Saturday, January 09, 2010

Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

richard keen qcInsurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates. Some good news to start 2010 as Scottish judge Lord Emslie yesterday threw out the Insurance companies legal challenge against the Damages (Asbestos-related Conditions) (Scotland) Act, which was voted through by MSPs in 2009 after Law Lords in England & Wales ruled against compensating people who had developed ‘pleural plaques’, as a result of exposure to asbestos.

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP, but the big name legal team proved the big failure most people hoped for.

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.”

Lord Emslie concluded : “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come. But for all of the foregoing reasons I am unable to accept that the petitioners' complaints, either individually or collectively, come anywhere near the standard of "irrationality" which would be necessary in order to invalidate a primary Act of the Scottish Parliament. Whether that standard is, on comparative lines, to be derived from the Nottinghamshire and Hammersmith decisions in the House of Lords (as suggested in chapter IV of this opinion), or simply from traditional concepts of Wednesbury unreasonableness as judicially explained, is to my mind immaterial for present purposes. The petitioners plainly fail on either approach, and their common law challenge to the 2009 Act is therefore rejected.

I have previously reported on the Insurers legal challenge, where initially, they hoped the threat alone of a legal challenge against the Scottish Government’s proposed Asbestos Damages Bill would have been enough to scupper its success : Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms.

However, after the Bill was passed by the Scottish Parliament and became law, the threat became a legal challenge, which I reported on earlier, here : 'Money must come before life' as insurers & lawyers launch legal challenge against Scotland's asbestos compensation law

Let us remind ourselves again just how low some people in the legal profession will go to argue against a person’s health & wellbeing, where indeed, pleural plaques from asbestos exposure are most certainly NOT good for you, despite some lawyers feeling they are (presumably because their big moneyed insurance clients said so).

Dr Pamela Abernethy (lawyer, Simpson & Marwick WS, Edinburgh) - Asbestos related Pleural Plaques 'are good'

and the rest of that shocking episode here :

For further coverage, the Herald newspaper as always, excellently reports Lord Emslie’s commendable ruling :

Insurance giants defeated over asbestos damages law

heraldscotland staff

Insurance firms have lost a legal bid to overturn a new law which allows victims of an asbestos-related condition to claim damages.

Some of the biggest names in the insurance industry had challenged the law which came into force in Scotland last June.

But Court of Session judge Lord Emslie rejected their legal challenge.

His written ruling concluded: "There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come."

But the judge said he does not accept that the insurers' complaints come anywhere near the standard of "irrationality" needed to invalidate an Act of the Scottish Parliament.

The legal battle centred on a condition known as “pleural plaques”, which are changes in the layers of tissue which lie between the lungs.

The changes can be caused by past exposure to asbestos but have no symptoms or ill-effects and are not considered a disease in their own right.

The new law in Scotland was intended to reverse the effect of a landmark House of Lords ruling that people with pleural plaques could not seek compensation.

But insurers opposed the move, and the action to overturn the new law was raised by Axa, Norwich Union, Royal & Sun Alliance and Zurich Insurance.

When the legislation was going through Holyrood insurers argued that the new law ignored medical opinion and underestimated the cost of potential claims.

At the start of the court battle in May last year they argued the new law broke the essential legal principle of “proof of damage” and resulted from an “unreasonable, irrational and arbitrary” exercise by legislators.

The insurance companies argued that the law breaks European Convention on Human Rights provisions on property rights and unreasonable legal interference, that it will benefit a small group of people who had suffered no legal harm and that it will cost insurers hundreds of millions of pounds, or more, by retrospectively changing insurance contracts.

But their challenge was contested by Scottish ministers and by some people with pleural plaques.

They argued the insurers’ challenge was wrong in law, and that it did not fall within the permitted grounds of challenge to Holyrood legislation set out in the Scotland Act.

They also argued that it was the place of insurers to launch the challenge, as the damages claims would actually be brought against negligent former employers and the insurers would be affected only indirectly.

