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Allbutt, Ellis, Smith and Others -v- Ministry of Defence

|Court of Appeal|Civil

Neutral Citation Number: [2012] EWCA Civ 1365
Case No: B3/2011/2019

In the Court of Appeal (Civil Division)
On Appeal from the High Court of Justice, Queen’s Bench Division
The Hon Mr Justice Owen
[2011] EWHC 1676 (QB)

19 October 2012

Lord Neuberger, Master of the Rolls
Lord Justice Moses
Lord Justice Rimer
Susan Smith (on her own behalf and as administrator of The Estate of Philip Hewett, Deceased) – 1st Appellant
Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased) – 2nd Appellant
Courtney Ellis (a Child) by her Litigation Friend Karla Ellis
Karla Ellis – 3rd and 4th Appellants
The Ministry of Defence – Respondent
The Ministry of Defence – Appellant
Courtney Ellis (A Child) by her Litigation Friend, Karla Ellis – Respondent

The Ministry of Defence – Appellant
Deborah Allbutt,
Daniel Twiddy
Andrew Julien – Respondents


Summary to assist the media

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.

  1. Relatives of soldiers killed by IED whilst travelling in Snatch Land Rovers in Iraq have brought claims against the MOD. They claim that the MOD failed to provide armoured equipment suitable to protect against IEDs.
  2. The claims assert breaches of a positive obligation to protect life under Art 2 of the ECHR and negligence.
  3. Further claims have been brought by relatives of soldiers killed or injured in a Challenger II tank in Basra by “friendly fire” on the grounds that the MOD was negligent in failing to provide available technology to protect against the risk of friendly fire and adequate vehicle recognition training.
  4. The Court of Appeal ruled that the claims under Article 2 should be struck out on the basis that the Convention has no application to soldiers serving abroad.
  5. The MOD had argued that the claims in negligence should also be struck out because they concerned political decisions as to the availability of resources with which to buy equipment and decisions made in the heat of battle, such as to attract “combat immunity”. The principle of combat immunity prevents claims in negligence being made, if those claims challenge decisions made on the field of battle. The Court of Appeal ruled that the claims in negligence should not be struck out and that it was for the High Court, on hearing all the evidence, to decide whether decisions made about equipment and training came within the doctrine of combat immunity. The claimants may, accordingly, continue to pursue their claims brought in negligence.

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