From: Martin Hogg [mailto:mhogg@staffmail.ed.ac.uk]
Sent: 18 January 2010 08:21
To: obligations@uwo.ca
Subject: ODG: Judicial review of pleural plaques legislation refused by Scottish courts

Dear List members,

Though it has more in it of interest for constitutional lawyers than private lawyers, you may be interested in the decision of the Scottish judge Lord Emslie, handed down last Friday, in the Petition of Axa General Insurance Ltd and others for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 [the recent statute founding liability for pleural plaques in Scotland]. The decision is reported here:

http://www.scotcourts.gov.uk/opinions/2010CSOH02.html

The pleural plaques Act had been challenged by a number of insurance companies as falling outside the powers of the Scottish Parliament (which, as a devolved parliament, takes its legislative authority from an act of the Westminster Parliament, the Scotland Act 1998) and as contrary to Article 6 of the ECHR and Article 1 of the First Protocol.

The Scottish Government challenged the petitioners' locus standi to raise the petition, a challenge Lord Emslie rejected. His Lordship also rejected the Governments' contention that the Scotland Act contained 

"anything sufficient, whether by clear words or necessary implication, to oust the fundamental supervisory jurisdiction of the courts at common law and thus - in the absence of any relevant procedural framework - make the Parliament the sole judge of the rationality of its own legislation"

holding it did not, and that therefore common law judicial review of Acts passed by the Scottish Parliament was permissible. 

On the ground of the judicial review, the petitioners were essentially arguing (re Article 6 of the ECHR) that "the 2009 Act imposed an unconscionable burden on the insurance industry and .... represented illegitimate State interference in pending proceedings" (para 152 of the judgment), and (re Protocol 1) that (a) "the Rothwell decision in the House of Lords was an asset of enormous commercial value and importance to the insurance industry" (para 181) and (b) "even if the immunity conferred by Rothwell did not qualify as a "possession" for the purposes of A1P1, then the petitioners' capital resources must surely do so".

Lord Emslie rejected both of these contentions, holding:

(1) the rule established by the ECHR in Zielinski v France, namely that "the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature - other than on compelling grounds of the general interest - with the administration of justice designed to influence the judicial determination of a dispute" had not been infringed in this case; and 

(2) an immunity from legal claims is not a proprietary right under Protocol 1; further Lord Emslie was  "not persuaded that the facilitation of pleural plaques claims should be held to constitute a relevant interference with the petitioners' capital resources. To my mind such consequences are simply too remote from the legislation to qualify." (para 195). 

There are a few comments at the beginning and end of the judgment on the nature of pleural plaques. If I might just highlight one - at para 207, Lord Emslie says:

"Radiological diagnosis of pleural plaques is, of course, an essential pre-requisite before section 1 of the Act can come into play, and contrary to the petitioners' submissions it is the presence of these pathological lesions and not mere exposure to asbestos which defines the benefited class [under the Act]."

With respect to his Lordship, the 'pathological' description is somewhat controversial. We know from the view of the common law and medical science that pleural plaques are not pathological (i.e. caused by disease) - they can surely therefore only be called 'pathological' if one accepts the contrary provision in section 1 of the Act that 'asbestos-related pleural plaques are a personal injury', a statement I continue to believe undermines the coherency of the idea of injury in delict/tort. However, I would not suggest that this minor point has any bearing on the overall correctness of the decision. 

Though I am not a public lawyer, I suspect that on the public law/constitutional matters the judgment is consistent with prior authority, especially prior decisions on the legitimacy of devolved legislation. However, personally I continue to find the Act itself an hysterical and politically motivated response to clever lobbying by certain interest groups, though it is doubtless too late now to continue to make that point.

More interesting perhaps for list members than the public law aspects of the decision might be the question of if and how the judgment may affect the current ongoing consideration by the UK Justice Ministry on what to do about pleural plaques. I would love to be a fly on the wall in Whitewall when that is discussed. 

Best wishes,

Martin Hogg

Edinburgh Law School