No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+6 or 14+P1-1;No violation of Art. 13+6 or 13+P1-1;Violation of Art. 8;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and currently lives in GPE .

In DATE he joined the NORP army at DATE . He served with ORG DATE and DATE , when he was discharged for reasons unrelated to the present application .

In DATE he was diagnosed as suffering from hypertension and late onset bronchial asthma and in DATE he was found to have high blood pressure and chronic obstructive airways disease ( bronchitis – PERSON ) . He has not worked since DATE or thereabouts and is registered as an invalid .

The Chemical and ORG at GPE ( “ Porton Down ” ) was established during the First World War in order to conduct research into chemical weapons with a view to advancing the protection of GPE armed forces against such weapons . The research included tests of gases on humans as well as on animals . Servicemen who participated in the tests were paid extra wages .

NORP The applicant participated in such tests at FAC . While there was some debate as to whether he attended in DATE , it was not disputed that he did so in DATE . His service medical records contained no record of any tests at PERSON .

The applicant alleged as follows . In DATE he was invited to PERSON ; he was medically examined on arrival ; he was asked on CARDINAL occasions to enter a sealed and unventilated room , where he was seated and strapped to a chair ; over a period of TIME , drops of mustard gas were applied to patches of tissue which were then taped to his skin ; he was told that , if he was unlucky , he might suffer temporary pain or discomfort but otherwise he was not given any , or any proper , warning about the possible consequences of the tests for his health ; once the tests were finished he returned to his unit ; there was no further medical examination after he left PERSON . He relied on a memorandum and file note of CARDINAL DATE ( see paragraph CARDINAL below ) and on the conclusions in this respect of DATE of ORG ( “ the PAT ” – see paragraph CARDINAL below ) to substantiate his participation in tests in DATE .

While the Government did not deny that participation , they pointed to a number of matters that appeared to militate against such a conclusion : the summary and alphabetical record books did not refer to his attendance in DATE but only to his attendance in DATE ; there was no documentary evidence at all of the DATE tests whereas certain records existed of his DATE tests ; and if the ORG had accepted his participation in the DATE tests , this was based solely on his recollections .

The nerve gas ( known as “ G - agent ” or “ NORP ” ) test is described in the relevant records as “ exposure to single - breath NORP ” . The applicant alleged that he was told before the test that the experiment “ could not harm a mouse ” ; that he was placed in an air - tight , glass - partitioned cubicle containing a face mask , the mask was placed over his mouth and nose , the fitting was checked and the chamber was sealed ; that a loudspeaker informed him that the test was about to begin and to inhale normally ; that he felt an immediate tightening of the chest muscles and lungs which wore off after the end of the test ; and that blood samples were taken at regular intervals during the following TIME . The Government submitted that diluted GPE vapours were put into a gas chamber and , as the name of the test suggested , volunteers took a single breath of air with calculated doses of NORP gas through a tube connected to that chamber , they held their breath for TIME and then exhaled .

The other test involved mustard gas and was described in the records as “ H sensitivity and penetration ” . According to the applicant , it followed the same format as that in DATE .

The Government added the following detail : the mustard gas test was designed to test the performance of protective clothing and was carried out in CARDINAL parts . The first was a sensitivity test to determine an individual 's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant 's upper arm . If after TIME the test subject had a small red mark , he or she was deemed too sensitive and did not participate any further in the tests . On the other hand , if the participant was not demonstrably sensitive , the second part consisted of putting a drop of dilute mustard gas solution on CARDINAL samples of protective clothing left in place on the participant 's body and the skin under the clothing was examined after CARDINAL and then TIME . The participants were monitored before and after the tests . The rooms were properly ventilated , the dosages were small and safe and the tests were carefully planned and controlled .

From DATE the applicant was medically treated for breathlessness and high blood pressure and by DATE these problems had significantly worsened . He began to search for his Porton Down records through what he described as “ medical ” and “ political ” channels .

In response to his doctor 's enquiry , in DATE ORG ( ORG ) supplied his doctor with his service medical records on a “ medical in confidence ” basis . Those records did not refer to the applicant 's PERSON tests .

In a letter of CARDINAL DATE , PERSON responded to another enquiry from his doctor . The letter was sent on a “ medical in confidence ” basis and confirmed the applicant 's participation in a NORP gas test in DATE . That GPE test had been preceded and succeeded by a full medical examination which revealed no abnormality . The letter also referred ( inaccurately , as it later emerged – see paragraph CARDINAL below ) to CARDINAL blood tests conducted after the NORP test and to their results and confirmed that “ peak flow meter measurements ” had also been taken from the applicant and that “ breath - holding tests ” , a clothing penetration study ( apparently , although not expressly noted , the mustard gas tests ) and a battery of personality tests were performed . The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed . His doctor 's stamp on it indicates that he decided to tell the applicant that all was normal . The applicant persuaded his doctor to show him the letter in DATE .

By a letter dated DATE , a consultant informed the applicant 's doctor that he doubted that the applicant 's bronchial asthma was caused by his exposure to nerve gas . Further tests were to be carried out .

A letter from PERSON ( a professor of environmental toxicology at ORG and later the court - appointed expert witness in the ORG proceedings – see paragraphs DATE below ) dated DATE to the applicant stated that full and detailed records were required to judge the long - term effects of his participation in the tests and that a long - term epidemiological study would have been useful either to establish that there were long - term effects or to reassure test participants that there were none . His letter of DATE repeated his view as to the need for such a study .

An internal PERSON memorandum of DATE noted that certain blood - test figures given in the letter to the applicant 's doctor of CARDINAL DATE were inaccurate . In addition , it was considered that the applicant 's description of the tests was roughly consistent with the procedures in DATE . While there were no obvious gaps in DATE records , it could not be said that the records were complete : the applicant could have attended in DATE and his name could have been omitted or incorrectly recorded due to a clerical error .

Inter alia , the applicant carried out a sit - in hunger strike at ORG , held a press conference in ORG and requested members of parliament to put parliamentary questions .

DATE and DATE , the applicant went on hunger strike outside PERSON . On CARDINAL DATE he spoke with the Secretary of PERSON . The latter noted in a memorandum of that date that the applicant 's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records . He also recorded in a file note ( of DATE ) that the applicant 's description of his visits to PERSON in DATE and DATE left him with a level of confidence that he had been a volunteer there on both occasions . This led to the letter of CARDINAL DATE to the applicant 's doctor ( see paragraph DATE above ) .

In DATE the applicant formed ORG with the object of seeking recognition and redress for test participants . The association has CARDINAL members to date .

By a letter dated DATE , the Chief Executive of PERSON answered , at the request of the Secretary of ORG , a series of questions raised by a member of parliament about chemical and biological warfare testing . The Chief Executive 's letter described the test procedure , stating that participants were given a medical examination before and after the tests and recalled for check - ups “ from time to time ” . It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation . On DATE the Chief Executive confirmed the well - established policy of the ORG of releasing service medical records to a veteran 's doctor on a “ medical in confidence ” basis . The Chief Executive 's letter of CARDINAL DATE ( in response to a parliamentary question to the Minister of ORG ) noted that the tests did not include any plan for long - term systematic monitoring of participants : any monitoring thereafter was purely ad hoc and sporadic .

