Services veterans who claimed they were used as "guinea pigs" and exposed to nuclear testing in the 1950s won a landmark legal victory yesterday allowing them to seek more than £100m compensation from the Government.
A thousand survivors of the tests say they have suffered severe illness – including cancer, blood diseases and skin defects – due to exposure to radiation in the Pacific, and that some of their descendants have suffered similar ailments.
The Ministry of Defence has maintained that very few, if any, military personnel were exposed to radiation and that, in any event, the compensation claims were too late as they were made more than three years after the injuries were allegedly received. But, in a 217-page judgement, Mr Justice Foskett at the High Court declared he was exercising his discretion to 'disapply' the time limit. He also stated that – bearing in mind the prospect of a long litigation process and the age of the veterans – it was "to be hoped that serious efforts towards settlement will take place... and that a trial can be avoided".
The judge said: "A veteran who believes he has an illness, injury or disability attributable to his presence at the tests, whose case is supported by apparently reputable scientific and medical evidence, should be entitled to his 'day in court'."
He added that it would be "very regrettable" if it was necessary to decide some cases could go forward to trial while others could not. Benjamin Browne, QC, accused the Government of double standards, saying that for many years successive governments had indicated they would pay compensation if a causal link between radiation and the veterans' illnesses could be established. When that scientific evidence became available, he said, the MoD then sought to fight the claims on the basis that they were time-barred.
Charles Gibson, QC, for the MoD, said that more than 90 per cent of the 114 essential witnesses were dead or untraceable. Of the surviving 11, the four who were willing to assist – with an average age of nearly 84 – could not fairly be expected to recall events with clarity and confidence.
A Ministry of Defence spokesperson said: "The MoD, while disappointed with the ruling, respects the judge's discretion to allow the claims to proceed to a trial that will establish whether the veterans' illnesses have a causal link to the tests. We will now review the full judgment before making a decision on how to proceed."
Speaking after the judgment, veteran Alan Ilett, 73, from Chelmsford, Essex, said: "It's a good judgement. I'm giving a thought for those poor souls who didn't make it to here. We are going to continue with this, not only for us, but for those who will not benefit from this because it is too late for them."
Seven of the veterans have died since the High Court case started in January. Many are terminally ill. Neil Sampson, of Rosenblatt Solicitors, representing the veterans, said: "Our primary regret is that the process has taken so long.
"We still have a further period of perhaps three years before the case can be brought to court and sadly, in that time, many of the veterans will have passed away. We hope the Ministry of Defence will recognise this and agree to settle the claims out of court, rewarding them with the compensation they rightly deserve."
Around 28,000 service veterans were involved in 21 atmospheric nuclear tests carried out by Britain in Australia and at Malden Island and Christmas Island between 1952 and 1958. The US, France, China, Canada and New Zealand have paid compensation to nationals involved in testing.
A victim's story
'The light grew brighter and you could see the bones in your hand, like pink X-rays'
Douglas Hern witnessed a nuclear test after flying out of Britain on his 21st birthday while serving with the Royal Navy. What happened to him there, he believes, not only led to a series of debilitating illnesses for himself but, later, the death of his 13-year-old daughter, Jill, from cancer.
Mr Hern and his comrades were marched down from their quarters on Christmas Island at dawn on 28 April 1958 to the beach and ordered to change into blue overalls, anti-flash gloves and balaclavas. They were told to sit down on the beach with their hands over their closed eyes and knees drawn up as a countdown to 10 began.
When the bomb exploded there was a feeling of intense heat, he said. "We were told to stand up and look. We saw a bright, brilliant light. It was as if someone had switched a firebar on in your head. It grew brighter and you could see the bones in your hands, like pink X-rays, in front of your closed eyes.
We saw a swirling mass of orange and blue and black and red and yellow moving and boiling. It was pushing the clouds out of the way and the noise was like 15 underground trains coming at you."
Nobody monitored the effects on Mr Hern or the others and no one had warned them about the consequences, he said. It was as if having used the servicemen in an experiment the government now wanted to discard them, he believes.
Mr Hern, now 73, from Moulton in Lincolnshire, is an activist for the British Nuclear Test Veterans Association. He said yesterday: "It is a major victory especially as the Government's financial resources are so much greater than ours. The problem is that unless there is a settlement some of the veterans may not be alive to receive the compensation if this now goes to another court case."