Many of you will have seen it reported in the news last week that as a result of the decision of the Supreme Court in Smith & ors v MoD [2013] UKSC 41 service personnel (and their families) will be entitled to sue the Ministry of Defence for deaths and injuries sustained whilst on active service outside the UK. It was that result of the decision which grabbed the headlines. But as so often, there was rather more to it. Two points in particular are worth emphasising.

Firstly, the decision does not give carte blanche to sue in any circumstances. Secondly, it was, to use a phrase of the Duke of Wellington (who would have found the concept of civil liability for his actions surprising to say the least) “a damned close run thing”: the Court split 4/3

The first group of claimants were the relatives of servicemen killed when a bomb exploded beside their Land Rover. They brought claims under Article 2 ECHR for alleged failings in the procurement of suitable vehicles. The second group of claimants alleged that the MoD had breached its common law duty of care by failing to prevent a friendly fire incident involving two British tanks.

As to the first, whilst the majority held that a substantive obligation under Article 2 could arise, it also held that procurement decisions taken remote from the battlefield would not always be appropriate for review by the courts. Further, it did not hold that the MoD necessarily owed the claimants a duty of care in the manner for which they contended; it concluded that it might do, depending on an examination of the circumstances which required the hearing of evidence.

As to the second, in a powerful dissenting judgment Lord Mance drew attention to some of the difficulties which allowing the claims to proceed would throw up. In particular, he drew attention to the difficulty of separating out the causative effect in any one incident of tactical decisions (which the claimants accepted were non-justiciable) and decisions as to procurement or deployment of resources; in his view they were too closely interlinked for sensible distinctions to be drawn. He posed a series of historical conundrums to illustrate the point; for example: was the fall of Singapore in 1942 due to culpable failures to fortify the Malay peninsular on the landward side? Or to failure to provide vehicles and aircraft to protect it? Or to failures of commanders on the ground? Or was it inevitable in the context of what Churchill described as “our bitter needs elsewhere”?

The difference between the majority and the minority essentially lay, therefore, in whether it was better to allow the scope of duty to be defined on a case by case basis or whether even entertaining the possibility of a duty of care during combat operations was misconceived.