Axa General Insurance Limited And Others V. The Lord Advocate As Representing The Scottish Ministers+the Advocate General For Scotland+daniel Fleming And Others
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Hardie,Lord President |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] CSIH 31 |
| Court | Court of Session |
| Published date | 11 April 2011 |
| Docket Number | P490/09 |
| Date | 12 April 2011 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Eassie Lord Hardie | [2011] CSIH 31 P490/09 OPINION OF THE COURT delivered by THE LORD PRESIDENT in the reclaiming motion AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners and Reclaimers; Against (First) THE LORD ADVOCATE, as representing the Scottish Ministers (Second) THE ADVOCATE GENERAL for SCOTLAND and (Third to tenth) DANIEL FLEMING and OTHERS Respondents: _______ |
Alt: Dewar, Q.C., Mure, Q.C.; Scottish Government Legal Directorate) (First Respondent)
Alt: Johnston, Q.C., MacGregor; Office of the Solicitor to the Advocate General (Second Respondent)
Alt: O'Neill, Q.C., Pirie; Thompsons (Third to Tenth Respondents)
Intervener: The Counsel General to the Welsh Assembly Government; Anderson Strathern LLP
12 April 2011
INDEX
| Paragraph | ||
| I | [1] | |
| II | [4] | |
| III | [9] | |
| IV | [10] | |
| V | The 2009 Act - the legislative process | |
| [11] | ||
| [13] | ||
| [21] | ||
| VI | [25] | |
| VII | ||
| [28] | ||
| [39] | ||
| VIII | [47] | |
| IX | ||
| [60] | ||
| [62] | ||
| [68] | ||
| [70] | ||
| [87] | ||
| [90] | ||
| [95] | ||
| X | ECHR - Article 1 Protocol 1 | |
| [98] | ||
| [99] | ||
| [101] | ||
| [105] | ||
| [130] | ||
| XI | [150] |
Introduction
[1] This is the Opinion of the Court to the drafting of which each of its members has contributed substantially.
[2] On 17 June 2009 the Damages (Asbestos-related Conditions) (Scotland) Act 2009 - "the 2009 Act" - came into force, having been enacted by the Scottish Parliament. Put shortly, it 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. Each of the petitioners is a large insurance company, the business of which includes employers' liability insurance policies. They have brought this petition for judicial review seeking declarator that the 2009 Act is unlawful and its reduction. The first and second respondents are, respectively, the Lord Advocate, representing the Scottish Ministers, and the Advocate General for Scotland, representing the United Kingdom Government. Each of the third to tenth respondents is an individual who has been diagnosed with pleural plaques and has raised, or intends to raise, an action of damages against his or her former employer. On 8 May 2009 they moved the Lord Ordinary (Uist) to enter the process in terms of Rule of Court 58.8(2) as individuals who were "directly affected" by the issues raised in the judicial review, which motion was granted ([2010] CSOH 36). On 8 January 2010 a different Lord Ordinary, Lord Emslie, having heard an extensive debate, dismissed the petition ([2010] CSOH 2; 2010 SLT 179).
[3] The petitioners now reclaim both against that decision and the decision to allow the third to tenth respondents to enter the process. The first respondent and the third to tenth respondents have lodged grounds of cross-appeal. Written submissions have also been received from the Counsel General for Wales, as intervener on behalf of the Welsh Assembly Government. The case raises important constitutional questions about the amenability of Acts of the Scottish Parliament to challenge on grounds other than those expressly provided for in the Scotland Act 1998, as well as other important issues.
Statutory and other provisions
[4] We set out the text of the 2009 Act in its entirety:
"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."
[5] Sections 28 and 29 of the Scotland Act 1998 provide:
"28. Acts of the Scottish Parliament
(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.
(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.
(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her Assent are recorded in the Register of the Great Seal.
(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.
(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.
(6) Every Act of the Scottish Parliament shall be judicially noticed.
(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
29. Legislative competence
(1) 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.
(2) A provision is outside that competence so far as any of the following paragraphs apply-
(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or with Community law,
(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.
(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
(4) A provision which-
(a) would otherwise not relate to reserved matters, but
(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise."
[6] Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms - ("the Convention") - provides:
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be...
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