Supreme Court Issues Decision in AXA General Insurance Limited and others v The Lord Advocate  UKSC 46
12 October 2011
The Supreme Court has today issued its judgment in the case of Axa General Insurance Ltd and Others v The Lord Advocate  UKSC 46. The Supreme Court has rejected the challenge, brought by a group of insurance companies, to the lawfulness of an Act of the Scottish Parliament which makes pleural plaques actionable damage for the purposes of a personal injuries action.
The case is of significant constitutional importance. It contains an interesting analysis of the relationship between the Scottish Parliament and the Courts, and the circumstances in which the Courts may review an Act of the Scottish Parliament under the Scotland Act and at common law. However, the case is also likely to have major implications for the development of judicial review in Scotland. The Supreme Court has finally removed the restrictive "title and interest" test which has severely restricted the scope for decisions of public bodies to be challenged.
In light of the significance of the case, Axiom Advocates have arranged a seminar to discuss the implications of the case. The seminar will take place on 27 October 2011 at 4.30pm in the Mackenzie Building. Speakers will include the Dean of Faculty, James Mure QC and James Wolffe QC. The event will be chaired by Ruth Crawford QC. Further details will be published on this website in due course.
A significant number of members of Axiom Advocates appeared in the case. The Dean of Faculty appeared for the Appellants, James Mure QC appeared for the Lord Advocate and Ruth Crawford QC and John MacGregor appeared for the Advocate General for Scotland.
The Damages (Asbestos-related Conditions) (Scotland) Act 2009 ("the 2009 Act") provides that asymptomatic pleural plaques shall constitute, and shall be treated as always having constituted, actionable harm for the purposes of an action of damages for personal injury. The clear purpose of the 2009 Act was to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd  AC 281.
The case concerned four principal issues:
(1) Whether the 2009 Act infringed the insurers' rights under Article 1 of Protocol 1 of the European Convention on Human Rights ("ECHR") and was 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; and
(4) Whether the third to tenth respondents had title and interest.
In relation to the first issue, the Supreme Court considered that Article 1 of Protocol 1 of the ECHR was engaged but considered that the interference to the insurers' rights caused by the 2009 Act pursued a legitimate aim and was proportionate. The Court accepted that the elimination of perceived social injustice was a function of modern legislature and considered that the decision taken by the Scottish Parliament was not without reasonable foundation.
The Supreme Court accepted that, in principle, Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law (per Lord Hope at para 47). The Court considered that the more difficult question was the scope of review. The Court did not find existing authorities to be of assistance and concluded that judges should only interfere in the "most exceptional circumstances" (per Lord Hope at para 49). This would include a situation where the rule of law was subject to challenge. The Court therefore rejected the challenge based on common law principles on the facts of the present case. Standing the guidance provided by the Supreme Court, it is extremely difficult to envisage, for practical purposes, any situation whereby a common law challenge to an Act of the Scottish Parliament would succeed.
Another significant issue that arose in the case was that of "title and interest". The third to tenth respondents in the case were individuals diagnosed with pleural plaques. They have raised, or intend to raise, personal injuries actions in relation to negligent exposure to asbestos. They claim that they are directly affected by the issues raised within the meaning of RCS rule 58.8(2) and are therefore entitled to be convened as a party to the action.
This case provided the Supreme Court with an opportunity to address whether "title and interest" is still an appropriate concept in the law of judicial review. The Supreme Court declared that title and interest should no longer have a place in applications to the court's supervisory jurisdiction.
Lord Hope stated that:
"...the time has come to recognise that the private law rule that title and interest has to be shown has no place in applications to the court's supervisory jurisdiction that lie in the field of public law" (per Lord Hope para 62).
Lord Hope suggests that a "standing" test is more appropriate, based on the concept of "interests" rather than "rights". A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public he seeks to represent. In light of the views expressed on title and interest, the case is likely to have a major impact on future public law cases in Scotland.
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