Submission from Geraldine McCool, Solicitor, to MoD Review (30 July 2001)
I am responding to The Ministry of Defence Joint Compensation ReviewA Consultation Document. I am a personal injury/fatal claim lawyer who acts for service personnel or their families. I tend to act in military aviation cases for AAC and SF Airbourne but my experience is by no means confined to these.
I see no difficulty in restructuring and rationalisation of the over-lapping roles of WPS and AFPS. The difficulty from my Clients' perspective is that awards under both schemes are abated through The Queens Regulations (laid down by Royal Warrant and made under Royal Prerogative) should they receive compensation in a civil claim from any defendant including the MoD. This is markedly different from practice in other sections of employment. The loss through such abatement is not recoverable in the civil claim (see Phyllis Ann Maltby (Widow and Executrix of the Will of Michael Bruce Maltby Deceased) v Ministry of Defence, High Court of Justice, Northern Ireland QBB, Cambell J). I see no plans to change this situation.
I have seen the intention to include compensation both in terms of awards for pain and suffering and awards for special damage in the scheme. I note that this will be on a no-fault basis and is likely to be tariff-based for the general damage aspects.
I also note in paragraph 3.13 that it is not the intention of the Review to introduce a replacement for the civil process. I take some comfort from that statement. My reason is as follows.
Claims brought by Service Personnel are Employers Liability Claims. I am in that sense a Health & Safety Lawyer. I am convinced of the link between claims and employers "putting their house in order" with regard to health & safety. I have seen, and been involved with, the work of organisations linked to Ralph Nader in the United States which articulate a link between law suits and safety cultures within organisations.
I am convinced about the link with the Ministry of Defence. I now come across documents in connection with health and safety such as Health & Safety Manuals and Risk Assessments that simply did not exist before 1987 even though such documents existed in civilian companies. There is now an emphasis, quite rightly in my view, on risk and avoidance of claims and this pervades the Ministry of Defence DC&L(F&S) Claims Annual Report 2000-01 and the work of Jef Mitchell, the Chief Claims Officer, in setting up the Risk Management Group. I would be wholly against any scheme that deprived service personnel of the basic human right of remedy at Court on the basis that the MoD, like all employers, should be open to these claims and the effect on the health and safety culture.
I also note that the MoD's unique status is taken into account when the Courts look at whether or not there has been negligence(see Mulcahy v MoD CA TLR 27.2.96 which decided that there was no duty to provide a safe system in a war and Barrett v MoD CA TLR 3.1.95 which indicated that there is no extra duty on the MoD arising out of Queens Regulations or Internal Disciplinary Rulesthe mere existence of regulatory or other public duties did not of itself create a special relationship imposing a duty in private law. This point was confirmed in Jebson v MoD CA TLR 28.6.2000 in which Lord Justice Potter considered Barrett and the relevance in the military context of Army Regulations. I acted for the Claimant in this claim).
It is difficult to argue against a no-fault scheme which will give service personnel who are injured non-negligently some rights. I have in mind in particular the example at 4.2 of Servicemen or Service women inured as a result of war like activity in Bosnia (R v Ministry of Defence, ex p Walker. I and then my partner Richard Stein acted for Trevor Walker).
If this scheme was introduced then the crucial factor in terms of the advice I will give to those enquiring about remedies and to the advice that the MoD should give will be determined by reference to the amount of compensation available for the various heads of damage.
It is simply not possible at the moment to comment on the difference between awards under the civil claim and under this scheme because no detail is given. I refer in particular to paragraph 5.5 and the sentence "For this reason we suggest that the structure of the new compensation package should not be too far out of line with awards available in civil negligence claims". I would be very surprised indeed based on my experience of other no-fault and tariff based scheme if the awards got anywhere near the awards in civil courts. The consultation document talks of awards for loss of earnings capacity, for accommodation and for care. Does the MoD seriously mean to incorporate awards of this size into this no-fault scheme? I would have thought that budgetary constraints would dictate otherwise.
It may sound brutal to turn attention immediately to money but a civil claim in negligence is for compensation. The consultation document is entitled "Joint Compensation Review". Money does make a difference to lifestyle and that is accepted in the consultation paper in connection with the needs of the seriously disabled. What the pensions in the old and proposed new format is giving is money to victims. As a personal injury lawyer all I can get for my Clients through the civil negligence process is money. Under both systems it is compensation; it is not a windfall situation.
It is important that victims have remedies which reflect the needs arising out of their injuries. Seriously injured victims have future needs comprising largely of care, aids and equipment and accommodation. Any scheme which awards less for these heads of damage than the true market value will have to be considered very carefully.
In what respect is the scheme an improvement on the civil process?
The consultation paper refers to the fact that civil claims can be protracted and stressful.
5.5 refers to "litigation with the often complex, protracted and stressful procedures that this involves".
In my view these comments are both ill-informed and out of date and in many ways insulting to Lord Woolf and his Civil Procedural Reforms which came into place in April 1999 and to the present Government and their Access to Justice Reforms which came into force in July 2000.
If the question of whether these proposal represent improved access and provision for Armed Forces Personnel is being seriously considered then a starting point, for comparative purposes, must be a fair and accurate assessment of the Civil Process.
