New Judgment: AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland)  UKSC 46
12 Wednesday Oct 2011
On appeal from:  CSIH 31
Insurance companies which had undertaken to indemnify employers against liability for negligence seeking to challenge the lawfulness of the Damages (Asbestos-related Conditions) (Scotland) Act 2009. The Act provided that asbestos-related pleural plaques and certain other asbestos-related conditions constitute personal injury which is actionable under Scots law.
The Supreme Court dismissed the insurance companies’ appeal and allowed the cross-appeal by the third to tenth respondents, individuals diagnosed with pleural plaques who cross-appealed a court finding that they did not have title and interest to be parties to the case. In issues involving questions of social policy, the court should respect the judgement of the elected body as to what is in the public interest unless that judgement was manifestly without reasonable foundation. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employer’s negligence. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament by virtue of being incompatible with art 1 of Protocol 1 to the ECHR. In principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness. The guiding principle is to be found in the rule of law, which the courts must insist is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature.
As to whether the third to tenth respondents are entitled to be parties, the test of “standing”, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings.