Better Combat Compensation – Consultation published by the Ministry of Defence Response by Hodge Jones & Allen LLP

Hodge Jones & Allen has represented Armed Forces’ families for a period of over a decade, principally in cases handled by partner Jocelyn Cockburn. This work has arisen out of deaths of soldiers in the Iraq or Afghan conflicts and, usually, in circumstances where families have alleged that the Ministry of Defence has failed to properly equip their loved ones. Hodge Jones & Allen has represented soldiers and their families in relation to combat death and injuries as well as training and other injuries. This response draws on those experiences and is restricted to the effect of the proposals on UK Armed Forces personnel rather than any other third party potential claimant.

Foreword by Sir Michael Fallon MP and relevant background issues

The Military Covenant

The Secretary of State for Defence restates the commitment to members of the Armed Services who risk their lives “sometimes suffering serious injury or death” as a result of their duty to defend the UK and its people. Reference is made to the Armed Forces Covenant. It should be noted that the Armed Forces Covenant was updated in May 2015, restating its two principles that:-

• The Armed Forces community should not face disadvantage compared to other citizens in the provision of public and commercial services;
• Special consideration is appropriate in some cases, especially for those who have given the most, such as the injured and bereaved.

The May 2015 policy document sets out various actions by the government, taken and planned, many of them relating to extra financing for Armed Service personnel for a number of different issues including improved prosthetic technology, council tax relief on deployment and money for local projects, etc. The Armed Forces Act 2011 enshrined the principles of the covenant in law;

If this covenant is to be described as a “duty of care” it is important to clarify that it does not give individual servicemen and women the right to challenge the MoD for alleged breaches of covenant and importantly, although it seeks to address concerns about the treatment of wounded veterans, it does not address concerns that the Ministry of Defence has unnecessarily placed its own servicemen and women at unreasonable risk of injury or death through its own conduct – in particular through the provision of inadequate equipment. In short, the public cannot have confidence that the Military Covenant will ensure that the Ministry of Defence will learn the lessons from the Iraq War.

The Iraq Inquiry

In July 2016 the Iraq Inquiry concluded and the report contained serious criticisms of the UK government in relation to the “planning and preparation” for war which Sir John Chilcot described as wholly inadequate. In relation to military equipment, very significant failures were identified including that the MoD were too slow to respond to the developing threat in Iraq posed by Improvised Explosive Devices, that it was not sufficiently clear which person or department within in the MoD had responsibility for identifying and articulating capability gaps. In relation to protected vehicles. For example, the report found that delays in replacing Snatch Land Rover vehicles should not have been tolerated.

In the foreword to the consultation the Defence Secretary acknowledges the findings of the report including that “aspects of our military operations in Iraq were not planned well enough”. He also acknowledges that Sir John’s findings “throw a harsh light on the circumstances in which deaths and injuries are sustained on the battlefield”. He goes on to say “the Ministry of Defence takes Sir John’s criticisms very seriously: some have already been addressed and some provide an agenda for continuous improvement…what is essential is that we learn the lessons from our military campaigns constructively and with a proper sense of humility. The changes we propose should be seen in that context”.

We are very concerned about the lack of detail both here and in responses in Parliament and to the press about actual steps being taken to ensure that the lessons from the Iraq Inquiry Report are learned. In fact, the step to extend the scope of combat immunity to prevent those injured and killed in combat from bringing claims of negligence, and effectively removing a duty of care and the duty to provide a safe system of work, we consider to be exactly the wrong response to the Iraq Inquiry Report. To remove scrutiny of the courts in relation to failures to properly equip soldiers for combat will, in our submission, render armed servicemen and women less safe and will create the risk that lessons are not learned from Chilcot.

The need for scrutiny to maintain standards

On 8th September 2016 Stephen Lovegrove, Permanent Secretary, Ministry of Defence, in a civil service blog commented upon the Iraq Inquiry Report stating where the MoD fall short they will be taking action to make sure they do it better in future. He states “we will be transparent about what we are doing. Of course, there is a certain amount in the national security sphere that has to be done in confidence, but there is also a lot that doesn’t need to be, and we want to encourage a really open dialogue about what needs to change”. He also refers to creating a “culture that does not stifle debate and challenge”.

It is very stark that the first significant response to Chilcot from the MoD has to raise a proposal to exempt government from legal liability and prevent action being taken by individual servicemen and women and their families in relation to failures to equip them in combat.

The effect of expanding the concept of combat immunity to cover all deaths and injuries in combat even where the MoD’s failures off the battlefield and often in the UK weeks, months or years ahead, we consider demonstrates not a desire to learn lessons from Chilcot or to engender a more transparent culture which encourages debate and challenge but on the contrary it seeks to remove a very important avenue to scrutinise failings and to hold the MoD to account. In our submission it is very likely to decrease safety standards rather than maintain or improve them.

Military Inquests

The Defence Secretary seeks to reassure that the removal of scrutiny in the civil courts would not impact the ability of the judicial system to highlight possible mistakes by the MoD and he refers to a “continuing commitment to supporting coroners in conducting full and transparent investigations at inquest”.

Obviously this would not allow scrutiny of incidents where injuries are sustained rather than deaths and he does not clarify how he would ensure that these incidents are fully investigated.

