14 January 2010

Quixotic insurers attempt to dodge democracy (and screw some victims while they're at it...)

Aviva, AXA, RSA, and Zurich’s attempts to stall the democratic will of the Scottish parliament are to be taken further, with confirmation appearing this afternoon that the Insurers are to try their luck with Scotland's higher judicial authorities, appeal ling against Lord Emslie’s judicial review decision on the validity of the Damages (Asbestos-related Conditions)(Scotland) Act, which I discussed extensively last week. The following news release appeared on ABI’s (the Association of British Insurers) website this afternoon. On this issue, the press seems to have got itself caught in an uninteresting version of the story, couched as it is in the apparently technical considerations of legal minutiae and wearying jurisprudential exchanges. The human story - and the political cheek - of what the insurers are up to here has largely passed the broader sheets by.

Not least, you might expect that the usual human rights haters to get exercised about the strategic use of that legal instrument by money-grubbing insurers, who must at least have a popularity rating approximating to those imprisoned for their criminal acts. Particularly when it is a rearguard action in the face of an affirmative campaign to the parliament, resulting in a direct change in the law. Apparently not. There is certainly a Quixotic aspect to challenging primary legislation in this way, much like the pro-fox hunters who did so, impugning the Protection of Wild Mammals (Scotland) Act 2002 on similar grounds. (Otherwise known as your human right to set your dogs on a fluffy fox. Obviously, I'm parsing somewhat...) What this are about is nothing less than attempting to use the courts to subvert the settled will of parliament, or alternatively, dragging out the fatal moment when that will will become enforceable against themselves.

Insurers lodge appeal against Scottish judgment on pleural plaques

Four major insurance companies have lodged an appeal against the recent judgment concerning The Damages (Asbestos-Related Conditions) (Scotland) Act 2009.

On 8 January, following a judicial review brought by several insurers, the Court of Session in Edinburgh ruled to maintain the recently passed Act to compensate people with pleural plaques, despite the medical evidence that the condition does not cause harm or lead to asbestos-related conditions such as mesothelioma.

Nick Starling, the ABI’s Director of General Insurance and Health said: “After careful consideration and legal advice, insurers consider that there are good grounds for this appeal. Insurers have not taken this decision lightly, and it reflects their strong view that The Damages Act is fundamentally flawed as it ignores overwhelming medical evidence that plaques are symptomless, and the well-established legal principle that compensation is payable only when there are physical symptoms”.

The ABI reiterated that the appeal in no way affects insurers continued commitment to pay compensation to people with asbestos-related diseases, such as mesothelioma, which impact on their health.

I shall keep you informed about any further developments as they unfold, no doubt at law's traditional, stately pace.


  1. You say in your first paragraph that coverage in the media has focused on legal minutiae to the neglect of the human story.
    Well, all the same, that legal minutiae just might be very interesting.
    You will understand the importance of the Adams decision (fox hunting) and now this AXA case, where Lord Emslie held that Acts of the Scottish Parliament (primary legislation) are open to traditional common law judicial review on grounds of irrationality ([88]-[145]), although he did find that the insuraers did not establish grounds of irrationality in this case.
    I believe they are now appealing, which means no doubt that the Lord Advocate will again represent the Ministers and try to persuade the court that Lord Emslie was mistaken.
    I disagree with Lord Emslie on the competency of judicial review here, and I hope that the insurers lose their appeal, and further that the 2009 Act is left to give effect to the will of Parliament. It will also be interesting to read how they treat the crucial issue of competency of judicial review of primary legislation of the Scottish Parliament. My hope is that they follow Lord Nimmo Smith in Adams (para [62]-[63]).

    Good post. Great blog.

  2. Thanks for the comment, Macintyre.

    I suppose my frustration is primarily that this is being treated as a legal issue in the sense that commentary (even hostile commentary of the action) would be misplaced. That said, I agree - the legal detail is concerning partly because it has the potential to generate unanticipated consequences on a far wider scale in the future. It is no overstatement to argue that just how judicial review is authoritatively approached here has the capacity to determine the result of another case years from now. Hardly unimportant when we're talking about the powers of Holyrood (however uninterested most political commentators are in the nitty Scots Law gritty!) We'll have to see how 'irrationality' fares, but by inclination, I agree with your position.

    On the argument of the appeal, I don't know if you noticed this decision of the 16th of this month concerning the Rules of Court and admitting 11 pleural plaque sufferers into the process vs AXA General Insurance & Ors? The insurers (Quixotically again) opposed this, but will now have to contend not only with the Lord Advocate but also Aidan O'Neill QC in their appeal proceedings.