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"The Government is, of course, pledged to settle legal cases by alternative dispute resolution in all suitable cases whenever the other party agrees to it. In my view this is such a case."
"genuine negotiations have taken place between the parties respective counsels and a settlement proposal was made by the Ministry of Defence, although I cannot disclose the amount. To date, no response has been received from the claimants' counsel or the law firm representing them (Rosenblatts). This is obviously disappointing, but we remain open to meaningful discussions."-[ Official Report, 7 December 2009; Vol. 502, c. 98W.]
"The MoD say...that they have not received a response from the claimants counsel to the proposed settlement offer, but this is because we have never received such an offer."
I understand that my hon. Friend has said that the contents of any settlement proposal cannot be communicated without breaching a confidentiality agreement. However, the fact is that Shirley Denson does not know the contents. There are more than 1,000 claimants, and they do not know the contents. It seems ridiculous that there can be any negotiations when nobody involved knows what they are. How can my constituent be sure her interests are being taken into account by the Government or by her lawyers when all proceedings are taking place in private? How can anyone know for sure that this Government have as their central aim doing their best for our veterans while everything is clouded in secrecy? Even if there ever were negotiations, they have obviously broken down, and the case will have to go back to the courts. It therefore appears that the next stage will be an appeal by the MOD against the limitation ruling. Even that will not take place until-
Even that stage will not take place until May, after millions more pounds have been spent by lawyers and after more veterans have passed away, and even then, that will only resolve limitation. Presumably, there will then be a court case about causation, which would involve more money going to lawyers, not to our brave servicemen.
I am just a Back-Bench MP. I want my constituent to have an apology and some recompense for what happened to her poor husband and their children. It seems to me that we are at an impasse. The Government say, "Oh yes, there have been genuine negotiations." The lawyers say, "Oh no there haven't." The Government say, "Oh yes, we have made a settlement proposal." The lawyers say, "Oh no you haven't." It might be pantomime season, but our veterans and their families are looking for a Prince Charming-except that this is not a pantomime, and nobody is laughing. This is really serious. In fact, it is a scandal.
Tens of millions of pounds have already been spent on lawyers alone. That money could, and should, have gone straight to people like Shirley Denson. Over the past few days I have heard about this from all sides, and I still cannot tell who is to blame: it might be the lawyers who are stopping a settlement being made, but the limitation trial and the ongoing secrecy surrounding the settlement proposals have done my hon. Friend no favours. They make it look like the MOD is using "due process" to avoid making a payout. However, I hope that he will be our Prince Charming. I ask him to use this opportunity to prove his commitment to our veterans. Let us agree to settle this now, through an apology to, and recognition of, nuclear test veterans and their families, and a modest recompense as thanks for their courage, commitment and loyalty to their country.
The Parliamentary Under-Secretary of State for Defence (Mr. Kevan Jones): I am grateful to my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) for securing this debate on what is, as she said, a serious subject. The nuclear test veterans issue remains an emotive one more than 50 years since the first nuclear tests were conducted. Some 28,000 British servicemen were involved in the test programmes, the majority in logistic support. I certainly recognise the debt of gratitude we owe to those servicemen who took part in delivering those important nuclear tests.
I understand that last month Members received a letter from Mr. Neil Sampson, a partner in the law firm Rosenblatt, which represents the British atomic veterans' claimants group. I believe that Mr. Sampson's letter made several misleading assertions, and I wrote to Members on 4 December to refute them. I am glad to have the opportunity today to go into more detail and to make the Ministry of Defence's position clear.
For some years, a number of veterans of the test programme have claimed that their health has been directly damaged by deliberate, or accidental, exposure to ionising radiation. The MOD, and successive Governments, have consistently rejected these claims. That is based on three comprehensive and exhaustive studies, none of which found a greater incidence of mortality or cancer in nuclear test veterans than in a matched control group.
