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The Ministry of Defence (MoD) has recently confirmed it plans to introduce a new compensation scheme for injured armed forces personnel and families of those killed in combat.
It is asserted by the MoD that their proposals “would mean many more individuals and families would benefit from these larger awards, and unnecessary legal costs, delay and stress associated with litigation could be avoided”.
The MoD’s “Better Combat Compensation” consultation is currently underway and due to close on 23 February 2016.
Scope of the proposals:
- The MoD's proposals cover battle and the preparations for it, and include:
- Abolishing the legal duty of care it owes to service personnel and stopping legal / civil claims for negligence against the MoD in the Courts.
- A "no fault" compensation scheme for injured service personnel and families of those killed.
- Assessors to be appointed by the MoD to value injuries and loss based on expert reports they commission to decide on the level of compensation a Court would have awarded.
- A presumption that there will be no paid legal representation for service personnel when losses and compensation are assessed.
Under the proposals, combat immunity – which provides an exemption from legal liability for members of the armed forces and the Government – would apply to all claims brought by those in combat, even when failings occurred far from the battlefield.
The consultation paper states “the presumption is that a claimant will not need legal representation because the assessor will help him or her to bring forward all the information which needs to be considered. Claimants would however be free to seek legal representation if they wished, but this would be at their own cost”.
Does this not create a “David and Goliath” situation with the MoD acting as both Judge and Jury? The Law Society have already raised concern about these proposals, warning that servicemen and servicewomen injured during combat should not be shut out of the justice system if they believe the MoD negligence contributed to their injury.
It seems to me that the proposals wrongly focus on the compensation levels rather than the protections that will be removed under the scheme. Cases are inevitably complex with the need for multiple experts to assess the extent of, often catastrophic, injuries and losses; and clients are often vulnerable and traumatised. Is it right that the process should be navigated without legal representation?
This seems to be the thin end of a very worrying wedge. The Government are currently looking at abolishing one type of injury claim (whiplash) altogether and potentially restricting access to justice for others by increasing the Small Claims limit and introducing fixed costs regimes. These proposals seem to further restrict potential access to justice.
Putting the proposals into context:
In 2007, Lance Corporal Kirk Redpath died when a roadside bomb exploded next to his lightly-armoured Snatch Land Rover in Iraq. He was one of some 37 servicemen and women killed in Snatch Land Rovers in Afghanistan and Iraq.
After a five-year struggle his father, Colin, won a Supreme Court ruling allowing him the right to sue the MoD. The civil claim he pursued on Kirk’s behalf is now only close to a conclusion. This was driven largely, I suspect, by the desire to get answers and to get justice for Kirk.
Last year, the Chilcot inquiry found a string of MoD failings in the preparation for the Iraq War, which were described as “wholly inadequate” and which included a delay in replacing the lightly-armoured Snatch Land Rovers, which are vulnerable to bombs.
The impact and, it could be said: possibly the intention, of these proposals could be seen to protect the MoD from scrutiny by the Courts regarding equipment failures, for example. If that is the case and the MoD are immune from legal action, there must be a very real risk that safety standards could fall; and the lessons of Chilcot will not be learned.
Without full independent scrutiny, where is the incentive for the MoD to ensure that it doesn't cut costs too far in terms of the quality and scale of equipment available?
The proposed new definition of combat immunity looks to extend to cover any UK-based operation in preparation for war, such as the ordering of Snatch Land Rovers or a training exercise on Salisbury Plain, for example.
Indeed, in 2015 there was a training exercise incident which occurred on Salisbury Plain, the largest MoD owned military training area in the UK. According to the BBC, as a result of that incident 11 military personnel were injured with 2 suffering “life-changing” injuries.
The Law Society president Robert Bourns said “A decision about equipment or training, made from a desk in Whitehall, should be subject to the same scrutiny as similar decisions about specialist training or equipment made by other employers.”
With major issues with transport vehicles and body armour highlighted in recent years there are serious concerns that, by closing the door to potential legal action, the level of independent scrutiny which keeps service personnel safe is removed.
These proposals must be about striking the right balance to get the best outcome for our service personnel. On occasion this may be by way of compensation provided by the new proposed scheme. In other instances, this can only be achieved via civil case against the MoD brought by a specialist legal team on behalf of the injured service personnel.
Rather than seeking to exclude civil claims, the choice should be made available as some service personnel may feel they want to enter into the MoD scheme, whereas others may want a more independent view at what has happened to them; and may want a lawyer to help investigate for them or advise on the adequacy of the compensation they are offered under the new scheme. The choice must be available to preserve access to justice.