We have represented a number of bereaved families in inquest proceedings and in each case the Ministry of Defence has put up barriers to a full investigation of the issues, in particular through delay, misinformation and a lack of full disclosure. In our experience, where families are not represented by their own lawyers, (and of course the Ministry of Defence will be fully represented by Treasury Counsel) failings which occurred are not brought out into the open and often inquests are short. Combat deaths usually lead to a verdict of unlawful killing whereby an enemy combatant causes the death and in our experience the MoD is reluctant to support the widening of the investigation to look at the potential contribution to the death by failings of the MoD itself. The Snatch Land Rover inquests are a case in point. Susan Smith instructed us after the inquest into the death of her son Philip Hewett and in that case the inquest took about three hours, with the coroner refusing to investigate Mrs Smith’s allegation that Snatch Land Rovers were not fit for purpose.

In the case of R (on the application of Catherine Smith) v Secretary of State for Def & Anor [2010] UKSC 29 the Supreme Court considered the extent of the investigatory obligation under Article 2 ECHR in relation to a death of a soldier of heat injury on a base in Iraq. The court found that where there was reason to suspect a breach by the state there should be an independent investigation which contained a sufficient element of public scrutiny involving the relatives of the deceased. This ‘Article 2’ inquest is therefore required in cases where it is arguable that the MoD did not ‘take reasonable steps’ to protect the life in circumstances where there was a ‘real and immediate risk to life’ of which it was aware or should have been.

We question the MoD’s record of fully cooperating with the inquest process and have found that in each case the MoD seeks a restriction of the scope of the investigation regarding potential failures that may have contributed to death, at times giving incorrect information under oath or in submissions. In one example the Coroner was so incensed about a lack of openness by the Ministry of Defence’s representatives that he considered contempt of court proceedings. The Coronial system is not funded sufficiently to be able to ensure that this conduct does not impede the investigation and in our experience simply does not obtain all the relevant disclosure (which is held by the Ministry of Defence) unless the family is legally represented. In our experience unless the family is represented there is an imbalance of power between the MoD and the family and this prejudices the chances of a full investigation.

The last Labour Government legislated through section 51 of the Coroners and Justice Act 2009 (CJA 2009) to extend the scope of legal aid to cover representation of bereaved families of military service personnel who die on active service, however this section was never brought into force and was repealed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Government’s reasoning for this was that ‘Inquests are inquisitorial processes rather than adversarial court proceedings… Inquests themselves are not directly comparable to other court or tribunal proceedings. Nor are the issues they consider comparable with those dealt with in civil litigation…”

Even where the procedural requirement article 2 is engaged the new guidance does not automatically trigger eligibility for funding for deaths of armed forces personnel on active service. This still leaves it open for funding to be refused on the basis of the nature or seriousness of the alleged conduct and on the previous investigations. Furthermore, even if the case does pass the merits test for funding – there is still a means test which puts all but the lowest earners outside the category of those eligible for public funding.

We believe that the approach that the Government has taken to combat inquests is wrong, in particular where article 2 applies. Article 2 requires that the inquest process should be able to identify failings in order to ensure that lessons are learned to avoid future deaths – therefore whilst not adversarial there is a need to carry out a thorough investigation and to identify fault. The Government’s approach has often been to avoid this and the Defence Secretary’s statement in this consultation document emphasising his ‘continuing commitment to supporting Coroners in conducting full and transparent investigations and inquests’ cannot be taken at face value.

In short we do believe that the inquest procedure provides an important opportunity to investigate the circumstances of death and to identify and report on failings. However it is essential that funding is made available for military families.

There are significant concerns about a lack of funding for the family at inquests. Peter Thornton QC’s Chief Coroners Report 2015-2016 highlights unfairness in the current funding system:

“201. In a small number of inquests the family of the deceased is unable to obtain legal aid funding for representation at the inquest, despite individuals or agencies of the state being funded for legal representation as ‘interested persons’. In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family.[emphasis added]

202. Many less complex or contentious inquests are conducted entirely satisfactorily in the absence of legal representation for interested persons, including some cases involving the state. But in some cases the inequality of arms may be unfair or may appear to be unfair to the family. It may also mean that the coroner has to give special assistance to the family which may itself give the appearance of being unfair to others.

203. The Chief Coroner recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons”

The issue of funding of families has arisen over the years – including in the Luce Review of coroner services in 2003 which recommended funding for families in deaths in custody inquests.

The British Legion gave evidence to the Joint Committee on Human Rights in relation to the inquest process and argued that:

“While Legal Aid may be provided in exceptional circumstances, experience would suggest that the exception is too narrowly drawn, that decisions are subject to demoralising delay, and that bereaved families resent being means-tested for what, in all conscience, should be their right to effective representation.”

This issue has also been taken up by Andy Burnham MP who calls for a ‘Hillsborough Law’ following the Hillsborough inquests. Mr Burnham stated: “It is wrong that the police and other public bodies are able to throw around public money like confetti hiring top QCs when bereaved families have to scratch around for whatever support they can get”. He proposed an amendment to the Policing and Crime Bill to give families a legal right to funding. It was supported by the Chief Coroner although not, at this stage, the Government which tasked the Bishop of Liverpool to write a report on funding for family representation and awaits his recommendations.

In our experience military inquests arising out of deaths on deployment come within this category of cases where fairness requires the state to pay for funding for the deceased’s family. There are particular complexities at military inquests including military jargon/terminology and issues of national security and public interest immunity compounded by a lack of transparency on the part of the MoD that justify funding for the family, even in those cases where the MoD does not propose to instruct counsel for the hearing (although the MoD generally does).

