The government is set to restrict the court’s discretion to extend the normal time limit for bringing personal injury (PI) claims arising from military operations beyond 10 years.
The Ministry of Defence is consulting on a “longstop” as part of efforts to protect the armed forces from historical allegations of wrongdoing.
The consultation said operations in Iraq resulted in litigation “on an industrial scale”, with nearly 1,000 claims seeking compensation for PI or death, most of which also sought compensation for human rights violations, and approximately 1,400 judicial review claims seeking an investigation and compensation in compliance with the European Convention on Human Rights (ECHR).
Noting the “broad discretion” enjoyed by the courts in deciding whether to allow claims to proceed beyond the normal three-year limitation period for PI claims, , the MoD said it could be “very difficult” to assess such claims “in a fair and proportionate manner” long after the events occurred.
“Records are rarely sufficiently detailed to be able to disprove specific allegations, and the memories of those involved in incidents fade over time.
“In such circumstances, the government must often choose between settling claims (with all of the associated legal costs) – the merits of which have not been established – or calling upon current and former armed forces personnel to give evidence on its behalf.”
But it stressed that the backstop was not intended to avoid the government being held accountable for injuries or deaths occurring outside the UK.
“It should ensure that claims are brought promptly, enabling them to be assessed in a fair and proportionate manner, and ensuring lessons are learned and applied.
“In line with our commitments to continue to safeguard human rights, we are not proposing to restrict the court’s discretion to extend the time limits for bringing claims relating to human rights violations.”
The consultation also covered the criminal law, proposing to create in law a presumption that current or former personnel will not normally face prosecution for alleged offences committed in the course of duty abroad more than 10 years ago, as well as a new partial defence to murder, which would allow the courts to recognise the operational context in which deaths occur.
Defence secretary Penny Mordaunt said: “All of this goes to the heart of what is known as ‘lawfare’ – the judicialisation of war. And the risks and impacts of lawfare are clear: in terms of the financial costs; the stress and strain placed on veterans; the potential impact on the morale of serving personnel and our ability to recruit future armed forces personnel; and the risk that decisions taken on operations may be corrupted in order to avoid the possibility of legal proceedings many years in the future – the ‘chilling effect’ feared by military commanders.”
This is the latest step taken by the MoD to tackle litigation, “building on wider reforms to the legal system to deter opportunistic lawyers”, as Ms Mordaunt put it.
“We have improved significantly our ability to resist speculative compensation claims and demonstrated our resolve to resist these wherever appropriate.
“We are also committed to improving our support for the armed forces. We will be taking forward work to improve the compensation arrangements for those injured, or the families of those killed, on combat operations.
“Specifically, to make sure that armed forces personnel and their families no longer have to endure the stress of pursuing lengthy claims in court, the government has committed to establishing a no-fault scheme that will pay the same level of compensation as a court would award.”
She said this would be brought forward when parliamentary time allowed.
The MoD has also announced that, where appropriate, it would derogate from the ECHR before embarking on significant military operations in the future.
“Any derogation would need to be justified and could only be made from certain articles of the convention. In the event of such a derogation, our armed forces will continue to operate to the highest standards and be subject to the rule of law.”
The MoD also trumpeted giving evidence to the Solicitors Regulation Authority which contributed to the decision of the Solicitors Disciplinary Tribunal to strike off Phil Shiner.