McKenna v Ministry of Defence

Factual and Procedural Background

The Plaintiff, aged 13 at the time, was struck by a plastic bullet fired by a serving soldier acting as an agent of the Ministry of Defence (the Ministry) on 26 April 1997 in a field adjoining a road in a town in Northern Ireland. The Plaintiff and other youths were collecting wood when he was hit on the left side of his face. A police investigation resulted in no prosecutions. The Plaintiff brought claims based on trespass to his person and negligence. The claim was first intimated in 1999, with a writ issued in 2000, but the Statement of Claim was served only nine years later. The trial began in December 2021 and spanned several dates until September 2022. Due to delays, some witnesses were unavailable, records were missing, and recollections impaired. The trial judge made extensive factual findings after considering live and documentary evidence. The Plaintiff’s claim for damages, agreed at £225,000, was dismissed by the trial judge. The Plaintiff appealed the dismissal.

Legal Issues Presented

1. Whether the trial judge’s factual findings regarding the circumstances of the shooting and the nature of the public order disturbance were sustainable.
2. Whether the use of force by the soldiers, specifically the firing of the baton round, was reasonable and justified in the circumstances.
3. Whether the Plaintiff’s claims in trespass (battery) and negligence were established on the evidence.
4. Whether the trial judge erred in his assessment of credibility and the weight of evidence, including the adequacy of military training and record-keeping.
5. Whether the appellate court should intervene in the trial judge’s findings of fact and conclusions of law.

Arguments of the Parties

Appellant's Arguments

• The trial judge should have found the public order disturbance was minor and that the soldiers’ accounts of a serious attack were not credible.
• The Plaintiff was upright when struck, and the soldier did not aim low as found.
• The judge’s distinction between what the Plaintiff saw and heard was untenable; if a disturbance of the soldiers’ claimed magnitude occurred, the Plaintiff must have seen it.
• Greater weight should have been given to certain civilian witnesses supporting the Plaintiff’s version and to the absence of radio warnings or significant injuries among soldiers.
• The judge failed to properly assess hospital records and medical reports in light of the Plaintiff’s youth and injury severity.
• On negligence, the Ministry’s inadequate discovery and missing records should have led to adverse inferences against the Ministry, especially concerning the soldier’s training and armoury records.

