Lawyers slam 'shameful' MoD compensation reforms
Removal of duty of care may deny British troops justice
The government is facing criticism over proposals to extend 'combat immunity' and do away with its duty of care in battle, with lawyers arguing the move by the Ministry of Defence is 'shameful', 'inappropriate', and could create a David versus Goliath situation for injured service personnel.
The well-established principle of combat immunity recognises that no one should be found negligent for decisions made in the heat of battle. The MoD wants to expand the principle, however, to include situations that are far beyond or before the battlefield.
Critics of the move say it would prevent a wide range of negligence claims being heard, even if inadequate training or equipment is to blame for injury or death, as with the ordering of Snatch Land Rovers, described as 'mobile coffins' by troops, or deaths during training exercises in the Brecon Beacons.
Instead of liability being considered, the MoD has proposed that cases of death or injury should be considered through an in-house compensation scheme, where decisions on levels of compensation would be made behind closed doors by ministry-appointed officials.
In his foreword to the government's 'Better combat compensation' consultation, which closes on 23 February, the defence secretary, Sir Michael Fallon, said there was 'an urgent need' to reform how compensation claims are 'brought before the courts and provide clarity in law on issues of negligence which may contribute to deaths and injuries suffered by members of our armed forces in combat'.
'The combined measures I hope will provide welcome relief for families and individuals who might otherwise find themselves having to pursue lengthy and stressful claims in the courts, which in future would no longer be necessary,' he said. 'This would also ensure that our armed forces will be freed from increasing judicial constraints whilst on operations, thereby allowing them to do their duty.'
Lawyers have been quick to react to the proposals, with Jocelyn Cockburn, a partner at Hodge Jones & Allen who successfully took the government to the Supreme Court over its duty of care for British troops on active service abroad, hit out at the plans as 'shameful'.
'If the MoD is immune from legal action there is a real risk that safety standards will fall,' she said. 'During the course of the Snatch Land Rover litigation the government tried to persuade the court not to impose any duty on the MoD to protect its troops. This argument failed and was patently unreasonable. Parliament should give any such bill short shrift.
'It is telling that the first step by the MoD in response to the highly critical Chilcot Report isn't to introduce new measures to protect soldiers, but instead measures to remove their own duty to operate a 'safe system of work' where our troops are deployed. It is a shameful response.'
Cockburn explained that, in her experience, the MoD has 'a closed attitude to admitting mistakes' and does not 'take well to scrutiny of any type', and that there was a 'real risk' the MoD will be far from transparent over any future failings.
'This proposal is wrapped up with the planned introduction of a no-fault compensation scheme, which allows the defence secretary to contend that it embodies his 'commitment and obligation to the brave men and women who have risked their lives for our country'. We should not take his words at face value,' she said.
The head of HJA's civil liberties team added that the MoD's proposed scheme will not achieve its stated aim of compensating soldiers as if they had won their case in court, adding that vulnerable clients with complex cases cannot be expected to navigate the process without legal representation.
Rhicha Kapila, the head of the military claims team at Bolt Burdon Kemp, agreed, adding that any attempt to broaden the scope of combat immunity will narrow the opportunities for military personnel to seek redress in the civil courts.
'It is important that any decisions made in the UK over procurement or training, or other operational measures, are not caught under this new scheme. Soldiers should be protected against negligence and the errors of their superiors, and they must be able to rely on their basic legal rights,' she said.
'It is vitally important that systemic failings are identified and rectified. The courts shine a light on these shortcomings and without this there is little opportunity for the MoD to be held accountable, and for lessons to be learned.
'Negligence can cause lifelong consequences and suffering for military personnel or their families who have lost a loved one. Delivering faster and one-off compensation with no regard for the changing circumstances is concerning as it is crucial that the award addresses lifelong needs and will restore the applicant to the position they were in before the injury, so far as possible.'
Chancery Lane has also expressed concern over the 'inappropriate' proposals. 'A decision about equipment or training, made from a desk in Whitehall, should be subject to the same scrutiny as similar decisions about specialist training or equipment made by other employers,' said Robert Bourns, president of the Law Society.
'This creates a David and Goliath situation where the MoD would be both judge and jury,' he added. 'A young squaddie trying to prove that his employer failed in its duty of care could be faced by the might of the MoD, in a forum defined and run by that same employer.'
John van der Luit-Drummond is deputy editor of Solicitors Journal