The blame drain
23 February 2004
13 December 2013
3 January 2014
11 September 2013
11 September 2013
9 October 2013
The legal action on behalf of some 2,000 UK veterans claiming compensation for Gulf War Syndrome petered out this month after eight long years, when the veterans’ own lawyers concluded that there was “insufficient evidence” to pin the blame on the Ministry of Defence (MoD).
It is never going to be easy for a lawyer to tell their clients that their case did not even make it as far as the courtroom door. For ex-service personnel and lawyers alike it is a bitter blow. “We very much regret that we’ve not been able to support these claims,” says Patrick Allen, senior partner at Camden firm Hodge Jones & Allen (HJA), which has some 600 veteran clients and was the lead solicitor in the action. “We have every sympathy for the plight of the veterans and acknowledge that many suffer significant ill health, which is linked to service for their country.”
“The alleged collapse of the legal case comes as a great disappointment,” says Terry English, director of welfare at the Royal British Legion. “There’s no better time now that funds have been withdrawn, and with troops currently deployed in Iraq, to renew our call for a full public independent inquiry.” The legal team at HJA, together with its counsel Stephen Irwin QC, the chairman of the Bar Council, and Christopher Hough of Doughty Street Chambers, are backing that call. They are also calling for ex-gratia payments to supplement war pensions.
But there has also been anger from some ex-service personnel who hold their lawyers personally responsible for the collapse of the action. “We feel like we’ve been shafted,” says one Gulf War veteran. “It’s an unfolding tragedy. We have to prove what happened to us against MoD obfuscation and now our own solicitors aren’t acting in our best interest.” The attack comes from a member of one group, the National Gulf Veterans and Families Association (NGVFA), which claims that it has “no confidence” in its legal team.
“Why collapse the case at this point, it just doesn’t make any sense,” says Shaun Rusling, chair of the NGVFA and a former sergeant in the Parachute Regiment. “The group fully believes that there’s a case to answer here, and any decision to withdraw funding will be appealed.” Many of the troops serving in the Gulf have since suffered from a host of debilitating symptoms, such as depression and neurological problems. Possible suggested causes include depleted uranium fallout, multiple vaccinations, tablets given to guard against nerve agents, chemical weapons used by Iraqi forces and organophosphates used to spray equipment against flies. According to the NGVFA, there have been 633 veterans that have died since April 1991 and 5,933 have applied for a war pension for disablement. “You have to question what’s going on and ask if justice is being done,” Rusling adds.
When The Lawyer meets HJA’s Allen, the immediate past president of the Association of Personal Injury Lawyers (Apil), shortly after the collapse of the case, there is little that the campaigning legal aid lawyer says to give heart to those veterans who want to fight on through the courts. “I feel sad because it’s been a long struggle,” Allen says. “And I feel sad that some can’t trust the answer that we’ve come up with. But it hasn’t been a close decision insofar as it’s been finely balanced. The fact is that we haven’t got the causation or the negligence.”
While the legal team concedes that it has no legal case, Allen, Irwin and Hough argue that the collapse of the action does not lessen the responsibility owed to the veterans by the Government. “The Government has frequently referred to the debt of honour which it owes to veterans in the services,” they say. “We believe that this debt of honour should be acknowledged by special treatment for war veterans.” The Legal Services Commission (LSC) is expected to formally pull the plug on the action in the next couple of weeks, and given Allen’s own legal opinion, it is hard to see an appeal making any progress.
Does the failure of the action undermine the credibility of those that claim there is a ‘Gulf War Syndrome’? “Far from it,” Allen replies. “There’s a condition of illness which is associated with service in the Gulf and there’s a broad consensus about that in the international scientific community. That’s been shown time and time again by epidemiology on a vast scale.” According to the solicitor, there now exists “this extraordinary situation where there are many ill veterans with unexplained illness”. He continues: “And when there’s an unexplained illness, it’s hard to argue that it was negligence that caused that illness. That’s the line the international scientific consensus has come up with.”
The Gulf veterans’ action has been funded by legal aid since 1996 to investigate claims against the Government. HJA took over the generic contract for investigating claims in April 1998. A 10-strong team at the firm has been scrutinising all available research, as well as undertaking its own pilot research involving the clinical testing of 20 claimants. The results were entirely consistent with other scientific research published worldwide. “We’re pretty clear that there’s a health effect, but what we’re looking for is a legal case,” Allen continues. “And that involves finding a cause and blaming it on the MoD.”
The solicitor produces a hefty lever-arch file, which he calls his “best-case review”. It is a distillation of the scientific case to support Gulf War Syndrome garnered from across the world and assembled by two scientific researchers, Alan Duncan and Kim Green, who were employed by the firm for more than four years. As the name of the review suggests, they were charged with identifying “the best possible case” for the clients and then finding the science to back it up. “They were researching and digesting information every minute of the day,” Allen says. “If something came up somewhere in the world on Gulf War Syndrome, then we have it. We’ve probably digested every single significant article on Gulf War illness that’s ever been published and every theory that has some credence has been looked at.”
It is on the back of that, together with the opinion of Irwin and Hough, that Allen felt he was not justified in expecting the taxpayer to foot the bill. The barristers were fulsome in their praise of the review. In their own legal opinion they describe it as “a remarkable piece of work” and add that they have not come across the “range and quality” of scientific review in any case they have previously worked on.
Is there a frustration that the claimants have had to rely so heavily on second-hand research? “I don’t think that it’s feasible for lawyers and the LSC to finance research,” says Allen. “For research to have any weight, it has to be well set up by experts in studies, involve huge numbers of people and a lot of controls.”
