24 June 2012
The Court of Appeal will tomorrow (25 June 2012) begin hearing an appeal made by the MoD against a High Court decision in June 2011 that claims for negligence made against it can progress. The claims were made after a friendly fire incident during the Iraq war, which killed two soldiers and injured two others.
Cpl Stephen Allbutt died and Cpl Dan Twiddy and Trooper Andy Julien suffered severe injuries when the Challenger II tank they were in came under fire from another British Challenger II tank on the 4th day of the Iraq war in 2003. Trooper David Clarke also died during the incident.
Cpl Allbutt’s widow Debi and the two surviving soldiers, Cpl Dan Twiddy and Trooper Andy Julien, have brought civil claims against the MoD alleging negligence. They argue that they and the Challenger II Tank were not equipped with technology, which was available and which, they believe, would have protected them adequately from the risk of friendly fire.
They also argue that they themselves, as well as their fellow soldiers, had not been provided with the adequate vehicle recognition training prior to military operations in Iraq.
The MoD attempted to stop these claims from progressing, making a strike out application last year. In June 2011 Mr Justice Owen dismissed this application and it is this decision that the MoD has appealed. The Appeal is due to be heard from 25th -27th June 2012.
The MoD argue that Cpl Allbutt’s widow Debi and the surviving soldiers should not be allowed to bring their claims as they should be released from any duty of care owed to soldiers because the deaths and injuries occurred on the battlefield in a combat situation.
It also is arguing that it doesn’t owe a ‘duty of care’ where a claim of negligence against the MoD relates to a decision involving allocation of scarce resources. According to the MoD, these issues are best determined by Government and should not be subject to the scrutiny of the courts.
Shubhaa Srinivasan from Leigh Day & Co who is representing the family of Cpl Allbutt and the surviving servicemen, said:
“We do not believe the MoD will be successful in preventing these claims from getting to Court, as we believe the MOD’s position is morally and legally indefensible. The decisions taken, which ensure that British troops have adequate equipment and training, are taken well away from the battlefield. This equipment ranges from the very basic such as a GPS devices, to sophisticated satellite tracker systems, which the Americans had available to them.
“It seems incredible that it was often left up to soldiers themselves to buy this equipment as they felt compelled to, so as to better protect their own lives and the lives of those they were responsible for.
“It also cannot be right to argue that it is not appropriate for a court to scrutinise the MoD’s decisions and actions on allocating resources for training and in the provision of equipment. If there is negligence in these decisions it is essential that in a democracy an independent judiciary can challenge these decisions whether resources are scarce or not.
“The MoD argues that if a duty of care is imposed in circumstances of the claims brought by my clients, it would inhibit decisions on the battlefield or undermine morale and military discipline. This argument seems to defy logic. My clients will argue the converse – what would it do for military morale if soldiers were to learn that the Army has no duty at all to them to reduce the risks that they may die or sustain injury on the battlefield?”
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