The judgment in the Snatch/Challenger cases was handed down by the Supreme Court in June 2013. Since the majority in Smith and others v MoD, Ellis v MoD and Allbutt and others v MoD  found that Article 2 claims should not be struck out on their facts, nor should negligence claims be struck out on the grounds of combat immunity or that it is not fair, just or reasonable to impose a duty of care, we have seen a Ministry of Defence (MoD) propaganda campaign like no other. The Government has been bombarded with reports such as The Fog of War and most recently, the Legal Framework for Future Operations Report, condemning the legal advances we have seen for restricting the defence of combat immunity and expanding the jurisdiction of human rights whilst claiming to offer an ‘independent’ insight into the position.
Combat immunity provides the MoD with an exemption from liability during actual or imminent armed conflict. The two reports criticise advancements in case law, so dubbed the ‘judicialisation of war’, for narrowing the defence of combat immunity. They argue the effect of recent decisions has been to inhibit day to day decision making by personnel on the ground, reduce their confidence and limit risk taking due to their fear of being held accountable. They would have us believe that the effectiveness of our Armed Forces is being undermined on this basis. However what evidence is there to suggest this? The answer is only accounts of biased individuals contracted by the MoD to say so. The truth is a very different story.
The majority of personnel are either unaware they can even bring such claims prior to approaching us, or are terrified at the prospect, often having been informed by senior personnel that there will be severe consequences if they do pursue one. The reports are little more than an underhand tactic aimed at bullying claimants and the Government into limiting the liability of the MoD.
The MoD deceives service personnel that they are being ‘compensated’ under the Armed Forces Compensation Scheme (AFCS) for their injuries and informs them there is no need to bring a legal claim. Whilst there is no doubt that the AFCS does offer service personnel a gratuitous lump sum payment, in my experience the payouts are nothing like the sum of compensation a claimant can obtain in a legal claim. This is because the tariff system does not provide for complex future care needs, treatment costs, loss of earnings, adaptation costs and equipment costs. Therefore without a legal claim, a seriously injured claimant will be severely undercompensated.
What is the overall aim of these reports? To pressurise the Government into reforming the current legal framework in place. The question is whether the particular reforms proposed are to the benefit of injured service personnel or whether they are at best, a further costs cutting exercise for the MoD to save money. The Legal Framework for Future Operations proposes the revival of s10 Crown Proceedings Act 1947, restoring Crown immunity, but with the condition that combat injuries are fully compensated under AFCS. The Fog of War however would have Crown immunity restored without such compensation being provided to injured soldiers. The common theme in both proposals? Saving the MoD money.
The MoD spent a grand total of 0.34% of their budget (£51.3m including legal fees) on compensating servicemen and women in 2012-2013 yet “wrote off” £8billion worth of equipment and assets. Surely we need to assess our priorities here? Should efforts not be focused on how such enormous write offs can be avoided rather than how to deny injured soldier compensation?
What we have seen since June 2013 is a panicked response by the MoD, having interpreted the judgment as opening the floodgates to liability. The judgment has merely provided claimants the fair opportunity to have their claims heard and we should trust that our judges are best placed to deal with military personal injury issues given their independence and expertise in relation to both litigation and the complexities posed by combat immunity.
Legislative intervention or reform may become necessary in the future, but the Government must give all interested parties the opportunity to be consulted first rather than acting on the advice and allegations provided by such impartial reports.
Indeed I personally do not consider that the reforms proposed by the reports would be of any benefit to injured personnel. Although it is claimed that personnel injured during combat would be fully compensated on a no fault basis, the reports also advise the MoD to tackle legal claims ‘strategically’, and to ‘defend them to the best of their ability’. I contend such is not the sort of attitude which has the best interests of injured service personnel at heart.
It is time the Government’s eyes are opened to the legal battle that service personnel face at home and consider the impact this is having upon claimants.
by Hannah Ashcroft, Hilary Meredith Solicitors