Adam Broni, Simon Woof, Raphael Barbour v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] EWHC 66 (QB) |
| Date | 20 January 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2014/0455 |
[2015] EWHC 66 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
(Sitting with MASTER HAWORTH as Assessor)
Case No: QB/2014/0455
Robert Marven (instructed by Messrs Bolt, Burdon, Kemp) for the Appellants
Mark James (instructed by A&M Bacon Ltd) for the Respondent
Hearing date: 2 December 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
There are three appeals before the court which raise the same point of law, namely whether the fixed success fee regime in (pre-1 April 2013) CPR Part 45 Section IV applies to claims brought by members of the armed forces in respect of injuries suffered at work. I understand that this is a novel point that despite many similar claims in the past has not previously been considered.
On 2 June 2014, in the case of Woof, Master O' Hare decided that the regime does apply because the Claimant was an employee within the meaning of Rule 45.20(1)(a). Master O' Hare reached the same conclusion on 30 July 2014 in the case of Broni; so did Deputy Master James on 28 July 2014 in the case of Barbour.
Master O' Hare granted permission to appeal in Woof and Broni; and Deputy Master James granted permission to appeal in Barbour.
Mr Robert Marven appears for all three Appellants; and Mr Mark James appears for the Respondent in all three cases. I am grateful to counsel for their admirably concise and helpful submissions.
The material facts in each case can be stated shortly. Mr Woof was a serving military policeman in the Royal Marines stationed at a military base in Norway. His underlying claim was in respect of an injury to his left ankle whilst using sports equipment at the base. Mr Broni was a Private in the Army. He developed a Non-Freezing Cold Injury ("NFCI") when on training in Kent. Mr Barbour also sustained a NFCI that arose out of military exercises during basic training undertaken in Cambridgeshire.
In each case the Appellant contends that the fixed success fee regime does not apply because he was not an "employee"; and that the costs judge was wrong to conclude to the contrary.
The Fixed Success Fee Regime
The pre—1 April 2013 CPR Part 45 Section IV stipulates fixed success fees in certain employers' liability claims. This would include the injuries sustained in these three cases if the other criteria for the application of this regime were satisfied.
CPR Rule 45.20 (1)(a) stipulates that: "this Section applies where… the dispute is between an employee and his employer…".
"Employee" is defined in Rule 45.20(3)(b):
"'Employee' has the meaning given to it by section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969."
Section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969 ("the 1969 Act") states:
"For the purposes of this Act the term 'employee' means an individual who has entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, whether such contract is expressed or implied, oral or in writing."
The wording of CPR r.45.20(1)(a) is broadly mirrored in the wording of CPR r.45.23(1)(a) and r.45.23(1)(b), save that CPR r.45.23(1)(a) expressly applies to claims arising out of death and CPR r.45.23(1)(b) is concerned with disease claims rather than injury claims.
With the exception of mesothelioma claims, success fees in personal injury (and Fatal Accidents Act 1976) claims against an employer cannot be recovered between the parties where the conditional fee agreement ("CFA") was entered into after 31 March 2013. Mr James informed me that notwithstanding this, the point remains of importance to the Respondent as there are still a significant number of employers' liability claims where the CFA was entered into before 1 April 2013.
The Decisions of Master O' Hare and Deputy Judge James
In Woof, Master O' Hare said:
"I have to decide whether the fixed success fee regime applies to claims brought by members of the armed forces and I think it plainly does. I think there is a 'contract of service' although I am using those words in a way which is wider than the way in which they [are] used in the 1969 Act."
He continued:
"I think the common sense of the fixed success fee regime is that it should apply to armed forces as it applies to others."
In Broni Master O' Hare applied the same reasoning as he did in Woof. He said:
"In this case it is easy to describe the Claimant as an employee and the Defendant as the agents of his employer, Her Majesty, even though there is no contract of service in the strict sense but, nevertheless, there is a contract of service."
He added:
"I think this is an employers' liability case and employers' liability cases should apply. The presence or absence of contractual rights are not determinative in this or other employers' liability cases and claims can be made against the employer by way of tort as well as by contract."
In Barbour, Deputy Judge James decided that "Armed Forces personnel should be dealt with as employees", noting that Master O' Hare in Woof had reached the same conclusion.
The Parties' Submissions
The submission made by Mr Marven can be simply stated. A serving member of the armed forces does not work under a "contract of service". Accordingly such a person is not an employee for the purposes of the 1969 Act or consequently for the purposes CPR Part 45 Section IV.
Mr Marven submits that the law is clear that a serving member of the armed forces is not an employee under a "contract of service". In support of this submission he relies on the leading authority of Quinn v Ministry of Defence [1998] PIQR 387 at 396 where Lord Justice Swinton Thomas stated:
"For my part, I would have no doubt at all that when Mr Quinn enlisted in the Royal Navy pursuant to the King's Regulations neither he nor the Crown had any intention to create legal relations. Further, as a matter of public policy, following the decisions to which I have referred there is binding authority that there is no such contract. In relation to members of the Armed Forces, as with Police Officers, I can see no reason to find that those long-standing public policy considerations should be changed."
Mr Marven submits that in circumstances where CPR Part 45 Section IV defines "employee" by reference to the 1969 Act, there is no proper basis for construing the term "employee" for the purposes of Section IV any more broadly. None of the Appellants worked under a contract of service.
Mr James accepts serving members of the armed forces do not work under a contract of service (at least on the present state of the law, see O'Brien v Ministry of Justice [2013] 2 All ER 1, per Lord Hope and Lady Hale at para 31). However in response to the Appellants' argument he makes four submissions. First, he submits that acceptance of the Appellants' argument would create serious practical difficulties at...
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