Firm rallies to soldier's battle cry

The dusty corridors of the House of Lords could soon be transformed into a battle ground as army chiefs fight off the threat of negligence law suits brought against officers by soldiers injured in action.

The Ministry of Defence doubtless breathed a sigh of relief after a recent Appeal Court ruling effectively cleared it of such risk, but it now looks as if it has only won a battle, not necessarily the war.

Gulf War veteran Richard Mulcahy sued the MoD over hearing loss he claims he suffered as a result of a howitzer being fired close to him during the Gulf War.

Despite their defeat in the Appeal Court, lawyers for Mulcahy are now seeking legal aid to take their 'When is a battle a battle?' question to the Law Lords.

If the case gets the go-ahead the judgment could affect the rights of armed forces members when on active service, said Mulcahy's solicitor Steven Dorrington, of Halifax firm Wilkinson Woodward & Ludlam. He believes the MoD is hiding behind legal provisions never intended to protect it from claims such as Mulcahy's.

"This question really needs to be sorted," said Dorrington. "I feel that despite the Court of Appeal ruling it is still by no means clear at the moment."

At Dewsbury County Court in September 1994 the MoD failed in an application to strike out the claim as disclosing no reasonable cause of action.

The Appeal Court overturned that ruling and backed the MoD based on the provisions of the Crown Proceedings (Armed Forces) Act 1987, which replaced earlier protection to prevent members of the armed forces being sued by other forces' members.

However, the 1987 Act retained a provision entitling the MoD to ward off action if the death or injury had resulted from "war-like operations". This provided the MoD with an 'escape clause' felt the court.

The Appeal hearing centred on the question of whether battle conditions prevailed at the time the Howitzer was fired.

Although the gun was fired at the Iraqis, Dorrington argues that they were 30 miles away and the accident could be likened to a firing range incident in the UK.

"We say it was nothing like a war," he said. "There were TV crews, ammunition lorries and so forth coming and going. It was all fairly relaxed."

And Dorrington believes the situation cannot be compared to complaints after the Falklands conflict. "If you take the marines in the Falklands, there were some complaints that people were sent into dangerous areas when they should not have been. In those situations, officers should not have to think 'Am I going to be sued for sending these chaps over there?'. Officers in battle have to make snap decisions; this was not that sort of situation."

Dorrington added: "Our client's injury did not stem from a decision made in the heat of battle. It was caused by lack of care to ensure that everyone stood in the right place when the gun was fired."

But Lord Justice Neill, sitting with Lords Justices McCowan and Sir Iain Glidewell, did not agree and said the situation "clearly constituted battle conditions".