On 5 June 2009, Mr Justice Foskett gave permission to over 1000 ex-servicemen and families of ex-servicemen to sue the Government for damage to their health, which they claim they have suffered as a result of their presence at nuclear testing carried out in the South Pacific in the 1950s.
The Ministry of Defence ("MoD") had argued that the actions were time barred by the Limitation Act 1980, that they were doomed to failure in terms of proving a causal link between their presence at the testing and their subsequent ill health, and that there would be no possibility of a fair trial given that 90% of the 114 vital witnesses that the MoD would wish to call were either dead or untraceable.
The limitation argument revolved around the time at which the ex-servicemen and the families had the knowledge required to bring the claims. The judge held that five of the ten leading claims fell outside the time limit imposed by the Limitation Act on the basis that they were brought in light of knowledge acquired within three years of the issue of the claim. Remarkably, he exercised his discretion to set aside the time limit in relation to the other five lead cases, reasoning that they deserved their day in court.
The MoD's argument on causation was left for the trial judge to determine.
As to the lack of witnesses, the judge noted that it would be unthinkable that the testing had not been meticulously documented and the burden of proof rested, in any event, on the veterans.
This is one of the largest claims ever funded on a combination of an after the event insurance premium and conditional fee arrangement.
The judge gave the MoD permission to appeal, noting that this was almost inevitable given the significant public interest in the case.