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19 June 2013
Lord Hope Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Carnworth
The Ministry of Defence applied to strike out claims made by British service personnel who had been injured in Iraq and by the families of British service personnel who had been killed in Iraq. The first set of claims arose out of the deaths of servicemen who had been killed by Improvised Explosive Devices when they were in Snatch Land Rovers. Each claimant alleged that the Ministry of Defence was in breach of Article 2 of the European Convention on Human Rights on the basis that the Ministry of Defence had failed to take reasonable steps to protect the soldiers' lives from foreseeable risks, in relation to the procurement and deployment of appropriately armoured vehicles. One of these claimants also claimed damages in common law negligence. The second set of claims concerned a group of servicemen who had been killed or injured in a friendly fire incident involving two Challenger tanks during the early days of the invasion of Iraq. These claims were brought in common law negligence only. The claimants alleged that the Ministry of Defence had breached its common law duty of care by failing to ensure that the tanks were fitted with devices which would have prevented the incident and by failing to ensure that the soldiers involved had had the relevant training..
The Court held that, following the guidance given by the Grand Chamber in Al-Skeini v United Kingdom (55271/07) (2011) 53 EHRR 18, the jurisdiction of the United Kingdom under Article 1 of the Convention extends to securing the protection of Article 2 to members of the armed forces when they are serving outside its territory.
In relation to the extent of that protection, the Court held that the courts should not impose positive obligations on the state in connection with the planning for and conduct of military operations in situation of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual servicemen to be afforded the protection of Article 2.
If and to the extent that the decisions which are called into question are decisions about training, procurement or the conduct of operations which were or ought to have been taken at a high level of command and closely linked to a political judgment or issues of policy, it is likely that the courts will find these decisions are outside the protection of Article 2. Similarly, if and to the extent the allegations relate to what was done or not done when those who might be thought to be responsible for avoiding the risk of death and injury to others were actively engaged in direct contact with the enemy, it is also likely that the courts will decide that these decisions are outside the protection of Article 2. But it is not possible to lay down any hard and fast rules in relation to whether or not and in what circumstances there is any middle ground where an individual serviceman can and should be afforded the protection of Article 2, and this will require the exercise of careful judgment on the particular facts of an individual case. In these cases, the precise circumstances in which the various decisions were made need to be inquired into before a decision can be confidently made as to whether or not there was a breach of the implied positive obligation under Article 2. Therefore, the first set of claims under the Human Rights Act 1998, should not be struck out.
In relation to the common law claims in negligence, the first question is the extent of combat immunity. The scope of the immunity should be construed narrowly. In the Challenger cases, the claimants' cases are based entirely in failings in training and procurement. The claims are directed to things that the claimants maintain should have been done long before the commencement of hostilities. They carefully avoid any criticism of the actions of the men who were actually engaged in armed conflict at the time of the incident. Therefore, in the Challenger cases, the decisions and activities which were criticised were sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, provided that the standard of care which was imposed had appropriate regard to the nature of the activities in question and their circumstances. Accordingly, the doctrine of combat immunity did not apply. Insofar as the one Snatch Land Rover claim in negligence was concerned, this claim was less clearly directed solely to decisions and activities away from the theatre where the claimant was at the time of his death. Therefore, the extent to which combat immunity applied was left to be determined at trial in the light of the evidence presented at trial.
As to whether or not the common law claims fell within the exclusion from the imposition of a duty of care which was recognised in Mulchay v. Ministry of Defence  QB 732 (where Neill LJ said there was no duty on the Ministry of Defence in battle conditions to maintain a safe system of work and Sir Ian Glidewell said that one soldier does not owe another soldier a duty of care when engaged in battle conditions) or any extension of this exclusion, this was also left to be determined at trial in the light of the evidence presented at trial.
This case does not open the floodgates for claims by or on behalf of British service personnel who have been killed and injured on active service. This was a strike out case. It merely leaves open the opportunity for claims to be brought by or behalf of British service personnel in an appropriate case when they have been killed or injured on active service as a result of failures in training or the procurement and deployment of appropriate equipment. Moreover, the Court was at great pains to emphasize the latitude which should be afforded to the relevant decision-makers. In practice, it is likely to be difficult to establish liability in what is likely to be a relatively narrow band of cases.
Doughty Street Chambers