The proposals to provide a ‘no-fault’ scheme of compensation is likely to have the consequence of leading to more unrepresented families at inquests unless there is a publicly funded scheme. This is because under the current system of litigation, where families have to prove fault by the MoD in order to succeed in a civil claim for compensation, the inquest process is usually the means by which evidence is obtained as to fault. Therefore, lawyers, who are usually instructed under a conditional fee arrangement (no win no fee) in the claim will attend the inquest and question witnesses in order to gather relevant evidence. The new proposal, by removing the requirement to prove liability (i.e. prove that the MoD were at fault) would also in most cases remove the need for the legal representative to attend the inquest, the purpose of which is to establish cause of death. If legal representatives do attend the inquest they would be most unlikely to recover the costs of this as costs of the civil claim. Consequently the inquest process would become a less effective way of scrutinising MoD. In circumstances where a no fault scheme is introduced, we would submit that it is essential that non-means tested publicly funded representation of families in relation to combat deaths is standard.

To our knowledge, the MoD has not given its support to the presumption of funded representation for families at inquests. In fact, the tone and rhetoric from the MoD in this consultation and generally seeks to undermine the role that legal representatives play in ensuring that service men and women achieve justice.

Given the Defence Secretary’s stated commitment and support for ‘full and transparent’ inquests we would expect that he also expresses his support for non-means tested public funding for legal representation of all families of those killed in combat.

‘Issues’ arising out of the current system of combat claims

The Defence Secretary identifies three issues with the current system of litigation in relation to deaths and injuries, which are:-

• Service and ex-service personnel who are wounded in combat, and families of those who died, can be caught up in long and frustrating legal cases;
• The legal costs of such cases, which are borne by the taxpayer, can far outstrip any damages which are eventually awarded; and
• Judges are required to second-guess military decisions using criteria, appropriate in civil life, to decide whether there was negligence or not in a battlefield situation. Our military advisers warn that this “judicialisation of war” could weaken the Armed Forces’ readiness to take the rapid and high risk decisions essential to operational effectiveness, with consequent risk to lives.

These three points, it is said, point to the urgent need for reform of the current system for dealing with compensation claims.

The first two of these points could be very significantly ameliorated were the MoD to litigate cases in a less obstructive and a more transparent way. In our experience, enormous delays have been incurred because of a failure by the Ministry of Defence to engage with the proceedings, including the duty to provide full disclosure of relevant information. In our experience, on the Snatch Land Rover litigation for instance, relevant information was withheld and delays caused and costs incurred, because of the Ministry of Defence’s conduct.

The third bullet point referred to giving rise to the need for an urgent reform is described as the “judicialisation of war” and the implication that this can somehow weaken the Armed Forces and put servicemen and women at risk. This is stated as if a universally acknowledged truth and yet it is an opinion. It is put forward by the Government and those who seek less scrutiny of the military but there is an opposing view. In fact the courts are very alive to the extent to which military matters are considered ‘judiciable’. The law caters for this already and the concept of ‘combat immunity’ has arisen in our common law. The Defence Secretary’s foreword presupposes that freeing the Armed Forces from further “judicial restraints whilst on operations” will somehow allow them to do their duty more effectively and we will seek to challenge this, in our view, incorrect assumption, in our response to Section 1 below.

SECTION 1

Combat Immunity: the need for legislation

We note that at paragraph 1.9 of this section the consultation states that it seeks our views upon section 2, which is the future scope of combat liability and section 3, which is about the enhanced compensation scheme. No specific response is requested in relation to section 1, which refers to the need for legislation on combat immunity. In fact the whole section pre-supposes that it is common ground that there is a problem with judicialisation of war, that it adversely affects our military’s ability to do its job and to keep its soldiers safe and that something needs to be done to restrict it. We do not accept that this reflects a generally accepted position. It is not an independent view, it is a view particularly put forward by the Ministry of Defence and spokespeople of the right who have an interest in minimising state accountability and scrutiny of its actions by external bodies.

The State should not be above the law – the principle established in Entick v. Carrington [1765] 19 State TR 1029 was that the state may act lawfully only in a manner prescribed by statute or common law. The executive cannot simply rely on the interests of the state as a justification for the commission of wrongs. The complaints about ‘judicialisation’ of law amount to tipping the balance in favour of the executive and removing limits to the scope of executive power.

However, there is a balance to be struck. In relation to combat it is acknowledged that there should be restrictions to this judicial oversight and the concept of ‘combat immunity’ has grown up in the common law.

The law as it stands – combat immunity

In Smith & Others v MoD [2013] UKSC 41 – also referred to as the ‘Snatch Land Rover case’ – the issue of combat immunity was considered in detail and it is now the leading authority on it. Lord Hope in the leading Judgement summarised the development of the law. He indicated that combat immunity made its first appearance in Shaw, Saville and Albion Co Ltd v Commonwealth [1940] 66 CLR 344. In this and in subsequent cases “the uniform tendency of the law had been to concede to the Armed Forces complete legal freedom in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins” (paragraph 86) that acts done in the course of operations war are not “justiciable”. In Mulcahy v. MoD [1996] the legal position was further clarified in that there was no duty on the Defendants in battle-conditions to maintain a safe system of work and also confirmed that at common law one soldier does not owe a duty of care to another when engaging the enemy in the course of hostilities.

The understanding of the extent of combat immunity was potentially extended somewhat by Owen J and Multiple Claimants v. MoD [2003] “to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack including planning and preparation…” Owen J later qualified that “planning and preparation for the military operations upon which the injury was sustained and not in general to further unidentified future operations”.

