Military legal services

Historically it wasn’t possible to bring a civil claim against the MoD for an injury or illness caused through service. This was referred to as Crown Immunity. It was removed for military personnel on 15 May 1987. It is possible to claim against the MoD for any injuries or illnesses sustained during service after this date. The only exception to this is if the injury occurred entirely as a result of service during a direct combat situation, where the injury was sustained more than six years ago. It remains possible to claim for injuries suffered in any other circumstances including whilst deployed on operation outside direct combat, and for injuries sustained during a direct combat situation within the previous six years.

Some injuries happen due to a genuine accident during training. However, on many occasions accidents could have been avoided, either by proper training being given, or by the provision of the proper kit and equipment, Where this doesn’t happen and injuries are suffered as a result, this isn’t part and parcel of the job. Just like any other employer, the MoD are obliged to take reasonable steps to protect military personnel from injury. Where they fail to do so they are answerable for this.

Historically there has been little awareness amongst military personnel of their right to bring a civil claim. In some cases they are told by their chain of command that they aren’t permitted to bring a civil claim, or that they must wait until leaving service. This isn’t correct but may explain why service personnel haven’t commonly brought a claim in the past. However, there is an increasng awareness within the military community of the rights they have to bring a claim and it is much more common for those from the military community to bring a civil claim where they have suffered an injury which could have been avoided, had the MoD taken the appropriate steps.

In short, any injury suffered which was due to the fault of the MoD, or could have been avoided had proper training and/or equipment been given, can form the basis of a claim. This includes any injuries sustained on training or on exercise or deployment, or longer term injuries such as noise induced hearing loss, cold injury or PTSD.

A claim can be brought for an injury suffered anywhere in the world, provided it was sustained as part of your military service. A claim can also be brought for an injury suffered anywhere in the UK, whether that was in England, Wales, Scotland or Northern Ireland.

Bringing a claim for an injury should not in itself have any affect on your career. The MoD are not permitted to penalise you because you have brought a claim for an injury you suffered whilst serving your country.

It is possible that the injury you suffer may have an affect on your career. However, this would apply whether or not you bring a claim for that injury. If you suffer any financial losses as a result of your injury, these will be included as part of a successful claim, meaning you are less likely to be financially worse off if you do bring a claim.

Once we have details of your case our expert lawyers will quickly assess whether you have a claim and how likely you are to be successful. We offer our clients a conditional fee agreement (also known as a “No Win No Fee”) where we feel you have a good case, which means we only recover our costs if your claim is successful.

Combat Immunity is a defence often put forward by the MoD where an injury is suffered during combat. In some cases this is entirely correct as there may have been nothing the MoD could have done in that situation to prevent the injury from occurring. However, in many cases the injury might have occurred during combat but could still have been prevented if the right equipment had been provided. A good example might be failing to issue soldiers with the correct hearing protection before the deploy, meaning they suffer hearing loss which could have been prevented. We can advise on whether Combat Immunity is likely to be a potential defence in individual claims.

The criteria used for a claim under the WPS or AFCS are different to those used by the courts in civil claim. It is not uncommon for successful civil claims to be brought in cases where the WPS / AFCS claim was rejected. If your WPS / AFCS claim was turned down you should still seek legal advice about a possible civil claim.

If you have had a payment under one of these schemes, this means you have suffered a significant injury caused by your military service. However, the payments made under the schemes are frequently much lower than the damages payable in a civil claim. It is possible to make a claim for additional losses as part of a civil claim that would not be included under the schemes. The different types are entirely separate and we regularly bring successful civil claims for those who have previously had a payment under one of the schemes.

Not all firms of solicitors specialise in military claims. Different solicitors will not always approach the same case in the same way. Hugh James has successfully dealt with a number of cases previously turned down by other solicitors. Even if you have been turned away in the past it is still worth seeking legal advice from military specialist solicitors.

Many clients believe they are unable to bring a civil claim whilst they are still serving. This is not correct. It is possible to claim whilst someone is in the armed forces.

Moreover, delaying in bringing a claim until after you have left can result in the claim being denied as being brought too late.

Anyone thinking of bringing a claim should seek urgent legal advice as soon as possible. You should never wait until leaving the forces to do so, as the time limits that apply may result in you being prevented from proceeding with your case.

Compensation is made up of general damages and special damages. The amount payable depends on the nature of the injury or illness.

General damages are paid for the pain and suffering caused by the injury or illness. They are a lump sum payment and are based on the conclusions of the medical expert instructed to report on the condition.

Special damages cover specific individual costs or losses incurred or to be incurred in the future. These losses may include past or future earnings lost as a result of the injury, the costs of equipment such as hearing aids to help in a noise induced hearing loss claim or the costs of changes and adaptations to the home, required following a serious injury through service.

We will fully advise on the level of damages payable in individual claims.

Almost all claims handled by Hugh James are dealt with under a Conditional Fee Agreement (no win, no fee). If your claim is not successful it won’t cost you anything.

It is usually necessary to bring court proceedings in a civil claim within three years of becoming aware of an injury or illness and the fact this was caused by military service. Predicting when this three year period begins and ends is not always easy, particularly for conditions such as hearing loss which often develop over a period of time.

Where a claim is brought outside this three year period, the MoD will often argue the claim is out of time. You would then need to ask the court to waive the deadline and allow the claim to proceed out of time but there is no guarantee they will do so.

There is no need to wait until you have finished service before bringing a claim. Where possible any claim should be brought within the three year period. If you are outside
this time limit you should consult specialist military solicitors and bring your claim as soon as possible, as any further delay is likely to reduce the chances of the court allowing your claim to proceed.