Mulcahy v Ministry of Defence

JurisdictionEngland & Wales
Judgment Date21 February 1996
Judgment citation (vLex)[1996] EWCA Civ J0221-6
CourtCourt of Appeal (Civil Division)
Docket NumberCCRTI 94/1537/G
Date21 February 1996

[1996] EWCA Civ J0221-6




(His Honour Judge Walker)

Before: Lord Justice Neill Lord Justice Mccowan Sir Iain Glidewell

CCRTI 94/1537/G

Richard Mulcahy
Ministry of Defence

MR P HAVER QC with MR I BURNETT (Instructed by the Treasury Solicitor, London) appeared on behalf of the Appellant

MR S HAWKESWORTH QC with MR D GRIPTON (Instructed by Messrs Wilkinson Woodward & Ludlum, West Yorkshire) appeared on behalf of the Respondent


Wednesday, 21 February 1996




This is an appeal by the defendants (the Ministry of Defence) from the order dated 22 September 1994 of His Honour Judge Walker sitting in the Dewsbury County Court refusing the defendants' application to strike out the plaintiff's claim. The application was made on the basis that the plaintiff's claim as formulated disclosed no cause of action. Leave to appeal to this court was given by Rose L.J. on 25 November 1994.


In view of the nature of the application it is necessary to refer to the plaintiff's pleaded case, because for the purpose of an application to strike out, the facts alleged by the plaintiff are assumed to be true. I should therefore start by referring to parts of the amended particulars of claim, which were further amended by leave of the Court of Appeal during the course of the hearing. The Re-Re-Amended particulars of claim are in these terms:


"1. At all material times the plaintiff (Richard Mulcahy) was a serving soldier in the employ of the defendant, being a member of 32 Heavy Artillery Regiment, 74 Battalion.


2. In or about February/March 1991 during the course of his employment with the defendant, the plaintiff was part of a team manning a M110 8" Howitzer gun and his particular job was to swab out the breech of the gun after each firing and, for that purpose, he was provided with a bucket and a mop.


3. One Sergeant Warren was in charge of the team and was the only person in the team allowed to fire the gun.


4. (a) At the time of the matters hereinafter complained of the gun was deployed at a location in Saudi Arabia and was firing into Iraq;


(b) The plaintiff does not know the date on which he was injured but recalls that, on that day, his unit was visited by Kate Adie and a BBC television crew.


(c) No return fire from any quarter had been experienced in the days leading up to the day of the plaintiff's injury, none was experienced on that day or on any of the days thereafter.


5. (a) At a time when the gun was ready for firing, the gun commander —the said Sergeant Warren —ordered the plaintiff to fetch a jerrican of water for the mop bucket which required him to go from the position where he stood when the gun was about to be fired to the front of the gun carriage where the jerricans were stored.


(b) The plaintiff was to the front of the gun when the gun commander negligently caused the gun to fire and the discharge knocked the plaintiff off his feet whereafter he was temporarily unable to focus properly, was disorientated and his hearing was adversely affected.


(c) The plaintiff says res ipsa loquiter.


(d) Further, or in the alternative, by causing or permitting the gun to be fired while the plaintiff was not standing in the safety position required by gun drill the defendants were in breach of their duty to adopt and maintain a safe system of work.




Before turning to the judge's judgment and to the questions of law which were argued before us it is first necessary to deal with two preliminary matters.


This is an application to strike out pursuant to order 13 rule 5(1)(a) of the County Court Rules 1981. The principles on which an order can be made are the same as in the High Court. It is therefore important to remember that the summary procedure for striking out pleadings is only to be used in plain and obvious cases. One must also take account of the fact that in Dyson v. Attorney General [1911] 1 KB 410 at 414 Sir H.H. Cozens-Hardy MR (in a passage approved by Lord Bridge in Lonrho plc v. Fayed [1992] 1 AC 448 at 469E) said that the procedure "ought not to be applied to an action involving serious investigation of ancient law and questions of general importance". At the same time it is necessary to have regard to some recent statements as to the correct approach. In E (a Minor) v. Dorset CC [1995] 2 AC 633 Sir Thomas Bingham MR said at 693H:


"I share the unease many judges have expressed at deciding questions of legal principle without knowing the full facts. But applications of this kind are fought on a ground of a plaintiff's choosing, since he may generally be assumed to plead his best case, and there should be no risk of injustice to plaintiffs if orders to strike out are indeed made only in plain and obvious cases. This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or in any way sensitive to the facts, an order to strike out should not be made. But if after argument the court can be properly persuaded that no matter what are (within the reasonable bounds of pleading) the actual facts the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached."


When the Dorset CC case reached the House of Lords, together with other cases (reported compendiously as X(Minors) v. Bedfordshire CC) Lord Browne-Wilkinson expressed his approval of this approach. He said at 740H:


"Actions can only be struck out under RSC Order rule 19 where it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in the state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts. But I agree with Sir Thomas Bingham MR … that there is nothing inappropriate in deciding on these applications whether the statutes in question confer private law rights of action for damages: the answer to that question depends upon the construction of the statutes alone.


Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases. There may be cases …… where it is evident that, whatever the facts, no common law duty of care can exist. But in other cases the relevant facts are not known at this stage. … I again agree with Sir Thomas Bingham MR that if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered."


