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.

Ethical sponsorship ? ‘Asbestos is good for you’ law firm sponsors Law Society’s Donald Dewar debate tournament on ‘more harm than good’ internet

EDINBURGH law firm Simpson & Marwick which famously told MSPs at the Scottish Parliament that asbestos related medical conditions such as pleural plaques ‘were good for you’ and are known to represent scores of solicitors facing negligence claims are revealed to be this year’s sponsor of the Law Society of Scotland’s ‘prestigious’ Donald Dewar Memorial Debating Tournament, along with publishers Hodder Gibson. The debating tournament sees teams from schools all over Scotland compete in debates in an effort to teaches skills which are invaluable at university, job interviews and in employment.

Ironically, for a law firm which endured much publicity after news websites and video footage from the Scottish Parliament revealed the extent to which partners at Simpson & Marwick argued against the Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act 2009, the opening topic for the opening rounds of this year’s Donald Dewar Memorial Debating Tournament is the ‘merits of the word wide web – the internet, with teams of pupils debating the motion “This house believes the internet does more harm than good”. (I bet S&M believe the internet does more harm than good, at least to their reputations ! – Ed)

Topics for debate ? Lawyers for Simpson & Marwick told Holyrood Justice Committee ‘Pleural Plaques are good for you’ (Click image to watch video & HERE for more)

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was legislated by the Scottish Government & Scottish Parliament after vested interests (insurance firms) south of the border managed to secure a ruling in the House of Lords which took out various asbestos related condition such as pleural plaques from the list of ailments victims of asbestos exposure could claim for.

Scottish law firms, involving Simpson & Marwick, then Brodies LLP launched a legal challenge against the legislation in the Court of Session to prevent asbestos victims being able to use the new legislation to claim compensation. However, the insurers lost their case after Lord Emslie threw out the insurers legal challenge, which was led by the Dean of the Faculty of Advocates himself, Richard Keen QC.

In a 150-page judgment issued at the Court of Session, which can be read online here : OPINION OF LORD EMSLIE in the petition of AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners; for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, Lord Emslie stated: "Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware; it underlines the much higher risk which they now face, many hundreds of times greater than for members of the population at large, of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.”

Among other roles Simpson & Marwick are generally known for, is being one of the lead representative law firms to the Law Society of Scotland's Master Insurance Policy, the solicitors Professional Indemnity Insurance scheme which fights clients who attempt to recover assets lost by the ever growing numbers of negligent, or ‘crooked lawyers’ which populate Scotland’s legal profession.

An independent investigation into the Master Policy undertaken by the University of Manchester’s Law School for the Scottish Legal Complaints Commission during 2009 linked the Master Policy to deaths, revealing information relating to suicides involving clients who had become involved with the Master Policy, information which the insurers, law firms and the Law Society of Scotland deliberately concealed. Upon publication of the report, insiders at the SLCC claimed the significance of the ‘suicides’ was deliberately talked down in media releases, although it was heavily reported online at the time HERE.

The involvement of some controversial law firms in Scotland’s education curriculum is coming under increasing scrutiny after it was revealed law firms and the Law Society itself are engaged in blocking attempts to include impartial teaching of certain aspects of the justice system in schools, and perhaps more worryingly, some solicitors who have attended schools or been involved with children are, according to legal insiders, not always screened under current legislation for criminal offences of a sexual nature.

Law Society Press Release on Donald Dewar Memorial Debating Tournament :

Pupils to debate if Internet does more harm than good

The opening heats of the Law Society of Scotland's annual debating tournament start today, Thursday 25 November at schools across Scotland.

This year's Donald Dewar Memorial Debating Tournament will see 128 teams compete in the first round of heats during the next two weeks. The competition, which was launched in 1998 to celebrate and encourage debating in schools, has grown to become the largest competition of its kind in Scotland.

The tournament, sponsored by Simpson and Marwick solicitors and Hodder Gibson publishers, invites secondary school pupils to pit their wits and powers of persuasion against each other.

This year the teams will examine the merits of the world wide web web when they debate the motion 'This house believes the Internet does more harm than good' in the opening rounds. 64 successful teams will go through to the second stage.

