Law: From the battlefield to the courtroom

Can one British soldier sue another for negligence? Robert Verkaik on litigation in the armed forces

The British artillery battery had been pounding the Iraqi positions for several days without receiving a single incoming shell. Gunner Richard Mulcahy, 32, noticed how much more relaxed the atmosphere had become since the first few hours of the engagement, when they had been preparing for some form of chemical retaliation.

A BBC camera crew, led by the ubiquitous reporter Kate Adie, had even started filming in the area. And when one afternoon the ammunition carriage was drawn up close to the gun position, forbidden during battle conditions, Gunner Mulcahy was convinced they were all about to have their picture taken.

Instead, the sergeant allegedly ordered the gun to fire while Gunner Mulcahy was still standing next to the muzzle. The subsequent blast caused deafness in both the soldier's ears, ultimately ending his Army career.

However, in a ruling last month, the Court of Appeal held that Gunner Mulcahy had no case against the Ministry of Defence for the sergeant's alleged negligence. Gunner Mulcahy is now considering an appeal to the House of Lords.

Five years after Allied tanks pulled out of Iraq, Gulf War litigation still rumbles on. In another case heard last month, the High Court ordered the Legal Aid Board to reconsider a multi-party application from three arms of solicitors, representing nearly 900 servicemen and women, to organise generic research into Gulf War Syndrome.

In quashing the Legal Aid Board's original decision to give the work to one firm, the court found the board's multi-party committee had failed properly to address the question of a conflict between one of the solicitors, who was a lieutenant-general in the Territorial Army, and any potential litigation against the Ministry of Defence. The Legal Aid Board had also lost five pages from the same firm's application.

The Ministry of Defence is engaged in several other legal actions involving the armed forces, including a challenge to a group of law firms that employ PR companies and mount recruitment campaigns for new litigant clients. Much to the irritation of the services, some of them even advertise in armed forces magazines. And at the 1994 Rhine Air Show, a firm of solicitors actually had its own stand.

Even so, Gunner Mulcahy's case is the first time the question of one soldier suing another for negligence in battle has reached the courts.

The Court of Appeal had to rely on an Australian case from the Second World War in which an Australian Navy destroyer, steaming along without lights in the middle of the night in the Pacific, crashed into a merchant ship. Lord Justice Neill reasoned it was a matter of public policy that a soldier engaged in battle should be free from liability for his negligent actions.

Senior armed forces officers contend any other decision would severely impair Britain's ability to wage war.

Gunner Mulcahy's counsel, Simon Hawkesworth QC, argued that the conditions which gave rise to his client's injuries were not battle ones at all.

"At the time of the accident, they were being watched by a BBC television film crew with Kate Adie. There was no danger at all," said Mr Hawkesworth, who also represented the Ministry of Defence at the inquest into the deaths of British soldiers killed by American warplanes in the so-called "friendly fire" incident.

"He was told to go to the front of the gun to fetch a mop and then the order to fire was given, in direct contravention of all the standing orders and gun drill," adds Mr Hawkesworth. "That could have happened on Salisbury plain, in which case he would have been able to sue."

The only case Mr Hawkesworth could find that directly related to his client's situation was one in which a soldier shot another with a musket during a peacetime militia drill around 1600.

An Army major commenting on the possible implications of the Mulcahy case said soldiers are much more aware of their legal rights now. "After I asked three soldiers to give me a hand pushing my car when it wouldn't start, one of them pretended he had hurt his back and just as a joke threatened to sue me," he recalled. The major said that if that sort of mentality were transferred to the battle front, it would be impossible to mount any effective defence of the realm.

But Mr Hawkesworth said his client's case is made stronger because the Government didn't "reactivate" an Act of Parliament that was designed to give immunity to the Crown in times of war.

For example, because the Government has never declared war on the IRA, soldiers serving in Northern Ireland are able to sue each other for negligence.

Mr Hawkesworth believes that if Gunner Mulcahy is finally successful, his case will create "an entirely new source of compensation for soldiers who may have been injured in war situations, like the Gulf or the Falklands, through negligence of a fellow soldier."

Such a liability could have far-reaching effects for wartime commanders held responsible for military disasters. The British cavalry which survived the Charge of the light Brigade and families of thousands of First World War solders who died going over the top would all be able to sue the high command for negligence.

But Mr Hawkesworth envisages a more limited liability. "I don't believe the court would ever impose liability of a commanding officer in relation to matters of strategy or planning.

"All we are seeking to show is that where you have got a place of negligence which is not derived from the exigencies of war, then there is no reason why you shouldn't be able to claim."