22 January 2016
Could a Crackdown on Military Legal Claims Disadvantage Injured Soldiers?
The UK Government has reported they will be cracking down on claims against the Ministry of Defence.
In an effort to “stamp out” what he terms “spurious claims”, Prime Minister David Cameron said his Government will be drawing up plans to restrict certain types of claims against the Ministry of Defence brought on a No Win, No Fee basis against soldiers returning from war.
At Slater and Gordon, we act for members of the British Armed Forces who have been injured because of things like poorly maintained or unstable work equipment that breaches health and safety legislation. We also represent service personnel who have been injured in a training accident or as a result of some other negligence on behalf of the MoD.
We would certainly support any initiatives that would protect our soldiers when such allegations are shown to be fabricated or false.
It’s only if the crackdown goes too far and limits an individual’s right to seek redress would we be concerned.
We are concerned that the intended crackdown, following the 2013 “Fog of Law” Think Tank Policy Exchange Report, could erode an individual’s rights to seek recourse to domestic courts where there is an allegation of wrongdoing.
The Fog of Law report concluded that claims against the MoD had “undermined the armed forces' ability to operate effectively on the battlefield”.
It’s quite right that, under the principle of combat immunity, the MoD cannot be sued if a commander makes a mistake in the heat of battle. It is, however, a fundamental concept of the rules of natural justice that individuals can bring grievances against the state before a court and the MoD should be held to account in the same way as any other public body if they have acted negligently or have breached their statutory duty.
This is the very definition of the Rule of Law and absolutely essential for any modern democracy.
In our experience, the MoD does not pay out damages unless there is clear, corroborated and unequivocal evidence of wrongdoing and a legal liability to compensate the victim. Equally, a court would only make an award of compensation if it concluded there was sufficient evidence for a finding of legal liability against the MoD.
Any large-scale overhaul of how claims against the MoD are funded could undermine many credible and deserving claimants who currently have to contribute up to 25% of their damages towards legal costs. Any further attempts to restrict their ability to recover their legal fees could prevent them from seeking often totally justified recompense. All members of society should be equal before the law, regardless of their position and financial means.
We hope that any attempts to “discourage spurious claims” do just that – and only that.
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