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  • Writer's pictureKirk Hartley

Scottish Judge Declines to Stay Plaques Legislation and Provides Preliminary Comments on the Merits

Here is the link to the full text of the first ruling in the insurer’s lawsuit seeking a declaration to invalidate to the Scottish pleural plaques legislation.

In the opinion, the trial judge (Lord Glennie) exercised his discretion not to grant the insurer’s motion to stop the legislation from taking effect. In reaching that decision, the court considered various factors and somewhat assessed the merit of the insurers’ two overall challenges. First, the insurers argue that the law is outside the “legislative competence of the Scottish Parliament on the grounds of its incompatibility with certain Convention rights. They rely in particular upon Article 6 of the European Convention on Human Rights (Right to a fair trial) and Article 1 of the First Protocol thereto (Protection of property). The petitioners also mount a challenge to the Act on grounds of irrationality, or Wednesbury unreasonableness, and arbitrariness.”

In weighing the merits, the trial judge offered the following preliminary and summary assessment of the insurers’ arguments:

“It is sufficient that I say that, in my opinion, the petitioners have demonstrated a prima facie case that both Articles 6 and Article 1 of the First Protocol are engaged in that the Act does appear to me to remove from the courts and determine in a manner adverse to the petitioners a critical question arising in all pleural plaque cases, namely whether the claimants in any such case have suffered damage so as to make the negligent exposure to asbestos actionable. Unless and until the Act comes into force, each of the cases currently sisted, at least insofar as it is based upon the existence of pleural plaques and not on other injury or damage, will fail, because at common law negligence is not actionable without proof of damage. If and when the Act comes into force, that line of defence will be removed. The pursuers in such cases will still, of course, have to prove other aspects of their case, such as negligent exposure to asbestos and quantum, but they will no longer have to prove, or attempt to prove, that the pleural plaques themselves constitute damage so as to make the negligence actionable. Mr Dewar submitted that it was always within the competence of the Scottish Parliament to alter the Scottish law of delict. I accept this. Insofar as the Act has prospective effect, this is a powerful point. But in so far as it has retrospective effect, the force of that submission is much reduced, since the Act retrospectively removes from the defenders in existing cases, and in new cases based upon exposure before the Act comes into force, a line of defence upon which they could legitimately expect to succeed. That brings Article 6 into play, or at least arguably so. Mr Dewar also argued, under reference to Article 1 of the First Protocol, that an immunity to a claim could not be a “possession”; however, it seems to me that if a certain claim is a possession (see Maurice v. France (2006) 42 EHRR 885 at paras.63-66), there is at least a good arguable case that a certain defence must fall into the same category.

[13] I have more difficulty with the petitioners’ contention that the policy of the Act does not reflect any legitimate public or general interest. It is well-established that the courts will afford the legislature a wide margin of appreciation or, as it is put in the domestic context, will concede to the legislature a discretionary area of judgment in determining what is in the public or general interest: see e.g. Adams v. Scottish Ministers 2004 SC 665 at para.[27], per the Lord Justice-Clerk (Gill). The issue will always involve a detailed examination of the facts. I was initially attracted to the simple proposition underlying the Dean of Faculty’s submissions, which emphasised the fact that the Act sought to compensate, at enormous expense to insurers, a narrowly defined class of persons who, although having been exposed to asbestos, had as yet suffered no illness or injury meriting compensation. But Mr Dewar explained that the Act seeks to compensate those in respect of whom it can be established, because of the presence of pleural plaques, that asbestos fibres has penetrated the lungs and the pleura. This seems to me to carry some conviction. While it appears to be true, on the available evidence, that such persons have suffered no physical injury or incapacity, they are more likely than others to suffer from anxiety that their exposure to asbestos dust, having caused penetration of asbestos fibres to the lungs and pleura (as evidenced by the existence of the plaques), will go on to cause an asbestos-related disease; and there is a risk, in such cases, that the penetration of asbestos fibres to the lungs and pleura will in fact cause such a disease. In those circumstances, the Scottish Parliament has taken the view that they ought to be entitled to claim compensation, if not for any present physical disability, then at least for that anxiety and the risk of the condition worsening. The arguments will no doubt be more fully developed at the first hearing. Whilst on a fact sensitive issue of this sort I cannot dismiss the petitioners’ case as unarguable, and I therefore must hold that they have demonstrated a prima facie case, it does not seem to me on the arguments advanced so far that it is a prima facie case which should be regarded as particularly strong.”

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