I have to say that I am surprised at these comments given the succinct summary of these reforms including Alternative Dispute Resolution in the Ministry of Defence DC & L (FS) Claims Annual Report 2000-01 (and indeed the earlier reports of 1998-99 and 1999-2000).
Litigation has been simplified, medial experts are joint, timescales are short, the cases are actively case managed by the Judiciary who control timescales and do not condone delays. Protocols determine pre-action behaviour and timescales. Both sides must be open in their dealings with "cards on the table" approach to disclosure of evidence. The parties are required to consider mediation. Both sides can make offers to settle the liability aspect and/or the quantum aspect with costs penalties attached to those, on both sides, who refuse unreasonable offers.
Litigation today is significantly quicker and less stressful in my view than schemes such as the Criminal Injuries Compensation Authority Scheme (I have experience of MoD cases in this scheme including a major award for a member of RMP who lost both legs in a car bomb incident in Aldershot) and the associated Criminal Injuries Compensation (Overseas) Scheme run by the Ministry of Defence at Service Personnel Policy Pensions of which I have extensive experience. Delays abound in these schemes and the victim has no recourse when encountering delays. In fact the victim has very little control of the scheme at all and that is far more stressful than litigation.
There is also the question of costs. These are not recoverable under CICA or the CIC(O) scheme and the Joint Compensation Review proceeds on the same basis. Yet legal representation for seriously injured victims on the questions of eligibility and quantum under both schemes is fairly common and the victim has to pay. Contrast this with the Access to Justice Reforms of the present Government and the Conditional Fee system and rules on recoverability of success fee and insurance premium. Contrast this with the decision by the Court of Appeal this month in Callery v Gray which is helpful to victims.
I have been litigating against the Ministry of Defence since the "twilight zone" in May 1987. It is my firm opinion that the MoD have taken the Woolf Reforms seriously and I am aware of the extensive training that accompanied the introduction of these reforms at the office of the Treasury Solicitor and also with Royal & SunAlliance (Global Risks MoD team headed by Peter Simpson) who has been contracted since July 1996 to deal with claims of Her Majesty's Armed Forces pre-issue.
I am on record as holding this viewsee Law Section The Times 23.1.2001. I am aware of difficulties in particular in relation to the two multi-party actions for post traumatic stress disorder (Group 1 pre-1987 claims headed by John Mackenzie of Sheratt Caleb and Group 2 post-1987 claims headed by Mark McGhee of Linder Myers). I have worked with both solicitors in the past and I am also aware of difficulties in connection with the Gulf War Syndrome claims in which I am involved in representing clients but which of course is not issued at Court.
I have in the past been active in non-MoD multi-party actions. I was on the Steering Committees of the Chinook Helicopter Crash North Sea 1986, Piper Alpha Oil Rig Disaster 1988, Pan Am bombing at Lockerbie 1988, British Midland crash at Kegworth 1989 and Bjork Shiley Heart Valve litigation where I chaired the Steering Committee. I am a joint author of "Multi-Party Actions" published by the Legal Action Group 1995. I was a member of the Multi-Party Action Working Group of the Law Society and the Bar. I have to say in strongest terms in spite of recent reforms multi-party actions in this Country are difficult. This applies to the situation both pre and post proceedings. It would be wrong to elevate legitimate concerns about multi-party actions against the Ministry of Defence, and indeed every other Defendant I could name, into individual actions which comprise the vast majority of claims.
Peter Simpson and his team at Royal & SunAlliance are as good as an insurer as any I have had to deal with. My only concern is that they do not grant interim payments on a voluntary basis as much as I would like but my remedy there is to issue the claim and ask a Judge to decide under Civil Procedural Rule Part 25.6; the victim has a remedy.
In my opinion a key to the smooth running of the civil process is for victims to have specialist representation. After all the MoD will have specialist representation through Royal & SunAlliance, the Treasury Solicitors Office and the three firms currently operating under their civilian pilot scheme (Berrymans Lace Mawer of Liverpool, Prettys of Ipswich and Vizards Oldham of London). In my view the MoD should do more to put service personnel in touch with specialist civilian solicitors for the Royal British Legion when the claim is against the Ministry of Defence. The Ministry of Defence DC & L(FS) Claims Annual Report 2000-01 describes in detail how the scheme (ToPas) for service personnel who have claims against defendants other than the MoD is highlighted and this could be used as a model of best practice.
In summary I believe that:
1. Abatement of the pensions upon the award of compensation in the civil process is unfair.
2. The civil process after the civil procedural reforms offers a good remedy to service personnel victims in which they have control of their legal actions and in which there are sanctions through the Judiciary for delays and default.
3. Every no-fault scheme I have encountered here or abroad (Fonds du Guarantees in France) is slow, offers low levels of damages and affords the victims no sense of control.
4. Seriously injured victims still need legal representation under this type of scheme and this situation in the civil process whereby the loser pays the winner is far preferable to lawyers taking money from victims damages under a no-fault type scheme because there is no provision for costs under such a scheme.
I am happy to elaborate on these views further if it would assist.