AB & Others v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | LORD BROWN,LORD MANCE,LORD KERR,LORD WALKER,LORD WILSON,LORD PHILLIPS,LADY HALE |
| Judgment Date | 14 March 2012 |
| Neutral Citation | [2012] UKSC 9 |
| Date | 14 March 2012 |
| Court | Supreme Court |
Lord Phillips, President
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Wilson
Appellants
James Dingemans QC
Catherine Foster
Nadia Whittaker
Mark James
(Instructed by Rosenblatt Solicitors)
Respondent
Charles Gibson QC
Leigh-Ann Mulcahy QC
David Evans
Adam Heppinstall
(Instructed by Treasury Solicitors)
Heard on 14–17 November 2011
I consider that each of the nine appeals should be dismissed. In my respectful view the approach of Lord Phillips, Lady Hale and Lord Kerr to the meaning of the word "knowledge" in sections 11(4) and 14(1) of the Limitation Act 1980 ("the Act") is misconceived and would throw the practical application of the subsections into disarray. I also consider that any exercise of the discretion under section 33 so as to permit any of the nine actions to proceed would be aberrant in circumstances in which they have no real prospect of success.
What is the nature of the exercise which the court conducts when asked by a defendant to rule that an action in respect of personal injuries is time-barred under section 11 of the Act? Subsection (4) provides that the action shall not be brought after the expiration of three years from
"(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
The subsection refers, at (a), to "the cause of action" notwithstanding that, if the action is to continue, it may well transpire that the claimant has no cause of action. When the subsection turns, at (b), to "the date of knowledge (if later)" and so requires the court to appraise the claimant's knowledge of the four "facts" specified in section 14(1), which relate to, although do not comprise all elements of, his cause of action, the assumption that indeed he has a cause of action remains. That explains why sections 11(4)(b) and 14(1) refer to "knowledge" (which can be only of matters which are true) rather than to "belief" (which can be in matters which are untrue as well as in those which are true). Knowledge of the second of the four facts specified in section 14(1) is "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty". This knowledge of attributability (as it is convenient to describe it) is predicated upon the assumption that the claimant has a valid cause of action and thus would be able to establish among other things, even in the teeth of opposition from the defendant, not just attributability (which means only that there is a real possibility that the act or omission caused the injury: Spargo v North Essex District Health Authority [1997] P1QR P235 at P242, Brooke LJ) but, rather, that his act or omission actually caused the injury in the legally requisite sense. In the decision of the Court of Appeal in Halford v Brookes [1991] 1 WLR 428 the trial judge, Schiemann J, is quoted, at p 442H, as having referred to "the bizarre situation when a defendant asserts that the plaintiff had knowledge of a fact which the plaintiff asserts as a fact but which the defendant denies is a fact". The situation may indeed seem bizarre until one remembers that, at the stage of an inquiry under section 11, the exercise requires the existence of the fact to be assumed. Were the action to continue, the defendant might well deny it; but he does not do so at that stage.
The assumption that, in an inquiry under sections 11(4) and 14(1) of the Act, the cause of action exists leads me, with inevitable discomfiture, to a profound disagreement with one of the essential foundations for the conclusions of the minority in this court. It was the preferred view of Foskett J, upon which he would have acted had he not felt constrained by authority to act otherwise, that the veterans who issued their claim on 23 December 2004 acquired the requisite knowledge of attributability only on a later date, namely 29 June 2007, when the Rowland report was privately presented to them. It is the conclusion of the minority that
(a) it is indeed possible for a claimant to lack knowledge of attributability at the time when he issues his claim and, if so, time will not have begun to run against him; and
(b) irrespective of whether the later presentation to them of the Rowland report then led them to acquire it, the veterans lacked such knowledge when they issued their claim, with the result that none of them is time-barred.