Heather McPhee, education and training development officer at the Law Society of Scotland, said: "I'm delighted the tournament is remaining as popular as ever. The tournament spans the entire country and each year we see new schools opting to take part and test their debating skills.

She added: "The Donald Dewar Debating Tournament gives young people a chance to consider issues relating to them and a voice to express their views and opinions.

"It also helps pupils develop skills and confidence which will help them in all aspects of their lives."

Schools taking part for the first time are marked *

Barrhead High School*, The Berwickshire High School*, Bellshill Academy, Braes High School*, Buckhaven High School*, Clydebank High School*, Denny High School*, Dunblane High School*, Duncanrig Secondary School*, Leith Academy*, Peebles High School*, Oban High School*, Queen Anne High School*, St Ninian's High School*, St Paul's RC Academy*, Tynecastle High School*, High School of Dundee, Strathallan School, Perth High School, Aberdeen Grammar School, Millburn Academy, Glenalmond College, St Joseph's College, Stranraer Academy, Marr College, Belmont Academy, Jedburgh Grammar School, Earlston High School, Wallace High School, The Community School of Auchterarder, McLaren High School, Linlithgow Academy, St Margaret's Academy, Our Lady's High School, Hamilton College, Holy Cross High School, Stewart's Melville College, Craigmount High School, St George's School for Girls, The Glasgow Academy, Dunfermline High School, Madras College, Nairn Academy, Gordonstoun School, Elgin Academy, Perth Academy, Queensferry High School, St Columba's School, Greenock Academy, High School of Glasgow, Dollar Academy, Lenzie Academy, Douglas Academy, Belmont House School, Uddingston Grammar School, Girvan Academy,The Edinburgh Academy, Boroughmuir High School, Fettes College, Edinburgh, The Royal High School, Edinburgh, George Heriot's School, Edinburgh, St Mary's Music School, Edinburgh, Musselburgh Grammar School, George Watson's College, Edinburgh, Grove Academy, Forfar Academy, Inverclyde Academy, Balfron High School, Hutchesons' Grammar, Glasgow, Mearns Castle High School, Newton Mearns, Abronhill High School, Cumbernauld, St Margaret's School for Girls, Banchory Academy, The Gordon Schools, Robert Gordon's College, Aberdeen, Sandwick Junior High, Albyn School, Inverkeithing High, High School of Dundee, High School of Glasgow, Coltness High School, Sgoil Lionacleit, Merchiston Castle School, Mary Erskine School, Preston Lodge High School, Dalkeith High, Bearsden Academy, All Saints RC Secondary School, Holy Cross High School, Portobello High.

BACKGROUND : Damages (Asbestos-related Conditions) (Scotland) Act 2009

Related media coverage HERE, HERE, HERE & HERE

Introductory Text

1.Pleural plaques

(1)Asbestos-related pleural plaques are a personal injury which is not negligible.

(2)Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.

(3)Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.

(4)But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.

2.Pleural thickening and asbestosis

(1)For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused and is not causing impairment of a person's physical condition is a personal injury which is not negligible.

(2)Those conditions are—

(a)asbestos-related pleural thickening; and

(b)asbestosis.

(3)Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.

(4)Any rule of law the effect of which is that such a condition does not constitute actionable harm ceases to apply to the extent it has that effect.

(5)But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.

3.Limitation of actions

(1)This section applies to an action of damages for personal injuries—

(a)in which the damages claimed consist of or include damages in respect of—

(i)asbestos-related pleural plaques; or

(ii)a condition to which section 2 applies; and

(b)which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.

(2)For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.

4.Commencement and retrospective effect

(1)This Act (other than this subsection and section 5) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint.

(2)Sections 1 and 2 are to be treated for all purposes as having always had effect.

(3)But those sections have no effect in relation to—

(a)a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or

(b)legal proceedings which are determined before that date.

5.Short title and Crown application

(1)This Act may be cited as the Damages (Asbestos-related Conditions) (Scotland) Act 2009.

(2)This Act binds the Crown.

