7 January 2010

On damages for asbestos-related conditions...

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed by Holyrood in the March of last year, only the Tories opposing its terms. The Act reverses the 2007 judgement of the House of Lords (as was, now the UK Supreme Court) in the Johnston case. Overruling the existing law, the Court determined that as distinct from cancerous mesothelioma (left), pleural plaques did not represent a disease, and as such, those whose lung tissue was scarred as a result of asbestos exposure could not recover compensation. It is my understanding that in many cases, these plaques are asymptomatic. In other cases, they are the precursor to future ill-health.

Despite vigorous opposition from self-interested insurers and their purchased lawmen and special-pleaders, the Scottish parliament finally determined to reverse this position. The 2009 Act provides that asbestos-related plural plaques, pleural-thickening and asbestosis are personal injuries which are not negligible and are actionable harms. Section 4 makes this judgement retrospective. Thus, a pursuer ‘caught’ in the common law position articulated by the House of Lords acquires a retrospective right to claim damages once the Act comes into legal force. This happened on the 17th June 2009.

In response, various big insurers have laid out some of their lucre and clubbed together to challenge the validity of the Act in judicial review. Or more precisely, the insurers are seeking a way to weasel out of compensating affected persons using any means possible. Having failed to convince parliament, they've traipsed up the Royal Mile to the considerably older wooden-beamed confines of Parliament House - and the Scots Courts. Tomorrow (Friday 8th January), Lord Emslie is due to deliver his opinion on the insurers’ legal arguments. It should become available here some time tomorrow. The case is hugely significant The insurers' position relies to a significant extent on the now-familiar strictures of the Scotland Act, and the argument that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is ultra-vires. The first blast of their particular legal trumpet came with a petition to Lord Glennie, seeking an interim interdict to prevent the Act being brought into force, based on Article 6 of the European Convention on Human Rights (fair trial) and Article 1 of its First Protocol (protection of property). In April, Glennie refused that application, in the course of his decision indicating that more than 600 cases already awaited the Act coming into force in the Court of Session. These cases are currently ‘sisted’, or paused, until Lord Emslie’s decision is delivered tomorrow. Via Hector MacQueen’s Scots Law News, I gather 400 more cases have been intimated by not embarked upon. Many more may have accumulated in the passage of time.

Its hard to feel any sympathy for the grubby profiteering motives of the insurers and their diligent legal servitors. Corporations – legal persons – arguing the human rights of a case is often a shifty, strategic, expedient exercise. Rhetorically problematic, certainly. If they are to win, however, that is precisely what Axa General Insurance et al. must do. Section 29(2)(d) of the Scotland Act provides that an Act of the Scottish Parliament isn’t law if it is incompatible with Convention Rights. The insurers can’t be optimistic about their chances. Lord Glennie has already suggested that “on the question whether the interference with their rights under Article 6 and Article 1 of the First Protocol is justified in the public or general interest, I do not regard that prima facie case as a particularly strong one”. Lets hope he is right and the 1000 or more Scots awaiting compensation can finally push their cases through the court and receive their due, while the insurers' delaying tactics coming to a deserved nought. Assuming, of course, that they don't dip into their purses and appeal and appeal and appeal in the traditional way - amounting to a self-serving, democracy-defying use of their not inconsiderable wealth to effect yet another unjust abuse of process.

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