However, Lord Hope doubted the soundness of the extension in Multiple Claimants and said in paragraph 90: “Such an extension would also go beyond the situations in which immunity has so far been applied”.

In Bici v Ministry of Defence [2004] EWCH 786 (QB), para 90: Elias J noted that combat immunity was exceptionally a defence to the government, and to individuals too, who take action in the course of actual or imminent armed conflict and cause damage to property or death or injury to fellow soldiers or civilians. It was an exception to the principle that was established in Entick v. Carrington [1765] 19 State TR 1029 that the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs. In his opinion the scope of the immunity should be construed narrowly.

In further discussion at paragraph 99 Lord Hope confirms that “close attention must be paid to the time when the alleged failures are said to have taken place, and to the circumstances in which the persons by whom the decisions that give rise to them were taken. It will be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risks to life that had to be planned for, than it will be where they are attributable to what was taking place in theatre.”

There is no doubt that the court was alive to the very important line to be drawn on issues where the court should and should not interfere. At paragraph 100 it is said “the sad fact is that, while members of the Armed Forces on active service can be given some measure of protection against death and injury, the nature of the job they do means this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the Armed Services do in the national interests should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

In the Snatch Land Rover case the Ministry of Defence sought to ‘strike out’ the claims on the basis that there was no duty of care owed to the soldiers in these circumstances. In short they sought a blanket immunity, of the type suggested in this consultation document, and the Supreme Court – having carried out the balancing exercise described – found that it would not be ‘fair just or reasonable’ to do so.

Commentary on the ‘judicialisation’ of war

The publication: Clearing the Fog of Law, Saving our Armed Forces from Defeat by Judicial Diktat, is the work of a right-wing think-tank called Policy Exchange and was co-written by a conservative MP by the name of Tom Tugendhat. This is quoted by the Ministry of Defence in this consultation as if it is a broad-based and uncontroversial piece of research. However, at no point does the report offer any kind of empirical evidence to support the strong and repeated assertions in relation to the damage that legal process is doing to the ability of commanders to engage in warfare. Nor is there any attempt to explain in the report or in this consultation that the Supreme Court in Smith v. MoD had given very careful consideration to the appropriate extent of legal interference and was at pains to stress that nothing should hamper the military to defend the nation.

Similar arguments as can be found in the Fog of Law – as to the dangers of imposing a duty of care – were put forward in the MoD’s case to the Supreme Court in Smith v MoD (see paras 90-92). Various assertions are made without consideration of the counter-argument for instance the MoD asserts:

a) That soldiers voluntarily put themselves at risk for the benefit of the country, without acknowledging that they have not necessarily volunteered to be put at unnecessary or unreasonable (i.e. negligent) risk of harm.

b) That the courts are not equipped to attempt to resolve military issues relating to combat without acknowledging that the alternative is to remove independent scrutiny of Ministry of Defence actions (and to allow the MoD to adjudicate upon its own conduct).
c) That the courts are not equipped to assess whether for instance military equipment used in combat was suitable for the purpose without acknowledging that in all other spheres of civil life, including in dangerous professions such as the fire service, the courts routinely adjudicate on such matters.

d) That to impose a duty of care on commanders will impede decision making and military effectiveness – without acknowledging that combat immunity already excludes a duty in combat conditions. The sorts of claims relating to inadequate equipment as brought by the Snatch Land rover Claimants do not affect decisions taken by commanders on the ground who have to work with the equipment with which they are provided.

e) That it would place a ‘wholly disproportionate burden on the state’ and would treat the state as having assumed responsibility for ‘keeping soldiers reasonably safe…’ without acknowledging that this is perfectly reasonable for the state to be expected to take ‘reasonable’ steps to protect soldiers from known risks.

f) That to impose such a duty would mistake and devalue what soldiers do to without acknowledging that there is a contrary view – that we owe our brave servicemen and women a duty to protect them as far as reasonably possible – and that families as well as society at large demand it.

g) That it risks insubordination without evidence of this and without acknowledgment that the risk of reputational damage by poor equipment may be a riskier prospect.

h) That such a far-reaching duty requires consideration by Parliament – rather than the courts – without acknowledging that it was actually Parliament that changed the law in 1987 to lift Crown Immunity – i.e. to allow claims against the state – in relation to the military.

Nor is it entirely correct to say that there is a great deal of uncertainty for Judges as to the extent of combat immunity. The extent of the application of combat immunity in a particular case will depend on the specific facts in question – but the Supreme Court in Smith v MOD gave guidance as to how this exercise is to be carried out. As cases come before the court it is highly likely that such uncertainties as exist will diminish. In any event it does not follow that this ‘uncertainty’ justifies the imposition of a wholly new and extended immunity from that which currently exists.

In our experience, the Ministry of Defence has pursued arguments that combat immunity applies where there is no legal basis to do so in an attempt to extend the boundaries of the immunity to cases where the alleged failings occurred far from the battlefield. As such it has wasted an enormous amount of time and public money and added immeasurably to the stress suffered by soldiers and families. In the Snatch Land Rover case the legal challenge to combat immunity (and extent of duties owed under ECHR) took 5 years to resolve.

