Broni & Ors v Ministry of Defence

The pre-1 April 2013 fixed success fee regime in CPR Part 45 Section IV applies only where the claimant is an “employee” within the statutory definition incorporated by the rules. That definition requires an individual to work under a contract of service or apprenticeship within section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969. A serving member of the armed forces is not employed under such a contract. The existence of an employer’s common-law or statutory duty of care does not alter that conclusion. The costs regime therefore does not apply to armed-forces injury claims merely because they are brought as employers’ liability claims.

Three appeals by serving members of the armed forces concerned the recoverability of fixed success fees in personal injury claims. The underlying claims arose from an ankle injury and non-freezing cold injuries sustained during military service.

Costs judges in the Senior Courts Costs Office held that the fixed success fee regime applied because each claimant was an employee within CPR rule 45.20(1)(a). Permission to appeal was granted in all three cases. The common issue was whether armed-forces personnel fell within the rule’s definition of “employee”, which adopted section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969.

1. The appeals were allowed. The fixed success fee regime in the pre-1 April 2013 CPR Part 45 Section IV did not apply to the claims.
2. CPR rule 45.20(1)(a) applies where the dispute is between an employee and employer. Rule 45.20(3)(b) gives “employee” the meaning in section 2(1) of the Employers Liability (Compulsory Insurance) Act 1969. That provision requires a contract of service or apprenticeship.
3. There was no proper basis for giving “contract of service” a broader, purposive meaning. The words have a single meaning which does not vary according to the context. The practical difficulties and perceived anomalies relied on by the respondent could not justify departing from the statutory definition.
4. The decision in Quinn v Ministry of Defence [1998] PIQR 387 was in point. It established that there was no contract between the Crown and members of the armed forces for this purpose.
5. Smith v MOD [2013] 1 All ER 778 did not decide whether servicemen were employees in the contractual sense. The Ministry of Defence may owe servicemen common-law and statutory duties of care, including duties under the Health & Safety at Work etc. Act 1974, without the existence of a contract of service.
6. The issue of assessment of the success fee was referred to Master Haworth for determination.

• Senior Courts Costs Office: Master O’Hare held in Woof and Broni that the fixed success fee regime applied. Deputy Master James reached the same conclusion in Barbour.
• High Court (Queen’s Bench Division): The appeals were allowed and the success-fee assessment issue was referred to Master Haworth.