Big decisions hansel the new year in Parliament House
Two important judicial review decisions to get 2010 off to an impressive start in the Court of Session: one on Donald Trump's plans for a golf course in Aberdeenshire, the other upholding the Scottish Parliament's pleural plaques legislation.
In the Trump case, Forbes v Aberdeenshire Council and Trump International Golf Links 2010 CSOH 1, Lady Smith refused interim interdict to 85-year-old Mary Buchan Forbes who lives in a mobile home called "Paradise" on the Balmedie estate where the Trump Organisation has gained permission to construct a golf course and leisure development amidst controversy noted previously here in Scots Law News. Mrs Forbes wants to challenge the grant of planning permission in a judicial review and sought interim interdict to prevent the works beginning in the meantime. In a lengthy and learned opinion Lady Smith expresses doubts on whether Mrs Forbes has title and interest to sue, a prima facie case, and a case that has any strength on the merits; she also finds that the balance of convenience is in favour of the Trump Organisation. Given that work on the development is apparently already well under way, this may well be the end of this particular story, at least so far as legal process is concerned.
The pleural plaques case, Axa General Insurance Ltd 2010 CSOH 2, is 249 paragraphs long, divided into eight chapters and helpfully provided with a table of contents by the judge Lord Emslie. For the background see here previously in Scots Law News. The Damages (Asbestos-related Conditions) (Scotland) Act 2009 survives the challenge. Paragraph 249 of Lord Emslie's opinion really says it all: "In the result, the petitioners succeed on the issues of their own locus standi (chapter II above) and the competency of their common law challenge (chapter IV). However, they fail on all other issues, namely the locus standi of the third to tenth respondents (chapter III) and the merits of their various challenges to the 2009 Act based on article 6 of the Convention (chapter V), article 1 of the First Protocol (chapter VI) and common law "irrationality" (chapter VII). The petition must therefore be dismissed." One suspects, however, that this story will not end here, and that a Division and then the UK Supreme Court will in due course be invited to give their views on this matter as well.