Most critically, I want to focus Members' attention on precisely what has happened in the litigation process, so that we are in no doubt about the current situation. Legal proceedings were served on the MOD in April 2005, and since April 2006 the veterans' case has been handled by Rosenblatt Solicitors of London. The particulars of the claim were served in December 2006 and the MOD served its summary defence in January 2008. The MOD disclosed a list of 12,295 documents in June 2008, and the parties identified five lead cases each to be heard in the High Court that were considered to be representative of the entire claimant cohort. A High Court trial was held between 21 January and 6 February 2009 to rule on limitation only. I should explain that the Limitation Act 1980 sets out that personal injury claims should be brought within three years of the date of injury, or within three years of the injured person's date of knowledge that the injury may have been caused by past events.
The Court was asked to rule on whether the MOD was prejudiced by the delay in bringing claims, given that many of its key witnesses are no longer alive or are not able, due to age, infirmity or loss of memory, to give evidence. The Court's judgment on limitation was handed down on 5 June 2009 and ran to more than 200 pages. The main findings were that five lead cases were time-barred and five were not. Importantly, the judge exercised his discretion under section 33 of the Limitation Act to permit the out-of-time cases to proceed to trial. That means that the group action of 1,011 cases may now proceed to a trial on causation and breach of duty. I should like to clarify one point. Contrary to media reports, the veterans have not secured a ruling that compensation should be paid. The ruling was on the limitation point, which is subject to challenge in the Court of Appeal.
The judge expressed concern about the claimants' ability to prove that their condition was caused by exposure to ionising radiation in the tests. He said that he did not want them to be misled by his judgment into thinking that they will be successful at a causation trial. He acknowledged that the case law on causation as it stands, if strictly read, poses a potential problem for the claimants. He said of one case that
"in terms of apparent strength of this claim, on the evidence as it stands, it seems to me to be arguable, but not overwhelmingly so".
He was also of the view that the cases can be tried fairly on the documentary evidence alone, and that the absence of the vast majority of witnesses would not be unfair or prejudice the MOD's case. He acknowledged that it might be an injustice if the MOD had to pay the claimants' lawyers costs. I will cover that issue later.
"The Government is, of course, pledged to settle legal cases by Alternative Dispute Resolution (ADR) in all suitable cases whenever the other party agrees to it. In my view this is such a case".
Despite what is claimed by Neil Sampson of Rosenblatt, I have taken great care in my dealings with this case to ensure that the MOD has adhered to the judge's wishes in all aspects of the case. We have attempted to settle the matter through ADR by holding counsel-to-counsel negotiations. My hon. Friend has mentioned confidentiality, and the ADR process is confidential between the parties, so I cannot reveal the details of those negotiations as that would breach the confidentiality agreement between the two parties.
I continue to respect the confidentiality of that process, but I cannot allow Rosenblatt's allegations to stand unchallenged, so I shall address them by setting out exactly what has happened. Between the hearings of 19 June and mid-November, genuine negotiations took place between the two parties' respective counsels-Benjamin Browne QC for the claimants and Charles Gibson QC for the MOD. I understand that Benjamin Browne is no longer the counsel for Rosenblatt. For the avoidance of doubt, let me make it clear that when I describe meetings between the parties, or meetings between the MOD and Rosenblatt Solicitors, I mean that the respective QCs representing the MOD and Rosenblatt have met. That is not unusual when settling a case such as this.
On 29 September I, as the responsible Minister, authorised a settlement proposal, although again I cannot disclose the amount. The proposal was conveyed to Rosenblatt's counsel. Whether or not he passed this proposal on to Rosenblatt is a matter for them, although it would be remarkable if he did not. It certainly appears that the veterans themselves were not told about it, and no response has been received to date.
I therefore gave instructions in early November that the claimants' lawyers be given another chance, and an e-mail was sent by Charles Gibson QC to Benjamin Browne QC. Again, it would be curious if counsel did not pass this on to Rosenblatt but, again, it has been met with silence. Therefore, no settlement has been achieved.
I think this demonstrates that the MOD, and myself as the Minister responsible, have made every effort to engage with the claimants' lawyers, but without success.