On DATE the applicant wrote to the ORG requesting copies of his medical records and of reports on the relevant tests . The reply of DATE from PERSON recalled the ORG policy of release on a “ medical in confidence ” basis . The applicant 's doctor had been provided with information in DATE on this basis . It was “ entirely up to your own doctor how much or how little of this information he conveys to you ” . Further queries from the applicant led to a similar response from PERSON by letter dated DATE .

On DATE Lord PERSON stated in ORG that the ORG would continue to send veterans to their doctors and would release medical records as appropriate . Information was provided to doctors to allow proper diagnosis and “ would be released , if necessary ” . He repeated that there was no evidence over DATE that test participants had suffered harm to their health .

NORP In response to a series of parliamentary questions put to the Secretary of ORG as to the necessity for a public inquiry , the government 's representative replied on DATE that there was no evidence that any test participants had suffered any long - term damage to their health in DATE . Similar responses as to the lack of evidence of harm to the test participants were given by the Minister of State for Defence in ORG on DATE and CARDINAL DATE in response to questions concerning the instigation of a study into the long - term health effects of exposure to chemical and biological substances .

On DATE the applicant and the ORG defence spokesman took part in a press conference on the question of PERSON volunteers and their requirements .

Following a meeting between them , on DATE the Minister of State for Defence wrote to the applicant . He referred to the concerns of the applicant ( and other test participants ) that information about the tests was being withheld . He confirmed that this was not the case but rather reflected “ less than thorough ” record - keeping than would be currently expected . Henceforth all volunteers would be able to obtain access to all the information held on them at PERSON and steps would be taken to declassify reports so as to make that information more accessible .

Certain copies of test documents were enclosed : ( a ) the alphabetical record book which recorded the applicant 's attendance at ORG CARDINAL ; ( b ) the summary record book which referred to the CARDINAL tests carried out on the applicant involving GPE and mustard gas and listed the monitoring procedures that were to be carried out on the applicant ( chest X - rays , peak flow QUANTITY tests , “ x QUANTITY alcohol ” quiz , breath - holding tests and blood tests ) ; and ( c ) a report entitled “ Effects of Inhaled GPE on Man ” which described the single breath PERSON test and contained an analysis of the results of the tests carried out on CARDINAL participants , believed to include the applicant 's test . It was indicated that these documents were available to any test participant who requested them .

This was the first material obtained by the applicant about his participation in the tests .

The letter went on to note that much GPE - related research work had already been published in open literature or was in ORG . The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published DATE . There was no evidence to date to suggest that any volunteer had suffered long - term adverse effects . A full independent and long - term study of the health impacts of test participation was not , however , considered feasible or practical so none had been or would be carried out .

In a letter dated DATE to the ORG , ORG indicated that it was well acquainted with the applicant , having received numerous communications from him and from members of parliament .

By a letter dated DATE , PERSON informed the applicant that it had discovered some old laboratory notebooks that included information about the DATE tests : CARDINAL book included some previously unavailable details of the mustard patch tests . A pre - exposure chest X - ray and the associated report card were also now available . The applicant was to contact PERSON if he wanted to see this material or obtain copies .

As well as those disclosed with the Minister of ORG 's letter of DATE , the following documents were also submitted to the ORG .

The Government indicated that these were all the relevant records that could be traced : ( a ) an extract from a laboratory record of results of personality and intelligence tests ; ( b ) extracts from laboratory records of GPE blood tests DATE blood samples were taken from the applicant ; and ( c ) an explanation of the GPE blood - test results .

The Government corrected their previous explanations of the CARDINAL blood samples ( see paragraph CARDINAL above ) : CARDINAL was taken on CARDINAL DATE , a second one prior to the applicant 's exposure to GPE and the remaining CARDINAL were taken later . They also corrected other errors relating to information provided in their earlier observations about those tests including the following : “ the reference to ' QUANTITY of GPE [ vapour per kilogram of body weight ] ' appears to have been a typographical error . In fact , calculated doses of PERSON ranged from CARDINAL to CARDINAL per kilogramme of body weight . ” They also disclosed documents recently discovered following a further search : ( a ) the applicant 's pre - exposure X - ray and its associated report card ( see paragraph CARDINAL above ) ; ( b ) a report dated DATE which described the manner in which the sensitivity tests to mustard gas were performed and entitled “ Technique of the Physiological Experiments Carried Out on the Human Subjects at [ Porton Down ] ” ; and ( c ) extracts from a laboratory notebook entitled “ FAC . Mustard on Men ” , relating to DATE and referring to the applicant .

On DATE the applicant claimed a service pension on the grounds of “ hypertension / breathing problems ” resulting from the Porton Down tests ( and , in addition , from his radiation exposure on DATE Island during the relevant nuclear tests there ) . ORG ( ORG ) obtained copies of his service and civilian medical records together with a report from his doctor , which confirmed that he suffered from hypertension , ORG and late onset bronchial asthma . On CARDINAL DATE the Secretary of ORG rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions . The applicant did not pursue an appeal at that stage .

The applicant consulted solicitors in DATE and obtained legal aid for proceedings . By a letter dated DATE to the Secretary of ORG , his solicitors threatened proceedings , alleging , inter alia , negligence , assault and breach of statutory duty on the part of the ORG , and demanding the release of all medical and laboratory records in the possession of the Secretary of ORG or of PERSON as regards the test periods in DATE and DATE , failing which the applicant would apply to ORG for pre - action discovery . The applicant 's representatives met with ORG representatives in DATE on a “ without prejudice ” basis and by a letter dated DATE requested confirmation from the ORG as to whether a certificate would be issued LAW ( “ a section CARDINAL certificate ” ) .

By a letter dated DATE to the applicant 's solicitors , the claims section of the ORG wrote as follows :

“ ORG has informed me that CARDINAL certificate in respect of acute bronchitis ( DATE ) , a bruised knee and loss of hearing will be regarded as attributable to service and CARDINAL certificate will be issued . The other ailments for which [ the applicant ] claimed a war pension have not been regarded as attributable to service . ”

On DATE a section CARDINAL certificate was signed by the Secretary of ORG :

“ In so far as the personal injury of [ the applicant ] is due to anything suffered as a result of his service in the ORG DATE and DATE , I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval , Military and ORG . ( Disablement and ORG , which relates to disablement or death of members of the ORG . ”

By a letter dated CARDINAL DATE , the ORG Solicitor provided a copy of the section CARDINAL certificate to the applicant 's representatives .

Following the judgment of this Court in GPE and PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) and the ORG 's disclosure of certain documents in their observations in the present case ( on DATE ) , the applicant requested an adjournment of the present application in order to pursue an appeal to the ORG and , in particular , disclosure of documents under LAW and GPE ) Rules DATE ( “ the PAT Rules ” ) . The present application was adjourned .

On DATE he lodged his ORG appeal . Since ORG ( “ the ORG ” – a specialised agency of ORG ) clarified that a further form was required , on CARDINAL DATE the applicant re - lodged the appeal .

In DATE the applicant received his “ Statement of Case ” . He obtained CARDINAL extensions of the time - limit for the submission of his “ answer ” to the Statement of Case ( to take advice from an expert chemical pathologist on the documents already disclosed and on those which were also to be requested during the ORG appeal and to consider the intervening observations of the Government in the present application ) and he indicated that he would be making an application under Rule CARDINAL ) of LAW .

