Smith & Ors v Ministry of Defence

Smith & Ors v Ministry of Defence

The deceased soldiers were not within the UK's Convention jurisdiction under Article 1 ECHR at the relevant time; therefore, Article 2 claims are unsustainable and must be struck out. Combat immunity applies to operational decisions made during military operations, precluding negligence claims for such acts. However, claims relating to equipment procurement and pre-deployment training may not be excluded by combat immunity and are not struck out at this stage.

Parties
Claimants: Smith & Others; Defendant: M. O. D.
Jurisdiction
England and Wales
Judgment Date
30 June 2011
Procedural Posture
Civil / Ruling on Strike Out and Summary Judgment Applications
Outcome
Article 2 ECHR claims struck out; some negligence claims allowed to proceed.
Legal Topics
Combat Immunity, Duty of Care, Article 2 ECHR, Jurisdiction Under ECHR, Negligence, Resource Allocation, Military Equipment Procurement
Tort Law Human Rights Law Military Law Combat Immunity Duty of Care Article 2 ECHR Jurisdiction Under ECHR Negligence +2 more

Case Brief

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Parties

Smith & Others

Claimants

M. O. D.

Defendant

Procedural Posture

Civil / Ruling on Strike Out and Summary Judgment Applications

Legal Issues

  1. 1 Whether Article 2 ECHR applies to deaths of soldiers outside UK jurisdiction
  2. 2 Whether the Ministry of Defence owed a duty of care in negligence
  3. 3 Scope and application of combat immunity

Ratio Decidendi

The deceased soldiers were not within the UK's Convention jurisdiction under Article 1 ECHR at the relevant time; therefore, Article 2 claims are unsustainable and must be struck out. Combat immunity applies to operational decisions made during military operations, precluding negligence claims for such acts. However, claims relating to equipment procurement and pre-deployment training may not be excluded by combat immunity and are not struck out at this stage.

Court Disposition

Article 2 ECHR claims struck out; some negligence claims allowed to proceed.

Orders

  • Snatch Land Rover claims based on breach of Article 2 struck out under CPR r.3.4(2)(a).
  • Negligence claims relating to equipment procurement and pre-deployment training not struck out; to proceed to trial.