The issue of the “date of knowledge” for the purpose of the Limitation Act is one of the most vexed questions in procedural litigation. In March of this year the Supreme Court considered two vital questions concerning limitation; what is the correct test for identifying the date of knowledge and how is the discretion under Section 33 of the Limitation Act 1980 to be properly exercised? On the question of the date of knowledge the Court was split 4:3. This illustrates the complexities of this issue.
The case involved a group of 1,011 Claimant’s all of whom were seeking damages for exposure to ionising radiation as a result of being present when nuclear experimental explosions were carried out during the 1950’s in the Pacific Ocean. The majority of the Claimants commenced a group action in 2004, and a minority joined the litigation in 2007 and 2008. Although they alleged that the Ministry of Defence had been in breach of their duty by exposing servicemen to radiation, they had no objective basis for the belief that they had been exposed to and their injuries caused by such radiation, until 2007. They also could not provide any evidence to establish on the balance of probabilities that radiation was capable of causing the injuries alleged.
The correct approach to this fundamental principle split the Lord Justices, with a 4:3 majority dismissing the appeal. The majority affirmed the prevailing authorities on the issue and considered that the period for the purposes of limitation will begin to run once the Claimant holds a sufficiently firm belief that his injuries are attributable to the Defendant. This did not mean that the Claimant had to know for certain or have evidence on which supported his belief, but it must have been more than a mere suspicion. Furthermore it was a legal impossibility for a Claimant to be considered to be lacking the requisite knowledge after he had issued his claim. In answer to the second question concerning Section 33 of the 1980 Act they upheld the Court of Appeal’s decision that the Claimants faced considerable difficulties in trying to establish causation. They found that they had carefully weighed all the relevant factors and were correct in declining to disapply Section 11 of the Act.
This case is particularly important in industrial disease and clinical negligence type cases. What is the date upon which the claimant holds a “sufficiently firm belief” that the defendant’s activities have caused the injury? From a claimant’s point of view the only practical advice has to be that if there is any doubt on the question – issue promptly.
WHERE TO FIND THE CASE
Access the full judgment at http://www.bailii.org/uk/cases/UKSC/2012/9.html