On DATE his answer was submitted to the ORG along with a letter which noted that the answer included an application for disclosure of documents under Rule CARDINAL ) of the PAT Rules : paragraph CARDINAL of the answer set out a list of CARDINAL categories of document required by him under that rule .

On DATE the ORG responded by pointing out that enquiries were being made to obtain all the information requested under Rule CARDINAL ) of LAW . Once received , the ORG would ask for the agreement of the President of the ORG to disclose it .

On DATE the ORG wrote to PERSON enclosing a copy of the applicant 's Rule CARDINAL request and asking for the information as soon as possible so that the agreement of the President of the ORG could be obtained .

On DATE and DATE the ORG sent the supplementary Statement of Case ( now incorporating the supplemental medical evidence ) to the applicant and to the ORG , respectively .

DATE . On DATE the President of the PAT responded to the applicant 's enquiry , indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of ORG 's response . However , since the Rule CARDINAL request should not have been made in the applicant 's answer to the Statement of Case , that request had just come to light . The applicant was to confirm to the President if he intended paragraph CARDINAL of his answer to constitute his Rule CARDINAL request and , if so , the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues . The applicant was also to identify the ORG department to which a Rule CARDINAL direction should be addressed .

On DATE the applicant confirmed to the President of the PAT that paragraph CARDINAL of his answer did indeed constitute his Rule CARDINAL request and he made detailed submissions on the matters requested by the President .

By a letter dated DATE , the President of the ORG requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule CARDINAL request appeared to be ambiguous and lacking in clarity . The applicant submitted a draft direction ( essentially listing those documents already included in paragraph CARDINAL of his answer ) .

By an order dated DATE , the President of the ORG directed , pursuant to Rule DATE ) of LAW , disclosure of the scheduled documents by the Secretary of ORG since the documents “ were likely to be relevant to the issues to be determined in the appeal ” .

On DATE the Secretary of ORG responded to the direction of the President of the ORG . It was marked “ medical in confidence ” . It referred to the documents already submitted by the ORG to this ORG ( see paragraphs CARDINAL - CARDINAL above ) . The Secretary of ORG was unable to give a definitive response to the request for the fifth category of document required ( namely , “ any scientific or medical reports , whether published or prepared for internal use by PERSON , the [ ORG ] or other government departments or agencies of the volunteer studies or experiments in Porton Down DATE which were similar or related to the studies or experiments in which [ the applicant ] was involved ” ) . A full and careful review had been undertaken and was a time - consuming process . Many of the documents identified as being possibly relevant to the request were classified . The Secretary of ORG had asked for an urgent review of the classification to be undertaken and , once the review was completed , he would let the ORG have his full response . Otherwise the Secretary of ORG provided various explanations of the documents already submitted by the ORG to this ORG and details of the precise dates on which the applicant would have participated in the tests , of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents . The only documents ( additional to those already submitted to this ORG ) disclosed to the ORG were the applicant 's service and payment records , the latter of which included a payment for attendance for DATE at FAC in DATE .

The ORG 's letter was passed to the applicant on DATE . By a letter dated DATE , the applicant wrote to the ORG apologising for not having responded and explaining the reasons for the delay .

By a letter dated DATE , the ORG disclosed documents concerning the above - described fifth category : CARDINAL reports entitled “ The feasibility of performing follow - up studies of the health of volunteers attending [ Porton Down ] ” and “ The single - breath administration of Sarin ” , from which individual names had been blanked out . The feasibility report acknowledged that the records held at FAC prior to DATE generally consisted of the name , service number and age of participants at the date of testing but were not “ sufficient to allow either a comprehensive morbidity study or mortality study to proceed ” . While a study could be carried out on DATE test participants , “ such a study would be of very limited value and may only serve to draw attention to [ Porton Down 's ] interest in possible long - term health problems experienced by volunteers ” . The feasibility report concluded that a comprehensive follow - up study of all volunteers was “ impractical ” . PERSON library catalogue had also mentioned a document entitled “ NORP papers relating to early exposure of volunteers to ORG [ O - Pinacolyl methylphosphonoflouidate , commonly known as Soman ] and PERSON and ORG [ diphenylaminearsine chloride , commonly known as ORG ] ” . However , a copy of this document could not be located . A letter of DATE was also enclosed which certified that CARDINAL of the requested documents were “ in the nature of departmental TIME or records ” and would not therefore be disclosed ( Rule CARDINAL ) of LAW ) .

A hearing was fixed for DATE . On DATE the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to PERSON On DATE the ORG declined to adjourn , indicating that it was unlikely PERSON could or would prepare a report .

On DATE the ORG wrote to the ORG and the applicant . While CARDINAL documents had been previously certified as non - disclosable , ( letter of DATE see paragraph CARDINAL above ) , CARDINAL of those CARDINAL documents could now be disclosed . The ORG had “ had the opportunity of re - examining the documents ... with a view to assessing whether [ they ] could be the subject of voluntary disclosure ... in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [ PAT ] ” . Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material . CARDINAL documents could still not be disclosed : the first did not appear “ to contain anything of relevance ” to the applicant 's tests and , in any event , “ contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds ” ; and the second required permission from GPE before it could be disclosed .

The appeal was scheduled for DATE . The applicant applied for an adjournment supported by ORG ( the successor of the ORG – “ the VA ” ) . The ORG decision ( delivered on DATE ) recorded as follows :

“ The [ PAT ] are deeply disturbed that this application has proved necessary as a result of the [ applicant 's ] advisers ' failure to consider documents disclosed over DATE , in a timely fashion .

However , since the [ VA ] also appear to be without documentation and there is confusion by the [ applicant ] as to whether he also wishes to appeal for hypertension , we have reluctantly decided to allow the adjournment .

It is highly unsatisfactory that ORG resources have been wasted in this way . To prevent this happening in the future the ORG intend to exercise some control over the ongoing progress of the appeal . ”

The ORG was to clarify with the ORG the status of certain classified documents and the extent to which they could be released to the public , and directed the ORG to provide , by DATE , disclosure of further documents . The ORG , the GPE and the applicant were to notify the ORG by DATE of the questions and documents it wanted PERSON to examine . It was intended that the ORG would add its own questions and submit a composite questionnaire to PERSON who would report in response to the ORG . The applicant was also to confirm his position as regards the hypertension appeal by DATE .

On DATE , the ORG disclosed to the PAT three declassified documents . These were forwarded by the ORG to the applicant by a letter dated DATE , accompanied by a warning that the ORG had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD . By a letter dated DATE , the applicant confirmed that his appeal had been intended to cover hypertension also , he explained the reasons for his confusion and he requested an extension of time to so appeal . A hypertension appeal form was lodged with the PAT on DATE .

By a letter dated DATE , the ORG wrote to PERSON enclosing the documents disclosed by the ORG ( at that point ) with CARDINAL sets of questions ( prepared by the applicant and the medical member of the PAT ) . By a letter dated DATE , PERSON provided the ORG with a report . The applicant having noted that PERSON had omitted to respond to the ORG questions , PERSON did so in a supplemental report sent to the ORG under cover of a letter dated DATE .