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."

Scots legal firm Brodies & Dean of Faculty threaten Parliament over asbestos claims legislation

Legislation designed to allow sufferers of medical illness related to asbestos exposure is to be challenged by the insurers, who have taken on legal representation in the form of Edinburgh legal firm Brodies LLP, and Richard Keen QC, the Dean of the Faculty of Advocates

Peter Cherbi’s “A Diary of Injustice in Scotland” reports the insurers idea is a judicial review against Parliament’s law making powers on this legislation :

Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms

Dean of Faculty Richard Keen QC to fight asbestos claims law. Insurance firms and lawyers who have strong financial relationships with the Government and the Scottish Parliament, have teamed up in an attempt to defeat through the courts, the Damages (Asbestos-Related Conditions) (Scotland) Bill, expected to be passed this week at Holyrood, which will allow victims of asbestos related illnesses to claim compensation from insurers for suffering such conditions as lung scars, which are an indication of exposure to asbestos.

The Edinburgh legal firm of Brodies has been called in by several insurance companies, identified in the Sunday Herald newspaper as AXA, Norwich Union, RSA and Zurich, to mount a judicial review legal challenge to the Damages (Asbestos-Related Conditions) (Scotland) Bill, which goes through Parliament this week. The insurers legal position is that the legislation proposed will allow people to claim compensation who suffer from ailments associated with asbestos exposure, which the insurers currently don't classify as harmful.

Richard Keen as you all know, appeared in the media only a few weeks ago demanding that class actions be allowed in Scotland against banks, however I take it that class actions for the victims of asbestos claims are not included in his thinking at the time.

I wrote a previous article on the Parliamentary hearings, which saw lawyers representing the legal profession attempt to argue that ‘pleural plaques’, a condition which indicates exposure to asbestos, was “good for you”, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Law Society’s insurers threaten Parliament. It is of note that two of those Insurers - Royal Sun Alliance (RSA) and Norwich Union are backers of the Law Society of Scotland's infamously corrupt Master Insurance Policy, which insures every member of the Scots legal profession including the dean of faculty himself, all other advocates, and even the legal firm of Brodies, who themselves have been caught up in claims made by clients against their negligence cover.

You can read more about the Law Society’s Master Insurance Policy here : The Master Insurance Policy, Marsh UK & corrupt practices by insurers of the Scots legal profession

A legal insider who was approached for comment said "It is true that all advocates are part of the Master Policy, although it is generally left to individual advocates to arrange their own Indemnity Insurance cover, albeit through the same firm. It is fair to say the dean of faculty is probably insured by the same insurers now challenging the asbestos claims legislation".

On being asked for his thoughts on revelations the same insurers deal with Government, he said : "It is my understanding that Marsh also arrange insurance cover for many public institutions, including Government. This insurance cover will also be underwritten by many of the same insurance firms who are affected in the asbestos damages bill now before Holyrood."

Scots Govt pays millions to insurers now threatening legal action. The Master Policy, run by Marsh UK, a subsidiary of the US Insurance giant Marsh, which itself has been caught up in insurance fixing scandals, amazingly shares among its clients, the current SNP controlled Scottish Government, which pays out millions of pounds of public money in Professional Indemnity Insurance cover for all Government Departments, many public bodies & quangos, and also the Justice Department's 'goliath' Government Legal Service for Scotland, staffed by 175 seriously well paid lawyers who under Justice Secretary Kenny MacAskill, also get their huge insurance subscriptions paid as expenses perks by the taxpayer.

You can read more about the Government Legal Service for Scotland (GLSS) and exactly what contribution they make to us here : Scottish Government's £10m in-house lawyers make their mark against legal reforms & public access to justice

Scottish Parliament also has links to insurers. Even the Scottish Parliament itself is not immune from associations with the insurers who are now challenging the legislation to help asbestos victims. The 13 lawyers assigned to the Scottish Parliament from the GLSS are also themselves insured by the same insurers who are threatening legal action against Holyrood, and several departments of the Scottish Parliament also allegedly rely on insurance services provided by Marsh UK and the RSA for their own indemnity insurance !