In his ruling Lord Emslie upheld two of the insurers’ legal arguments: on whether they had a close enough connection to mount a legal challenge, and on whether to challenge an Act of the Scottish Parliament on common law grounds of “irrationality” is valid.

But he still rejected the overall challenge.

Labour MSPs welcomed the ruling.

Member for North East Scotland Richard Baker said: “This is the right judgment and reflects the fact that this move by insurance companies to overturn the will of the Scottish Parliament was both unfounded and unjust.

“Most importantly this is good news for all those in Scotland who have had to suffer the trauma of being told they have pleural plaques and will now be able to pursue damages as they were previously able to do so.”

Asbestos campaigners welcomed the ruling.

Their lawyers called on the insurance industry to accept defeat and pay up.

Solicitor-advocate Frank Maguire said: “This judgment states categorically that the Scottish Parliament was perfectly within its rights to pass this law and that is tremendous news for pleural plaques sufferers.

“We have almost 1,000 pleural plaques cases which have been in limbo while the insurance industry pursued this ill-fated legal action.

“I now call on them to stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.”

Mr Maguire said many insurance companies not involved in the court battle, as well as the Ministry of Defence and British Shipbuilders, had been holding back on settling pleural plaques cases.

“They also should now meet their obligations and pay up,” he said.

“The Westminster Government should now enact similar legislation for the rest of the UK.”

Harold McCluskey, chairman of Clydebank Action On Asbestos, said: “This is great news for the victims of pleural plaques.

“It is absolute rubbish to say that pleural plaques doesn’t affect victims. It’s as dangerous as any other asbestos-related disease.

“Most sufferers have some form of breathlessness but the biggest strain is the worry of developing into fatal conditions like mesothelioma which happens with frightening regularity.”

Former shipyard worker Dan O’Malley, 71, from Paisley, said: “I’m delighted the judge has ruled that the Scottish Parliament was right to pass this law.

“I was diagnosed with pleural plaques after suffering breathlessness and a persistent cough. I had all sorts of x-rays and finally a CT scan before pleural plaques was confirmed.

“Now it preys on my mind all the time especially since a very close friend of mine who had pleural plaques died of mesothelioma last year.”

28 comments:

Anonymous said...

Dr Pamela Abernethy (lawyer, Simpson & Marwick WS, Edinburgh) - Asbestos related Pleural Plaques 'are good'.

Legal privilidge is a wonderful thing Dr Abernethy, it allows expert witnesses to lie in court, and why should doctors, or lawyers care about the truth. If you like the sheriff are insured by the same company the litigation is against, it is in your vested interest to cover everything up.

Dr Abernethy knows that medical evidence is always in the favour of the company being sued. It is her job to cover everything up to protect the insurers. I hope and pray it costs the insurers billions of pounds. From my own experience of the medical and legal professions, they are the most crooked professions on our planet.

If pleural plaques, are good Dr Abernethy, I suggest you sit in an asbestos filled room and try some.

Anonymous said...

Abernethy served her fee paying clients very well and would probably argue black is white if paid to do so

I also am glad they lost hahaha although I bet the robbing bastards will make all insurance customers pay for it as usual

Anonymous said...

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance.

Good evening Peter, I hope, they have to pay millions in damages. My Lawyer and employer were insured by Royal Sun Alliance and the lawyer covered up my injuries. Royal Sun Alliance said my workplace was risk assessed, but the company blocked an ergonomics expert and my Ross Harper lawyer did not challenge this? He was working with my employer, not against them. If I had known he was insured by the same company I was suing I would have known far earlier my injuries would be covered up. I still have my documents, the Ross Harper lawyer I had was against me, he left too many things undone which would have put great pressure on my employer. In other words he made things easy for my employer.

I pray to god that these evil ruthless insurance companies have to pay out millions. I have been offered critical illness cover many times and refused. You only have to watch Watchdog, or read some papers to know they NEVER PAY OUT, unless their names are splattered all over the television.

