The High Court has ruled that the fixed success fee regime should not apply to members of the armed forces injured at work.
Three members of the military brought claims against the Ministry of Defence after suffering an injury during training, in each case arguing that the fixed success fee regime does not apply because they were not an ‘employee’.
Prior to April 2013, civil procedure rules stipulated fixed success fees in certain employers’ liability claims.
The three claimants against the MoD were:
- Adam Broni, a private in the army who suffered a non-freezing cold injury in Kent;
- Simon Woof, a serving military policeman in the Royal Marines who injured his ankle at a training base in Norway;
- Raphael Barbour, who also sustained a non-freezing cold injury during military exercises in Cambridgeshire.
Each had lost their case based on the civil procedure rules definition of an employee. Master O’Hare said Woof had a ‘contract of service’ and that Broni could easily be described an employee and the MoD as agents of his employer.
In Barbour’s case, Deputy Judge James decided that ‘armed forces personnel should be dealt with as employees’.
Robert Marven, instructed by claimant firm Bolt Burdon Kemp, argued that serving members of the armed forces do not work under a ‘contract of service’ and accordingly are not employees under the definition of the 1969 Employers’ Liability Act.
The MoD argued that to accept the claimants’ arguments would create serious practical difficulties at detailed assessment and force the court to investigate the contract of service for every employers’ liability case. To do so would create uncertainty and create a ‘bewildering number of cases’ outside the fixed recoverable success fees regime.
Mr Justice Supperstone concluded there was ‘no good reason’ for giving the words ‘contract of service’ a broader meaning and stated there was no ambiguity in what the term ‘employee’ means.
Accordingly, he ruled that the fixed success fee regime does not apply to each of the three claims and he allowed their appeals. The issue of the assessment of the success fee will now be referred to Master Howarth for determination.