Nuclear test veterans appeal to be heard by Supreme Court

29 July 2011 by

On Thursday 28th July, the Supreme Court heard a “permission to appeal” argument in the British nuclear testing case.  The judgment to be appealed is that of the Court of Appeal Civil Division in Ministry of Defence v AB and others[2010] EWCA Civ 1317 – (Smith and Leveson LJJ and Sir Mark Waller).  

In terse legalese, the issue to be appealed is whether the Court of Appeal – (1) applied the wrong legal test for knowledge in section 14 of the Limitation Act 1980, and (2) adopted the wrong legal approach to the exercise of discretion under section 33 of the Act.  The Supreme Court granted permission for the appeal – see BBC 28th July and The Independent 28th July.
From 1952 to 1958, the UK carried out atmospheric nuclear testing in the Pacific Ocean region.  Around 22,000 service personnel were involved.  In December 2004, actions were commenced against the UK government.  The total number of claimants is 1011 and they are mainly former servicemen but also some civilians.  Some of the claims are brought by executors / administrators or dependants.  The claims relate to consequences to health alleged to have resulted from
exposure to ionising radiation deriving from the tests.  Ten “lead cases” were selected by the parties to assist in determining the preliminary issues.

In early 2009, Mr Justice Foskett gave a very detailed judgment – Ministry of Defence v AB and others [2009] EWHC 1225 QB – allowing the claims to proceed to trial though he expressed the view (para 876) that the claims might be settled via mediation.  He also stated that he did not wish to create a “false dawn” for the claimants should the cases get to full trial of the issues.  His judgment extends to 885 paragraphs, 2 Appendices and a very helpful index.  A good summary of Mr Justice Foskett decision may be read at “Atomic veterans given go ahead to sue government.”

A significant question in the case is whether the claims are statute-barred by theLimitation Act 1980.  The basic position is that claims in tort (i.e. “civil wrong”) are barred after 6 years but personal injury claims are barred after 3 years. The general aim of “limitation” is to prevent stale claims being raised many years after the event when they could properly have been raised promptly after the injury.  However, the legislation makes provision for cases where the injury may not be realised until after the expiration of the basic limitation period.   The Act also allows (section 33) the judge to disapply the limitation rules in some situations.  Even though Mr Justice Foskett found that some of the claims were statute-barred, he nevertheless said that he would exercise his discretion (under section 33) to allow the claims to proceed.

An important report was produced in 2007 by Professor Al Rowland (formerly of Massey University, New Zealand) and is a significant contribution to the acquisition of knowledge relating to the effects of nuclear testing on humans within close range of the testing.  See Rowland report and the useful PowerPoint summary.

In the world of the 1950s, the United Kingdom was anxious to become one of the world’s nuclear powers.  from the late 1950s, this was not without political opposition – see, for example, CND and WMD Awareness.  In 1957, the Shadow Foreign Secretary (Aneurin Bevan) famously told the Labour Party Conference that unilateral disarmament would sent a British Foreign Secretary naked into the conference chamber.  After Nagasaki and Hiroshima, it could hardly be argued that there was no knowledge of the effects of radiation on the human body.  Nevertheless, the longer term effects were probably not well understood.  Time has shown the health effects to be potentially very serious.  It is to be hoped that a way can be found to eventually conclude these cases in a satisfactory manner.

This post by Obiter J originally appeared on the Law and Lawyers Blog and is reproduced here with permission and thanks.

David Evans of 1 Crown Office Row is acting for the Ministry of Defence in this case. He is not the author of this post.

1 comment;


  1. Another example of governments going ahead with ‘tests’ under the guise of “It’ll be good in the long run”

    Let’s hope that they won’t ‘interfere’ in the possible outcome.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: