Monday, June 20, 2011

Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers

sgspInsurers challenge over asbestos compensation law may provoke new rift over Supreme Court powers say experts. A NEW RIFT between the Scottish Government & the UK Supreme Court over the extent of the London based court’s powers to affect Scottish cases & law making powers may come in the next few weeks (as reported in the Sunday Herald : Hammer of the Scots) if a ruling in the latest stage of the Insurers challenge against the Damages (Asbestos-related  Conditions) (Scotland) Act 2009, now before the Supreme Court, goes against the Scottish Parliament’s ‘honourably intended’ law to allow victims of asbestos contamination in Scotland who have developed the condition known as PLEURAL PLAQUES to receive compensation after a 2007 House of Lords ruling in the Insurance companies favour ended the right to compensation for pleural plaques across the UK.

The Insurance companies took issue with the Scottish Government’s introduction of legislation in the Scottish Parliament to reverse the House of Lords decision, lobbying against its passage through the Scottish Parliament and then unsuccessfully fighting to have it overturned in the Scottish Courts. This latest challenge by the Insurers to have the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 overturned on Human Rights (ECHR) grounds or on common law grounds, asks the Supreme Court :

(1) Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (“the 2009 Act”) infringes the appellant insurance companies’ right under Article 1 of Protocol 1 of the European Convention on Human Rights and is thereby outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 (“the 1998 Act”);
(2) Whether the Court of Session as part of its supervisory jurisdiction may review and reduce legislation passed by the Scottish Parliament on grounds other than those set out in the 1998 Act;
(3) If such review is available, whether the 2009 Act is invalid on irrationality grounds.

The ruling from the Supreme Court, expected in August will be interesting in that even if its judges find the Scottish 2009 act competent in terms of ECHR legislation and find no breeches of the insurance companies rights under Article 1, the Supreme Court may be put in a position on ruling whether the 2009 Damages Act, or indeed any legislation passed by the Scottish Parliament can be challenged under common law, a nightmare scenario which is bound to stir up more controversial comments about the Supreme Court’s role by Scottish politicians and the First Minister when the Supreme Court eventually makes known its decision in the case.

More information on the bitter, costly battle over the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 was revealed today in a response to  a Freedom of Information request to the Scottish Government who have revealed a massive £341,857.79 of public funds have been spent on legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. The cost to taxpayers is likely to rise whatever the outcome, especially if the UK Supreme Court rules in the Insurance companies favour.

I reported earlier on the Insurers failure to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 HERE, the first hearing of the case in the Court of Session’s Outer House (Lord Emslie’s 2010 dismissal of the Insurers case) and the second challenge in the Inner House (Lord Hamilton’s dismissal of the reclaiming motion).

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented at the Court of Session by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP. However, the big name legal team proved to be the big failure in the Scottish Courts which most people had hoped for and the Insurers failed to have the 2009 act of the Scottish Parliament struck down.

The Judiciary of Scotland website reported on the Lord President's final ruling of earlier this year, stating : The First Division of the Court of Session has issued its judgment in the above case, in which the petitioning insurers (AXA and Others) challenge the lawfulness of an Act of the Scottish Parliament – the Damages (Asbestos-related Conditions) (Scotland) Act 2009.  That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is not negligible and is therefore actionable under Scots law.  This statutory provision in effect reverses, for Scotland, the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd.

The challenge was on two bases:  first, that the legislation was unlawful at common law and, secondly, that it infringed the insurers’ property rights under Article 1 of Protocol 1 to the European Convention of Human Rights.  The court has rejected the challenge at common law.  As to the challenge based on the Convention rights, it has held that the insurers’ rights are interfered with, but that in the whole circumstances that interference was justified.  It has, accordingly, rejected the challenge also on that ground.

The passage of the asbestos compensation laws at Holyrood during 2008 saw legal representatives for the Insurers tell MSPs at the Justice Committee that Pleural Plaques, an asbestos related condition “were good for you”, a statement widely reported in the media along with VIDEO FOOTAGE from the Scottish Parliament.

Dr Pamela Abernethy of Edinburgh law firm Simpson & Marwick & the Forum of Insurance Lawyers told MSPs : ‘plaques are a good thing'


Asked for comment on the Insurers Supreme Court challenge to widely supported & what many regard as a positive piece of legislation from the Scottish Government & Scottish Parliament, a Scottish Government spokesman said: "The Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, offering comfort to people with pleural plaques that they can claim compensation for the condition. The Act was found to be legal by the the Court of Session and has now been referred to the UK Supreme Court.”

The spokesperson continued : “Given that the case is currently live, it would be inappropriate to comment further."

Should the UK Supreme Court be able to rule on the eligibility of the Scottish Parliament to make legislation particularly when the vested interests of big business with easy access to legal teams and never ending finance can buy access to justice and possible changes to Scots law when others cannot ? One thing is for sure, if it does, we can expect a barrage of criticism from all quarters against its authority.

Here we certainly have a case which may prove to some there is no clear cut position on whether the Supreme Court is good or bad for Scotland in its current format .. and indeed, some may be left wondering whether the Human Rights of big business to keep its profits instead of paying out compensation to victims is indeed, a human rights issue or not.