In my view, however, it is a legal impossibility for a claimant to lack knowledge of attributability for the purpose of section 14(1) at a time after the date of issue of his claim. By that date he must in law have had knowledge of it. Pursuant to CPR 22.1(1)(a) and (4), he must verify his claim form by a statement that he "believes" that the facts stated in it are true. The word in the statement of truth is "believes" rather than "knows" only because—of course—the assumption that the cause of action exists does not apply to the claim form. That it exists is indeed only a claim. Although the statement of truth covers wider ground, it can in my view be regarded as an explicit recognition by the claimant that he then has knowledge of attributability for the purpose of section 14(1).
Irrespective, however, of the degree of significance to be attached to the statement of truth, it is clear to me that the inquiry mandated by section 14(1) is retrospective, namely whether the claimant first had knowledge of it (and of the other specified facts) within or outside the period of three years prior to the date of issue. As Lord Mance said of an analogous section of the Act in Haward v Fawcetts [2006] UKHL 9, [2006] 1 WLR 682, at para 106,
"Under section 14A the onus is on a claimant to plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing."
And, see, to similar effect, the judgment of the Court of Appeal in Nash v Eli Lilly & Co [1993] 1 WLR 782 at p 796H.
Lord Phillips cites, at para 143 below, the view of Waite LJ in Whitfield v North Durham Health Authority [1995] 6 Med LR 32 in support of the proposition that lack of knowledge of attributability can survive the issue of a claim. In 1987, thus prior to the claim issued in 1992 with which the Court of Appeal was there concerned, the claimant had issued a claim which had never been served. Waite LJ observed that her issue of the claim in 1987 did not necessarily betoken that she had knowledge under section 14(1). But the observation was an aside in that the court proceeded to find that she had had the requisite knowledge in 1985. In the Eli Lilly case, cited above, by contrast, the Court of Appeal, in a passage at 795H–796A cited with approval by Judge LJ in Sniezek & Bundy (Letchworth) Ltd [2000] PIQR P213 at P228, observed that it had "difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge". It follows that I prefer the latter approach. Yet, frankly, I doubt whether in any of those three cases the Court of Appeal was afforded the leisurely consideration of the nature of "knowledge" for the purpose of sections 11(4) and 14(1) which has been afforded to this court in the present case.
The statutes of limitation, which stretch back to 1540, have been in place for two main reasons. One is to protect defendants from being vexed by stale claims. They are Acts of peace: see A'Court v Cross (1825) 3 Bing 329, 332 (Best CJ). The other is to require claims to be put before the court at a time when the evidence necessary for their fair adjudication is likely to remain available, or, in the words of the preamble to the 1540 Act, at a time before it becomes "above the Remembrance of any living Man …to …know the perfect Certainty of such Things". Conventionally, therefore, they have required the assertion, by claim, of a cause of action within a specified period following its accrual. The modification of the conventional requirement now reflected in sections 11 and 14 of the Act was born of the injustice suffered by a claimant who lost his right to claim damages for personal injuries before he knew of its existence: see para 17 of the Report of the Committee on Limitation of Actions in Cases of Personal Injury dated September 1962, Cmnd 1829, chaired by Edmund Davies J. But, in para 30, the committee also expressed its concern not to encourage actions of a speculative character. In the event it set out, at para 34, its conclusion that the conventional requirement should not apply so as to bar a claimant if
"(a) the first occasion on which he discovered, or could reasonably have been expected to discover, the existence of his injury, or the cause to which it was attributable, was such that it was not reasonably practicable for him to start proceedings in time; and
(b) he has in fact started proceedings within a certain period (which we consider should be twelve months) after such occasion."
The committee recommended that, additionally, such a claimant should need the leave of the court. The result was section 1 of the Limitation Act 1963, the terminology of which was to prove troublesome (see Smith v Central Asbestos Co Ltd [1973] AC 518) and thus to lead to the improvements first included in section 1 of the Limitation Act 1975 and soon consolidated in sections 11 and 14 of the Act. For present purposes the only importance of section 1 of the 1963 Act is that, reflective of the recommendations in the Edmund Davies report, it referred to facts being outside the knowledge of the claimant "until a date which …. was a date not earlier than twelve months before the date on which the action was brought"...
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