Supreme Court dismisses Insurance firms challenge to Holyrood’s law making powers on Pleural Plaques compensation

The Supreme Court has dismissed a challenge brought by Insurers Avira, AXA Insurance, Zurich and Royal Sun Alliance against the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which was passed by the Scottish Parliament to reinstate compensation for Pleural Plaques, an asbestos related condition, after the House of Lords ruling in 2007 found Pleural Plaques to be unrelated to asbestos exposure. More on the story HERE & HERE

The full ruling from the Supreme Court : Supreme Court Judgement in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) (pdf)

The Scottish Government issued the following statement welcoming the Supreme Court’s decision :

Justice Secretary Kenny MacAskill today welcomed a Supreme Court decision to dismiss a legal challenge to a historic Act of the Scottish Parliament. The Minister said the failure of the legal case, brought by a group of insurers, was a "triumph for progressive politics" that would bring great comfort to workers that have developed pleural plaques, brought on by exposure to asbestos. The Supreme Court judges decided unanimously that the Scottish Parliament had acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) Act in 2009, legislation that offered those that have pleural plaques the opportunity to claim compensation. The Act has been subject to lengthy legal challenge by a group of insurers.

Mr MacAskill said: "I warmly welcome this significant decision, not least for the sake of people with pleural plaques and all those who campaigned so vigorously to help them. It has always been our belief that the legislation is right in principle and right in law and I am pleased that it has been unequivocally upheld. "The Scottish Government's Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, and today's decision is a triumph for the progressive politics that saw parties unite to do the right thing and help those that have developed pleural plaques as a result of negligent exposure to asbestos. We firmly believe that people with this condition should be able to raise a claim for damages, and we are delighted that this decision has gone in their favour - a result that will surely bring them some comfort. It is our sincere hope that the insurers will now reflect carefully on the decisions reached by the Scottish Parliament, by both the Outer and Inner Houses of Scotland's Court of Session, and now by the UK's Supreme Court and settle those claims that have been stalled for so long."

Exposure to asbestos can result in the development of a number of conditions, including pleural plaques (i.e. scarring of the membranes around the lungs). This condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. Medical evidence is that "people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population.

From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards; those awards were paid by the negligent party or their insurer. On October 17, 2007, however, the House of Lords ruled in respect of a number of cases in England that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. The House of Lords ruling is not binding in Scotland, but would be considered highly persuasive by Scottish Courts.

In November 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland. In June, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. The Bill was passed in March 2009, got Royal Assent the following month, and came fully into force in June 2009.

The Outer House decision on judicial review was announced on January 8, 2010, with the Inner House decision announced on April 12, 2011.

While Scottish Ministers welcomed the decision to dismiss the insurers challenge, the Justice Secretary and the First Minister Alex Salmond have not taken any side swipes at parts of the judgement which declare Holyrood not to be a “Sovereign Parliament” (Expect that, and another fight, for another day – Ed)

In Paragraph 46 of the Supreme Court’s judgement on the issue, it is stated : “The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.  The United Kingdom Parliament  has vested in the Scottish Parliament the authority to make laws that are  within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in  Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Then there is the role which has been conferred upon this court by the statute, if called upon to do so, to judge whether or not Acts of the  Parliament are within its legislative competence:  see section 33(1) and paragraphs 32 and 33 of Schedule 6, as amended by section 40 and paragraphs 96 and 106 of  Schedule 9 to the constitutional Reform Act 2005. The question whether an Act of the Scottish Parliament is within the competence of the Scottish Parliament is also a devolution issue within the meaning of  paragraph 1(a) of Schedule  6 to the Scotland Act in respect of which proceedings such as this may be brought in the Scottish courts.”

Holyrood and the Scottish Government has been well & truly warned it would seem.

Damages (Asbestos related Conditions) (Scotland) Act will take effect from June 17 2009

Despite the big insurance companies ongoing judicial review against the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the Scottish Government has announced today the act in its present terms will be effective from June 17 2009, allowing people who develop pleural plaques from being negligently exposed to asbestos to take legal action seeking compensation.

Scottish Government release :

Damages (Asbestos-related Conditions) (Scotland) Act 2009 takes effect June 17 2009

01/05/2009

The right to redress for people who develop pleural plaques after being negligently exposed to asbestos will be secured from June 17, 2009 it was announced today.

Earlier this month Royal Assent was given for the Damages (Asbestos-related Conditions) (Scotland) Act. A Commencement Order signed by Community Safety Minister Fergus Ewing means that the Act can now come into force in Scotland from Wednesday,, June 17.

Welcoming the final stage of the Act's journey, Fergus Ewing said:

"Asbestos is a potentially lethal substance. That has been widely known for many decades. Sadly, however, proper protective measures were not always put in place. Some employers failed in their duty of care. They negligently left workers exposed to asbestos and so to risk of serious harm, even death.

