A High Court test case decided yesterday that members of the armed forces are not employees for the purposes of the pre-1 April 2013 fixed success fee regime in employers’ liability claims.
Counsel for the Ministry of Defence (MoD) told the court that the novel point was important in a significant number of continuing pre-Jackson cases.
Broni & Ors v Ministry of Defence  EWHC 66 (QB) brought together three claims relating to injuries suffered by servicemen while training. Both Master O’Hare in two of them and Deputy Master James in the other decided that they were employees as required by the old CPR 45.20.
This defined an employee by reference to section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969 as “an individual who has entered into or works under a contract of service or apprenticeship with an employer”.
The claimants argued that the law is clear that a serving member of the armed services is not an employee under a contract of service and there was no proper basis for construing part 45 more broadly.
The Ministry of Defence responded by calling for a purposive approach to the construction of the words ‘contract of service’.
Mr Justice Supperstone found for the claimants, ruling that there was “no scope for giving a broad or purposive interpretation”.
He added: “The Ministry of Defence owe a duty of care to servicemen whether they work under a contract of service or not, both at common law and under the Health & Safety at Work Act 1974.”
The judge acknowledged that the ruling could cause difficulties at detailed assessments if the court had to investigate whether the claimant had a contract of service.
Determination of the success fees was remitted to Master Haworth.