PI Brief Update

Suspicions, Beliefs and Knowledge: the Date of Knowledge Test After AB v Ministry for Defence - Martin Canny, Barrister

22/10/13. The 'date of knowledge' provisions in s 14 of the Limitation Act 1980 ('LA 1980') play an important role in personal injuries litigation. The predecessor to this section was introduced in 1963 to reverse the result of Cartledge v E. Jopling & Sons Ltd [1963] AC 758, where workers exposed to noxious dust found that their cause of action for damages for personal injuries had become become statute barred prior to them realising they had suffered any injury. The word 'knowledge' is crucial to an understanding of the section, but it does not have a fixed meaning: there are levels of what be described as 'knowledge of facts' ranging from suspicion, intuitive belief or irrational belief to knowledge that a certain state of affairs exist which has been verified beyond a reasonable doubt. The precise meaning of 'knowledge' was recently exhaustively considered by the Supreme Court in AB v Ministry of Defence [2012] UKSC 9, [2013] 1 AC 78.

AB v Ministry of Defence: Atomic Veterans before the Supreme Court

AB v Ministry of Defence was the lead case in group litigation relating to the exposure of army servicemen to radiation in the 1950s. The claimants whose cases were before the court (apart from one whose injuries were recent) all had variants of the same limitation problem. Well publicised efforts to secure compensation for them based on their subjective beliefs that exposure to radiation in the 1950s had caused them ill health had been ongoing since the 1980s. Apart from funding issues, litigation had not been brought earlier as they (even in 2012) lacked expert evidence to prove that their injuries were caused by (ie attributable to, within the meaning of s 14(1)(b) of the LA 1980) the actions of the defendant. Apart from holding out a forlorn hope that the Supreme Court would change the common law rules on causation, or that some further helpful evidence would be discovered, their actions were all bound to fail on a causation point. This was clearly a hard case and the Supreme Court held, by a 4 to 3 majority, that the 'reasonable belief' or 'reasoned belief' of a claimant that his injuries were attributable to the actions or omissions of the defendant equated to 'knowledge' within the meaning of s 14(1). The dissentients, led by Lord Phillips, noted that a subjective belief was all that was in fact required by the majority, which appears to correctly summarise the ratio decidendi of the decision as scientific reason did not in fact support their intuitive beliefs. As the claimants held such a belief their claims were all found to be statute barred, except for those where the injuries suffered were recent. The court approved of the approach of Lord Donaldson MR in Halford v Brookes [1991] 1 WLR 428 to the effect that a belief would amount to knowledge for the purposes of s 14 if it was held 'with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence': see [1991] 1 WLR 428 at 443. As subsidiary findings, the Supreme Court held that a person can have a reasonable belief in a state of facts even if unable to prove those facts and, in fact, even if those facts do not exist. Secondly, the court held that it is logically impossible for a claimant's date of knowledge to come after the date on which proceedings are brought.

AB v Ministry of Defence: Dissenting voices on the meaning of knowledge

An unusually strongly worded dissent was delivered by Lord Phillips, which carefully examined the context of each of the judgments from which quotations were relied upon in the majority judgments and argued that the majority had fallen into error in finding support for its position in those judgments. There is merit in the comments of Lady Hale that:

'If "knowledge of the facts" is to be interpreted as firm belief in a state of affairs, it surely must have that meaning for each of the circumstances in which it is employed'. Therefore... the claimant need only have a belief in the identity of the defendant...' (see [2012] UKSC 9, [2013] 1 AC 78 at para 187)

She added that 'the word knowledge... is in no sense a natural synonym for belief': see [2012] UKSC 9, [2013] 1 AC 78 at para 188. The decision of the majority may betray a level of dissatisfaction with a set of proceedings which had little to no chance of success and which was likely to cost the taxpayer a lot of money, with Lord Phillips noting that there were 1,011 claimants whose legal costs, if successful were estimated at £17.5 million. By raising the fact that a person's date of knowledge is unconnected to when they have sufficient evidence to prove their case, it was stated that the majority did not have regard to the fact that the claimants not alone lacked evidence, they lacked facts that were necessary to establish their case. By way of response to this criticism of the majority approach, Lord Brown noted that the minority approach would lead to a situation where 'the more hopeless the claim, the likelier it is that the claimant will be in a position to defeat the Limitation Act defence': see [2012] UKSC 9, [2013] 1 AC 78 at para 72.

Conclusion

It is rare to see dissenting judgments as strongly worded as those delivered in AB v Ministry of Defence; for this reason one should hesitate before concluding that it has now settled the law in this area. Although the claimants in AB were always going to lose their cases based on the law as it currently stands, a summary judgment application on the merits of the claims would have provided a less controversial route for this to occur. The approach of the majority is somewhat strained and in effect substitutes 'believes' for having 'knowledge of facts' in applying the date of knowledge test. In cases where a defendant does not know what a claimant subjectively believed many years previously this will not affect the outcome, and thus the decision may be of limited effect. However, the focus of Lord Wilson (giving the main majority judgment) on a short extract from the judgment of Lord Donaldson MR in Halford v Brookes gives rise to a risk that the first attendance for legal advice and first request for an expert report will automatically give rise to a claimant's date of knowledge, even if further investigations taking a lengthy period of time follow thereafter. This would appear inconsistent with the leading judgment of Brooke LJ in Spargo v North Essex Health Authority[1997] 8 Med LR 125 on what the law requires in order for knowledge of the fact of attributability to be established. By way of example, the recent decision in Harrison v Isle of Wight NHS Primary Care Trust[2013] EWHC 442 (QB), where the claimant genuinely thought the defendant was at fault for her injuries but initially received expert advice to the contrary, does not sit well with AB v Ministry of Defence (which was referred to only in passing in the judgment). Notwithstanding the foregoing criticisms, AB v Ministry of Defence now represents the law and is likely to lead to a further narrowing of the classes of person who may gain the benefit of s 14 and increase the importance of the s 33 of the LA 1980 in personal injuries actions.

Martin Canny BL is a practising barrister and the author of Limitation of Actions in England and Wales,
which was published by Bloomsbury Professional in July 2013
for more information visit www.bloomsburyprofessional.com.

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