The lawyer who successfully took the government to the Supreme Court to secure a duty of care for all British troops on active service abroad, has hit out at the Ministry of Defence (MoD) over its plans to prevent injured soldiers and families of those killed in combat from pursuing legal redress for negligence.
The consultation, Better combat compensation, which closes on 23 February, proposes a new widened concept of ‘combat immunity’, along with:
- abolishing the duty of care it owes to service personnel, therefore preventing any legal claims for negligence against the MoD being heard by the courts;
- introducing a ‘no fault’ compensation scheme for injured soldiers and families of those killed; and
- no paid legal representation for service personnel when losses and compensation are assessed.
In her firm’s response to the consultation, award-winning human rights lawyer Jocelyn Cockburn of London law firm Hodge Jones & Allen will argue that the proposals wrongly focus on the compensation rather than the protections that will be removed from soldiers under the new scheme:
“The Consultation proposes an extension to ‘combat immunity’ to cover all deaths and injuries in combat even where the failings occurred far from the battlefield. The impact, and possibly the intention, of this change is to protect the MoD from scrutiny by the courts regarding equipment failures.
“If the MoD are immune from legal action there is a real risk that safety standards will fall. During the course of the Snatch Land Rover litigation the government tried to persuade the court not to impose any duty on the MoD to protect its troops. This argument failed and was patently unreasonable. Parliament should give any such bill short shrift.
“It is telling that the first step by the MoD in response to the highly critical Chilcot Report isn’t to introduce new measures to protect soldiers, but instead measures to remove their own duty to operate a ‘safe system of work’ where our troops are deployed. It is a shameful response.
“This proposal is wrapped up with the planned introduction of a no-fault compensation scheme, which allows the Defence Secretary to contend that it embodies his ‘commitment and obligation to the brave men and women who have risked their lives for our country’. We should not take his words at face value.
“Those involved in cases against the MoD know only too well that the MoD has a very closed attitude to admitting mistakes and do not take well to scrutiny of any type. There is in fact a very real risk that by removing this duty of care the MoD will not learn any lessons from Chilcot and without the scrutiny of courts, the MoD will not be transparent about their failings.
“Of course, no injured soldier or bereaved family should have to fight for a decade to achieve compensation, as the Snatch Land Rover families have had to. However, the scheme proposed by the MoD will not achieve its stated aim to compensate soldiers as if they had won their case in court. Cases will inevitably be very complex, with the need for multiple experts to help assess the extent of the injuries and losses. Clients are often vulnerable and traumatised and some will have catastrophic injuries. They cannot be expected to navigate the process without legal representation.
“There is no need to reinvent the wheel by setting up a wholly new system for the assessment of loss – justice is best achieved within the current system. Our courts are well used to assessing the value of claims and this process will be much quicker if there is no need to prove that the MoD was at fault.”
For further information, please contact:
Kerry Jack or Louise Eckersley at Black Letter Communications
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