"For many years the Courts accepted that anyone injured in these circumstances, with or without symptoms, was entitled to redress. The Scottish Government believes that was the right approach. That is why we have acted to ensure that the House of Lords ruling of October 2007 will not have effect in Scotland.

"We are determined to stand up for the rights of wronged individuals. The implementation of this legislation will ensure recognition, compensation and justice are not denied to those of our fellow citizens who, through no fault of their own, have sustained an asymptomatic asbestos-related injury and are at much greater than average risk of developing a painful and ultimately fatal condition.

"The legislation received overwhelming support in the Scottish Parliament last month, but only after supporters and opponents had been given opportunities to make their case. I now hope that the arguments will cease. The role of the Scottish Parliament - Scotland's legislature - is to decide our country's laws: that is what it has done.

" I am pleased that Lord Glennie this week rejected an attempt by Axa Insurance, Norwich Union Insurance (Aviva), Royal & Sun Alliance Insurance and Zurich Insurance to prevent the Scottish Government bringing this legislation into force. We will continue to defend the rights of individuals who have been negligently injured and the right of the Scottish Parliament to make law for our country."

Exposure to asbestos can result in the development of a number of conditions, including pleural plaques (i.e. scarring of the membranes around the lungs). This condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. Medical evidence is that "people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population. The risk for those more lightly exposed is less but still significant." (Written evidence to the Justice Committee of the Scottish Parliament from Dr Robin Rudd, Consultant Physician, Co-Director Barts Mesothelioma Research, Co-Chair London Lung Cancer Group)

From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards; those awards were paid by the negligent party or their insurer. On 17 October 2007, however, the House of Lords ruled in respect of a number of cases in England that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. The House of Lords ruling is not binding in Scotland, but would be considered highly persuasive by Scottish Courts.

On November 29, 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland.

On February 6, 2008 the Scottish Government announced that, as well as pleural plaques, the legislation would cover two other asymptomatic asbestos-related conditions: asymptomatic asbestosis and pleural thickening.

Between February 6, 2008 and April 4, 2008 the Scottish Government consulted on a partial Regulatory Impact Assessment.

On June 23, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. Following a report by the Justice Committee, the Bill passed Stage 1 on November 5, 2008. It then passed Stage 2 on December 2, 2008 and Stage 3 on March 11, 2009. Royal Assent was received on April 17, 2009 and Scottish Ministers made a Commencement Order on April 29 to bring the Act fully into force on June 17.

It is standard practice for there to be a two month period between Royal Assent and an Act coming into force.

Insurers launch legal challenge against Scotland's asbestos ‘pleural plaques’ compensation law

Using the Edinburgh law firm of Brodies LLP, several large insurance firms have launched a legal challenge by way of a judicial review against the recently passed Damages (Asbestos-related Conditions) (Scotland) Act, which seeks to allow those suffering from ‘pleural plaques’ a condition many associate with exposure to asbestos.

Peter Cherbi’s Diary of Injustice law blog reports on the insurers case for challenge against the law, and some curious associations some of the plaintiffs have with the Scottish Government …

'Money must come before life' as insurers & lawyers launch legal challenge against Scotland's asbestos compensation law

Law Society 'happy' over challenge against asbestos laws. Scots law firm Brodies LLP, acting for the big insurers, Avira, AXA Insurance, RSA, and Zurich, have launched a legal challenge in the form of a judicial review against The Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act, which passed the Scottish Parliament despite Tory opposition in a 98-16 vote and received Royal Assent last Friday.

The legal challenge to Scotland's law making powers, comes amid insurers claims that the new law, which makes it easier for victims of asbestos related illnesses to claim compensation, contravenes the European Convention on Human Rights and insurers' economic rights. However, can an insurer claim their Human Rights are being breached when it might just turn out those same insurers in respect of many other claims, do not respect the Human Rights of claimants or customers.

Simply, what we have here, is big business & corporations claiming their own human rights are being breached because they will have to pay out money to asbestos victims in Scotland, while not having to pay out in England & Wales because the House of Lords ruled in their favour that ‘pleural plaques’ do not qualify for compensation. It was this House of Lords ruling which prompted the Scottish Government to introduce the Damages (Asbestos-related Conditions) (Scotland) Act, arguing pleural plaques were symptomatic of asbestos exposure.

I reported on the earlier threats from the Insurers to take legal action if the Asbestos claims legislation was passed at the Parliament, here : Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms

Insurers challenging asbestos law also insure Alex Salmond’s Scottish Govt. Some of the insurers who are participating in the legal challenge against Holyrood’s law making powers, have links to the SNP minority controlled Scottish Government, as you can see in my earlier report. At least one of the insurers, Royal & Sun Alliance is identified in papers showing insurance deals between, among other insurers, the RSA and Alex Salmond’s administration to provide indemnity insurance cover for quangos created by Ministers and also claims protection for the Government Legal Service for Scotland (GLSS).

