13 May 2011
The High Court Judge who heard arguments (9-11 May) on whether or not combat immunity should apply to procurement and provision of equipment and training to soldiers long before embarking on a military operation has decided to reserve his judgment at the end of a 3 day hearing.
Mr High Court judge, Mr Justice Owen is expected to deliver his decision in July.
Leigh Day represent the Claimants Debi Allbutt, the widow of Corporal Stephen John Allbutt, Dan Twiddy and Andy Julien in negligence claims against the Ministry of Defence for death and injuries arising from a friendly fire incident in Iraq in 2003. The MoD applied to strike out the claims on the basis of combat immunity and that the claims raise issues of a political nature unsuitable to be tried by the courts.
On 9 May, the MoD argued that equipping and training British troops against the risk of friendly fire attack during military operations require balancing scare resources and are decisions for politicians and the Army to make, not to be subjected to scrutiny by the courts. The MoD also argued that decisions regarding provision of equipment and training prior to being deployed to a military operation are caught by combat immunity and therefore the MoD owed no duty of care to put in place a safe system of work for its employees under such circumstances.
On 10 and 11 May, the Claimants argued that the MoD's position is that the court should apply combat immunity, a very narrow doctrine closely based upon the doctrine of state necessity, to a much wider context which may well lead to a situation where the MoD would owe a duty of care to provide soldiers with a particular piece of equipment during training but not when those same soldiers go out to battle, even if the precise military operation has not even been contemplated.
The Claimants further argued that it is to be expected as a precondition to military service that soldiers are properly equipped and trained for the task at hand, whatever the nature of that task may be and that it would be contrary to public policy not to require the MoD to be under a legal duty to ensure this in the course of routinely training and equipping its soldiers. Such a duty cannot be obviated by the doctrine of combat immunity safe for the narrowest of circumstances where decisions have to be made in the 'heat of battle' without any time for forethought. Further, the Claimants' allegation of a failure by the MoD to provide basic low level equipment such as GPS systems and proper maps or adequate identification training to troops could not sensibly be regarded as falling within matters uniquely reserved for political or military decision that cannot be scrutinised by the Court.
Shubhaa Srinivasan, partner representing the soldiers and their families says “My clients want the MoD to be held accountable for their alleged long standing failure not to take any steps to reduce the risk of fratricide when operating in tanks. By bringing the strike out application, the MoD is trying to avoid accountability by hiding behind combat immunity and by saying the failures my clients are alleging involve the Court inevitably having to second guess politicians and senior military men on allocation of resources. It's hard to see how providing decent maps and handheld GPS units to help troops orientate themselves (in the absence of more sophisticated equipment) at the battleground could have amounted to a significant diversion of resources or indeed involved complex budgetary considerations. My clients say they are examples of the most basic type of kit which should have been provided but was not."
For more information, please contact Shubhaa Srinivasan on 020 7650 1302 or Patricia James on 0207 650 1343.
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