8 January 2010

Asbestos update...

Further to my post yesterday, anticipating Lord Emslie’s decision on the legality of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the judgement was handed down today. The full judicial pronouncement is now available here. As expected, the Scots judge rejected the large insurance companies’ submissions that the 2009 Act was illegal. Attending a little more closely to the arguments presented by the insurers, idioms involving barrels and scraping them leap to mind. However vinegary these legal lees might seem, there remains the possibility of an appeal. The BBC quotes the darkly suggestive Nick Starling of the Association of British Insurers, who predictably claims that “insurers will now be considering carefully this judgment, and are seriously looking at the grounds for an appeal against it. This is not the end of the road”. Although this may be a heroic sign-off in the anticipation of a humbling climb-down – a fist shaken at the mirthless and unremarking heavens, a broken man’s only dignity – I doubt it.

Notionally, however, the hundreds of litigants waiting at the Court of Session's doors can now anticipate the rusty cogs of justice within to start grinding - in their favour. Drawing his remarks to their conclusion, Lord Emslie remarked that “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come.” My point primary point was neatly summarised in paragraph 158 of the judgement, and was submitted to the court by Aidan O’Neill QC, who represented seven individuals “diagnosed with pleural plaques who seek, or at least intend to seek, damages on that account from their former employers”, who responded to the insurers’ case [Para 1]. O’Neill said: “Opponents who failed in the political arena have no general right to pursue their grievances in court. The rule of law must not be confused with rule by lawyers.” [Para 158]

Quite right, too.

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