An official from a consumer organisation today who declined to be named said : "One could speculate a great deal on whether such involvement at all levels of government by a single insurance firm, or cartel of insurers, may give rise to the conclusion by some there is an inherent conflict of interest going on, which may lead to ineffective or badly worded legislation being passed, or a general lack of will on the part of politicians to do the right thing for consumers, on the basis they don't want to upset their services provided by the Insurance community."

So, we have a situation where the same insurers who are now threatening legal action against Parliament to prevent asbestos sufferers receiving compensation, are at the same time, receiving millions of pounds in taxpayers money from Government, the Parliament, and many public authorities in Scotland, to ensure protection against financial claims for wrongdoing or negligence in public office. Is that right ? Is this an acceptable state of affairs ?

Is it ethical to pay millions of pounds of taxpayers money to the same insurers who are fighting proposals of reforms in the legislative process which are designed to make life better for those who are suffering fatal illness ?

Let us remind ourselves of the arguments put forward by the insurance companies lawyers in Parliament against asbestos sufferers :

Scots lawyers argue ‘asbestos related illnesses are good for you’ :

From the Sunday Herald :

Insurance giants to challenge new asbestos legislation

Firms will fight move to allow Scottish workers to claim £50m in damages

By Tom Gordon, Scottish Political Editor

BRITAIN'S BIGGEST insurers are planning an unprecedented legal challenge to a new law which would allow Scots workers to sue for asbestos exposure.

Four firms are preparing to seek a judicial review of the legislation, which is expected to pass its final stage at Holyrood on Wednesday with over-whelming cross-party support.

The law is designed to give workers the right to seek compensation for scars on the lung known as pleural plaques, which indicate exposure to asbestos, but which are themselves harmless.

It is understood the Edinburgh law firm Brodies is co-ordinating the judicial review on behalf of AXA, Norwich Union, RSA and Zurich.

The lawyers have already engaged two of Scotland's most formidable advocates to attempt to overturn the law at the Court of Session. Leading will be Richard Keen QC, dean of the Faculty of Advocates, and he will be assisted by Jane Munro.

If successful, the challenge would humiliate the government and dash the hopes of thousands of people negligently exposed to asbestos.

While the average payout would be around £8000 per person, legal costs would be twice as much again, and ministers estimate the total cost to private companies will top £50 million.

Frank Maguire of Thompsons Solicitors, which represents many Scots asbestos victims, said the court would be loath to reverse the will of parliament, especially as it was a clarification of the existing law.

He said: "We have researched all the angles and we are pretty confident that this will be overcome. We believe this judicial review will be defeated."

A spokesman for justice secretary Kenny MacAskill said: "We are entirely confident that this bill is within the legislative powers of the Scottish parliament. There is a moral imperative here that the SNP government in Scotland is acting on, even if Westminster is not. The House of Lords judgment means that people diagnosed with pleural plaques would have to live with the worry of possible future ill health for the rest of their lives, with no recourse to claim damages."

The judicial review will not surprise the Scottish government. During a consultation last year, insurance firms warned the proposed legislation was "wholly wrong", would open the flood-gates to similar dubious damage claims, and ought to be dropped. Some warned of potential legal challenges.

One of the main complaints against the legislation was that it would allow people to sue for a condition that causes them no physical harm: pleural plaques are symptomless, and do not develop into fatal mesothelioma. Allowing people to claim damages for something that hasn't damaged them is perverse and up-ends centuries of case law, critics argued.

But advocates of compensation said people who discover they have plaques suffer psychological stress.

In October 2007, after more than 20 years of people being able to claim compensation for plaques, the House of Lords ruled plaques were too trivial to merit damages. The Westminster government has so far accepted the ruling, but in Scotland asbestos victims persuaded the Scottish government to legislate to restore the "status quo ante", and let workers pursue damages for the condition once more. Wednesday's third-stage vote will see the culmination of that two-year campaign.

Last week, ministers were forced to issue a revised financial memorandum to the Damages (Asbestos-Related Conditions) (Scotland) Bill, after realising it had underestimated the likely cost of compensation.

