New Legislation to Preclude Time-Barred Military PI Claims from Proceeding 10-Years After the Event?

The Ministry of Defence (MoD) is deliberating whether to lobby for enhanced legal protection for the Armed Forces against historic personal injury claims.[i]

Pursuant to s.11 of the Limitation Act 1980, actions in respect of personal injuries must be brought within 3-years from:

a) the date on which the cause of action accrued; or

b) the date of knowledge (if later) of the person injured.

If the claim is brought more than 3-years from (a) or (b), the claimant must apply for a discretionary exclusion of the time limit, as governed by s.33 of the 1980 Act.

However, the MoD is contemplating the imposition of a ‘longstop’, namely a maximum 10-year period post-military operations, after which the Courts may be precluded from exercising their discretion to extend the 3-year time-limit.

This week, the Government launched a consultation:  Legal protections for armed forces personnel and Veterans serving in operations outside the United Kingdom, which is scheduled to close on 13 October 2019.

In the Written Statement, annexed to the Consultation paper, the Secretary of State for Defence, Penny Mourdant, explained that, although the ‘Armed Forces are not above the law’, the institution believes that the legal framework must change to ‘draw a line’ for civil claims pursued ‘many years after the event’:

‘As part of the consultation, we are ... seeking views on a proposal to restrict the Court's discretion to extend the normal time limit for bringing civil claims for personal injury and/or death in relation to historical events outside of the UK’.

As such, the consultation does not appear to be inclusive of employers’ liability claims, namely claims brought by ex-Armed Forces personnel, e.g. for Q fever, noise-induced hearing loss (NIHL), or non-freezing cold injury (NFCI) Instead, it appears to be targeting claims brought against the MoD for personal injuries caused by ex-Armed Forces personnel, with the exception of claims involving human rights violations.

According to the Statement, ‘nearly 1,000 claims seeking compensation for personal injury or death’ emerged from the war in Iraq alone.

Ordinarily, the Courts enjoy ‘broad discretion’ in civil cases, to ‘the effect ... that claims have routinely been brought late, with huge numbers of compensation claims permitted to proceed long after the relevant time limit’.

Ms. Mourdant MP rationalised, as defendants commonly contend when claims are brought outside of the limitation period, that with greater lapsation of time, evidence in support of / in opposition to allegations ‘emanating from a war zone’ become more difficult to assess in a ‘fair and proportionate manner’:

‘Records may no longer be sufficiently detailed ... and the memories of those involved in incidents fade over time’.

It was posited that in these circumstances, the Government may have to choose between settling potentially unmeritorious claims and ‘putting Armed Forces personnel and veterans through the ordeal of giving evidence on the Ministry of Defence’s behalf’.

Responses to the Consultation proposals will likely contribute towards ‘the aim of bringing forward legislation as soon as possible’

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If, as proposed, the law on limitation were to be amended, it would be interesting to observe whether the rationale behind legislative change has an indirect effect on the Court’s treatment of prejudice to defendants in non-military personal injury claims brought outside of the limitation period.

 

[i] Neil Rose, ‘Government to impose limitation “backstop” on military PI claims’ (23 July 2019 Litigation Futures) <https://www.litigationfutures.com/news/government-to-impose-limitation-backstop-on-military-pi-claims> accessed 23 July 2019.