England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
NORWICH DISTRICT REGISTRY
(His Honour Judge Mellor)

		The Royal Courts of Justice The Strand London Wednesday 15 May 2002

Wednesday 15 May 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of His Honour Judge Mellor given on 31 October 2001. It was a decision effectively on a preliminary issue relating to limitation bringing to an end the applicant's claim against the Ministry of Defence, which at that time was in two parts. First, there was a claim which was essentially a personal injury claim. So far as that claim is concerned, there is no application for permission to appeal. Secondly, there is a claim of malicious falsehood which goes back to the applicant's service in the Royal Air Force, which ended in 1973. Putting it shortly, the claimant's case is that his medical records were falsified in such a way as to indicate that he suffered from mental illness, which was untrue, and that those records have over the years been made available in circumstances which have caused harm to him in his career progression since his leaving the Royal Air Force.
2. He was, it is said, unaware, of the false attribution of mental illness until 1988. It is said that he was not made aware (because further documentation which enabled him to become so aware was not available until 1994) that the false attribution was the result, as he will say, of falsehoods, not simply mistake. The judge concluded that it was sufficient for the defendant's purposes that the applicant knew in 1988 of the false attribution of mental illness and that all the facts necessary for him to formulate a claim were therefore known to him at that time; and accordingly he was not able to take advantage of section 32 of the Limitation Act 1980.
3. Before me today Mr Bate has submitted that the judge was at least arguably wrong in concluding that sufficient information was indeed available in 1988. He submits that the documents that were required in order to be able to formulate a proper claim for malicious falsehood were not made available until 1994 and that there was sufficient material before the judge to have justified the conclusion that those falsehoods were made in such circumstances that they were unlikely to come to the applicant's attention so as to justify the conclusion that there was deliberate concealment.
4. I have very serious reservations about whether or not at the end of the day this appeal will succeed. But I cannot today say that there are no real prospects of success. Accordingly the applicant is entitled to permission to appeal. Whether ultimately that results in any benefit to him is another matter. It may be that by granting permission I am ultimately doing him a disservice but nonetheless I grant permission in relation to the grounds in the notice of appeal.
ORDER: Applications for extension of time and permission to appeal allowed. (Order not part of approved judgment)