Settling the backlog against private firms is expected to cost £11.8m to £20m, followed by annual costs of £3.7m-£7m.

Councils also face bills of around £850,000 to settle existing cases, and annual bills of around £500,000.

The Ministry of Defence, which runs the Rosyth Naval Dockyard, and the UK Department for Business, which inherited liability for defunct shipyards, face total costs of around £7m, a bill the UK government could choose to hand back to Edinburgh.

Christine O'Neill, of Brodies, added: "We have been instructed by a number of insurers to look at a challenge."

Insurers out to scare public, parliament over Asbestos compensation payments

Ah the pain of it, paying out … which Insurers are definitely trying to avoid when it comes to Asbestos related compensation claims.

The Herald reports :

Asbestos payments ‘could reach £8bn’

STEWART PATERSON October 14 2008

The cost of compensating people with an asbestos-related chest condition has been significantly underestimated by the Scottish Government, according to insurers.

Ministers had estimated that the cost of compensating those with pleural plaques - scar tissue on the lung commonly caused by occupational exposure to asbestos - would cost £6.5m a year in 2015, and £5.5m the year before.

But the Association of British Insurers (ABI) has claimed that the annual cost could be as much as £607m - with the total bill potentially reaching more than £8bn.

The Scottish Parliament, Justice Committee yesterday published a report on the Damages (Asbestos Related Conditions) Bill, proposed by the Scottish Government to provide compensation to sufferers.

MSPs on the influential committee agree the government may have under estimated the costs, but also believe the insurers figures are a significant over-estimation.

Fergus Ewing, Community Safety Minister, told the committee it would need £17.1m to close existing cases with a further £5.5m needed annually to settle an anticipated 200 cases a year at a cost of £25,000 each. However, the ABI said costs would be far higher.

Many more people will come foreard following the new legislation

It argued: "The Scottish Government has significantly underestimated the level of unjustified costs that the bill will impose on defendant businesses, local authorities and insurers.

"Figures from the UK Government suggest that the annual cost in Scotland would be between £76m and £607m and the total cost between £1.1bn and £8.6bn."

A spokesman for the ABI said it was opposed to the bill on the grounds that you would not need to have suffered to claim compensation, but only to have been exposed. Their argument is based on an assumption that many more people will come forward following the new legislation.

They also agree with the House of Lords judgment that those with pleural plaques do not merit compensation as they have suffered no harm, despite it being an indicator of lung damage and can be a precursor of mesothelioma.

Nick Starling, director of general insurance at the ABI, suggested as many as one in 10 adults could have pleural plaques through exposure to asbestos giving the potential cost of £607m a year.

Dominic Clayden, director of technical claims at Norwich Union, drew parallels with the British Coal pulmonary disease scheme. He said 150,000 claims were expected, but by the scheme's closure there were almost 600,000.

He said: "That happened despite the availability of data that we have in relation to pleural plaques."

However, Thompson's Solicitors who have handled many of the claims in Scotland, said their estimate is 200 a year. Solicitor Frank Maguire said: "That has always been the rate. If the House of Lords decision had not gone the way it did, I have no doubt that the rate would have continued in the coming years." The Scottish Government introduced the bill in June this year, following the Lords' ruling, to ensure people north of the border could continue to make claims.

The Justice Committee recommended support for the bill, but expressed concern about the potential financial implications.

Research has shown that about one-third to one-half of those occupationally exposed to asbestos will have calcified pleural plaques 30 years after first exposure.

Asbestos compensation delays criticised by MP's family

Unjust delays in the payment of compensation for asbestos victims have been criticised by colleagues andf family of the late John MacDougall.

Such delays are enough to make one think the Government is waiting for people to die off so they don’t need to pay any compensation .. and tie up deceased's estates for years over whether such compensation is to be paid after death …

The Herald reports :

MP’s family criticises delay in compensation for asbestos-linked illnesses

DOUGLAS FRASER, Scottish Political Editor August 25 2008

The compensation delays for people facing painful deaths from asbestos-linked diseases have been strongly criticised by those close to John MacDougall, the Glenrothes MP who died while suing the government over his illness.