The insurers Aviva, AXA Insurance, RSA, and Zurich who launched the legal action at the Court of Session in Edinburgh, have argued that pleural plaques, which the new legislation recognises as a symptom of asbestos related illness, is nothing much to do with victims fatal exposure to the substance, going so far as to put their points on this argument in a rather unconvincing manner at the Scottish Parliament, which you can watch here :

Dr Pamela Abernethy of Edinburgh legal firm Simpson & Marwick argued at Holyrood, pleural plaques ‘were good for you’

You can read more about how the insurers & Simpson & Marwick argued against the passage of the asbestos claims legislation at the Scottish Parliament here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Law Society threatened legal challenge against parliament in 2006. The last time the Scottish Parliament's law making powers were threatened on such high profile legislation occurred in 2006, when the Law Society of Scotland's then Chief Executive, Douglas Mill unbelievably claimed that new legislation in the form of the Legal Profession & Legal Aid (Scotland) Act 2007, created to independently regulate Scotland's 10,000 solicitors contravened a lawyers human right to regulate complaints against themselves.

Despite bringing forward an English QC to claim a human rights breach under ECHR, the Law Society's legal challenge never proceeded, however, lawyers did have their way, and the LPLA Act was heavily compromised through amendments insisted by the Law Society of Scotland, with the help of certain politicians within Holyrood known to be sympathisers of, and some suspect financial beneficiaries of the legal profession.

This time around, the insurers have support from the Scottish Conservative Party, who among their ranks, Bill Aitken MSP, Chairman of Holyrood's solitary Justice Committee after Mr Salmond scrapped the second Justice Committee, fearing opposition control. Mr Aitken apparently believes the asbestos claims law which will force insurers to pay out over pleural plaques, is ill conceived. Mr Aitken of course, has a long background in the insurance industry, as his Scottish Parliament profile reveals.

Incidentally you can read more about other things the Royal Sun Alliance get up to HERE.

MacAskill claims he will defend his asbestos claims law against his own colleagues action. The Scottish Government, no doubt in the form of Justice Secretary Kenny MacAskill claimed today that they will ‘defend the action vigorously’, but what a slap in the face to the SNP it will be if the Court of Session do give the insurers their wishes. To make matters worse for Mr MacAskill, a legal insider indicated tonight, the Law Society of Scotland were apparently “happy” over the legal challenge against the asbestos claims legislation, one senior official stating “Its about time Holyrood got it in the neck” … indeed, but many of us might just be wondering isn’t it about time the Law Society got it in the neck ?

At the end of the day it comes down to the attitude we are used to seeing in the professions, be it banks, lawyers, or insurers, that money comes before lives, and there are plenty of Scottish legal firms happy to indulge big business and the insurers in that argument, giving a very potent signal to the public that access to justice is only obtainable through corporate wealth, or corporate agreement, and woe betide anyone who is too poor, or requires the use legal aid to secure a smidgeon of court time to pursue life threatening medical conditions which the insurers want killed off .. along with their victims to avoid making any compensation payments.

Money before life in Scotland today … and all because lawyers and their insurer supporters say so. How does that make you feel ?

The Herald reports :

Insurance giants to challenge asbestos claim ruling in court

BRIAN CURRIE April 22 2009

Britain's biggest insurance firms have lodged a legal challenge against a new law which allows Scots workers suffering from exposure to asbestos to sue for compensation.

Aviva, AXA Insurance, RSA, and Zurich have lodged an action for a judicial review at the Court of Session in Edinburgh of the Damages (Asbestos-related Conditions) (Scotland) Act which received Royal Assent only last Friday.

The act allows claims for compensation for people affected by pleural plaques. The insurers insist clinical evidence shows plaques are symptomless, do not impact on health or lead to asbestos-related diseases and the legislation overturns a House of Lords decision made in a case two years ago.

They claim the act ignores "overwhelming" medical evidence that plaques do not cause asbestos-related conditions such as mesothelioma, overturns a fundamental UK legal principle that compensation is payable only where physical harm has been suffered through negligent exposure to a risk and fails to fully assess the financial impact on Scottish firms.

Nick Starling, of the Association of British Insurers, said the action had not been taken lightly and claimed the legislation was "ill conceived" and ignored the fundamental legal principle of negligence and clear medical evidence.

A government spokesman said it would "vigorously defend" the challenge.

He said: "We are disappointed that this action to seek effectively to overturn the will of the Scottish Parliament has been taken.

"The insurance companies' action may delay, but will not ultimately defeat, our resolve to defend the rights of people who have been negligently exposed to asbestos by their clients. We firmly believe that our legislation is right in principle and right in law."