Personally, I can think of a few other Human Rights cases in Scotland more deserving of the courts time, but then again, the people I am thinking of have little or no access to legal representation … unlike the Insurers who have.

My previous coverage of the Scottish Government’s 2009 asbestos compensation legislation is here : Damages (Asbestos-related Conditions) (Scotland) Act 2009 - The story so far


Anonymous said...

Who insures the judges and the Supreme Court I wonder?

Anonymous said...

Well if this goes through and the insurers win I think the whole justice system is bloody well rotten to the core so there

Anonymous said...

Bring it on is what I would say - this is a sure fire vote winner for the SNP!

Anonymous said...

Asbestos is good for you?
Why dont they try it and see?

Anonymous said...

What's the problem?
If an English court throws it out just legislate again and make them go through the whole process once more just to show how anti Scottish they really are!

Anonymous said...

The £341,857.79 could have been better spent so I hope the insurers are made to pay all this back.Disgusting mess as usual.

Anonymous said...

You have to admit Peter this seems far too well timed to be an accident.Could it be Mr Salmond wants yet another fight with the Supreme Court?

Anonymous said...

What about control orders?
They originated at Westminster yet were struck down by a court and so the Scottish Parliament is no different.If it makes a bad law it should expect and even deserve to face a challenge at some point regardless of the subject covered.

Anonymous said...

Thanks.I dont think I've ever hear anything so stupid in my life as in that video clip.
Its all down to money and screw anyone suffering from asbestos this is plain to see.

Anonymous said...

Some lawyer sits in front of a committee and says that you just know they feel strong enough to say it so why is anyone surprised the Supreme Court is being used by lawyers to undermine Scotland once again?
Maybe we should have taken Peter's advice long ago and rounded on the Law Society instead of letting them tell us what to do!

Peter Cherbi said...

Thanks for your comments & emails on this article.

Several comments have not been published due to their strength, however the sentiments are noted and, given the suffering of those who contracted asbestos related illnesses, I'm sure many feel the same way about the 'conduct' of some in this matter ...

I'm sure there will be more to report on this story in the near future ...

Anonymous said...

In the Herald story you link to I dont see much concern from Salmond for the asbestos victims just a lot of anger about London v Edinburgh again!

Hammer of the Scots 19 Jun 2011

THE insults flew thick and fast after Alex Salmond’s remarkable interview on the UK Supreme Court appeared in Holyrood magazine last week.

The First Minister’s attack on the court’s role in Scottish criminal law, such as its recent quashing of Nat Fraser’s murder conviction on human rights grounds, was not a surprise. Salmond has been livid with the court and its politically awkward decisions for months.

The so-called Cadder ruling last October – that suspects are entitled to a lawyer during a police interview – threw the Scottish legal system into turmoil and collapsed hundreds of cases.

So Salmond sounding off was par for the course. But what was unexpected, and what took the row between the SNP and the legal establishment to a new level, was the way Salmond personalised the issue, repeatedly citing the Supreme Court’s deputy, the eminent Scottish judge Lord Hope, for “extreme” decisions which helped “vile” people.

Salmond also fulminated against the human rights lawyer Professor Tony Kelly, accusing him of trawling prison cells for clients in compensation cases, prompting Kelly to consult his own lawyers about suing Salmond for defamation.

To Salmond’s political foes it was a juvenile rant which demeaned the office of First Minister.

The Faculty of Advocates and the Law Society of Scotland also condemned him for undermining judicial independence and “the rule of law”.

Salmond refused to apologise for any of it.

Anonymous said...

Part 2

But the Sunday Herald can reveal the present row may be just a warm-up act to a far bigger constitutional battle. For while MSPs were getting in a lather over Salmond’s street-fighting style, the Supreme Court was last week being asked to kill off an entire act of the Scottish Parliament.

Over three days, QCs acting for Britain’s biggest insurers argued a 2009 Act allowing people to sue for asbestos exposure should be struck down.

They claimed it was “irrational” at common law, and breached the insurers’ right to property under the European Convention on Human Rights (ECHR).

In other words, the law threatened to deprive the insurers arbitrarily of millions of pounds, as they would ultimately pay out on compensation claims lodged against employers by asbestos workers.

The insurers – Axa, Zurich, Aviva and Royal & Sun Alliance – had already been rebuffed twice by Scottish civil appeal courts, so were in the Supreme Court for a last roll of the dice.

The verdict is due in late August.

If the Court’s seven justices, including the Scots Lord Hope and Lord Reed, rule in favour of the insurers it means a constitutional crisis.

The Court has only ruled on one similar case – on whether Holyrood exceeded its powers by changing sentences for traffic violations – when it voted three-two for Holyrood’s position.

This time the stakes are far higher. Not only is a whole act of parliament involved, thousands of people exposed to asbestos are waiting on the ruling to see if they can sue negligent employers.

The power struggle between Edinburgh and London, and the emotional punch of the cases involved, would create a perfect political storm.

Anonymous said...

Part 3

And if the court does set aside the act, Salmond would not be alone in his anger.