It follows therefore that before a court can consider whether a claim should be struck out on the ground that it discloses no cause of action the court must first be satisfied that all the relevant facts are before it. Furthermore, save perhaps in an exceptional case, the court should give the plaintiff an opportunity to amend his claim to include any other appropriate cause of action. In addition, the court will want to consider whether the parties have had a proper opportunity to put before the court any arguments or authorities on which they may wish to rely. Where, however, the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well founded in law. At the same time the court must take account of Lord Browne-Wilkinson's admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the resolution of a question of law at an early stage in proceedings may result in a very substantial saving in costs.


I turn therefore to the second preliminary matter. It was argued on behalf of the plaintiff that an application to strike out was in any event inappropriate because further facts needed to be elucidated. It was said that the exact circumstances in which the gun was being fired should be investigated. Indeed at one stage in the course of the argument it was suggested that the firing of the gun might have been part of a training exercise.


It is therefore necessary to look at the pleaded facts and at any explanations which were given to the judge.


It is common ground that the plaintiff's battalion formed part of the allied forces in what is known as the Gulf War. The plaintiff formed part of a gun crew at a location in Saudi Arabia. At the moment when he sustained his injury and for some days before the gun was firing live rounds into Iraq. Furthermore, it was accepted by counsel for the plaintiff before the judge that the Gulf War involved warlike operations: see transcript of the proceedings page 4B.


The judge accepted the argument that further facts had to be established. He said (judgment 1F):


"… It has to be established on the basis of [the facts pleaded in paragraphs 4(a) and 4(c) of the Particulars of Claim] whether the degree of involvement in warlike activities was such as to allow the Crown to argue that it was in fact a heat of battle situation. The Crown says, `well, this is precisely the situation where there should be no investigation because it is contrary, in a sense, to public policy to be investigating the circumstances on the field of battle.'...

To continue reading

Request your trial
20 cases
  • Bici and Another v Ministry of Defence
    • United Kingdom
    • Queen's Bench Division
    • 7 April 2004 the country or one site available for a particular purpose." 95 These authorities were followed by the Court of Appeal in Mulcahy v Ministry of Defence [1996] QB 732. In that case a serving soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He w......
  • R (Smith) v Oxfordshire Assistant Deputy Coroner
    • United Kingdom
    • Supreme Court
    • 30 June 2010
    ...Company Ltd v Lord Advocate [1965] AC 75, 110, per Lord Reid (using the term "battle damage" to describe the former category), Mulcahy v Minister of Defence [1996] QB 732 and Bici v Ministry of Defence [2004] EWHC 786 (QB), paras 90-100. It is unnecessary to examine it or its scope here. I......
  • R (Smith) v Oxon Asst Deputy Coroner [England, High Court, Queen's Bench Division (Administrative Court)]
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 30 June 2010
    ...abroad cannot receive absolute protection. This accords with the approach of the Court of Appeal in Mulcahy v. Ministry of DefenceELR[1996] QB 732 where a soldier serving in the Gulf War who suffered hearing loss due to the negligent firing of a gun when he was in front of it failed in his ......
  • Smith v Ministry of Defence
    • United Kingdom
    • Supreme Court
    • 19 June 2013
    ...of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy." In Mulcahy v Ministry of Defence [1996] QB 732 Neill LJ said at p 746 that it seemed to have been recognised in the Australian cases that warlike activities fell into ......
  • Request a trial to view additional results
4 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books National Security Law. Second Edition Accountability
    • 5 August 2021
    ...32 .................................................................................................. 593 Mulcahy v Ministry of Defence, [1996] QB 732 (CA) .......................................... 34 N’Goya v Zaire, UN Human Rights Committee File 542/1993 ......................... 402 Nam......
  • The use and Enforcement of Soft Law by Australian Public Authorities
    • United Kingdom
    • Federal Law Review No. 42-1, March 2014
    • 1 March 2014
    ...(1864) 16 CB (NS) 310; Feather v The Queen (1865) 6 B&S 257. That misinterpretation is now recognised: Mulcahy v Ministry of Defence [1996] QB 732, 740 (Neill LJ). 157 The current State and Territory legislation is: Crown Suits Act 1947 (WA); Crown Proceedings Act 1958 (Vic); Crown Proceedi......
  • Dilemmas
    • Canada
    • Irwin Books National Security Law. Second Edition Structure
    • 5 August 2021
    ...for losses that low from ‘operational’ decisions.” 42 Ibid at para 47 et seq , citing, inter alia , Mulcahy v Ministry of Defence , [1996] QB 732 (CA). 43 A variant of the discussion in this section is found in Craig Forcese, above note 28. Dilemmas 35 contracts between states. They are bin......
  • ‘Caparo Under Fire’: a Study into the Effects upon the Fire Service of Liability in Negligence
    • United Kingdom
    • The Modern Law Review No. 63-4, July 2000
    • 1 July 2000 sounded over those situations where what may bedescribed as ‘predictive policy’ is deployed by the courts to deny a duty of care.70 [1996] QB 732.July 2000] Effects of Negligence Liability upon the Fire ServiceßThe Modern Law Review Limited 2000 Defensive practices, diversion of resource......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT