Judicial review of pleural plaques Bill

The first stage of the insurers’ attempt to strike down the Damages (Asbestos-related Conditions) (Scotland) Act 2009 by way of judicial review ended in failure on 27 April 2009.

In Axa General Insurance Ltd and others, Petitioners [2009] CSOH 57 the petitioners sought interim interdict to prevent the Scottish Ministers bringing the Act into force on 17 June 2009, which would be before the hearing of their judicial review petition against the Act as contrary to Articles 6 and 1 First Protocol ECHR (fair trial and protection of property) and irrational (Wednesbury unreasonableness) and arbitrary. 

Lord Glennie refused the interim interdict, and in doing so cast considerable doubt on whether the petitioners’ main case would succeed.  “The petitioners,” he said, “have shown a prima facie case but .. on the question whether the interference 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.  In those circumstances it seems to me that I should not grant interim interdict.” (para 19).

The petitioners’ lines of argument in their human rights case emerge as follows.  The right to a fair trial is affected because the legislation in effect deprives them of their right to a hearing in court, without a sufficiently weighty public interest to justify that.  The right to possessions is affected because the petitioners have been deprived of a defence to a claim, which counts as a possession, again without a countervailing public interest that justifies the deprivation.  Lord Glennie comments as follows on the public interest aspect of this argument:

“I have more difficulty with the petitioners’ contention that the policy of the Act does not reflect any legitimate public or general interest.  It is well-established that the courts will afford the legislature a wide margin of appreciation or, as it is put in the domestic context, will concede to the legislature a discretionary area of judgment in determing what is in the public or general interest … [T]he Scottish Parliament has taken the view that [pleural plaques victims] ought to be entitled to claim compensation, if not for any present physical disability, then at least for .. anxiety and the risk of the condition worsening.” (para 13)

Lord Glennie did not find it necessary to comment on the irrationality argument, merely noting the Scottish Ministers’ counter-argument that such common law grounds of challenge were not available against Acts of the Scottish Parliament, and then saying that “it is clear that the common law challenge … can be no stronger than the challenge based upon Convention rights” (para 14).

The opinion also indicates that there are about 600 pleural plaque cases currently sisted in the Court of Session, awaiting the Act’s coming into force with retrospective effect.  Around 400 further claims have apparently been intimated but not yet started.