It should be noted also that this consultation does not raise issues relating to Article 2 of the European Convention on Human Rights and as with some of the Snatch Land Rover cases, it would remain possible for families of fallen soldiers to bring cases on the basis that the MoD had breached their right to life. It should be noted however that in the Fog of Law publication made recommendations in relation to human rights as well as common law. It recommended that the government should legislate to amend the Human Rights Act 1998 and thereby prevent British soldiers and their families from bringing human rights claims in relation to matters arising in conflict. Secondly it recommended that the government seek to derogate from the European Convention on Human Rights under Article 15. It is this government’s intention to derogate from the European Convention on Human Rights and, so far as we are aware, also to bring in a Bill of Rights to replace the Human Rights Act. Thus although this consultation relates specifically to negligence it seems likely that the Government will seek to extend the immunity, by one way or another, to extend to cover all claims arising out of combat whether in negligence or under ECHR.

Parliament’s intention in 1987

The allegations of judicialisation (also described elsewhere as judicial creep) imply that Parliament’s role has somehow been usurped and that the courts have strayed outside their role and perhaps into the political sphere. The consultation does not, however, clarify that Parliament has carefully considered the issues surrounding Crown Immunity and in 1987 changed the law to permit the bringing of private claims in relation to military activities by repealing the Section 10 of the Crown Proceedings Act 1947. It is this, and not the overreaching of our judiciary, that has led to the courts considering cases brought by individuals against the military.

It is worth looking at the intention of Parliament at the time of the Crown Proceedings (Armed Forces Act) 1987. Particularly insightful into the motives behind the introduction of the 1987 Act are the comments from one of the sponsors of the bill, one Winston Churchill MP of Davyhulme (a Conservative MP, and the former PMs grandson) (13 February 1987):

“The Bill seeks to rectify an injustice that has become increasingly more glaring—the discrimination between members of the armed forces and the ordinary citizen in seeking damages in cases of injury or death arising from the negligence of others…”

Although the ostensible purpose of the bill was to put service personnel on equal footing with civilians when it came to rights to compensation, it should also be noted that the sponsors of the bill also saw at least part of its purpose as exposing cover-ups and preventing the MOD from obscuring fault.

For Instance Churchill quotes the examples of two servicemen from the time who he believed had been injured by virtue of the MoD’s negligence and why the pension schemes in place were insufficient to remedy the injustice faced by them. One of these was the case of “19-year-old Vincent Anderson, a sapper in the Royal Engineers.” The MP says:

“He died on 15 July last year of heatstroke, after being made to run in a deep sea diving suit on a hot day. The pathologist said that the diving suit prevented the body’s normal cooling process from working and should never have been used for exercise outside water. Mr. Anderson’s father, in a letter to me, alleges that not only has he been denied sight of the Army’s report on this incident, but that the report was not made available to the coroner, who, no doubt, because of his incomplete possession of the facts, amazingly returned a verdict of accidental death. It is my hope that that kind of shameful cover up, when death was plainly caused by negligence rather than by accident, will no longer be possible”[emphasis added].

Other contributors on that day were Mr. Jack Ashley (Stoke-on-Trent, South) who upon removal of the immunity owed by the MoD stated:

“This is a historic day for the armed forces. We are beginning the process of sweeping away legislation which has deprived service men and women of rights that have been enjoyed by everyone else, including all other public servants, such as police and firemen…

The House should be ashamed that it has allowed section 10 of the Crown Proceedings Act 1947 to remain on the statute book for 40 years. I echo what J. S. C. Reid, later Lord Reid, said when he denounced the thinking behind the clause, as it then was, when the Bill was before the House in 1947. He condemned it as a piece of departmental obscurantism and nothing else. I support that view—a view that was expressed strongly at the time but was disregarded.

“When the most recent campaign to abolish section 10 was launched, stories of what had happened to service personnel came tumbling out. They were tragic human horror stories of service personnel being maimed or killed by, for example, ropes being cut by others abseiling down cliffs, missiles backfiring, vats of poisonous liquid overturning, tanks and lorries creating havoc, backs broken, skulls broken and hearts broken. There were also serious burns. Those are the facts that have come to light since the campaign was launched. Many people are suffering a lifetime of disability, some of them confined to wheelchairs for life, and in some instances young men and women have been killed.”

Also, Mrs. Virginia Bottomley (Surrey, South-West) stated:

I have no hesitation in supporting the Bill. I see it as part of a general re-evaluation of the role of Crown immunity. It is an obscure concept to many, dating from the medieval maxim that the king cannot be sued in his own courts. There may still be areas where Crown immunity is useful, but I welcome its gentle erosion”.

Even in 1987 it is clear that Crown Immunity was considered anachronistic to modern standards or at least that it would only be appropriate in narrow circumstances. This debate took place 30 years ago now, during which time society has developed further. The idea that it would be appropriate to extend Crown Immunity, effectively to revive section 10 (as recommended in the Fog of Law) regarding combat deaths and injuries is entirely unjustified and wrong-headed. Combat immunity already provides an immunity – not provided for other high risk professions – to exclude battlefield decisions from liability in negligence. To extend this to cover decisions and actions by the Ministry of Defence in relation to planning and equipment – even where these occur far from the battlefield – would be to give the MoD an unjustified immunity from suit which would be counterproductive to the development of safety standards. It would impede the stated intention to create a culture of transparency.

