duty and causation – a general observation on the law | 99–101 |
| 10 | The correct approach to the Lead Cases | 102–104 |
| 11 | The underlying science – A. The essential nuclear physics – ionising radiation
B. Essential cytogenetics | 105–106 108–110 111–113 114–115 116–119 120–122 123–131 132–143 144–147 148–150 151–158 |
| 12 | The effects of ionising radiation on health | 159–182 |
| 13 | Causation – the evidential issues | 183–187 |
| 14 | Strike out/abuse of process
| 188–222 223–237 238–241 |
| 15 | Some broad areas of the evidence
| 242–244 245–254 255–325 326–338 339–348 349–375 376–391 388–391 392–400 401–441 |
| 16 | The limitation arguments – general
| 442–445 446–466 467–470 471–472 473–481 482–484 485–513 514–521 522–525 |
| 17 | Section 33 – some general matters
(a) Alternative claim (b) Diversion of resources
| 526–534 535–538 539–540 541–555 556–557 558–560 561 562–564 565–567 568–570 |
| 18 19 | Section 33 in this case – some potentially relevant factors
The Lead Cases: Roy Keith Ayres (i) knowledge (ii) section 33 John Allen Brothers (decd) (i) knowledge (ii) section 33 Kenneth McGinley (i) knowledge (ii) section 33 Michael Richard Clark (decd) (i) knowledge (ii) section 33 Andrew Dickson (decd) (i) knowledge (ii) section 33 Arthur Hart (i) knowledge (ii) section 33 Christopher Edward Noone (i) knowledge (ii) section 33 Eric Ogden (decd) (i) knowledge (ii) section 33 Pita Rokoratu (i) knowledge (ii) section 33 Bert Sinfield (decd) (i) knowledge (ii) section 33 | 571 572–611 612–617 618–619 620–625 626–627 628–644 645–650 651–652 653–674 675–681 682–686 687–707 709–715 716–719 720–737 738–742 743–746 747–758 759–765 766–768 769–785 786–791 792–793 794–807 808–812 813 814–823 824–829 830–831 832–845 846–850 851–852 853–860 861–866 |
| 20 | Overall conclusion on the Lead Cases | 867–870 |
| 21 | Broad concluding observations | 871–872 |
| 22 | Resolution of the case/mediation | 873–876 |
| 23 | Ministerial Statement on 21 April 2009 | 877–880 |
| 24 | Parting observation | 881 |
| 25 | Expressions of thanks | 882–885 |
| Appendix A | Statistics concerning “core participants” | 210–212 |
| Appendix B | Ministerial Statement and associated Press Notice of 21 April 2009 | 213–214 |
| Index |
| 215–217 |
Mr Justice Foskett:
The broad issue in this case is whether those who claim to have suffered injury, disability or death in consequence of their 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 may now pursue claims for compensation and, in respect of those who have died, whether claims by or on behalf of their dependants or their estates may now be maintained.
The majority of those who seek to make a claim in these proceedings, or on behalf of whom a claim is made, are former servicemen from each of the three major British services, but there are a few civilian Claimants and a number of Fijian and New Zealand servicemen who form part of the group. Many of the British Claimants were young men undergoing National Service at the time.
The Ministry of Defence contends that it is now too late for any such claims to be advanced, relying upon the Limitation Act 1980 in support of the argument that any opportunity to bring a claim of this kind was in many cases lost years ago.
The claims are brought as part of a group action involving 1011 Claimants, ten individual test cases having been chosen by the parties for the purposes of helping to determine the limitation issues.
This case does not deal with the claims for compensation in their own right. Subject to the question of the extent to which it is relevant and appropriate for the Court at this stage to make an assessment of the strengths or otherwise of the claims sought to be advanced (see paragraphs 568–569 below), the merits of the individual claims do not arise for consideration. If, in due course, the ultimate outcome of the present proceedings is that the claims may continue, the full merits of the cases on each side will be determined at a future trial.
It is important to emphasise the matters reflected in the previous paragraph because a fair amount of the argument during the hearing, both on paper and in some of the oral submissions, involved contentions about the potential merits of each side's case. It is a matter to which it will be necessary to return, but it should be noted that a good deal that has been asserted by Counsel at this stage of the case has not been tested by reference to a full analysis of the evidence. A number of matters that may appear to have been put forward as “facts” have yet to be considered fully and properly in the way that a full trial of the issues demands. It should also be understood clearly that my task in these proceedings at this stage necessarily and inevitably involves making a number of assumptions about what may be established at a future trial. Whether those assumptions prove to have been valid or correct will depend upon a full evaluation of the evidence at trial.
It should also be understood that the case does not deal with claims made in respect of miscarriages undergone, and stillbirths experienced, by wives and partners of men who were involved in some way in the tests: by agreement between the parties any issues arising from matters of that nature have been put to one side whilst the issues arising in the way mentioned in paragraph 1 are dealt with.
The broad issue identified in paragraph 1 is easy to state. It is far less easy to resolve. There are complex and detailed issues to consider. As will become apparent, there are various categories of potential claimant and the issues concerning each category may differ. The purpose of this trial has been to decide whether, in accordance with the applicable law, any or all of those categories of claimant are now, some 50 years or so after the material events, entitled to proceed with their claims.
It will be necessary to refer to things done or not done, said or not said, as the case may be, by various British Governments and others over the years in relation to questions such as suggested inquiries, claims for compensation, considerations relating to pensions and so on. However, this judgment is not to be seen as a critique of, or commentary upon, those matters. Nor is it or can it be a commentary upon what other countries have done in respect of their nationals who may arguably have been affected in a similar manner. The hearing has not been a public inquiry – nor has it been a request for one.
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