The Ministry of Defence is facing more and more personal injury and negligence claims.

To improve its performance, the National Audit Office has called for a raft of reforms.

Philip Hoult examines the minefield that claimant solicitors must navigate in such cases

After the National Health Service, which is in a league of its own, the Ministry of Defence (MoD) must be a contender for the title of the government department that makes the most payouts for claims of personal injury or negligence.

According to a report by the National Audit Office published in July (see [2003] Gazette, 24 July, 4), the MoD paid out 97 million in respect of such claims in 2001/02, up from 32.5 million in 1992.

More than 15 million of this was consumed by legal costs, but the total does not take into account the costs of investigating and dealing with the incidents - estimated at more than six times the amount of compensation paid.

Major payouts recently include 4.5 million paid to Masai people in Kenya who were killed or injured by mines left on their land by the Army, and 4 million paid to a Navy cadet injured when ordered to jump into a canoe.

Unfortunately, the MoD's legal bill could be about to get a whole lot bigger.

Among the personal injury claims it potentially faces are those from more than 2,000 Gulf conflict veterans and their families, as well as civilians, over the much-disputed Gulf War syndrome, and those from service personnel who are awaiting the outcome of the challenge to the armed forces' pre-1987 Crown immunity at the European Court of Human Rights.

The MoD's exposure does not stop there - it also faces group actions from hundreds of Kenyan tribeswomen who claim they were raped by UK soldiers, as well as non-personal injury claims such as those by Gurkha ex-servicemen for alleged racial discrimination.

The authors of the National Audit Office report found that, while recognising that the MoD was improving the way it handles claims and compared reasonably well in some aspects with other organisations, there was still scope to 'do more' to reduce the time and costs involved in handling claims, and to improve the way in which it addresses non-financial concerns.

Among the charges laid at the MoD's door were that it had problems in locating and providing documents required as evidence and, prior to September 2000 at least, continued to make unrealistic offers to claimants that resulted in further delays.

Claimant solicitors nevertheless remain divided over how well the MoD performs when handling claims.

Some, such as Peter Mitchell of the Exeter office of south-west firm Bond Pearce, who is handling the Crown immunity case, describe their relationship with the MoD and its solicitors as 'pretty good' and have few complaints, if any.

Martyn Day, senior partner of Leigh Day & Co in London, also says his firm's experience, particularly with the Kenyan claims, has been 'quite good'.

If there is a problem, he says it is that the government lawyers advising the MoD can at times be under-resourced.

'They seem to have to survive with remarkably few staff,' he suggests.

'This contrasts with the multinationals we face in our other cases, where they usually have a team three or four times as big as ours.'

Mr Day says this situation could harm the MoD in the long run.

'As a claimant solicitor, I am happy about that,' he says.

'But looking at it objectively, say as a taxpayer, at times they could achieve more by putting in more resources.'

However, other claimant solicitors go much further and variously describe dealings with the department as 'old-style litigation' and facing 'a culture that is located somewhere around 1950'.

According to Mark McGhee, a partner at Manchester firm Linder Myers, the MoD 'are the worst culprits'.

He claims the department has regularly failed to disclose documents and to comply with the Civil Procedure Rules.

'Despite the fact that I have been doing MoD work for the last ten years, every case has always had a problem with disclosure,' he says.

'The fact that the MoD is involved does not mean that stuff will be non-discloseable.'

Mr McGhee, who is advising former members of the armed forces on claims for post-traumatic stress disorder, says the problem is principally with the smaller, lower-profile cases.

'It would be fair to say that they had to play the post-traumatic stress disorder group action very differently,' he says.

'There was a great deal of co-operation in that case.'

He argues that the MoD's approach means that the way to run a case against the department is to prepare yourself and the client, and to work on the assumption that there is going to be a trial.

'You assume there will not be an offer and if there is one, it will be made when you are close to going to court,' he says.

Personal injury solicitors hope the MoD will take on board the key recommendations contained in the National Audit Office report, which calls for the development of a more proactive approach in the management of claims.

Relevant best practice, which the report's authors recommend the MoD to adopt, includes agreeing with the claimant to obtain a joint medical opinion in appropriate cases, providing documents within agreed timescales to assist the speedy processing of a claim, and the making of higher initial offers where justified.

The authors also call for more to be done to satisfy claimants' non-financial expectations, including the offer of apologies even if it is made clear that such apologies are not admissions of liability.

Hilary Meredith, managing partner of Manchester firm Donns and the first solicitor to file a claim against the MoD after Crown immunity was lifted in 1987, is among those who say the department has come a long way over the past decade, notably with the introduction of initiatives such as counsel-to-counsel negotiated settlements.

She agrees there is still room for improvement - notably when it comes to the speed of response to requests for information, which can be slow - and says there remains a culture among high-ranking officers that embraces the belief that if you are hurt when working for the armed forces, you should accept it, whatever the circumstances.

'If you are injured in battle conditions, that is OK,' she insists.

'But if you are injured on manoeuvres as a result of someone's stupidity, then it is not on.'

But Ms Meredith adds that a number of the challenges thrown up in claims against the MoD arise because it is simply a 'unique defendant' rather than wilfully uncooperative, or because it is a large government department.

'You have to be reasonable as a claimant solicitor,' she says.

One of the greatest challenges a claimant solicitor faces is obtaining sufficient evidence.

Unusually for personal injury cases, the MoD will normally hold all the relevant information on the circumstances of any accident, which may have taken place in a far-flung place across the world, and all witness details.

It will often be hard to contact and take statements from potential witnesses as they will be moved around regularly as part of their duties - many will currently be posted to the Gulf.

Technical information is often hard to obtain as well.

'We have done cases where Harrier jets have crashed and the MoD does not want a lawyer crawling over one of their jets,' she says.

'Similarly, the ministry may be reluctant to release technical evidence on their machine-guns.'

A related problem is the difficulty in finding an expert, for example, in areas such as ballistics or ammunition.

If the expert has retired from the armed forces, then his knowledge may be out of date.

Ms Meredith says that for one particular case, she had to try and find an expert in jungle warfare training.

'There is no directory where they are listed,' she jokes.

In response to the various criticims, an MoD spokesman said: 'We welcome the National Audit Office report.

This is a complex and challenging area of work in a department which undertakes a range of inherently hazardous tasks not faced by other employers.

We are pleased that the report recognises that the MoD has taken steps to improve its handling of claims and that the department's performance was broadly comparable with that of other organisations.'

It is these challenges, along with the clients, that make working on cases against the MoD so stimulating and rewarding.

'You have got to really pursue these claims very vigorously,' says Ms Meredith.

'You have got to dig and dig and visit the sites of the incident wherever possible.

You have to find out the information yourself as you will not get an awful lot from the MoD itself.'

Philip Hoult is a freelance journalist