CoA rejects MoD strike-out on soldier compensation battle

Blackstone Chambers’ James Eadie QC was instructed by the Treasury Solicitor for the MoD, which had attempted to strike out the claims in the Court of Appeal (CoA).

Devereux Chambers’ Robert Weir QC was instructed by HJA partner Jocelyn Cockburn for the respondents, who were relatives of soldiers killed or injured while travelling in Snatch Land Rovers.They claim that the MoD failed to provide armoured equipment suitable to protect against improvised explosive devices (IEDs).

Meanwhile, Leigh Day & Co partner Shubhaa Srinivasan instructed Matrix Chambers’ Richard Hermer QC for the relatives of soldiers killed or injured in a Challenger II tank in Basra.

The MoD argued that the claims under Article 2 of the ECHR, the right to life, should be struck out on the basis that the legislation has no application to soldiers serving abroad.

It was further argued that the negligence claims should also be struck out because they concerned political decisions as to the availability of resources with which to buy equipment and decisions made in the heat of battle, such as to attract ‘combat immunity’. The principle of combat immunity prevents claims of negligence being made if those claims challenge decisions made on the field of battle.

Ruling, the then Master of the Rolls Lord Neuberger, who has since been promoted to Supreme Court president, rejected the strike-out. The CoA said the negligence claim should not be struck out and that it was for the High Court, on hearing all the evidence, to decide whether decisions made about equipment and training came within the doctrine of combat immunity.

The ruling states: “It seems to me that both the equipment and training claims arguably fall outwith the scope of combat immunity. The MoD seeks to prove too much.

“If, without hearing any evidence, these claims fall within the scope of combat immunity it must be because the decisions as to the equipment to be provided and the training to be given relate to active operations to be conducted some time in the future. If that is the extent of the reach of the immunity, it is difficult to see how anything done by the MoD falls beyond it.”

It continues: “The MoD proceeds from the wrong starting point. It seeks to persuade the court that it should not recognise the existence of any duty in relation to the procurement of equipment.”

The claims have now been referred back to the High Court for a full hearing.

The other issue dealt with by the CoA in the judgment was that of jurisdiction. It struck out claims that the soldiers should be protected under the Human Rights Act as being on UK territory when they step off the Army base.

However, the court acknowledged that there is a pending ruling in Strasbourg on soldiers and gave HJA’s Cockburn leave to appeal to the Supreme Court.

That appeal will be lodged in the next three weeks and could be heard by next June with any judgment likely to be handed down this time next year.

Cockburn said: “This decision will not deter the Snatch Land Rover claimants. They’ve been fighting for many years for recognition that their loved ones remained within the UK jurisdiction at all times and that it’s artificial to draw a line at the door of an army base.

“Soldiers who step off base can surely not be said to have left the UK’s jurisdiction. There’s absolutely no difference - they must continue to take orders and to all intents and purposes are under the ‘control and authority’ of the UK army.

“To the Snatch families, the issues are simple - it’s only right that soldiers should be entitled to the protections under the Human Rights Act if we’re to expect them to respect the human rights of the opponent and civilians.

“They recognise that this does not mean that all deaths can be avoided, but that the UK must take reasonable steps to protect the lives of its soldiers. One would have thought this should be a given.”

The legal lineup

For the appellant (1) Susan Smith (on her own behalf and as administrator of The Estate of Philip Hewett, Deceased); (2) Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased); (3) & (4) Will of Kirk James Redpath, Deceased) Courtney Ellis (a Child) by her Litigation Friend Karla Ellis and Karla Ellis

For the respondent Courtney Ellis (A Child) by her Litigation Friend, Karla Ellis

Devereux Chambers’ Robert Weir QC to lead Matrix Chambers’ Jessica Simor instructed by HJA partner Jocelyn Cockburn

For the respondents Deborah Allbutt Daniel Twiddy Andrew Julien

Matrix Chambers’ Richard Hermer QC to lead Doughty Street Chambers’ Ben Silverstone Leigh Day & Co Solicitors Shubhaa Srinivasan

For the respondent/appellant MoD

Blackstone Chambers’ James Eadie QC to lead 11KBW’s Sarah Moore and Karen Steyn also of 11KBW instructed by the Treasury Solicitor