In a document dated DATE , the ORG submitted its comments on PERSON reports . On DATE the GPE submitted a supplementary Statement of Case .

The ORG appeal hearing took place on DATE . It allowed the hypertension appeal to be heard out of time but , once it became clear that the ORG had not processed the appeal documentation filed by the applicant , the ORG reluctantly granted the ORG an adjournment to allow the GPE time to “ properly consider all the evidential material and prepare a reasoned medical opinion ” . The ORG appeal was , however , dismissed .

On DATE the ORG delivered its written decision . As to the facts , the ORG accepted that the applicant had undergone tests for mustard gas “ some time in DATE as well as the documented tests in DATE ” despite the fact that there was no reference in his service records or in other research records to the DATE test . The ORG also found “ disquieting ” the “ difficulties ” experienced by the applicant in obtaining the records which were produced to the ORG . The ORG also established the following facts :

“ CARDINAL . We find that [ the applicant ] suffered no long - term respiratory effect from skin contact with mustard gas following both tests in DATE and DATE .

We find that [ the applicant ] was administered only small doses of mustard gas and NORP gas which would have resulted in minimal exposure to mustard gas by off - gassing and a limited and transitory reaction to the NORP gas . Although no records relating to doses exist , the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se . Furthermore , after a fatality at FAC in DATE , safeguards were put in place to ensure that volunteers were only exposed to safe dosages .

The compelling weight of the evidence is that [ the applicant ] did not receive , in any of the tests , dosages likely to have long - term effects as described in the research papers . In particular , the [ PAT expert ] , although accepting the possibility that given further research through a long - term follow - up study a link might be found , concludes that there is no evidence to link [ the applicant 's ] exposure to either gases with his present condition . We accept [ the ORG expert 's ] conclusion that , given the limited doses and [ the applicant 's ] minimal immediate reactions , this would rule out a link between the tests and the claimed conditions .

NORP We particularly rely on [ PERSON ] expert report . He has analysed the specific data relevant to [ the applicant 's ] case and considered the conditions for which he is claiming in relation to that specific data . The research papers relied on by the [ applicant ] , although of some evidential value , are very general and speculative . We therefore prefer the evidence , and the conclusions reached by [ PERSON in his reports . ”

The ORG also accepted , as a matter of law , that it was sufficient to show that the proved service event was CARDINAL of the causes of the condition even if there were other contributory factors . However , it stated :

“ CARDINAL . We do not accept that the lack of possible evidence of other follow - up tests is sufficient to constitute reliable evidence .

We find that there is some reliable evidence surrounding the Porton Down tests for which [ the applicant ] volunteered . However , this evidence tends , if anything , to support the view that there is in fact no link between those tests and [ the applicant 's ] current conditions . The test of reasonable doubt is not therefore met .

There is no reliable evidence to suggest a causal link between the tests for either mustard gas or NORP gas and the claimed condition .

[ The ORG expert 's ] views that ' he can not exclude the possibility ' of a link between exposure to GPE and/or mustard gas and the claimed condition , does not meet the ' reasonable doubt ' test . Furthermore , he ' rules out ' exposure to GPE as a cause and deems it ' unlikely ' that mustard gas is a cause .

Finally , [ the applicant 's counsel ] invites us to allow the appeal for reasons which can be summarised as ' general fairness ' . The [ PAT ] does not have legislative or discretionary power to do so . The decision of the [ PAT ] is to disallow the appeal for [ ORG ] . ”

On DATE the applicant applied to the PAT for leave to appeal to ORG ( on the ORG matter ) and for a stay of the hypertension appeal then pending before the PAT . On DATE leave was refused , the ORG 's reserved decision being delivered on DATE .

On DATE the applicant applied for leave to appeal to ORG . On DATE leave was granted .

The applicant 's appeal notice and supporting skeleton argument were submitted on DATE . The appeal was listed to be heard on DATE .

On DATE ORG allowed the appeal and referred the matter back to the PAT for a further hearing .

DATE . On DATE a directions hearing was held before the PAT . It ordered the hypertension and ORG appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by DATE . On DATE the Treasury Solicitor produced a “ schedule of disclosure ” listing and disclosing CARDINAL documents : apart from CARDINAL items , the applicant had not seen them before . ORG maintained that disclosure of most of the documents ( including CARDINAL sets of TIME of meetings which Rule CARDINAL specifies can be withheld ) was not obligatory as they were of marginal relevance , noted that all documents had been downgraded to “ unclassified ” and indicated that the ORG would endeavour to produce the annexes referred to in certain documents .

The armed forces have , since DATE , put in place a service to deal with enquiries from ORG test participants ( “ the DATE Scheme ” ) . The relevant information pamphlet noted that participants could request their test records , that a search would be carried out for references to that person and for additional evidence of actual procedures , that a summary would be provided and that , if the person wanted to go to PERSON , he or she could obtain the actual records . While the pamphlet noted that reasonably comprehensive records had existed since DATE , individuals had to accept that old records in some cases were very sparse , that record keeping in DATE gone by was not up to current standards and that in certain cases a person 's attendance might not even have been marked . The pamphlet claimed that no participant was worse off after the Porton Down tests .

In DATE the Porton Down Volunteers Medical Assessment Programme was established by the ORG to investigate health concerns of Porton Down test participants . The study involved CARDINAL participants but no control group . The report , published in DATE , was entitled “ Clinical Findings in CARDINAL Ex - Porton Down Volunteers ” . It noted that CARDINAL had participated in the tests since Porton Down 's establishment in DATE and that CARDINAL had participated in nerve gas tests and CARDINAL in mustard gas tests , with some servicemen having been exposed to both . It concluded that :

“ On a clinical basis , no evidence was found to support the hypothesis that participation in PERSON trials produced any long - term adverse health effects or unusual patterns of disease compared to those of the general population of the same age . ”

From DATE the ORG funded “ an initial pilot research project ” on mortality and cancer incidence among PERSON test participants . It compared CARDINAL participants with a control group of CARDINAL other servicemen and the decision was taken that a full - scale epidemiological study should be undertaken . By DATE this had begun and it was expected to take DATE to complete .

Further to the death of PERSON in DATE after being exposed to Sarin gas ( also referred to as GPE gas , a nerve agent related to GPE ) , a coroner 's inquest was held and recorded “ death by misadventure ” . An application was brought for a fresh inquest alleging , inter alia , that incomplete evidence had been brought before the coroner and in DATE ORG ordered a fresh inquest . It concluded on DATE with the jury finding that the cause of PERSON death was the “ application of a nerve agent in a non - therapeutic experiment ” . Judicial review proceedings appear to be pending .