In terms of safety standards it should be noted that to impose an immunity in combat would be to potentially remove from scrutiny failings which, if identified, could be remedied. The dangers faced in combat present a particular risk to military personnel and lessons must be learned from what happens in combat. This particularly applies to equipment. Snatch Land Rover vehicles, for example, were not faulty per se but were not fit for the purpose they were used in combat. The fact that equipment-failing deaths would automatically be excluded under the proposed definition of combat immunity would, in our submission, make it increasingly unlikely that equipment type failures are identified and remedied. To apply a blanket immunity from suit for combat deaths and injuries would render future generations of servicemen and women at greater risk of death or injury.

SECTION 2

The Future Scope of Combat Liability

At 2.1, the consultation clarifies that the proposals do not affect any case that does not arise out of combat which it says applies to most claims brought by service personnel. It makes the point that most claims arise not out of combat ‘but from other activities, particularly training”. It states that these proposals do not affect cases arising out of combat, in these cases armed services personnel can still sue the MoD. It is worth making the point that the impact of these changes should not be underestimated. In a future conflicts deaths and injuries of British servicemen and women that occur in combat are likely to be concentrated and in potentially higher numbers than is typical in training and other accidents given the increased risk. For instance, in the Iraq War, 179 British soldiers died between 2003 and 2011 and many multiples of this would have been injured in the war in Afghanistan between 2001 and 2014 – 406 UK troops lost their lives (108 of which were in one year in 2009). In fact, it is not easy to find the number of injuries sustained in these conflicts and this is part of the problem. Whilst some of these deaths would be not come within the consultation’s proposed definition of a combat death – still it is clear that the proposals would have very significant impact in terms of future conflicts.

Combat – the proposed definition

The proposed definition of combat (at 2.4) includes participation in an a) armed conflict or b) peacekeeping operation. It is proposed that the test should be whether the “harm”, i.e. death or injury, occurred in the course of a UK military operation

• as a result of direct or indirect hostile enemy action
• as a direct result of misdirected targeting by friendly forces, or as
• as a direct result of action taken to avoid hostile enemy action.

The examples given at para 2.7 demonstrate that there may be some uncertainty as to what comes within the definition of a combat injury or death- for instance an injury caused by a mine left before the combat in question suggests that it may not need to relate to ‘hostile’ enemy action (those who left the mine may not have been hostile to UK forces) or friendly fire.

It is presumed that training whilst on deployment would not come under the definition of combat – however, the consultation is not sufficiently clear on this and at a stretch it may be considered that a training injury or death comes within the definition of ‘action taken to avoid hostile enemy action’. It would come down to an assessment on a case by case basis.

In relation to 2.5, the consultation asks whether the new scope of combat immunity should apply to claims both in the UK and outside it. Again this is somewhat unclear but it is assumed that the proposal is that the immunity would only apply in the UK if the combat itself was happening here (i.e. we were invaded or faced some other attack on the mainland). However, because of the lack of detail we cannot be certain that this is what the proposal intends.

Combat – our response

If the aim is to provide clarity as to the law surrounding combat immunity then this proposal fails. We consider that there will be a great deal of uncertainty around what is and what is not a combat injury or death and this is completely inappropriate and a backward step.

For reasons set out above we do not consider that the concept of combat immunity should be widened to include all deaths and injuries in combat. The relevant consideration is where the breach occurred (i.e. the failing) rather than where the harm occurred. There is no good reason to expand the immunity to cover scenarios where the MoD failures did not occur in the heat of battle. This definition would mean the immunity covers equipment failure cases even where the failings occurred far from the time and circumstances of combat.

To introduce a proposal to change the definition of combat immunity the consultation document should at least have set out the development of the concept over the last 75 years and how courts have weighed up the competing issues and concerns. To fail to do so is to lose not only the analysis of the current definition but also the analysis of potential problems and impacts of changing it which may not be immediately clear. Although perhaps it was felt unhelpful to the MoD’s aim – which is to expand the immunity – were it to show that repeatedly the courts have found it ‘fair, just and reasonable’ to construe combat immunity narrowly.

Therefore in response to paragraph 2.3, as to the correct test for combat, we do not agree that the test should be where the harm, i.e. the death or injury occurred, but rather where or when the relevant failures took place that give rise to the claim. Equipment failure cases, where failings occur far from the battlefield, in time and place, should not come within the scope of combat immunity. Given that we do not support extending the concept of combat immunity we can see no purpose in seeking to redefine it at all.

In relation to paragraph 2.4 where it is asked whether combat should mean participation in a) armed conflict or b) peacekeeping operations, the distinction may not be a central consideration to the application of the immunity. Even in peacekeeping operations, heat of battle type scenarios occur and these may properly come within the scope of combat immunity. However extending the definition of combat to include any participation in peacekeeping operations could potentially have the effect of bringing situations such as those which arose on the facts on Bici v Ministry of Defence within the scope of combat immunity. In that case, the Court found that the Defendants could not rely on combat immunity to exclude suits in negligence in situations where servicemen were carrying out peacekeeping and policing functions and there was plainly no ‘combat’ type situation on the facts, and where there was found to be no objective basis for the Defendants to have apprehended imminent hostile action. Since combat immunity in effect removes a dispute from the jurisdiction of the courts and permits the executive by reason of state necessity to act free from legal fetters, combat immunity should be narrowly construed.

As set out in response to Section 3 we do not oppose the proposal for a no-fault scheme for deaths and injuries in combat. However, if the principal behind the proposal is to compensate our brave servicemen and women who risk their lives for their country we think it would be more equitable to include all those injured or killed on active service. The US, for example, has a more generous compensation scheme for fallen servicemen and women.

