Judgement handed down in Snatch Land Rover and Challenger Tank Cases

Lord Justice Owen has handed down judgement in the Smith & Others v Ministry of Defence (Snatch Land Rover and Challenger Tank cases).

The recent case of Smith & Others v Ministry of Defence [2011] EWHC 1676 (QB) (30 June 2011), has tested yet again the strict principal of combat immunity and Human Rights, in cases where military equipment has been deemed unsuitable.

Two class actions were considered at this hearing. It was an interlocutory hearing wherein the Defendants were arguing that both actions should be effectively struck out on the basis that there was no case to answer. One group of Claimants- Smith, Ellis and Redpath brought claims in respect of incidents arising whilst travelling in Snatch Land Rovers oversees. The other Claimants- Allbutt, Twiddy and Julien brought claims in respect of incidents arising from Challenger Tanks whilst serving oversees.

Snatch Land Rover Cases

The Claimants in this case were the personal representatives of the 3 deceased service personnel who were killed in 3 incidents over the course of 3 years. They were all in Snatch Land Rovers when IEDs exploded under or near their Snatch Land Rovers. Claims were brought on the basis that the Defendant i.e. MOD failed under Article 2 of the European Convention on Human Rights (ECHR) to protect the deceaseds’ right to life. The case contended that the Snatch Land Rovers were inadequately protected and that other vehicles should have been used instead. It was argued by the Defendants that Article 2 could not apply as the deceased were not within the jurisdiction of the ECHR. In all but one case the claim was not brought in negligence.

The Judge agreed with the Defendant and dismissed the claims on the basis that the deaths did not occur within the jurisdiction of the ECHR. The deaths were outside of a military base. Iraq was not within the territory envisaged by Article 1. This was notwithstanding the fact that the Defendant was in the UK, the deceased were employed in the UK, and the deceased were on a military base when decisions were made as to their work and equipment.

Therefore, yet again, the Court has ruled that the ECHR is not applicable to British service personnel when not in Europe and when not on their base. 

The Court considered whether there would be a claim if it could be found that the deceased were within the jurisdiction of the ECHR. It was felt that Article 2 may then apply. There would be an argument then as to whether the equipment provided was appropriate but Article 2 would still not cover operational decisions made.

Challenger Cases

In this matter one British Challenger Tank shot at another Challenger Tank. In this case claims were brought on the basis that the Defendants were negligent. It was contended that there had been a breach of the Common Law duty of care. There was a failure to provide proper equipment. There was a failure to provide proper training. If the men in the defaulting tank had had better equipment and training then they would not have shot their colleagues.  These cases were not brought on the basis of a breach of Article 2 ECHR.

The Defendants contended here that no duty of care arose because the principle of Combat Immunity applied.

The question as to whether Combat Immunity came into play was examined. This was not a hearing to determine liability but to determine whether there was a case to answer. 

It was determined that whilst Combat Immunity could be an issue when considering liability it was not a blanket defence and each case would have to be considered on its own merits.

The Claimant’s argument was that if the tanks had been modified then the accident would not have happened. The Defendants argued that this all came down to procurement and procurement was a political issue which took the claim outside the jurisdiction of the Court. Here the Court again said that procurement being a political issue was not a blanket defence to the case. Each case again had to be considered on its own merits.

The Defendants then raised a public interest argument and again, the Court said that voicing public interest arguments was not a blanket defence.

Accordingly, when looking at the common law claims, the Court was not persuaded that the equipment claim had no prospects of success and it was not persuaded that the training claim had no prospects of success. These claims were not struck out but they live to fight another day. Whether they will ultimately be successful remains to be seen.

The moral of the story seems to be that Article 2 is not going to be relevant in military cases where incidents happened abroad off base. Negligence might be argued and seems to have better prospects of success even if there is a Combat Immunity issue, which is great news for servicemen and women oversees.

It is believed however, that the MoD intends to appeal the part of the judgment that relates to the Challenger tanks cases.