In or around DATE - CARDINAL a non - governmental organisation ( “ PERSON NORP ” ) discovered during searches in ORG CARDINAL letters of DATE and DATE containing legal advice from the Treasury Solicitor to the ORG about Mr PERSON 's case and CARDINAL of LAW . That organisation sent this material to ORG – Legacy Health Issues of the MOD on DATE . ORG letter of DATE noted as follows :

“ When the case was referred to me previously I did consider the relevance of section CARDINAL of LAW but I came to the conclusion that it had no application . On the information before me I am still of that opinion . Subsection ( CARDINAL ) of that section , which deals with injuries caused by acts of members of ORG , can have no application since the administration of the GPE gas to ... PERSON was ( so I understand ) carried out by [ civilian ] personnel and not by any member of ORG Subsection ( CARDINAL ) also seems inapplicable . [ It ] provides that no proceedings in tort are to lie against the ORG for death or personal injury due to anything suffered by a member of ORG if that thing is suffered by him ' in consequence of the nature or condition of any equipment or supplies used for the purposes of ORG . As I understand the facts of this case , GPE gas can not be said to be a ' supply used for the purposes of ORG at all , it being purely an experimental substance and one which has never been used for the purposes of ORG . If this is correct , then section CARDINAL of LAW can not protect the ORG or the Minister from liability . ”

It was a well - established and unqualified common - law rule that the ORG was neither directly nor vicariously liable in tort .

The rule was counterbalanced in several ways . Actions against the errant serviceman would be permitted in which case the ORG would invariably ( if the defendant was acting in the course of his duty ) accept responsibility for any damages awarded . In cases where the individual author of the injury could not be identified , a nominee defendant would be appointed to enable the claim to proceed . In addition , from DATE a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension . The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces ( war service or not ) . A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the ORG .

Further to strong criticism of the ORG 's position as litigant , in DATE legislation was envisaged that would make the ORG liable in tort . The DATE terms of reference of the drafting committee were to prepare a bill to provide , inter alia , that the ORG should become liable to be sued in tort . Clause CARDINAL of the draft bill produced in DATE ( and never adopted ) provided , under the heading “ Substantive Rights ” , that : “ Subject to the provisions of this LAW , the ORG shall , notwithstanding any rule of law to the contrary , be liable in tort . ” This provision was made subject to clause CARDINAL(CARDINAL)(g ) which read :

“ Except as therein otherwise expressly provided , nothing in this LAW shall–

( g ) entitle any member of the armed forces of the ORG to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto , or the performance or enforcement or purported performance or enforcement thereof by any member of those forces , or other matters connected with or ancillary to any of the matters aforesaid ... ”

DATE . The CARDINAL Act made far - reaching changes , both substantive and procedural , to the ORG 's liability to be sued .

LAW was divided into CARDINAL parts : Part I “ Substantive law ” ( sections CARDINAL of the Act ) ; Part II “ Jurisdiction and procedure ” ; Part III “ Judgments and execution ” ; and Part IV “ Miscellaneous ” .

Section CARDINAL provides for the ORG to be sued as of right rather than by a petition of right sanctioned by ORG fiat .

Section CARDINAL of the CARDINAL Act provides :

“ Liability of the ORG in tort

( CARDINAL ) Subject to the provisions of this LAW , the ORG shall be subject to all those liabilities in tort to which , if it were a private person of full age and capacity , it would be subject:–

( a ) in respect of torts committed by its servants or agents ;

( b ) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer ; and

( c ) in respect of any breach of the duties attaching at common law to the ownership , occupation , possession or control of property :

Provided that no proceedings shall lie against the ORG by virtue of paragraph ( a ) of this subsection in respect of any act or omission of a servant or agent of the ORG unless the act or omission would , apart from the provisions of this LAW , have given rise to a cause of action in tort against that servant or agent or his estate . ”

Members of the armed forces were to be treated differently . If they died or were injured in the course of their duties , the ORG could not be sued in tort once the Secretary of ORG certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension . In particular , section CARDINAL of LAW was entitled “ Provisions relating to the armed forces ” and provided as follows :

“ ( CARDINAL ) Nothing done or omitted to be done by a member of the armed forces of the ORG while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person , or for causing personal injury to another person , in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the ORG if–

( a ) at the time when that thing is suffered by that other person , he is either on duty as a member of the armed forces of the ORG or is , though not on duty as such , on any land , LOC , ship , aircraft or vehicle for the time being used for the purposes of the armed forces of the ORG ; and

( b ) the [ Secretary of ORG ] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under LAW Majesty relating to the disablement or death of members of the force of which he is a member :

Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces .

( CARDINAL ) No proceedings in tort shall lie against the ORG for death or personal injury due to anything suffered by a member of the armed forces of the ORG if–

( a ) that thing is suffered by him in consequence of the nature or condition of any such land , LOC , ship , aircraft or vehicle as aforesaid , or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces ; and

( b ) the [ Secretary of ORG ] certifies as mentioned in the preceding subsection ;

nor shall any act or omission of an officer of the ORG subject him to liability in tort for death or personal injury , in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the ORG being a thing as to which the conditions aforesaid are satisfied .

( CARDINAL ) ... a Secretary of ORG , if satisfied that it is the ORG

( a ) that a person was or was not on any particular occasion on duty as a member of the armed forces of the ORG ; or

( b ) that at any particular time any land , LOC , ship , aircraft , vehicle , equipment or supplies was or was not , or were or were not , used for the purposes of the said forces ;

may issue a certificate certifying that to be the fact ; and any such certificate shall , for the purpose of this section , be conclusive as to the fact which it certifies . ”

The words in LAW “ subject to the provisions of LAW ” rendered section CARDINAL subject to the provisions of section CARDINAL of the CARDINAL Act .

The exception contained in section CARDINAL of LAW was removed by LAW . This removal was not retrospective . Accordingly , after DATE claims in tort by members of the armed forces ( or their estates ) who had died or been injured as a result of conduct that took place prior to DATE could not proceed if the Secretary of ORG issued the relevant certificate . The reasons the law was prospective only were explained by the member of parliament introducing the bill as follows ( ORG , ORG , CARDINAL DATE , col . CARDINAL ) :

“ ORG have resisted retrospective legislation as a basic concept , especially where such legislation imposes a retrospective liability on others . Secondly , it would be clearly wrong to impose retrospective liability on a serviceman for past actions , even if the ORG , his employer , were to stand behind him . That would involve individuals who are alleged to be guilty of negligence over DATE being brought to book in a court of law for actions [ for ] which , at the time they were committed , they were not liable under the law . That is a strong argument against retrospective legislation . Thirdly , ... where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants ? How could there be a logical cut - off point for considering claims either by the [ MOD ] or the courts . How could those whose claims which fell on the wrong side of the arbitrary line be satisfied ? How could the [ MOD ] , and ultimately the courts , be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available ?

Those are practical questions to which , sadly , there are no ready answers . For that reason , I believe that the only reasonable course of action is to legislate for the repeal of LAW from the date of enactment . ”

Section CARDINAL of this LAW provides that any action for damages for personal injury must be brought within DATE of the cause of action arising .

Mr PERSON served in ORG DATE . In DATE he brought proceedings in negligence against the ORG ( alleging the ORG 's negligence and breach of statutory duty and its vicarious liability for the negligence and breach of duty of his fellow servicemen ) claiming that he had suffered personal injury as a result of his exposure to asbestos fibres and dust while performing his duties as a serviceman .

On the preliminary issue of whether the ORG could be sued under LAW , ORG found that provision to be incompatible with LAW .