However, it does not follow that we agree that the MoD should be immune from suit in relation to active service deaths. These two matters are not related and it is wrong to entwine them in the way this consultation seeks to do.

Injuries

At paragraph 2.8 the consultation specifies that psychological injury directly attributable to a combat scenario would be included in the exclusion. In relation to combat immunity it is logical that psychological injuries should be treated in the same way as physical injuries if they are caused by the same events. However, where it is alleged that the psychological injury was caused or exacerbated by failings by the MoD outside of combat this may be outside the scope of the immunity. (To the extent that these questions relate also to the application of the no fault compensation scheme we consider that the psychological injury should automatically come within the scope of the scheme).

In relation to suicide the MoD suggests it should only be covered by the immunity where the suicide is directly attributable to a psychological injury resulting from enemy acts. Again, in terms of whether this comes within the scope of combat immunity it would depend if it is alleged that the suicide was caused by breaches by the MoD which occurred outside of combat. As to the application of the compensation scheme and whether the family would be compensated under it, we consider that it would be fairer to introduce a rebuttable presumption that the suicide was connected to combat rather than to put the family to proof.

We also find the exclusion of physical or psychological injury, where it has been exacerbated by poor treatment, problematic at paragraph 2.9. If the government introduces a scheme to compensate fully then it is right that this should cover the full extent of the consequential injuries even if it is arguable that the injury may have been exacerbated by treatment received. Given that the poor treatment referred to often relates to the Military’s own failure to address, for instance psychiatric injury, or even physical injury, then it behoves the MoD to pay for the full extent of the injuries suffered. It would be inhumane to expect injured servicemen and women to prove a link between his or her current injuries and those sustained in combat and there should at the very least be a rebuttable presumption that the injuries suffered do flow from the original injury. Furthermore, it may not be open to that serviceman or woman to bring an additional court action in relation to the exacerbation of the injury because the ‘poor treatment’ may not be negligent. It is foreseeable that if soldiers are expected to prove this link to the injury, that satellite litigation will develop on this issue. In short, if the government is proposing a no-fault scheme then it must cover the full extent of the physical or psychological injuries sustained.

SECTION 3

The Enhanced Compensation Scheme

This section of the consultation deals with the enhanced compensation scheme which it is proposed will be set up under the Armed Forces (Pension and Compensation) Act 2004 which is the same legislation as currently provides powers for the current AFCS Scheme. It is envisaged that the two schemes would run separately.

The Secretary of State in his foreword states that he is proud of the AFCS system. However, it should be pointed out that this system is not in any way comparable to a court system where damages are assessed on the basis of the individual facts of the case. The current AFCS system is a tariff based system and is not suitable for the sort of evidential assessment that would be required under a new enhanced scheme. In our experience where clients have navigated the AFCS process they have found it extremely stressful and overwhelmingly it is not felt to be independent from the MoD. Medical ‘experts’ are often MoD employees. In one case which involved a complex injury our client had to resort to seeking legal advice from us because of the difficulties he faced. It was an extremely frustrating process where correspondence would be ignored or passed between different internal MoD departments and the bundle of medical records for the hearing was hopelessly deficient and we had to supplement it from the records we had gathered. Ultimately the client did not receive justice through the AFCS scheme and it was only through the civil claim for compensation that the MoD finally recognised the extent of his injuries.

In short, to compensate injured service men and women fully the proposed no fault scheme must not simply be an adjunct to the current AFCS structure. Without a significant new funding stream to enable such a system to function it would not provide an effective evidence gathering service nor the client-care which injured soldiers and their families need to ensure that they will be adequately compensated. If the aim is to compensate at the same levels as a court would award then it is not appropriate to remove the cases from the current court system. Courts routinely assess loss in injury and death cases and unlike the AFCS they are designed to do so.

At paragraph 3.2 the consultation clarifies those to whom the new scheme will apply. It refers to the “dependents” of UK Armed Forces who have died. It should be noted that this category of family members who may recover compensation should not just be restricted to those who were in some way financially dependent upon the deceased but may include other persons including parents of adult servicemen and women.

At paragraph 3.2 it indicates that a person who would like to claim under the scheme would have to apply. However, it would be more equitable if eligibility for the scheme were automatic and without the need for an individual application.

At paragraphs 3.3 to 3.5 inclusive the consultation clarifies some of the thinking behind the new enhanced scheme. At paragraph 3.3 it asks the question as to whether the initial decision of eligibility under the scheme (i.e. whether combat immunity applies) should be made by the MoD or an independent assessor. In response to this we do not think there are any circumstances where it would be appropriate for the MoD to decide whether the claim comes within the scheme or not. Similarly, where the question of whether the condition is a result of combat is contentious or difficult it would not be appropriate for the MoD to decide eligibility whether or not they sought “independent advice”. In any event this would not constitute independent advice under any objective criteria. In short, if there is to be an initial decision as to eligibility for the scheme, it should be made by an entirely independent body, as it would be a conflict of interest for the Ministry of Defence to decide which cases are or are not eligible under the scheme.

In the proposal for assessments of the level of award, at paragraph 3.4, it says that an “Independent assessor” will “take into consideration all the information which a court would take into account when determining the appropriate level of damages in a case where it had found the Ministry of Defence to be negligent”. The Defence Secretary has made a firm commitment to provide the same level of damages and not to undercompensate UK forces.
It would be inappropriate for an independent assessor to both adjudicate on the level of award and carry out the role of obtaining the evidence and yet there is little clarity as to how it is proposed the latter role will be carried out.