The Labour MP fell victim earlier this month to mesothelioma, a painful and incurable condition that slowly stops the lungs or heart from functioning. While his death quickly moved on to a debate about his party's risk of losing the seat to the SNP in a by-election, the circumstances still have the capacity to embarrass UK ministers.

Mr MacDougall claimed he contracted the disease while employed in Rosyth naval dockyard. As a teenager, he worked next to men stripping old asbestos insulation from pipes and replacing it with a new coating. This was before it was clear how dangerous even a particle of the material can be if it is breathed in.

At the time, the Rosyth base was owned by the Ministry of Defence, which is why Mr MacDougall was suing the government for compensation, and his widow and family are to pursue the case. His long-time friend and constituency researcher, Scott Brady, was scathing about the delays, while lawyers wrangle over proof of whether the Rosyth was the only place the MP could have ingested asbestos.

That is standard procedure in compensation cases, but it means cases are typically drawn out much longer than the time the victims of mesothelioma have left to live.

Mr Brady said: "It's fundamentally wrong that a court can take longer than the median survival time to come up with a compensation figure. This is an appalling disease. There is no cure. You have no idea the pain that man went through, particularly in the last nine months. A quick resolution would be easier on the family."

A statement from the MoD said: "We have every sympathy with John MacDougall's family. In this case, as in all others, the Ministry of Defence considers claims for compensation on the basis of legal liability. Where there is a proven legal liability to pay compensation, we do so."

Efforts have already been made to improve the compensation process, including the promise that courts will speed their procedures. The law was changed at Holyrood to end the choice previously faced by victims of mesothelioma between a compensation pay-out while they were alive and a bigger sum for their family after their death.

Today, at Holyrood, a legislative effort gets under way to help those who face workplace hazards with employers' criminal liability. SNP back bencher Bill Wilson is sponsoring a bill on the subject and will launch it for public consultation.

MacAskill to unveil legislation entitling Scots to raise asbestos related claims.

Scots Justice Secretary Kenny MacAskill is apparently to unveil new legislation at the Scottish Parliament which will allow anyone in Scotland to raise legal actions if they are suffering from asbestos related illnesses.

There are a few situations of lack of legislation on claims which could do with new bills in Parliament, Mr Justice Secretary …

Scotland on Sunday reports :

Bill will open way to cash claims for asbestos victims

By Eddie Barnes
Political Editor

JUSTICE Secretary Kenny MacAskill is to unveil a new bill at Holyrood which will entitle anyone in Scotland to raise an action if they contracted an asbestos-related condition called pleural plaques, a scarring of the lungs.

But the move is set to trigger a row with insurers this week as it will effectively overturn a ruling preventing workers claiming millions of pounds of compensation for the condition.

The ruling will help hundreds of men – mostly former workers in shipyards – who suffer from diseases such as mesothelioma, a condition which people with pleural plaques are prone to catch.

The Lords ruled last year that former workers with pleural plaques were not entitled to compensation because the condition itself is not a disease.

But MacAskill's decision has infuriated insurers, who claim that, as pleural plaques does not itself cause any harm, there should not be any compensation – levels of which could reach millions of pounds.

Industry sources are also warning that the move could set a precedent for anyone with a condition to claim compensation even if it does not directly cause any harm. They point out that they do already compensate people with pleural plaques who then go on to contract a more serious condition.

However, the move will be met with delight by campaigners for the Clyde shipyard workers, opening up the possibility that they will be able to claim several million pounds in compensation.

Glasgow lawyer Frank Maguire claims to have 600 clients who have contracted the condition who, he says, will all lodge claims for damages. Sufferers could be entitled to around £15,000 each in compensation, a possible total of £9m.

Maguire insists that pleural plaques is just the "calling card" for more serious conditions and that people who have it should therefore be compensated.

A Scottish Government spokesman confirmed that the plans would be unveiled this week. He said: "The Justice Secretary has already made clear the Scottish Government's determination to reverse the House of Lords judgement and ensure that people with pleural plaques can continue to raise an action for damages."