In deciding whether section CARDINAL amounted to a procedural or substantive limitation on his rights , ORG considered that the issue turned on whether a section CARDINAL certificate extinguished not only Mr PERSON ' right to sue for damages but also his primary right arising from the ORG 's duty of care :

“ If , after the passing of LAW , he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty , section CARDINAL merely extinguished his secondary right to claim damages for its breach , and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right . ”

In concluding that section CARDINAL amounted to a procedural bar to an existing right of action in tort and in thus finding Article CARDINAL applicable , ORG relied , in particular , on ORG and Others and PERSON and Others v. GPE ( judgment of DATE , Reports CARDINAL-IV ) and ORG v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-XI ) .

The limitation therefore had to be subjected to a proportionality test . In this respect , ORG concluded that the disadvantages of a pension scheme were such that access to it was an “ exceptionally , indeed an unacceptably ” high price to pay for the advantage of not having to prove fault , an advantage that would only apply when the question of the fault of the other party was in doubt . Neither was ORG convinced that the choice to repeal LAW prospectively was proportionate , considering , inter alia , that the finding of liability for conduct that was not a basis for liability when it took place was far less pernicious a solution than denying proper damages to persons injured as a result of negligence .

ORG allowed the ORG 's appeal . LAW had a substantive and not procedural effect and ORG reliance on ORG , cited above , was mistaken . The Master of the Rolls stated that :

“ The requirement in LAW for a certificate from the Secretary of ORG as a precondition to defeating a claimant 's cause of action is an unusual one and not easily analysed , and it can not be treated simply as an option to impose a procedural bar on the claim . ”

In so finding , ORG rejected the ORG 's objection , based on ORG v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALVIII ) and , more recently , NORP v. GPE ( no . CARDINAL , DATE ) , to the applicability of LAW , ORG finding that PERSON was concerned solely with “ disputes raised by servants of the ORG over their conditions of service ” whereas the proceedings before ORG concerned the nature and effect of section CARDINAL of LAW on a claim in tort against the ORG .

The applicant appealed , arguing that ORG had ignored a clear principle established by ORG . The ORG did not pursue the PERSON argument .

ORG ( Lord PERSON of GPE , Lord PERSON , Lord Hope of PERSON , Lord PERSON and Lord PERSON of Gestingthorpe ) unanimously rejected the appeal . ORG considered the maintenance of the distinction between procedural and substantive limitations on access to a court to be a necessary one since Article CARDINAL was concerned with procedural fairness and the integrity of a ORG 's judicial system rather than with the substantive content of its national law . However , ORG acknowledged the difficulty in tracing the borderline between the substantive and procedural , considering the Convention jurisprudence to be indicative of some difficulty in this respect . Drawing on the text , historical context , legislative intent and the actual operation of section CARDINAL of LAW and , further , on a comprehensive analysis of the Convention jurisprudence and applicable principles , ORG concluded that section CARDINAL of LAW maintained the existing lack of liability in tort of the ORG to service personnel for injury suffered that was attributable to service and served to ease servicemen towards the no - fault pension option by taking away the need to prove attributability . It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which LAW did not apply .

Having reviewed the Convention jurisprudence , Lord PERSON noted that , whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law , an accurate analysis of a claimant 's substantive rights in domestic law was , nonetheless , an essential first step towards deciding whether he had , for the purposes of the autonomous meaning given to the expression by the LAW , a “ civil right ” such as would engage LAW .

Lord PERSON went on to outline the historical evolution of section CARDINAL , considering it clear that there was no parliamentary intention to confer any substantive right to claim damages . “ Few common - law rules were better - established or more unqualified ” , he began , “ than that which precluded any claim in tort against the Crown ” and because “ there was no wrong of which a claimant could complain ( because the King could do no wrong ) relief by petition of right was not available ” . Claims referred to as “ exempted claims ” against the ORG for damages for , inter alia , injury sustained by armed forces personnel while on duty were “ absolutely barred ” . When proposals for reform were put forward in DATE , “ no cause of action was proposed in relation to the exempted claims ” . When the Crown Proceedings Bill was introduced into ORG in DATE it again provided that the exempted claims should be “ absolutely barred ” , but those fulfilling the qualifying condition would be compensated by the award of a pension on a no - fault basis .

When what was to become section CARDINAL(CARDINAL ) was amended uncontentiously in ORG , the intention was not to alter the “ essential thrust of the provision as previously drafted ” . The object of the new certification procedure was to “ ease the path of those denied any right to a common - law claim towards obtaining a pension , by obviating the need to prove attributability , an essential qualifying condition for the award of a pension ” . Whereas the issue of a certificate under section CARDINAL(CARDINAL ) of LAW was discretionary as shown by the permissive “ may ” , no such permissive language applied to the issuance of a certificate under section CARDINAL(CARDINAL)(b ) . “ It was plainly intended that , where the conditions were met , the Secretary of ORG should issue a certificate as was the invariable practice of successive Secretaries of ORG over DATE . ” Although different language had been used over DATE , “ the NORP courts had consistently regarded section QUANTITY ) as precluding any claim at common law ” . It was in fact the “ absolute nature of the exclusion imposed by section CARDINAL ) ” ( coupled with the discrepancy , by DATE , between the value of a pension and of a claim for common - law damages ) which fuelled the demand for the revocation of section CARDINAL and led to GPE . In deciding whether section CARDINAL(CARDINAL ) imposed a procedural bar or denied any substantive right , regard had to be had to the practical realities and , in that respect , the Secretary of ORG 's practice had been “ uniform and unvarying ” so that any practitioner would have advised PERSON that CARDINAL certificate was “ bound to be issued ” . Lord PERSON found ORG to be “ categorically different ” from ORG and concluded , for reasons closely reflecting those of ORG and of Lord PERSON ( see below ) , that the appeal was to be rejected .

As regards the distinction between substantive and procedural bars to a judicial remedy , Lord PERSON conducted a comprehensive analysis of the Convention jurisprudence , highlighting what he considered to be inconsistencies and the difficulties in applying it :

“ CARDINAL . The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the GPE jurisprudence on LAW , but the cases do not speak with a single clear voice . That is hardly surprising . The distinction , although easy to grasp in extreme cases , becomes much more debatable close to the borderline , especially as different legal systems draw the line in different places ...

I have already referred to several of the most important GPE cases , but it is useful to see how CARDINAL contrasting themes have developed since the seminal PERSON decision in DATE . Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant 's access to the court , whether or not the restriction should be classified as procedural in nature . Others attach importance to the distinction between substance and procedure .

The first case to note is PERSON v. the GPE ... Section CARDINAL(CARDINAL ) [ of ORG ] imposed substantive restrictions on his rights of action ( requiring bad faith or negligence ) and subsection ( CARDINAL ) imposed a procedural restriction ( the need for the ORG 's permission for the commencement of proceedings ) . The Commission ... agreed with the parties that ' it is immaterial whether the measure is of a substantive or procedural character . It suffices to say that section CARDINAL acted as an unwaivable bar , which effectively restricted the applicant 's claim in tort ' . But the Commission considered that the restrictions were not arbitrary or unreasonable , being intended to protect hospital staff from ill - founded or vexatious litigation . The ORG ... took a similar view .

