Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 (19 October 2012)

Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 (19 October 2012)

Claims under Article 2 ECHR fail as soldiers killed abroad were not within UK Convention jurisdiction; MOD owes a duty of care in procurement and provision of equipment, and combat immunity does not automatically bar negligence claims for acts/omissions outside active operations; factual determination required at trial.

Citation
[2012] EWCA Civ 1365
Parties
1st Appellant: Susan Smith (on her own behalf and as administrator of The Estate of Philip Hewett, Deceased); 2nd Appellant: Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased); 3rd and 4th Appellants: Courtney Ellis (a Child) by her Litigation Friend Karla Ellis; Appellant: Karla Ellis; Respondent/appellant: The Ministry of Defence; Respondent: Deborah Allbutt; Respondent: Daniel Twiddy; Respondent: Andrew Julien
Jurisdiction
England and Wales
Judgment Date
19 October 2012
Procedural Posture
Appeal From High Court (queen's Bench Division) / Court of Appeal Judgment
Outcome
MOD's appeal dismissed; claimants' cross-appeal allowed in part; Article 2 claims struck out; negligence claims proceed to trial.
Legal Topics
Combat Immunity, Duty of Care, Negligence, Jurisdiction Under ECHR, Article 2 ECHR, Procurement of Military Equipment
Public Law Tort Law Human Rights Law Combat Immunity Duty of Care Negligence Jurisdiction Under ECHR Article 2 ECHR +1 more

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Parties

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

3rd and 4th Appellants

Karla Ellis

Appellant

The Ministry of Defence

Respondent/appellant

Deborah Allbutt

Respondent

Daniel Twiddy

Respondent

Andrew Julien

Respondent

Procedural Posture

Appeal From High Court (queen's Bench Division) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether UK armed forces operating abroad are within UK Convention jurisdiction under Article 1 ECHR
  2. 2 Whether MOD owes a duty of care in procurement and provision of equipment to armed forces
  3. 3 Scope and application of combat immunity to claims in negligence

Ratio Decidendi

Claims under Article 2 ECHR fail as soldiers killed abroad were not within UK Convention jurisdiction; MOD owes a duty of care in procurement and provision of equipment, and combat immunity does not automatically bar negligence claims for acts/omissions outside active operations; factual determination required at trial.

Court Disposition

MOD's appeal dismissed; claimants' cross-appeal allowed in part; Article 2 claims struck out; negligence claims proceed to trial.

Orders

  • Article 2 ECHR claims struck out as outside jurisdiction.
  • Negligence claims relating to equipment and training not struck out; proceed to trial.