Iraq damages case – families can sue says Supreme Court

Families of soldiers killed in Iraq can pursue damages against the government, the Supreme Court has ruled.

Legal action was brought by relatives of three men killed by roadside bombs while in Snatch Land Rovers and another killed while in a Challenger tank.

The judges ruled the families could make damages claims under human rights legislation and sue for negligence.

The ruling comes after a lengthy legal battle and previous judgements by the High Court and the Court of Appeal.

The families of the three soldiers who died in the vehicles while on duty in Iraq want to make claims for damages under the European Convention on Human Rights, Article Two of which imposes a duty on authorities, in this case the Army, to protect the right to life.

The soldiers were Pte Phillip Hewett, 21, of Tamworth, Staffordshire, who was killed in July 2005; Pte Lee Ellis, 23, of Wythenshawe, Greater Manchester, killed in February 2006; and L/Cpl Kirk Redpath, 22, of Romford, east London, killed in August 2007.

The Ministry of Defence had argued the claims should be struck out because the soldiers were not covered by the legislation once they had left their British base.

But the Supreme Court rejected this, concluding the soldiers were within the UK’s jurisdiction at the time of their deaths and so were subject to human rights legislation.

The families of Cpl Stephen Allbutt, 35, of Sneyd Green, Stoke-on-Trent – who was killed in an incident in a tank in Iraq in March 2003 – and of L/Cpl Daniel Twiddy and Trooper Andrew Julien, who were both injured in the same incident, brought a second case to the court.

They argued that the MoD owed a duty of care under the law of negligence. They said the MoD had failed to properly equip the tanks and to give soldiers adequate training.

The MoD had argued that there was “combat immunity” where troops in action were concerned and it was not “fair, just or reasonable” to impose a duty of care on the MoD when soldiers were on the battlefield.

But during Wednesday’s hearing, the Supreme Court justices ruled that immunity did not apply in this case.

“As a result of today’s ruling, the MOD can no longer avoid its responsibilities,” said specialist military solicitor, Hilary Meredith, CEO at Hilary Meredith Solicitors Ltd.

“The fact that a gun fails in a direct combat situation or ear defenders don’t work whether you are on a battlefield or a shooting range on Salisbury plane now means that the MOD must owe a duty of care to properly equip our soldiers.”

Added Hilary:

“This decision has clarified what was an previously an excuse for the MOD to avoid payment in some of the most deserving of cases. Soldiers need to know that there equipment and vehicles won’t fail them in an area of war. I welcome today’s decision wholeheartedly.”

Hilary Meredith Solicitors Ltd has issued the following breakdown of today’s ruling:

Issue 1: Conventional Jurisdiction

A state’s jurisdiction exists because of the authority and control that is exercised over local inhabitants as a result of the authority and control that the state has over its armed forces. All three claims were brought within the state’s jurisdiction under this principle.

Issue 2: Snatch Land Rover claims under Article 2

The court must fully recognise the wide margin to be given to the state under Article 2 and avoid obligations that are unrealistic or disproportionate. Also, it must allow the obligations where it would be reasonable to expect an individual to be protected by Article 2. Policy decisions made at a high level of command and things done on the battlefield will fall outside Article 2. However, those that fall between those two categories will be judged on their own facts.

Issue 3: Combat Immunity

This is to be construed narrowly and should not extend to actions for planning and preparation for active operations against the enemy. It would be premature to strike these claims out and this aspect will be based on further evidence obtained.

The point of whether it was fair, just and reasonable to impose a duty of care on the MoD cannot be properly determined without hearing further evidence to show whether subjecting the MoD to these duties are unrealistic or an excessive burden.

To read a full copy of the Supreme Court Judgment please click on this link