He went on: "It is right that those who suffer the effects of asbestos as a result of our industrial past are able to claim for damages and we will introduce a bill before recess as we promised to right this wrong."

However, an insurance industry source said: "Everyone agrees that people with serious asbestos-related illnesses like mesothelioma should be compensated as quickly as possible. Insurers do this. But the medical community, and the House of Lords, agree that pleural plaques are symptomless, cause no harm to those who have them and do not lead to the development of any other asbestos-related medical conditions.

"By pursuing this bill on a point of principle Kenny MacAskill risks damaging Scotland's financial services competitiveness – in direct contrast to the reassurance of Alex Salmond and John Swinney during Global Financial Services Week less than a month ago. The Government should rethink their approach."

The Holyrood bill will put Gordon Brown under massive pressure to now follow suit at Westminster.

The bill is certain to pass as it is backed by both Labour and the Liberal Democrats in the Scottish Parliament.

Law change call after Asbestos compensation ruling

Asbestos victims, campaigners and some politicians are calling for law changes after the Law Lords ruling on asbestos compensation.

The Herald reports :

Call for change in law after asbestos cash ruling

STEWART PATERSON

Asbestos disease sufferers and campaigners are calling on the Scottish Government to change the law to ensure a House of Lords ruling denying compensation for thousands will not apply in Scotland.

Yesterday it was ruled that sufferers of pleural plaques are not entitled to receive compensation, ruling in favour of insurance firms in five test cases. The judgment has angered sufferers in Scotland who have been diagnosed with the condition, which can develop into the cancer mesothelioma.

The right to compensation had existed for 20 years until it was removed by a ruling in January last year. Yesterday, the Lords rejected an appeal by union Unite against the decision.

Campaigners, lawyers, sufferers and MSPs united yesterday to condemn the ruling and demand action from the Scottish Government. Derek Simpson, joint general secretary of Unite, said: "This is a harsh decision which will affect thousands of people with pleural plaques now and in the future."

Frank Maguire, solicitor advocate with Thompsons solicitors, deals with hundreds of asbestos-related cases.

He said: "This judgment will only diminish respect for the law by showing how it can be divorced from reality.

"Employers who recklessly exposed their workers, and insurance companies desperate to avoid paying out, have successfully argued that someone with asbestos in their lungs and at risk of getting a terminal disease has suffered no harm and has no claim. That is patently nonsense.

"I urge the Scottish Parliament to ensure the victims' rights are recognised and the companies brought to account."

Agnes Dickson, 65, from East Kilbride, was diagnosed with pleural plaques earlier this year. Her husband Jim, 66, and brother Gordon McEwan are also sufferers.

This harsh decision will hit thousands of people now and in the future

Her other brother, Robert McEwan, has mesothelioma after working on oil rigs.

Mrs Dickson said: "When I was a teenager, 40 to 50 years ago, my uncle lodged with my family and he worked for an asbestos firm. He came home each night covered in dust and my mother and I would shake his overalls in the garden.

"I spent my working life in an office so it is the only connection I am aware of. My brother, Gordon, did not work with asbestos either. I was pursuing a case against my uncle's then-employers Cape Board and Panels, until the ruling yesterday.

"I will continue to fight. I feel physically fine at the moment but I know it can develop into mesothelioma and I see my brother Robert suffering badly and I worry that I will not see my grandchildren grow up."

Labour MSP Bill Butler said: "Labour would definitely support legislation, if that is the only way to solve the problem. I hope the new administration and all other parties would also give their support."

Bill Kidd, SNP MSP, said: "I think it is ridiculous in the extreme to treat people who have contributed so much in such an appalling manner.

"If we need to legislate I would be very much in favour."

Harry McCluskey, secretary of Clydeside Action on Asbestos, said: "The judgment has gone in favour of insurance firms and employers and against the workers who have to live with the condition with the appalling fear that it could develop into mesothelioma."

A spokesman for the Scottish Government said: "This government is currently examining the position in light of the judgment and will consider what implications, if any, it has for Scotland."