Respondent's Arguments

• The trial judge properly preferred the Ministry’s evidence and made no errors in fact-finding or law.
• The appeal invites the court to reweigh evidence and substitute its own view, which is not appropriate.
• The judge’s binary approach to conflicting evidence was justified.
• The negligence claims were unparticularised, and the judge’s findings on training and use of force were well supported.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fairclough Homes v Summers [2012] UKSC 26	Appellate caution when claimant deliberately lies on oath; justification for rejecting evidence except when supported by other evidence.	The trial judge applied this self-direction to the Plaintiff’s deliberate lies, justifying rejection of some evidence and caution in accepting other evidence.
Farrell v Ministry of Defence [1980] NI55	Distinguishing negligence from battery in claims against military; negligence claims can arise from systemic failures or lack of authority.	The court accepted the existence of a negligence cause of action independent of battery, applying principles from Farrell to the Plaintiff’s negligence claims.
Tumelty v Ministry of Defence [1988] 3 NIJB 51	Use of force and legal justification in claims against military personnel.	The trial judge referenced this case in assessing the reasonableness of the use of force by soldiers.
Kelly v Ministry of Defence [1989] NI 341	Principles governing use of force and burden of proof in military-related personal injury claims.	Applied to evaluate the soldiers’ subjective belief and objective reasonableness in firing the baton round.
Breslin v Murphy [2013] NICA 75	Appellate principles concerning review of factual findings and deference to trial judge’s credibility assessments.	Reiterated the deferential standard of review and the requirement for clear error to justify appellate interference.
Northern Ireland Railways v Tweed [1982] NIJB	Appellate approach to findings of fact and inferences.	Referenced to support the principle that appellate courts should not disturb factual findings absent misapplication or irrationality.
Murray v Royal County Down Golf Club [2005] NICA 2	Appellate review standards in factual matters.	Used to support the principles governing appellate fact-finding reviews.
McClurg v Chief Constable [2009] NICA	Standards for appellate review of factual findings.	Applied to reinforce deference to trial judge’s credibility assessments.
Stewart v Wright [2006] NICA	Appellate review of trial judge’s findings.	Referenced for appellate principles.
Smith New Court Securities v Citibank NA [1997] AC 259	Principles of appellate review and factual findings.	Applied in discussing appellate deference.
Lofthouse v Leicester Corporation [1948] 64 TLR 604	Appellate principles on findings of fact and judicial discretion.	Referenced in appellate principles summary.
Brogan v Medeva plc [1996] 38 BMLR	Judicial imprecision and penumbra in findings of fact.	Used to explain the inherent imprecision in judicial findings and appellate caution.
Kerr v Jamison [2019] NICA 48	Appellate review of credibility and findings of fact, especially where trial judge saw witnesses.	Emphasized deference to trial judge’s advantage in assessing witness demeanor and credibility.
Kitson v Black [1976] 1 NIJB 5-7	Appellate deference to trial judge’s assessment of witness demeanor and credibility.	Applied to reinforce deferential standard on credibility assessments.
White v DOE [1988] 5 NIJB 1	Limits on appellate interference with trial judge’s findings.	Referenced to support restraint in overturning factual findings.
R (AR) v Greater Manchester Police [2018] UKSC 47	Purpose and scope of appellate review; review rather than rehearing.	Applied to underline the appellate court’s function of review and correction of errors, not rehearing.
DPP v Nixon [2023] NICA 57	Limits on judicial duty to address every factual and legal issue raised.	Quoted to emphasize that courts are not required to address every detail exhaustively.
Onassis v Vergottis [1968] 2 Lloyds Rep 403	Complexities of credibility assessments beyond demeanor, including truthfulness, memory, and likelihood.	Quoted extensively to contextualize credibility issues in the case.

Court's Reasoning and Analysis

The court carefully reviewed the evidence and the trial judge’s findings, emphasizing the significant delays and resulting evidential challenges. It accepted the trial judge’s conclusion that the parties’ accounts were “utterly irreconcilable” and that deliberate lying had occurred on one side. The judge’s binary approach to credibility was upheld as appropriate absent compelling reason to interfere.

The court endorsed the trial judge’s detailed credibility assessments, including findings that the Plaintiff had a longstanding animus against the military, deliberately withheld relevant information, and was evasive on key points. The judge’s acceptance of the soldiers’ accounts of a sustained missile attack and the reasonable fear they experienced was found to be well supported.

The court found no error in the trial judge’s acceptance that the Plaintiff was an innocent bystander, crouching in the field and not part of the attacking group. The judge’s finding that the baton round was fired to prevent the soldiers being cut off, and that it was reasonably aimed and justified, was supported by the evidence and legal principles.

Regarding negligence, the court noted the Ministry’s inadequate record-keeping and discovery but accepted the judge’s findings that the soldier’s training was comprehensive and regularly refreshed, and that the absence of some records did not causally relate to the injury. The judge’s findings on the use of force and training were sustained.

The court reiterated settled appellate principles emphasizing deference to the trial judge’s advantage in assessing witness demeanor and credibility, and that appellate intervention requires clear error or misapplication of law. The Plaintiff’s appeal was viewed as an attempt to reweigh evidence rather than identify legal or procedural error.

Holding and Implications

The Court of Appeal DISMISSED the Plaintiff’s appeal, affirming the trial judge’s judgment and order dismissing the claim for damages. The direct effect is that the Plaintiff’s claims in both trespass (battery) and negligence fail, and the Ministry of Defence is not liable for damages arising from the incident.

No new legal precedent was established. The decision reinforces the principle that appellate courts will not lightly overturn trial judges’ factual findings and credibility assessments, especially in cases involving conflicting eyewitness testimony and complex factual disputes. The judgment underscores the importance of contemporaneous evidence and the challenges posed by extensive delay in litigation.