AXA General Insurance Ltd & Ors v. The Socttish Ministers & Ors [2011] ScotCS CSIH_31 (12 April 2011)

AXA General Insurance Ltd & Ors v. The Socttish Ministers & Ors [2011] ScotCS CSIH_31 (12 April 2011)

The Court held that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is within the legislative competence of the Scottish Parliament and does not infringe Article 1 Protocol 1 ECHR. The Court further held that Acts of the Scottish Parliament are not subject to judicial review on common law grounds such as irrationality, but only on the grounds specified in the Scotland Act 1998. The petitioners (insurers) have sufficient title and interest (victim status) to challenge the Act, as they are directly affected by its operation. The third to tenth respondents also have title and interest to oppose the petition.

Citation
[2011] ScotCS CSIH_31
Parties
Petitioners and Reclaimers: AXA General Insurance Limited and Others; First Respondent: The Lord Advocate, as representing the Scottish Ministers; Second Respondent: The Advocate General for Scotland; Third to Tenth Respondents: Daniel Fleming and Others (Third to Tenth Respondents); Intervener: The Counsel General to the Welsh Assembly Government
Jurisdiction
Scotland
Judgment Date
12 April 2011
Procedural Posture
Judicial Review (reclaiming Motion) / Appeal (inner House, Court of Session)
Outcome
Petition refused; cross-appeals refused; decision of Lord Ordinary affirmed.
Legal Topics
Legislative Competence of Scottish Parliament, Judicial Review of Legislation, Article 1 Protocol 1 ECHR (property Rights), Victim Status Under ECHR, Retrospective Legislation, Insurance Liability for Asbestos Related Conditions
Constitutional Law Human Rights Law Administrative Law Insurance Law Delict (tort) Legislative Competence of Scottish Parliament Judicial Review of Legislation Article 1 Protocol 1 ECHR (property Rights) +3 more

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Parties

AXA General Insurance Limited and Others

Petitioners and Reclaimers

The Lord Advocate, as representing the Scottish Ministers

First Respondent

The Advocate General for Scotland

Second Respondent

Daniel Fleming and Others (Third to Tenth Respondents)

Third to Tenth Respondents

The Counsel General to the Welsh Assembly Government

Intervener

Procedural Posture

Judicial Review (reclaiming Motion) / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is unlawful as being outside the legislative competence of the Scottish Parliament under the Scotland Act 1998
  2. 2 Whether the 2009 Act infringes Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR)
  3. 3 Whether the Court of Session may review Acts of the Scottish Parliament on common law grounds (irrationality) beyond those specified in the Scotland Act 1998

Ratio Decidendi

The Court held that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is within the legislative competence of the Scottish Parliament and does not infringe Article 1 Protocol 1 ECHR. The Court further held that Acts of the Scottish Parliament are not subject to judicial review on common law grounds such as irrationality, but only on the grounds specified in the Scotland Act 1998. The petitioners (insurers) have sufficient title and interest (victim status) to challenge the Act, as they are directly affected by its operation. The third to tenth respondents also have title and interest to oppose the petition.

Court Disposition

Petition refused; cross-appeals refused; decision of Lord Ordinary affirmed.

Orders

  • Petition for judicial review dismissed.
  • Decision to allow third to tenth respondents to enter the process affirmed.