The Ministry of Defence (MoD) has today set out plans to remove most claims arising from injury or death in combat from an adversarial legal process in which members of the armed forces or their famiiles need legal representation.
The MoD said the move came after military advisers warned that the “judicialisation of war” – the increasing involvement of the courts in decisions about military planning and equipment – could undermine the operational effectiveness of the Armed Forces.
Defence secretary Sir Michael Fallon said the new scheme would mean “more generous payments” while removing “the stress of lengthy legal action”.
It would also reduce the high costs of legal action currently borne by the taxpayer, the MoD said.
The current no-fault Armed Forces Compensation Scheme (AFCS) provides payments to individuals who suffer injuries or illness as a result of their service, or to their families in the case of those who died. Where personnel or families believe the MoD has been negligent, they may choose to go through the courts to seek additional compensation.
The long-held common law principle of ‘combat immunity’ means those affected are not able to get court-awarded compensation for negligence unless they can persuade the court that the negligence arose at a point before combat, such as in training or decisions about equipment.
The MoD proposes to exclude the court’s jurisdiction where the harm “occurred in the course of a UK military operation as a result of direct or indirect hostile enemy action, or as the direct result of misdirected targeting by friendly forces, or as the direct result of action taken to avoid hostile enemy action”.
The MoD said any case which did not arise out of combat would not be affected, and service personnel who believe they have suffered harm as a result of its negligence in those circumstances would still be able to sue, in addition to making a claim on the AFCS, should they wish to do so.
The consultation asks whether the MoD or an independent assessor should make the initial decision on whether the exclusion applied, which could be challenged by way of judicial review, or by pursuing a claim for negligence in the courts.
If a claim was accepted, no finding of negligence would be required; instead, it would be passed to a legally qualified independent assessor to determine the level of award, taking into account the same information a court would.
“This will not be an adversarial procedure… The presumption is that a claimant will not need legal representation because the assessor will help him or her to bring forward all the information which needs to be considered.
“Claimants would however be free to seek legal representation if they wished, but this would be at their own cost.”
If the claimant disagreed with the level of the award, the MoD proposes making provision for an appeal using the Pensions Appeal Tribunals Act 1943.
“These tribunals are independent of the government; they can hear and decide appeals against decisions of the secretary of state in connection with applications for compensation by former and serving members of the Armed Forces.”