Soldiers' Families Blocked From Suing MoD
5:08pm 30th June 2011
(Updated 1:04am 1st July 2011)
Families of servicemen killed in Iraq and Afghanistan have had their bid to sue the Ministry of Defence under the Human Rights Act fail at the High Court.
Mr Justice Owen ruled that, as they were serving in countries not covered by the European Convention on Human Rights, the claims under Article 2 of the ECHR (the right to life) were not justified.
Yet the argument that the MoD had behaved negligently should be allowed to be pursued, the court ruled.
Private Lee Ellis was killed in Iraq in February 2006 when an improvised explosive device (IED) detonated near the Snatch Land Rover he was travelling in.
His daughter, Courtney, aged 10, brought an action under the common law of negligence - because she had suffered financial loss as a result of the death of her father.
The family of Corporal Stephen Allbutt has also been allowed to continue with their negligence claim.
Cpl Allbutt was killed in a friendly fire incident in 2003, when a British Challenger tank mistakenly fired upon his tank.
Private Phillip Hewitt of Tamworth died in 2005 when a Snatch Land Rover was blown up.
Lance Corporal Kirk Redpath was killed in a similar explosion in 2007.
The families of Pte Hewitt and L/Cpl Redpath have vowed to fight on after their claims were thrown out.
Susan Smith, mother of Pte Hewitt, said "I am disappointed that the judge has struck my case out but I am determined to appeal the decision.
"It cannot be right that British soldiers are considered to be outside the jurisdiction when they are sent to fight for their country.
"Phillip was at all times a British citizen and subject to the orders of his superiors which is why he was in a Snatch Land Rover in the first place.
"He knew they were unsafe and he was scared for his life, but he was a true soldier and he obeyed orders and this cost him his life.
"If Phillip had known the MoD was going to wash its hands of responsibility for his safety the moment he was sent to war I don't think he would have gone. Fair is fair".
That was a view reiterated by the father of L/Cpl Redpath.
Colin Redpath told reporters outside the court: "It is not the end yet. It has been a long process. There is another cog to turn."
All parties are set to appeal those aspects of the decision that went against them, including the MoD.
An MoD spokesman said: "The courts have upheld our arguments on Article 2 of the ECHR. We will be seeking leave to appeal the decision about liability claims for equipment provision."
The use of Snatch, a Light Protected Patrol Vehicle, has long been controversial for the MoD.
Originally used as a personnel carrier in Northern Ireland, the lightly armoured vehicle was designed to cope with small arms fire and minor explosions.
It proved to be less than effective against the roadside bombs which became the insurgents' weapon of choice in Iraq and Afghanistan - leading some to call it the "mobile coffin".
The solicitors for Cpl Allbutt, Pte Hewitt and L/Cpl Redpath said: "Mr Justice Owen's landmark judgment has shown that the Ministry of Defence's argument that there is no duty to protect soldiers deployed on active service is manifestly wrong.
"The MoD has relied on the principle of combat immunity saying that this means that it does not owe soldiers a duty of care in negligence.
"The Snatch Land Rover case brings this issue into sharp focus as it is alleged that soldiers would not have died had the MoD provided suitable armoured vehicles.