The funding agreed by the LSC for the generic effort was £2m, and Allen is “confident” that his firm will come in under budget. Nor does he feel his firm’s progress was hindered by cost constraints. Far from it, in fact. “The LSC has supported the case for eight years.
Money hasn’t got in the way and every time we’ve said we needed an increase in funding they’ve been very reasonable.”
The failure of the Gulf War action comes soon after last year’s decision by the LSC to remove public funding for the legal action by more than 1,000 claimants against the makers of the measles, mumps and rubella (MMR) jab. Both actions failed as a result of lack of scientific evidence. In the case of MMR, many claimant lawyers were deeply antagonistic to what they considered to be a speculative action and, consequently, were unsurprised when the LSC backed out before the trial started.
Mark Harvey, the secretary of Apil and a partner at South Wales firm Hugh James, was one such sceptic. “There’s nothing like the hostile feeling towards this case as there was with MMR,” he says. “In fact, there’s obviously a feeling of great disappointment that they haven’t been able to show a link. But it raises the old argument that came up at the end of MMR, which is, ‘What is the proper forum to deal with these cases?’”
In Gulf cases, Harvey believes a persuasive argument could be made for an inquiry because, as he sees it, it seems to be “tacitly accepted in other jurisdictions, including the US”, that distinct illnesses have arisen among ex-service personnel.
“But I can understand why Patrick [Allen]’s view is that he can no longer justify the use of public money to investigate this,” Harvey argues. “Otherwise he falls into the same trap as MMR, where they used public money to try and research drugs through litigation, and that isn’t what’s supposed to happen.”
Lord Morris of Manchester, a former Labour minister for the disabled and a campaigner on behalf of the veterans, hopes that this month’s blow will provide an impetus for ministers to address the plight of veterans and their families. “The war had its starting point in the Iraqi invasion of Kuwait in August 1990. We’re now 14 years on and a great many veterans have died from unexplained illness; many are suffering and some are terminally ill,” he says. “It’s time to stop the legal haggling.”
But the camp is clearly divided. The NGVFA claims that it will appeal the inevitable refusal of funding from the LSC and it continues to press for “a solicitor of our choice”. Criticism of the legal team has been personally directed at Allen. “We’re absolutely furious that this story broke into the newspapers when Mr Patrick Allen had requested no veterans take the matter to the press,” says Rusling, adding that the NGVFA sees it as “an absolute breach of client confidentiality”. The solicitor, however, makes it clear that it was not his firm that went to the press and points out that the firm distributed 600 copies of the report to its clients last March. Copies were also made available to the other firms involved. And so, he says, it was not surprising that the news made it through to the press.
The NGVFA has also attacked Allen, a member of New Labour, for being, as the group puts it, “a friend of Tony Blair”. “I had never known that to vote for a socially-based manifesto was something to be held against you,” Allen comments. Certainly, the lawyer does not hold back when it comes to airing fairly strident criticisms of the Government’s policy on legal aid – it is “testing our resolve to breaking point”, he recently remarked. One legal aid lawyer was amused by the suggestion that Allen was close to New Labour. “If he is ‘a friend of Tony Blair’ he’d be running a practice that was earning far more than it is at the moment,” he quipped.
Perhaps more seriously, Rusling argues that the progress in the courts has been blocked just as they were beginning to make headway with a number of landmark cases. In November last year, a coroner came close to acknowledging the existence of Gulf War Syndrome when he ruled that service in the conflict played a part in the death of Major Ian Hill. He died two years ago after more than a decade of illnesses. The coroner, Nicholas Rheinberg, ruled that Hill’s military service had been a factor in his death. “It’s not for me to make sweeping conclusions based on a day’s hearing on the existence of Gulf War Syndrome,” he said. “I don’t believe it would do justice to Ian Hill to describe his death as natural causes. I’m going to describe his death as natural causes to which his military service in the 1991 Gulf War campaign was a contributing factor.”
It was the first time a UK court had recognised the connection between Gulf War illnesses and a veteran’s death. “But where does that take us?” Allen asks. “The coroner hasn’t made a finding on the science.”
Only this month, a former soldier who claimed he was poisoned during the Gulf conflict won a victory against the Army. Kenny Duncan, who claimed he was contaminated by depleted uranium, became the first veteran to win a war pension appeal after taking the MoD to the Pension Appeal Tribunals service. This followed the High Court ruling last June which upheld a pension tribunal ruling concerning Rusling. Linder Myers, the Manchester firm representing Rusling, hailed it as “of great importance” to other veterans of the first Gulf War. “Almost certainly, many of them will have the opportunity of attempting to prove the existence of Gulf War Syndrome, and by so doing obtain recognition for their condition,” the firm told the press at the time.
However, it is one thing to win in the pensions tribunals with its reverse burden of proof, where the MoD has to prove that the illness was not associated with service in the Gulf, but it is quite another to succeed in the courts. As Allen says: “We’ve had to point out that these are pension cases, not compensation cases, and if the boot was on the other foot and we were in the High Court and the burden of proof wasn’t on us, it would be a different story.”
Allen stands by the work his firm has done over the last few years, even though this month’s news is hard to take for some of his clients. “Our job is not necessarily to give them the message they want, but to find a case,” he says. “When we’re spending £2m of public money you can’t muck around and you have actually got to do the job. In the end, our duties are to the legal fund, as guardians of the public money, and to the courts.”