Personal Injury funding in war zones
25 February 2009
For over 20 years, I have acted almost exclusively on behalf of military personnel recovering damages for accidents while at work.
During this period, I have experienced the demise of legal aid, the first conditional fee agreements and the development of the before the event and after the event legal expense insurance markets.
I have also experienced how injured military personnel are continually let down by the legal system when it comes to funding their cases.
Accidents are often in remote corners of the world and involve military equipment. Access to information is difficult, often the only source is a military court martial, board of inquiry or, for relatives of those fatally injured, a coroner’s inquest.
Funding for legal representation at an inquest in my view is essential, yet not available. The Ministry of Defence (MOD) will refuse to fund any costs.
Solicitors acting for relatives can apply to the Lord Chancellor’s department for special permission for state funding. This is not automatic and takes a long time. Confirmation usually arrives after an inquest has taken place and may only be a contribution to legal representatives. If state funding is denied, as is often the case, pro bono is the only way to go.
In terms of funding litigation, many military personnel have before the event legal expense cover and their solicitor can apply to the legal expense provider to act under their policy.
However, this process is fraught with difficulty as insurers will not allow solicitors to act pre issue of proceedings, and even post issue the terms of the policy are sometimes so onerous it is not in the client’s best interest to use the policy. This is despite them paying regular instalments for this - sometimes by deduction at source from their pay packet.
Insurers are particularly nervous of incidents outside of the UK, or in a war zone for example in Iraq or Afghanistan (Bosnia and the first Gulf War had legal service funding available).
Witnesses are often scarce and still serving so they don’t want to damage their military records by speaking to a civilian lawyer. They are told not to breach the Official Secrets Act.
When an accident happens, they often close ranks. The military police investigate and a board of enquiry may be convened - but this can take up two years to conclude. A coroner’s inquest is often two years after the accident and throughout this period insurers will decline to insure the case for lack of evidence. We have in the most extreme cases waited three years for a decision on insurance funding.
These cases are in my view the most deserving and in need of legal representation because of their difficult and technical nature, yet it is that very difficult and technical issue that is a bar to funding for legal representation.
I can think of very few circumstances where on a regular basis the defendants holds all the information as to how an accident occurred, details of all witnesses, medical records and pay and career details.
The claimant is acting in the dark. As for relatives of those fatally injured they have an even more difficult uphill struggle to obtain information as they are out of the military loop.
My greatest wish would be to create a specialist, after the event, legal expense insurance scheme, so that those injured or relatives are not exposed to adverse costs. Alternatively, the Government could assist more readily with state funding for legal representation - especially for relatives. It is imperative in these most difficult of circumstances that they have someone they can trust, who is independent from the military, fighting their corner.
One of our insurance providers has just refused trial funding for a military case after two years, despite a strong counsel’s advice and evidence linking causation. The case involves a client with only a few months to live as a result of his injuries.
I now need to decide what to tell the client, his wife and six children; do we pull the plug or risk all?
With an ever-increasing, risk-adverse insurance market, I wonder how these very deserving cases will ever make it off the starting block. I suspect they simply won’t, denying access to justice to those who most need it.
Hilary Meredith is a partner at Hilary Meredith Solicitors