AXA General Insurance Limited and others v The Lord Advocate and others

AXA General Insurance Limited and others v The Lord Advocate and others

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 is not incompatible with Article 1 of Protocol 1 ECHR. The Act pursues a legitimate social aim, is proportionate, and falls within the margin of appreciation afforded to the Scottish Parliament. The interference with insurers' possessions is not excessive or disproportionate, given the uncertainty of the law prior to Rothwell and the nature of insurance business. Acts of the Scottish Parliament are not subject to judicial review on common law grounds of irrationality, unreasonableness, or arbitrariness. Insurers have standing as 'victims' under Article 34 ECHR. Individuals with pleural plaques are directly affected and have...

Parties
Appellants: AXA General Insurance Limited and others; 1st Respondent: The Lord Advocate (Scottish Ministers); 2nd Respondent: Advocate General for Scotland (UK Government); 3rd 10th Respondents: Individuals diagnosed with pleural plaques (3rd-10th Respondents)
Jurisdiction
England and Wales
Judgment Date
12 October 2011
Procedural Posture
Appeal / Supreme Court Judgment
Outcome
Appeal dismissed; cross-appeal allowed
Legal Topics
Legislative Competence, Article 1 Protocol 1 ECHR, Judicial Review of Devolved Legislation, Standing in Judicial Review, Retrospective Legislation, Damages for Asbestos Related Conditions
Constitutional Law Human Rights Law Insurance Law Administrative Law Legislative Competence Article 1 Protocol 1 ECHR Judicial Review of Devolved Legislation Standing in Judicial Review +2 more

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Parties

AXA General Insurance Limited and others

Appellants

The Lord Advocate (Scottish Ministers)

1st Respondent

Advocate General for Scotland (UK Government)

2nd Respondent

Individuals diagnosed with pleural plaques (3rd-10th Respondents)

3rd 10th Respondents

Procedural Posture

Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is incompatible with Article 1 of Protocol 1 ECHR and thus outside the legislative competence of the Scottish Parliament
  2. 2 Whether the Act is subject to judicial review on common law grounds as irrational, unreasonable, or arbitrary
  3. 3 Whether insurers have standing as 'victims' under Article 34 ECHR

Ratio Decidendi

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 is not incompatible with Article 1 of Protocol 1 ECHR. The Act pursues a legitimate social aim, is proportionate, and falls within the margin of appreciation afforded to the Scottish Parliament. The interference with insurers' possessions is not excessive or disproportionate, given the uncertainty of the law prior to Rothwell and the nature of insurance business. Acts of the Scottish Parliament are not subject to judicial review on common law grounds of irrationality, unreasonableness, or arbitrariness. Insurers have standing as 'victims' under Article 34 ECHR. Individuals with pleural plaques are directly affected and have...

Court Disposition

Appeal dismissed; cross-appeal allowed

Orders

  • The appeal by the insurers is dismissed; the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is within legislative competence and not incompatible with Article 1 of Protocol 1 ECHR.
  • The cross-appeal by the 3rd-10th respondents is allowed; they are directly affected and entitled to participate in the proceedings.