The law in question, the 2009 Damages (Asbestos-related Conditions) (Scotland) Act, had broad cross-party support at Holyrood.

It allows people to sue for damages if they have scars on their lungs known as pleural plaques. Plaques indicate exposure to asbestos but aren’t harmful in their own right – they’re generally symptomless and don’t contribute to or mutate into asbestosis, lung cancer or mesothelioma.

In 2007, the House of Lords ruled insurers no longer had to pay damages for them, as they caused no physical harm.

The Holyrood act restored the right to sue for plaques on the ground they caused psychological harm, as people with them knew they had been exposed to asbestos and worse might follow. Justice Secretary Kenny MacAskill said it was the law he was most proud of passing.

MSPs of all parties would be horrified at devolved law-making being overturned by unelected judges, especially as acts passed by Westminster, as the national parliament, are essentially off limits to the Supreme Court.

Salmond told the Sunday Herald in an interview before the election which is published for the first time today that if the judges threw out the Holyrood act it ‘‘would indicate the Supreme Court has embarked on undermining the Scottish judicial system”.

He added: “We restored the position to what was thought to be the legal position before the Lords judgment, and that’s now been tested twice in the Court of Session. I think it would be an altogether undesirable thing for the Supreme Court to countermand the highest court in Scotland yet again. People may start to ask, ‘Is this the purpose of the Supreme Court?’”

Constitutional expert Alan Trench, author of the Devolution Matters blog, said: “If the statute were held to be irrational or unlawful, it would be a crisis no matter who was in office – but in the present climate, one would expect the First Minister and SNP to make the most of it.”

But even if the court says this particular act is competent and ECHR-compliant, it was also asked if Holyrood laws can be challenged under common law, which could have huge consequences for future legislation.

The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, or breach European law or violate the ECHR.

If the Supreme Court said an act could also be reviewed on common law grounds it would open the door to a host of other challenges, such as irrationality, illegality or faulty procedure. In effect, Holyrood laws could be overturned in the same way as dodgy council decisions.

Dr Aileen McHarg, senior lecturer in public law at Glasgow University, said the insurers “are basically arguing that you should treat the Scottish Parliament like a public authority, like a local authority or a minister, and review them on the same common law grounds. That is potentially highly significant.”

She said: “It’s possible [the judges] could find that the [Damages] Act is perfectly OK, but nevertheless say that in principle acts of the Scottish Parliament are reviewable at common law.

“The Scottish parliament would want to argue it’s not just another public authority – it’s a legislature and it should be treated more like Westminster, which is not challengable on standard judicial review grounds.

“Once you open the door to common law challenge, that door can be pushed open wider in other cases.”

The Association of British Insurers declined to comment.

Anonymous said...

I read somewhere these arguments about the supreme court are nothing more than an attempt to get rid of it's power in Scotland before the independence referendum.I wouldnt be surprised because nothing is what it seems in politics!

Anonymous said...

Did anyone see the safety minister Roseanna Cunningham on the telly tonight when she was asked what actually constitutes to a sectarian gestures? We all thought she was going to burst into tears, the woman is an advocate so she immediately qualifies to having no common sense and she will most definitely agree that asbestos is good for you.

Anonymous said...

Keep up the good work exposing these legal thugs CROOKED schemes!

Anonymous said...

It just gets worse with all these lawyers running around for insurers or themeselves and no justice allowed to anyone who dares stand in their way.Is this not a legal dictatorship we live in?

Anonymous said...

"If it makes a bad law it should expect and even deserve to face a challenge at some point regardless of the subject covered."

I completely agree.

Anonymous said...

Anonymous Anonymous said...

Did anyone see the safety minister Roseanna Cunningham on the telly tonight when she was asked what actually constitutes to a sectarian gestures? We all thought she was going to burst into tears, the woman is an advocate so she immediately qualifies to having no common sense and she will most definitely agree that asbestos is good for you.

21 June 2011 21:16


Anonymous said...

you might like to hear my uncle who is getting treated for lung cancer thinks your blog is fantastic but I better not repeat what he says about the lawyer in the video clip!

Anonymous said...

The Scottish Government say no comment this time yet Salmond was big on comment last week about the Supreme Court and Nat Fraser.Double standards seem to rule in Scotland and I wouldn't be surprised if we are all pawns in this,the people who will b e entitled to compensation included.

Anonymous said...

This is really 2 groups of lawyers who are insured by the same mob fighting each other in a mock battle just for some sleazy politicians to say we tried and failed so no compo.SCUM!

Anonymous said...

Anonymous said...

Who insures the judges and the Supreme Court I wonder?

20 June 2011 22:41

Odds are its one of those companies now complaining about payouts for pleural plaques!

Anonymous said...

Anonymous said...

you might like to hear my uncle who is getting treated for lung cancer thinks your blog is fantastic but I better not repeat what he says about the lawyer in the video clip!

22 June 2011 15:43

I agree and hope your uncle pulls through.
Where are you Peter we haven't heard much this week!

Anonymous said...

Religion based on difference requires tolerance between faiths for harmony to prevail and sectarianism is the result of difference without tolerance.