So asbestos sufferers, I have every sympathy with you but remember, Scotland's 10,000 lawyers are insured by Royal Sun Alliance, through the infamously criminal Law Society of Scotland's Master Policy. If they act for you, and you are trying to sue Royal Sun Alliance, you may obtain zero damages.

Anonymous said...

Insurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates.

Well Richard you were keen (no pun intended on such a serious matter as this) to stop people being awarded damages. I am delighted you have failed, and I hope your insurance giant clients pay millions in damages. Poetic justice.

Anonymous said...

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP, but the big name legal team proved the big failure most people hoped for.

Is Brodies not the Edinburgh Firm who Stuart Usher of sacl/info sits outside their offices with accusations of corruption and the lawyers do nothing about it. They are clearly unable to clear their name. Good on Mr Usher.

I am delighted for the asbestos victims these lawyers overseen by Keen have failed. Lord Emslie made the correct decision.

Anonymous said...

Hi Peter,

I just want to say I think you are doing a fantastic job. There are many people on your side. It is a bit late but happy new year and I wish you are your family good health.

Anonymous said...

Brodies LLP Website

Services

Brodies provides a very comprehensive range of legal services to many of the country’s best known corporate and financial institutions as well as to a range of government departments‚ public authorities and private business clients.

We keep close to our clients and develop our legal service offerings in line with the needs of their businesses.

At all times we are driven to be innovative in terms of the advice we provide‚ the service we deliver and the fee structures we offer.

We place great emphasis on getting our working relationships with clients absolutely right. And we have significant experience in partnering arrangements with clients where we work very effectively as an integral part of their in-house team.
===================================
With this ruling Brodies, the insurers will be furious at you.

Anonymous said...

ANOTHER CHAP WHO THOUGHT HE WAS INVINCIBLE.

Saturday, December 22, 2007
Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.

Negligent or crooked lawyers in Scotland can be thankful for at least two weapons in their defence against complaints when a client realises they were ripped off.

The first weapon in a dishonest lawyers arsenal against such a complaint, would be the Law Society of Scotland, the legal profession's well known self regulator of complaints against solicitors, who act only as a control point to ensure their members are unaffected by even the largest client frauds, poorest levels of service, and in some cases, criminal charges.

The second, perhaps more sinister weapon a crooked lawyer can always seem to rely upon, no matter how crooked they are, is, Douglas Mill, the Law Society's very own Chief Executive of now more than ten years.

Douglas Mill - The face of the Law Society's hate, rage & intervention against client complaints & claims against crooked lawyers

Douglas Mill, a man who last year threatened both the Scottish Executive & Scottish Parliament that if it did not do as he said, he would take it to court on his own insistence that it was a lawyers 'human right' under ECHR to regulate & control complaints against legal colleagues, has a long and consistent record of intervening in complaints and financial claims made against fellow solicitors, with the sole determination to prevent success at all costs.
===================================
It is a clients human right to have access to prosecuting crooked lawyers just like you Mr Mill, who abused your position to protect your criminal colleagues. Then Glasgow University offer you a job, Christ what were they thinking of?

Anonymous said...

Clearly the people who would put money above life have lost, and I am thrilled for the people with plural plaques. It is time they were given their compensation.

I will now sign off and listen to some Chopin. Great result Peter.

Anonymous said...

WELL FOLKS THE SAME BRODIES LLP WHO ROBBED THE USHER FAMILY DEFENDED THE INSURERS WHO DO NOT WANT TO PAY THE ASBESTOS VICTIMS THEIR DAMAGES. THE FOLLOWING IS FROM THE SCOTLAND AGAINST CROOKED LAWYERS WEBSITE www.sacl/info

"For many years Brodies Solicitors LLP, of Atholl Crescent, Edinburgh have appeared in SACL’s online Rogues' Gallery of crooked Scottish law firms. They have also featured prominently in our legendary SACL Flyers, which are distributed throughout Scotland, in their tens of thousands, every month. These monthly flyers are hand-delivered to every MSP and have also made their way into the private bags of QC's and Advocates at the Court of Session. Further hundreds of thousands of images of large posters, being held by Stuart Usher, accusing Brodies of being Crooks and Fraudsters have appeared in the Scottish Media. The same posters and placards also appeared in a Channel Four documentary: ‘The House of Usher’.

