Axa General Insurance Limited And Others V. The Right Honourable Elish Angiolini Q.c. And Others
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2010] CSOH 36 |
| Court | Court of Session |
| Published date | 16 March 2010 |
| Year | 2010 |
| Date | 16 March 2010 |
| Docket Number | P490/09 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 36 | |
| P490/09 | OPINION OF LORD UIST in causa (FIRST) AXA GENERAL INSURANCE LIMITED (SECOND) AXA INSURANCE UK PLC (THIRD) NORWICH UNION INSURANCE LIMITED (FOURTH) ROYAL & SUN ALLIANCE INSURANCE PLC (FIFTH) ZURICH INSURANCE PLC Petitioners against (FIRST) THE RIGHT HONOURABLE ELISH ANGIOLINI Q.C. (SECOND) THE HONOURABLE LORD DAVIDSON OF GLEN CLOVA (THIRD) DANIEL FLEMING (FOURTH) DAVID DEWAR (FIFTH JOHN FERGUSON (SIXTH) WILLIAM IRVINE (SEVENTH) ANTHONY ADAMSON (EIGHTH) AGNES KIRBY McMANUS (NINTH) WILLIAM VANBEICK (TENTH) JOHN STEVENSON Respondents ________________ |
Petitioners: Dean of Faculty (Keen QC), Miss Munro; Brodies LLP
First Respondents: Mure; Scottish Executive Legal Directorate
Third to Tenth Respondents: O'Neill QC; Thompsons
16 March 2010
Introduction
[1] On 8 May 2009 I heard a motion in these proceedings on behalf of eleven named persons who claimed to have been diagnosed with bilateral pleural plaques caused by negligent exposure to asbestos and who had actions for loss, injury and damage in process or in immediate contemplation for leave to enter the process in terms of Rule of Court 58.8(2).
[2] The motion was opposed on behalf of the petitioners. The ground of opposition set out in the notice of opposition was that Rule of Court 58.8(2) did not apply to those persons on whose behalf the motion was made and that, in any event, it was not in the interests of the expeditious and efficient determination of the cause that these individuals should be given leave to enter the process.
Submission for the Named Persons
[3] Mr O'Neill QC, who appeared on behalf of the named persons, submitted a nine page written note of argument, a copy of which I append hereto. In his oral submission he stated that the named persons were all directly affected by the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the 2009 Act), and that all were of the same mind and represented jointly by him. If the petitioners had title and interest to sue as well as victim status so too did the named persons. Every claimant or potential claimant for damages for pleural plaques and the insurers of employers were in the same position. This was in effect an actio popularis. It would not be necessary for other claimants to come into the action. The eleven named persons represented the full gamut of claimants. He understood the position to be that they had contacted the solicitors now acting for them and said that they wanted to come into the proceedings. The solicitors had undertaken to act on a speculative basis and granted the named persons indemnities for expenses. It was not his intention to duplicate matters at the first hearing but he might wish to add something to the submission for the Scottish Ministers. The alternative would be that the named persons would revive their damages actions and the insurers would raise precisely the same issue in those actions. Otherwise the named persons would be deprived of access to the courts. The Act was due to come into force in June 2009. The victims' rights would be affected by the present proceedings and they were able to provide a non-governmental view to the court.
[4] Turning to his written note of argument, Mr O'Neill stated that what was sauce for the goose was sauce for the gander. This process would be res judicata so far as the lawfulness of the 2009 Act was concerned. In their written notice of opposition to the motion the petitioners had not provided any specification. They merely asserted that Rule of Court 58.8(2) did not apply. The named persons would be able to lodge answers and adjust in time before the date set down for the first hearing. The Scottish Ministers themselves had not by then lodged answers and Mr O'Neill had no idea whether the Advocate General for Scotland would come into the proceedings. On behalf of the named persons he had no intention to engage in needless duplication of any submission but it was essential that the named persons be allowed into the action as their Convention rights were affected and the decision in the case would be res judiciata as far as the lawfulness of the 2009 Act was concerned. It was always the case that where the lawfulness of a general statute was involved many people might be affected by it. It would not necessarily follow from allowing the named persons into the proceedings that many other persons would also seek to come in. The named persons were seeking to come into the proceedings out of concern for the efficient and expeditious use of court time as there was no possibility of conjoining their existing damages actions with the petition proceedings. The 2009 Act affected the class of persons of which the named persons were members and whom he represented. With reference to paragraph 2.12 of the written note of argument, a fair trial would be one between the petitioners and the named persons. The petitioners could not escape from the position that the named persons had title and interest. The 2009 Act had a direct and beneficial effect upon the named parties and gave them a right with a self-evident economic value. In these proceedings their rights and interests were threatened. They were entitled to be heard on the question of the lawfulness of the 2009 Act in an ordinary action or in these proceedings. The potential detriment to them was clear as they either had a right to damages or they did not. The Scottish Ministers might not pursue all points in their answers and by way of oral submission: if the Scottish Ministers did a sterling job then Mr O'Neill might have nothing or very little to say by way of oral submission.
Submission for the Petitioners
[5] On behalf of the petitioners the Dean of Faculty stated that the motion was opposed on the grounds of title, interest and that the court should not exercise its discretion in favour of the named persons under Rule of Court 58.8(2).
[6] The Dean began his submission by making certain general observations. He asserted that the oral and written submissions made by Mr O'Neill involved a number of confusions. The motion was not concerned with public interest intervention, but with whether eleven named persons should be allowed to come into the proceedings. It was not appropriate to confuse the patrimonial interest of...
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