Neutral Citation Number: [2009] EWHC 1225 (QB) Case No: TLQ/08/0023 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/06/2009 Before: MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between: AB & Others Claimants - and - Ministry of Defence Defendants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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: 21st, 22nd, 23rd, 26th, 27th, 28th, 29th January and 4th, 5th, and 6th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment CONTENTS OF JUDGMENT Section Item Para 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 102-104 105-106 11 The underlying science – 108-110 A. The essential nuclear physics – ionising radiation 111-113 114-115 (i) Atoms 116-119 (ii) Elements 120-122 (iii) Isotopes 123-131 (iv) Half-life 132-143 (v) Nuclear fission and nuclear fusion 144-147 (vi) The types and effects of ionising radiation 148-150 (vii) Fall-out (viii) Doses (ix) Ionising radiation from other sources 151-158 B. Essential cytogenetics 12 The effects of ionising radiation on health 159-182 13 Causation – the evidential issues 183-187 Strike out/abuse of process 188-222 (i) General approach 223-237 14 (ii) The current state of the evidence and post- 238-241 Fairchild authorities (iii) Concluding remarks on strike out 15 Some broad areas of the evidence 242-244 (i) What was in the public domain about the effects of 245-254 ionising radiation? 255-325 (ii) The BNTVA 326-338 (iii) The Pearce case 339-348 (iv) The funding issues 349-375 (v) The NRPB reports 376-391 (vi) Monitoring 388-391 (vii) The essential position of successive Governments 392-400 (viii) The Australian Royal Commission 401-441 (ix) The Rowland Report The limitation arguments – general 442-445 (i) History of the 1980 Act 446-466 (ii) “Knowledge” – the statutory provisions 467-470 (iii) The discretion to disapply – the statutory provisions 471-472 (iv) Accrual of cause of action/‘more than minimal’ damage 473-481 16 (v) Burden of proof on the issue of knowledge 482-484 (vi) The authorities on the issue of knowledge (vii) The “preferred view” on this issue 485-513 (viii) The actual view and some factors to be considered 514-521 522-525 Section 33 – some general matters (i) The approach (ii) Section 33(3)(a) 526-534 (iii) Section 33(3)(b) 535-538 (iv) Section 33(3)(c) 539-540 (v) Section 33(3)(e) 541-555 (vi) Section 33(3)(f) 556-557 (vii) Other circumstances – 558-560 17 (a) Alternative claim 561 (b) Diversion of resources 562-564 (c) The broad merits test 565-567 568-570 Section 33 in this case – some potentially relevant factors 571 (i) The broad issue of the effect of the passage if time on a fair trial (ii) The need for these issues to be ventilated 572-611 (iii) The need to avoid apparent injustice 18 (iv) The case advanced is not a new one 612-617 The Lead Cases: Roy Keith Ayres 618-619 (i) knowledge (ii) section 33 John Allen Brothers (decd) 620-625 (i) knowledge (ii) section 33 Kenneth McGinley 626-627 (i) knowledge (ii) section 33 628-644 645-650 Michael Richard Clark (decd) 651-652 (i) knowledge 653-674 19 (ii) section 33 675-681 Andrew Dickson (decd) 682-686 (i) knowledge 687-707 (ii) section 33 709-715 Arthur Hart 716-719 (i) knowledge (ii) section 33 720-737 738-742 Christopher Edward Noone 743-746 (i) knowledge (ii) section 33 747-758 759-765 Eric Ogden (decd) 766-768 (i) knowledge (ii) section 33 769-785 786-791 Pita Rokoratu 792-793 (i) knowledge (ii) section 33 794-807 808-812 Bert Sinfield (decd) 813 (i) knowledge (ii) section 33 814-823 824-829 830-831 832-845 846-850 851-852 853-860 861-866 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 Statistics concerning “core participants” 210-212 A Appendix Ministerial Statement and associated Press Notice of 21 April B 2009 213-214 Index 215-217 Mr Justice Foskett : 1. The Issue 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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.