Throughout the documentary Stuart Usher can be seen quite clearly holding these posters and placards. All of this poses a big question: Why on earth have Brodies not sued either Usher and/or SACL for defamation? The answer is obvious, namely: Brodies LLP are indeed Crooks and Fraudsters and stand correctly accused".

SO IF YOU NEED LEGAL REPRESENTATION AVOID THESE PEOPLE LIKE THE PLAGUE. MR USHER IS DOING THE RIGHT THING, HE CLEARLY HAS RIGHT ON HIS SIDE OR HE WOULD HAVE BEEN SUED FOR DEFAMATION BY NOW.

BRODIES ALSO CHANGED THEIR PARTNERSHIP SETUP, SO THAT ONLY A FEW, NOT ALL OF THE FIRMS PARTNERS COULD BE SUED. THEY ARE TRYING TO LIMIT THE FIRMS LIABILITY, BECAUSE THEY ARE GUILTY OF THE ALLEGATIONS MR USHER HAS MADE.

Anonymous said...

Solicitor-advocate Frank Maguire said: “This judgment states categorically that the Scottish Parliament was perfectly within its rights to pass this law and that is tremendous news for pleural plaques sufferers.

“We have almost 1,000 pleural plaques cases which have been in limbo while the insurance industry pursued this ill-fated legal action.

“I now call on them to stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.”

Mr Maguire said many insurance companies not involved in the court battle, as well as the Ministry of Defence and British Shipbuilders, had been holding back on settling pleural plaques cases.

“They also should now meet their obligations and pay up,” he said.

Yes Mr Maguire they should pay up, there must be something in law to prevent them from stalling, and I hope the law is used to pay victims as soon as practicable.

Anonymous said...

how that doctor sat there and said all that to the parliament is beyond me

truly evil

Anonymous said...

When do we get to hear that CANCER is good for you next ?

Maybe she could get a job at a hospital turning everyone away telling them their injury or medical ailment is actually GOOD for them and should not be treated thus saving lots of lovely nhs money that can be paid to lawyers like her instead of dishing out the bandages or doing the hip replacements

Anonymous said...

Insurance companies have bottomless pockets, expect an appeal - supported by S&M.

Anonymous said...

If Simpson Marwick went to all that trouble arguing the insurers case at the parly why did the insurers use Brodies in court ?

Anonymous said...

Frank Maguire said:“I now call on them to stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.”

rent-a-quote Maquire at it again

has anyone bothered to question why Thompsons are sitting on 1000's of comp cases for years on end ?

Would anyone like to guess at the fees this lot are raking in for this ?

Anonymous said...

Lord Emslie, I am not trained in Law but some of the best legal minds have tried to stop damages being awarded. You have restored my faith in the legal profession by a tiny amount, and I am not being sarcastic. It is wonderful to see that those with great power, (and you are one of those people) do not always get the result they are paid to get. It is alright for Mr Keen or Dr Abernethy, they do not struggle for breath.

Anonymous said...

Anonymous said...

how that doctor sat there and said all that to the parliament is beyond me.
-------------------------------------
This comment interested me. In court consultant physicians have legal privilidge if they are appearing as expert witnesses. This means (please correct me Dr Abernethy if I am wrong) they can give their opinion without risk of prosecution.

If we consider Sally Clark, who was a lawyer, Anita Patel, and Angela Cannings the expert witness Professor Sir Roy Meadow, in their cases provided evidence that resulted in the three women being jailed for murdering their children. Now I detest lawyers, but not Sally Clark, she was an innocent woman, as were the others.

So legal privilidge lets a doctor say within reason what they want. Doctors who act for insurance companies will distort the facts, "Plural plaques are good" but the same woman would never expose her own lungs to the asbestos the victims were exposed to. Immunity from prosecution for medical opinion is why "pleural plaques are good". She would not get sued anyway, because her opinion is sacrosanct even though she knows she is distorting the truth to protect her clients.