In Pinder v. the GPE ... ( from which ORG are not significantly different ) the Commission took the view ... that section CARDINAL of the CARDINAL Act brought about the substitution of a no - fault system of pension entitlement for the right to sue for damages , and that that removed the claimant 's civil right : ' It follows , therefore , that the ORG does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to “ a pressing social need ” as contended by the applicant . ' However the ORG then ... referred to its report in ORG and stated : ' These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court , as in the PERSON case , but also in respect of a substantive immunity from liability as in the present case . The question , therefore , arises in the present context , whether section CARDINAL of LAW constitutes an arbitrary limitation of the applicant 's substantive civil claims . '

The Commission held that section CARDINAL was not arbitrary or disproportionate ...

Powell and PERSON v. the GPE ... was concerned with the effect of section CARDINAL(CARDINAL ) of LAW DATE on persons complaining of noise from aircraft travelling to and from FAC . Section CARDINAL(CARDINAL ) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances , and its flight was not in breach of the provisions of the LAW or any order made under it . In unanimously rejecting the claimants ' claim under LAW ORG simply relied on the fact that the applicants had no substantive right to relief under LANGUAGE law . It rejected a subsidiary argument that the claimants ' residuary entitlement to sue ( in cases not excluded by section CARDINAL(CARDINAL ) ) was illusory .

The ORG 's approach in PERSON v. the GPE ... was much less straightforward . ... The ORG 's discussion of the relevant principles contained ... the following passage ... : ' Whether a person has an actionable domestic claim may depend not only on the substantive content , properly speaking , of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court . In the latter kind of case LAW may have a degree of applicability . Certainly the LAW enforcement bodies may not create by way of interpretation of LAW a substantive civil right which has no legal basis in the ORG concerned . However , it would not be consistent with the rule of law in a NORP society or with the basic principle underlying LAW namely that civil claims must be capable of being submitted to a judge for adjudication – if , for example , a ORG could , without restraint or control by the Convention enforcement bodies , remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons . '

It is hard to tell how far the last sentence of this passage goes . The ORG then referred ... to the distinction between substantive and procedural restrictions : ' It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law . It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy . ' The ORG did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of LAW respect for private life ) , even though there was in fact no complaint under LAW .

In PERSON v. the GPE ... and ORG v. GPE ... , the ORG considered whether restrictions on access to the court ( in LAW of ORG ( GPE ) Act DATE respectively ) were justifiable without adverting expressly to the distinction between substantive and procedural bars . In PERSON and PERSON v. GPE ... , the Commission ... described the immunity as merely a procedural bar , and as such requiring justification . The ORG took the same view , regarding ... the claimants ' access to some unspecified procedures for alternative dispute resolution as being a material factor .

The CARDINAL most recent cases are of particular importance . In Z [ and Others ] v. the GPE ... , the ORG ... held that there had been no breach of LAW in your Lordships ' decision in GPE v. ORG [ DATE ] CARDINAL AC CARDINAL as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of DATE while their suffering was known to the local authority ( but they were not the subject of any care order ) . ... The whole of the ORG 's judgment on LAW ... merits careful study , but its essence appears from the following passages ... : ... ' The ORG is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law . There was no restriction on access to court of the kind contemplated in the PERSON judgment . ' In reaching these conclusions the majority of the ORG stated in plain terms that its decision in PERSON had been based on a misunderstanding of the NORP law of negligence .

Finally there is ORG v. the GPE ... That case was decided DATE after Z and by a constitution of the ORG several of whose members had sat ( and some of whom had dissented ) in Z. In Fogarty the Court repeated verbatim ... the passage from PERSON which I have already quoted . It rejected ... GPE argument that because of the operation of ORG immunity the claimant did not have a substantive right under domestic law . The ORG attached importance to GPE ability to waive ( in fact the judgment said ' not choose to claim ' ) immunity as indicating that the bar was procedural . Nevertheless , the ORG concluded ... that : ' measures taken by a High Contracting Party which reflect generally recognised rules of public international law on ORG immunity can not in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in LAW . Just as the right of access to court is an inherent part of the fair trial guarantee in that Article , so some restrictions on access must likewise be regarded as inherent , an example being those limitations generally accepted by the community of nations as part of the doctrine of ORG immunity . '

NORP In trying to reconcile the inconsistencies in the GPE jurisprudence it might be tempting to suppose that the ORG 's wide and rather speculative observations in PERSON ( which were not its grounds for decision ) marked a diversion which proved , in Z , to be a blind alley . But that explanation immediately runs into the difficulty that in ORG , DATE after Z , ORG ( constituted by many of the same judges ) chose to repeat , word for word , the observations made in PERSON . The uncertain shadow of PERSON still lies over this area of the law .

Nevertheless [ Mr PERSON ' counsel ] conceded that in order to succeed on the appeal , he had to satisfy your Lordships that section CARDINAL of LAW constituted a procedural bar . He equated this task with satisfying your Lordships that PERSON had at the commencement of his proceedings a cause of action against the [ ORG ] , and that that cause of action was cut off ( or defeated ) by the [ ORG 's ] invocation of the section CARDINAL procedure . He treated this event as indistinguishable from the GPE government 's invocation , in ORG , of the defence of ORG immunity ( to be precise , its decision not to waive ORG immunity ) . In each case , [ Mr PERSON ' counsel ] argued , the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced .

In my view , [ Mr PERSON ' counsel 's ] concession was rightly made . Although there are difficulties in defining the borderline between substance and procedure , the general nature of the distinction is clear in principle , and it is also clear that LAW is , in principle , concerned with the procedural fairness and integrity of a ORG 's judicial system , not with the substantive content of its national law . The notion that a ORG should decide to substitute a no - fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to LAW , as the Commission said in PERSON ... ( in a report , specifically dealing with section CARDINAL of LAW , which has been referred to with approval by ORG in several later cases ) .

In the circumstances [ Mr PERSON ' ] argument clings ever more closely to the bare fact that PERSON had a cause of action when he issued his claim form , and that his claim could not be struck out as hopeless unless and until the Secretary of ORG issued a certificate under LAW . But NORP human rights law is concerned , not with superficial appearances or verbal formulae , but with the realities of the situation ( PERSON v. GPE ... ) . [ Mr PERSON ' ] argument does , with respect , ignore the realities of the situation . It is common ground that the Secretary of ORG does in practice issue a certificate whenever it is ( in legal and practical terms ) appropriate to do so . He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive ORG immunity ( which may be by no means a foregone conclusion , especially in politically sensitive employment cases ) . The decision whether or not to waive immunity in ORG really was a decision about a procedural bar , but I am quite unpersuaded that it provides a parallel with this case . The fact is that section CARDINAL of the CARDINAL Act did in very many cases before DATE , and still does in cases of latent injury sustained before DATE , substitute a no - fault system of compensation for a claim for damages . This was and is a matter of substantive law and the provision for an official certificate ( in order to avoid or at least minimise the risk of inconsistent decisions on causation ) does not alter that . Section CARDINAL(CARDINAL)(b ) , taken on its own , is a provision for the protection of persons with claims against the [ MOD ] . I respectfully agree with Lord PERSON 's analysis of the legislative history of LAW and with the conclusions which he draws from it .

