Pleural plaques: no legislation in England & Wales

Via the Obligations Discussion Group comes news that the Whitehall Ministry of Justice has decided against legislation to reverse the decision of the House of Lords in the pleural plaques case Johnston v NEI International Combustion Ltd [2007] UKHL 39.

The Ministry of Justice statement says:

"On the basis of medical evidence received during the course of this review, including authoritative reports from the Chief Medical Officer and the Industrial Injuries Advisory Council, we are unable to conclude that the Law Lords' decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up. While the current medical evidence is clear that pleural plaques are a marker of exposure to asbestos, and that exposure to asbestos significantly increases the risk of asbestos-related disease, any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person's exposure to asbestos rather than because of the plaques themselves. However, if new medical or other significant evidence were to emerge, the government would obviously reassess the situation."

There is of course an interesting contrast here with the position in Scotland, where the Scottish Parliament has already reversed the House of Lords by passing the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (asp 4), albeit that Act is currently subject to review in the courts (see previously here).

The MoJ statement also says:

"The government has decided to make payments of £5,000 to individuals in this limited category under an extra-statutory scheme. The payment broadly reflects the level of compensation likely to have been received if pleural plaques had continued to be compensatable. Detailed arrangements relating to the operation of this extra-statutory scheme will be announced shortly. The scheme will apply to England and Wales, where the Ministry of Justice has responsibility for civil law. An information telephone line will be available by the end of the week and the number will be published at The government regards this as a unique situation and as not setting any precedent for any other circumstances where litigants may be disappointed."

Scots Law News understands that the appeal in Axa General Insurance Ltd Petitioners [2010] CSOH 02, the judicial review of the 2009 Act, has been set down for eight days in July 2010.  The Whitehall decision may have some interesting repercussions for the arguments in that case.