Relatives of fallen soldiers win right to sue for negligence

Relatives of soldiers killed fighting in Iraq can claim for damages for negligence against the government, senior judges have ruled.

Lawyers representing troops’ families hailed yesterday’s Court of Appeal ruling in London as a “landmark decision”.

Appeal judges said relatives could not make damages claims under human rights legislation, but lawyers said that fight would go on. They said families would take the human rights battle to the Supreme Court.

The mother of one soldier wept outside court as she described the Ministry of Defence’s attitude as “despicable”. Sue Smith, 51, of Tamworth, Staffordshire, whose son Private Phillip Hewett, 21, was killed seven years ago, said: “It is just so dismissive. It ‘doesn’t matter’: they are Action Men; if you break them, just bury them. But they are not just Action Men. People need to make a stand.”

Relatives had argued that the MoD failed to provide armoured vehicles or equipment that could have saved lives and should pay compensation. The MoD argued that decisions about battlefield equipment were for politicians and military commanders.

Legal action was started as a result of the deaths of a number of British soldiers following the US-led invasion of Iraq in 2003.

Corporal Stephen Allbutt, 35, of Stoke-on-Trent, Staffordshire, was killed in a “friendly fire” incident in March 2003, judges were told. He died after a Challenger 2 tank was hit by another Challenger 2 tank. Soldiers Dan Twiddy, of Stamford, Lincolnshire, and Andy Julien, of Bolton, Greater Manchester, were badly hurt in the incident.

Pte Hewett died in July 2005 after a Snatch Land Rover was blown up. Similar explosions claimed the lives of Private Lee Ellis, 23, of Wythenshawe, Greater Manchester, in February 2006, and Lance Corporal Kirk Redpath, 22, of Romford, Essex, in August 2007.

Three appeal judges, Lord Neuberger – who was then the Master of the Rolls – Lord Justice Moses and Lord Justice Rimer heard evidence at a hearing in London in June and announced their decision yesterday. The Court of Appeal analysed claims following challenges to rulings made by High Court judge Mr Justice Owen in June 2011.

Solicitor Shubhaa Srinivasan, of law firm Leigh Day & Co, which is representing some claimants, said the appeal court ruling was a “landmark decision”. He said: “We maintain that the MoD’s position has been morally and legally indefensible, as they owe a duty of care to those who fight on behalf of this country.

“British troops should at the very least have adequate equipment and training, ranging from the very basic such as 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.”

Solicitor Jocelyn Cockburn, of law firm Hodge Jones & Allen, also represented some relatives. She said they would now ask the Supreme Court – the highest court in the UK – to decide whether damages claims could also be made under human rights legislation.

Case study: Troops ‘pushed into things they shouldn’t have been’

Private Jason Smith, a Territorial Army reservist from Hawick, died in Iraq in 2003. The 32-year-old perished from heat exposure while on duty with the King’s Own Scottish Borderers as temperatures neared 60C.

In 2009, the Equality and Human Rights Commission intervened in the case, brought by Pte Smith’s mother Catherine, arguing before the courts that the Ministry of Defence had a “duty of care” to protect soldiers.

The High Court ruled that Pte Smith’s death was caused by a “serious failure” in not recognising the difficulty he was having adjusting to the climate. The Court of Appeal upheld the ruling, but in 2010 the Supreme Court overturned it. Mrs Smith said after the initial positive decision that she was still angry at the MoD’s attitude to the case. She said her son had less than ten days to acclimatise to the weather, and lack of staff pushed soldiers “into things they never should have been”.

The Supreme Court decision ordered a new inquest into Pte Smith’s death, which Coroner Andrew Walker blamed on serious failings by army chiefs.