In these circumstances I do not consider it necessary or desirable to attempt to assess whether section CARDINAL , if tested as a procedural bar , would meet the test of proportionality . There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so . ”

Lord PERSON agreed with Lord PERSON 's reasoning and conclusions and made certain additional observations . He noted that Mr PERSON ' counsel ( also counsel for the present applicant ) had conceded that , if LAW simply said that servicemen had no right of action , it would not have infringed LAW . PERSON argued , however , that the structure of LAW was such that he had a civil right ( a cause of action in tort ) until a section CARDINAL certificate was issued ; if no certificate had been issued he would have been able to prosecute his action before the courts ; and section CARDINAL therefore gave the Secretary of ORG a power at his discretion to cut off the applicant 's action and prevent him from bringing it before the courts . Lord PERSON pointed out that , if the purpose of section CARDINAL(CARDINAL)(b ) and ( CARDINAL)(b ) had been to give the Secretary of ORG a discretionary power “ to swoop down and prevent people with claims against the ORG from bringing them before the courts ” , he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers . However , referring to the historical analysis of Lord PERSON , he considered it clear that section CARDINAL delimited the substantive cause of action and the section CARDINAL certificate was no more than a binding acknowledgment by the Secretary of ORG of the “ attributable to service ” requirement for an award of a pension , the quid pro quo for the inability to sue in tort . He too considered distinguishable ORG and Others and PERSON and Others ( PERSON did not involve any encroachment by the executive upon the functions of the judicial branch ) and ORG ( having regard to the discretion available to the foreign government to submit or not to jurisdiction ) .

Lord Hope analysed in some detail the Convention jurisprudence and principles , the history of LAW , the text and operation of section CARDINAL and the section CARDINAL certification process . He noted :

“ DATE . The overall context is provided by the fact that section CARDINAL falls within the same Part [ I ] of the LAW as section CARDINAL . LAW , by which the basic rules for the ORG 's liability in tort are laid down , is expressed to be ' subject to the provisions of this LAW ' . LAW is an integral part of the overall scheme of liability which is described in Part I of the LAW . This was all new law . None of the provisions in this Part which preserved the ORG 's immunity from suit in particular cases could be said , when the legislation was enacted , to be removing from anybody a right to claim which he previously enjoyed .

As for section CARDINAL itself , ... [ PERSON proceeds on the assumption that if a claim is made under LAW the Secretary of ORG will have to form a view , on the facts , as to whether or not the case is covered by the immunity . The Secretary of ORG is told that he can not have it both ways . He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down . This has the effect of preventing him , as the minister responsible for the administration of the war pension scheme , from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme . This is a matter of substantive law . It is an essential part of the overall scheme for the reform of the law which the DATE Act laid down . It does not take anything away from the claimant which he had before . On the contrary , it has been inserted into the scheme of the LAW for his benefit . ”

Lord Hope concluded , in full agreement with the reasons expressed by Lord PERSON , that section CARDINAL amounted to a substantive limitation on the right to sue the ORG in tort .

Lord PERSON 's judgment also contained a comprehensive assessment of the ORG 's jurisprudence , the historical context and text of LAW and the consequent purpose of the section CARDINAL certificate . He noted :

“ If the serviceman brought proceedings against the ORG for damages , the question at once arose whether his injury was sustained in circumstances which qualified him for a pension , for if it was the ORG was not liable in damages . Sometimes the Secretary of ORG had already conceded , or the ORG had already found , that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown . If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action .

... In such circumstances the Secretary of ORG had no discretion whether to grant or withhold a certificate . He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success . It was his duty as a public servant to ascertain the facts and certify or not accordingly . ”

Lord PERSON considered it plain that the section CARDINAL certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined . As regards PERSON , and unlike the other Law Lords , he considered that immunities claimed by a ORG which conformed to generally accepted norms of international law fell outside DATE entirely . For the reasons outlined by each of their Lordships with which he agreed , he would also dismiss the appeal .

The scheme currently in force for the payment of a service pension in respect of , inter alia , illnesses and injuries attributable to service is contained in the Naval , Military and ORG . ( Disablement and ORG DATE ( “ the Pensions Order ” ) .

The basic condition for the award of a pension is that “ the disablement or death of a member of the armed forces is due to service ” ( LAW ) . “ Disablement ” is defined as “ physical or mental injury or damage , or loss of physical or mental capacity ” ( Schedule CARDINAL to ORG ) . Where claims are made DATE after the termination of service , LAW provides that the disablement or death is to be treated as “ due to service ” if it is due to an injury which is either attributable to service after DATE or existed before or arose during such service and was and continues to be aggravated by it .

The Pensions Order provides that where , upon reliable evidence , a reasonable doubt exists whether the above conditions are fulfilled , the benefit of that doubt must be given to the claimant ( Article CARDINAL ) ) .

The scheme for the payment of pensions is administered by a specialised agency of the ORG , formerly ORG ( “ ORG ” ) and now ORG ( “ VA ” ) . On receipt of an application , the GPE , inter alia , obtains the claimant 's service records ( including service medical records ) from the ORG and , with the assistance of additional medical evidence if required , assesses whether the claimant is suffering from a disability attributable to service . The Secretary of ORG decides on the basis of this assessment whether to award a service pension .

A claimant who is refused a war pension by the Secretary of ORG may appeal to the PAT ( see ORG ) in accordance with LAW . This body is composed of a lawyer , a doctor and a serviceman or ex - serviceman of the same sex and rank as the claimant .

The GPE provides the ORG with a Statement of Case , which includes , inter alia , a transcript of the claimant 's service records including service medical records , civilian medical records and reports including those prepared at the request of the GPE and a statement outlining the Secretary of ORG 's reasons for refusing the application . The claimant may submit an answer to the Statement of Case and/or adduce further evidence . A hearing then takes place . The PAT examination is de novo so that the appellant does not have to show that the Secretary of ORG 's decision was wrong . A further appeal lies to ORG on a point of law with leave from the ORG or ORG .

Rule CARDINAL of LAW ( “ the Rule CARDINAL procedure ” ) is entitled “ Disclosure of official documents and information ” and provides as follows :

“ ( CARDINAL ) Where for the purposes of his appeal an appellant desires to have disclosed any document , or part of any document , which he has reason to believe is in the possession of a government department , he may , at any time not DATE after the Statement of Case was sent to him , apply to the President for the disclosure of the document or part and , if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal , he may give a direction to the department concerned requiring its disclosure ( if in the possession of the department ) in such manner and upon such terms and conditions as the President may think fit :

( CARDINAL ) On receipt of a direction given by the President under this rule , the Secretary of ORG or Minister in charge of the government department concerned , or any person authorised by him in that behalf , may certify to the President –

( a ) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly ; or

( b ) that the whole or part of the document ought not , for reasons of security , to be disclosed in any manner whatsoever ;

and where a certificate is given under sub - paragraph ( a ) , the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document , or part thereof , as the case may be , and where a certificate is given under sub - paragraph ( b ) the President shall direct the tribunal to consider whether the appellant 's case will be prejudiced if the appeal proceeds without such disclosure , and , where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure , they shall adjourn the hearing of the appeal until such time as the necessity for non - disclosure on the ground of security no longer exists . ”

Prior to DATE all medical records ( civilian or service ) were only disclosed on a “ medical in confidence ” basis . It was a matter for the doctor to decide if it was in the patient 's best interests to see his or her records . The DATE Act came into force on DATE and it sets down the rights of persons to access , inter alia , their service and civilian medical records . It applies only to records compiled after the date of its entry into force and to records compiled “ in connection with the care of the applicant ” .