New Judgment: AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46
12 Wednesday Oct 2011
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On appeal from: [2011] 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.
For judgment, please download: [2011] UKSC 46
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
3 comments
Andrew Thorburn said:
13/09/2014 at 18:38
I cannot make any sense of this.
“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.”
But is it not also wrong for the Scottish Parliament to insist that they can overrule one of the highest courts in the United Kingdom?
Anthony Fairclough said:
16/09/2014 at 09:05
Cf para 52 of the judgment.
Andrew Thorburn said:
17/09/2014 at 20:02
I still don’t get it. I’ll just end it with this:
DETERMINED to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice,
I would presume that would apply to England, Scotland, Wales and Northern Ireland – the UK Parliament having overarching supremacy. The highest courts instruments of that supremacy.
Please correct me if I am wrong. That’s the context that we should consider here. Judicial review is a cornerstone with respect to administrative law. Why would they think any different, it’s a good thing?