Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)

Sarah Atherton Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Mrs Lewell-Buck]

Thank you both very much.

[Sarah Atherton (Wrexham) (Con)]

Q Hello, Emma. It is good to see you again. I am intrigued with what you just said. A blunt question to you: do you feel that the Bill is necessary?

Emma Norton: What is necessary is for what happened in the past never to happen again—definitely. I just do not think that the Bill will fix it, for the reasons I have given. I will not go over them again, but they go to the lack of willingness inside the MOD to look at those allegations at the time.

I think we are in a different place now. The MOD has learned a huge amount from all those errors. I would say that the MOD has learned from some of the litigation; there have been some very positive outcomes from that, and that is missing from the debate. I just do not think that the Bill fixes those problems sufficiently.

[Sarah Atherton]

Q Are you concerned about the interface between the service justice system and, perhaps, the service complaints ombudsman and what role they could play—if you feel that the Bill could be improved?

Emma Norton: Hilary Meredith mentioned this morning that the ombudsman could have a role here. I think she was looking at whether some sort of compensation or ex gratia payment scheme could be made or some form of redress could be given to the soldiers subjected to this cycle of investigation. That was a really interesting idea. I know that, separately, the ombudsman is very under-resourced, so that would need a whole separate discussion as well.

The interplay with the service justice system is something you should ask the Judge Advocate General about when you speak to him later, because—obviously—he has huge amounts of experience of issues arising where somebody is not convicted of the main charge but is perhaps convicted of a lesser charge under the court martial.

[Liz Twist (Blaydon) (Lab)]

Q Mr Al-Nahhas, how aware are troops that they can privately claim for their injuries?

Ahmed Al-Nahhas: Good afternoon. I think it is a feature of military claims that service personnel are largely unaware of their legal rights to bring a civil claim. I often find in my own practice—many of our members have also reported this—that they will, in fact, be misinformed of their legal rights. This may be because there is confusion in their chain of command. Indeed, we have heard of many cases in which the chain of command will misinform them and say that they should wait until the end of their service before bringing a civil claim, which usually means that they are out of time by the time they bring a claim. In other cases there is confusion between civil claims and the armed forces compensation scheme, which is a separate, no-fault scheme, which has a much longer period of time in which to apply—normally seven years. In answer to your direct question, I think they are very unaware and, in fact, a lot of the time they are misinformed.

--- Later in debate ---

[Mr Jones]

Q In terms of your experience of those claims and claims by individuals who are not from the MOD—low-flying claims and other negligence claims that are not to do with operations or the MOD, but related activities—have you any idea of how many we are talking about? Are they published anywhere?

Ahmed Al-Nahhas: They do split them. I do not have them to hand, unfortunately, but they separate them out, so maybe you will glean more from that. I am sorry that I cannot assist further. My understanding is that the Bill will affect the vast majority of the civil claims that are brought against the Ministry of Defence, which are the employer’s liability claims. The main provisions that the MOD break them down into are non-freezing cold injury claims, which are a mainstay of civil claims that are brought, and are in relation to negligent cold exposures, and noise-induced hearing loss, in relation to negligent exposure to loud noises. The others relate to industrial disease—things like asbestos—and then they have a quota that is defined as “other”. With a freedom of information request, we may be able to dive a bit more into those statistics. I hope that helps.

[Sarah Atherton]

Q Mr Al-Nahhas, you are talking to the uninitiated here. I absolutely agree that litigation is a strong conduit for change. For families who feel that they have been unjustly treated, how do they fund claiming and who funds the litigators?

Ahmed Al-Nahhas: That is a very good question. It depends on what they agree with their lawyer. In the industry, the norm is to provide something called a conditional fee agreement. Where you can establish that a claim has good prospects of success, you may, as a lawyer, offer a service person’s family, in relation to your example, a CFA, where you do not charge them unless you win. It is conditional on certain terms. These days, there are a lot of rules that regulate how much lawyers can charge. Normally, for example, and taking a rule of thumb, they cannot exceed the damages that you recover for the individual. In the past, there were fewer constraints on the extent of lawyers’ fees.

There are lots of lawyers out there who are specialists and who offer no win, no fee agreements to service personnel and their families. The only way that service personnel or their families may be required to pay legal costs normally is that they sometimes have to pay a chunk of their costs, related to what lawyers would define as unrecovered costs, which are things that they cannot recover from the Ministry of Defence, but as long as the claim is successful, in this context, it would be the Ministry of Defence that pays the lawyer’s bill. I hope that answers your question.

[Sarah Atherton]

Yes, thank you.

[Stuart Anderson]

Q If they are successful, what percentage is taken from the soldier’s claim, on average, for the solicitors?

Ahmed Al-Nahhas: It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.