At paragraph 3.5 it states that the procedure for assessing loss and valuing a claim would not be adversarial and also that legal representatives for the victims are not needed or at least would not be funded. This completely underestimates the role that legal representatives play. The process of obtaining evidence of loss is complex and military cases are particularly so. Where there is brain injury or trauma it may be very difficult to obtain a complete history from the client, in a brain injured case the client may not have mental capacity to give instructions, so that the extent of injuries sustained can be properly assessed as well as the care requirements and future losses. The educational standards of some servicemen and women would make navigating this process impossible without expert assistance. Even obtaining medical notes is a difficult process. The MoD internal systems are difficult to navigate and it can take months or longer to get a full set of medical records. Often there are multiple sources of records as clients have moved around. Also injuries may not be fully recorded by military medical personnel or disclosed by the patient, this is especially so in the case of psychological injuries. In the most serious cases, legal representatives will need to obtain reports from multiple experts to advise on the extent of the injury, the prognosis, care and accommodation needs, impact on earnings, etc.

Therefore in terms of the question as to whether we agree with the presumption that the Claimants will not need legal representation – we disagree strongly with this presumption and think it would not be in the interests of Armed Service personnel and their families. On the other hand it would unfairly advantage the MoD. The risk of causing enormous distress and even further damage to the victim is, in our view, highly likely if the suggested procedure were to be the way by which soldiers were to be compensated under the enhanced scheme.

It is inevitable that this proposal would seriously disadvantage the servicemen and women injured and also the families bereaved and we think it overwhelmingly likely that the level of damages awarded would differ from, and probably be far less than, the damages awarded by court. We also do not agree that this procedure is likely to speed up compensating our soldiers and think it highly likely that lengthy delays would ensue and that Armed Forces personnel and their families would end up having to accept a lesser award of damages in order to bring the matter to a close – and the pressure to do so would be especially acute if the compensation under the ordinary AFCS scheme was delayed until the final assessment of enhanced damages was dealt with. We do not agree that there is any need to delay the ordinary AFCS scheme award procedure to await the outcome of the enhanced scheme.

At paragraph 3.8 the consultation sets out the proposed avenue for review of the decision which proposes that a Claimant might seek for a review of a decision under the Pensions Appeal Tribunals Act 1943 provisions. We do not agree that this route is appropriate. Such tribunals are not set up to carry out the assessment of evidence required, not indeed to see if further evidence should need to be gathered, in order to fully compensate the victim. The tribunal is not the correct environment for a testing of the evidence or the calling of witnesses or experts to clarify their evidence. The most appropriate place for an appeal to be dealt with is the civil courts which are well set up to do so and it would not be sensible, cost effective or fair on the soldiers to create a similar but less effective system through the tribunal service.
At 3.6 the consultation discusses the assessor’s qualifications, considering that he or she should be a retired judge or a practising lawyer – for instance a Queen’s Counsel or senior solicitor. It says that this lawyer should have – extensive experience – of the process of assessing compensation and it also says that there may be a group of independent assessors who could be assigned specific cases at short notice. We do not agree that the assessor envisaged at paragraph 3.6 can possibly carry out the role of both the collector of the evidence and the judge. If this person were a retired judge or QC they would not have the sufficient expertise in taking instructions from injured or bereaved clients, instructing experts and collating appropriate evidence to prove the loss. The assessor would need a team at appropriate levels of expertise to carry out this work and this would defeat the very purpose of removing lawyers from the process.

The consultation pre-supposes that a whole new system is required in order to be able to compensate soldiers under the no-fault scheme. In fact, we would encourage the Ministry of Defence to consider a system whereby merely, as a matter of policy (or possibly law) the Ministry of Defence does not defend cases where deaths or injuries occur in combat. In a typical court case where death or injury has resulted in losses, there would be two parts to legal cases. The first part where the claimant must prove liability and the second part where the claimant must prove the losses he or she has sustained. If a claimant is no longer required to prove fault (i.e. liability) the case can move directly to the consideration of quantum – value of the claim. This will shorten cases considerably and reduce the costs incurred to the public purse. The quantification of damage would then be dealt with in the usual way with the collection of expert and other evidence which may or may not be challenged by the MoD and will be decided by the court if the case does not settle before trial. Rarely do these sorts of cases get to trial on quantum and therefore the cost to the public purse would be kept to a minimum and the chance of a disgruntled claimant or an appeal would be reduced.

From the perspective of the Military Covenant and the Defence Secretary’s stated aim to prove his commitment to our brave servicemen and women who are injured or killed in combat, it would go against the spirit of this to create a new and imperfect system to assess loss and it would inevitably affect the reputation for the Ministry of Defence were the new system to be subject to criticism and challenge.

Conclusion

In summary, we make the following two points:

1. There is neither necessity nor justification for extending combat immunity in the way proposed and nor is there a need to make any change to the law on this issue in order to put in place an enhanced compensation scheme.
2. Whilst we welcome the proposal that victims will not have to prove negligence yet will be compensated as if they had done so, we do not agree with the proposals for the ‘enhanced scheme’. These are unworkable and will not achieve the stated aim of equal compensation to that awarded by courts. A better outcome would be achieved by minor changes to the current system.

If you require any further information or details, please contact: Jocelyn Cockburn
Direct Dial: 0207 874 8452 Email: jcockburn@hja.net
Postal Address: 180 North Gower Street, London, NW1 2NB
Website: www.hja.net