That left us with no option but to proceed with an appeal, which is listed for a three-week window starting on 4 May 2010.
I should also like to put on the record that Rosenblatt seem to have engaged in a remarkable amount of unusual activity outside the legal process, which I am concerned about. First, I find it quite remarkable that a public relations company was in attendance at the High Court trial, on behalf of the claimants. I understand from my team that that was the first time any of them had experienced that.
The second matter of great concern to me is that the parliamentary lobbyists who claim to represent Rosenblatt met a special adviser to the Secretary of State for Defence in an attempt to persuade him to change the Department's stance. Curiously, the lobbyists appeared to be as much in the dark as the veterans about the fact that a settlement proposal had been made.
Thirdly, I received a letter from Mr. Neil Sampson, who wrote to me in my capacity as a Member of Parliament rather than as Minister for veterans, asking to meet me. Interestingly, he signed the letter as legal counsel for the atomic veterans claimant group, but he did not use paper headed with the Rosenblatt name. When all those factors are taken together, it is hard to avoid the conclusion that there has been an attempt to circumvent the legal process.
I turn now to the question of costs. The High Court ordered the MOD to pay the claimants' counsel and Rosenblatt costs of £7.5 million, although the Department argued that costs should properly be reserved, until the outcome of the Court of Appeal hearing. That was based on the fact that permission had been granted for the MOD to take the case to the Court of Appeal, where some or all of the High Court judgment might be overturned. Even on the judge's own analysis, the claimants' causation case was weak, leaving the MOD in fear that some, if not many, of the claimants might discontinue their claims. The judge dismissed that argument, but added that the MOD can seek a refund in the event of any appeal succeeding.
An application will be made to the High Court tomorrow morning by the claimants' counsel-although that will not be Mr. Browne-and Rosenblatt about the litigation, and there will be a request for even more money. The claimants will say that they are substantially out of pocket in this case and will request a court order for a further £2 million on account. That would make an interim total of £9.5 million, which they claim covers about 80 per cent. of their costs, and it implies that the legal costs to date are approaching a staggering £12 million.
Only after making that application for costs does Mr. Sampson turn to his clients' case, and one may wish to draw one's own conclusions from that. By comparison, I confirm to the House that the MOD's legal costs, as invoiced on 27 November, totalled £2,661,225.
Finally, I turn to the medical research. Although we have not seen any medical or scientific evidence to substantiate the claims of ill health, we are determined to address the ongoing concerns expressed by nuclear test veterans. That is why I announced to the House on 21 April our intention to work with veterans and experts to investigate the particular health needs of nuclear test veterans and their offspring, with a view to identifying priorities and taking action to improve health.
Over the past few months we have sought to develop proposals for research that would generate practical results, be scientifically credible and be available in a reasonable time scale. We have identified an opportunity to work with academia in this area of health needs analysis, and of course, we will continue to work with the British Nuclear Test Veterans Association on taking this work forward. I have asked officials to draw up costings for the proposals, and I expect this work to be complete early in the new year. We will then put out a tender for the work to start in the first half of 2010. My officials will meet the BNTVA to discuss our proposals early in the new year.
Do I feel for these individuals? Yes, I do. Do I feel for my hon. Friend's constituents? Yes, I do, as she does. This is a legal case, but that case is really about only one thing: hard evidence. The hard evidence simply does not support the veterans' legal case. Grounds do not exist for compensation to be paid. That is why we are proceeding to an appeal. No amount of misleading statements by Rosenblatt, made privately or through the media, can alter the fact that we have made a genuine attempt to put forward a settlement proposal, but we have received no response. Rosenblatt's claimed ignorance of these facts does the veterans a great disservice by raising their hopes and dramatically raising expectations. As I say, I feel for people such as Shirley Denson, and I can only sympathise with the veterans that Rosenblatt claim to represent. Some veterans need to ask some hard questions about the way in which Rosenblatt have conducted themselves in this case.