Anonymous said...

Dr Abernethy would say Xyklon B was good for people if it saved her client money.

Doctors are the caring profession? I do not think so.

Anonymous said...

Doctor who hacked into Prime Minister's health records escapes prosecution

Jan 10 2010 Norman Silvester, Sunday Mail

A DOCTOR who hacked into the health records of Gordon Brown and Alex Salmond will not be prosecuted, we can reveal today.

Andrew Jamieson sparked a security alert after breaking into confidential computer files on the PM and First Minister and a series of other high-profile Scots.

Former Labour leader Jack McConnell and his wife Bridget had their sensitive files viewed.

BBC newsreader Jackie Bird and Old Firm stars were among other victims.

We told in March how Jamieson, who worked at the Queen Margaret Hospital in Dunfermline, was charged and appeared on petition at Dunfermline Sheriff Court.

Now all the victims have been told there will be no trial as the Crown say that is not in the public interest (WHY IS A DISHONEST DOCTOR NOT IN THE PUBLIC INTEREST, IT IS A GREEN LIGHT TO OTHERS) - even though there is enough evidence to prosecute.

It is understood the doctor also has ongoing health problems. (OF COURSE HE WILL BE SEEING A PSYCHIATRIST, ALL CROOKED PROFESSIONALS HAVE MENTAL HEALTH PROBLEMS.)

Jamieson claims he only looked at the files out of curiosity and did not pass on the information or use it for any financial gain.

But he could face disciplinary action from his regulatory body the General Medical Council. (CORUPT REGULATOR).

Every victim got a letter from Mark McGuire, acting principal depute at the Crown Office, last week explaining the reasons for dropping the charges.

The Crown Office said: "After full consideration of all the facts and circumstances, including confidential medical reports,(MEDICAL REPORTS FROM DOCTORS ABOUT A DOCTOR) Crown Counsel has decided that no proceedings should be taken in relation to this matter."

A Crown Office source added: "There was enough evidence to prosecute Jamieson. (WELL YOU DO NOT PROSECUTE LAWYER CRIMINALITY EITHER, OR DOCTORS).

Anonymous said...

Sorry to burst everyone's bubble about Thompsons but a friend of mine took a negligence case to them and they refused to represent him.Reason being it was against a doctor and a lawyer so dont believe all that rubbish they are great because they are not !

Anonymous said...

Anonymous said...

Sorry to burst everyone's bubble about Thompsons but a friend of mine took a negligence case to them and they refused to represent him. Reason being it was against a doctor and a lawyer so dont believe all that rubbish they are great because they are not !
===================================
I totally agree, and the doctor and the lawyer would have been insured by the same company Royal Sun Alliance, so Thompson would have been suing their own insurers. How is that for blocking access to justice. The system is designed to self protect, that is why poor legal service in the norm.

I have been there, ask any lawyer to sue another lawyer and their demeanour changes instantly.

Anonymous said...

Anonymous said...

Sorry to burst everyone's bubble about Thompsons but a friend of mine took a negligence case to them and they refused to represent him.Reason being it was against a doctor and a lawyer so dont believe all that rubbish they are great because they are not !

LAWYERS ONLY TAKE CASES THAT DO NOT HURT LAWYERS, A LEGAL CLOSED SHOP, OR NETWORK OF CROOKS WHO ARE AGAINST ANY MEMBER OF THE PUBLIC WHO WANTS JUSTICE AGAINST A CROOKED LAWYER. THIS IS WHY ALL LAWYERS ARE CRIMINALS.

Anonymous said...

I'm an English, not a Scots lawyer; but we have a few things in common.

First, lawyers are not to be judged by the clients they act for; even the guy in the black hat is entitled to a lawyer.

And second, while the ruling about pleural plaques is good news and I hope we get similar legislation in England: it's no good attackign the insurers because it will raise premiums. Of course it will. That is what insurance is about. Welcome to the real world.

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