Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 36

P490/09

OPINION OF LORD UIST in causa (FIRST)  AXA GENERAL INSURANCE LIMITED (SECOND)  AXA INSURANCE UK PLC (THIRD)  NORWICH UNION INSURANCE LIMITED (FOURTH)  ROYAL & SUN ALLIANCE INSURANCE PLC (FIFTH)  ZURICH INSURANCE PLC Petitioners against (FIRST)  THE RIGHT HONOURABLE ELISH ANGIOLINI Q.C. (SECOND)  THE HONOURABLE LORD DAVIDSON OF GLEN CLOVA (THIRD)  DANIEL FLEMING (FOURTH)  DAVID DEWAR (FIFTH  JOHN FERGUSON (SIXTH)  WILLIAM IRVINE (SEVENTH)  ANTHONY ADAMSON (EIGHTH)  AGNES KIRBY McMANUS (NINTH)  WILLIAM VANBEICK (TENTH)  JOHN STEVENSON Respondents ­­­­­­­­­­­­­­­­­________________

Petitioners: Dean of Faculty (Keen QC), Miss Munro; Brodies LLP

First Respondents: Mure; Scottish Executive Legal Directorate

Third to Tenth Respondents: O'Neill QC; Thompsons

16 March 2010

Introduction

[1] On 8 May 2009 I heard a motion in these proceedings on behalf of eleven named persons who claimed to have been diagnosed with bilateral pleural plaques caused by negligent exposure to asbestos and who had actions for loss, injury and damage in process or in immediate contemplation for leave to enter the process in terms of Rule of Court 58.8(2).

[2] The motion was opposed on behalf of the petitioners. The ground of opposition set out in the notice of opposition was that Rule of Court 58.8(2) did not apply to those persons on whose behalf the motion was made and that, in any event, it was not in the interests of the expeditious and efficient determination of the cause that these individuals should be given leave to enter the process.

Submission for the Named Persons

[3] Mr O'Neill QC, who appeared on behalf of the named persons, submitted a nine page written note of argument, a copy of which I append hereto. In his oral submission he stated that the named persons were all directly affected by the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the 2009 Act), and that all were of the same mind and represented jointly by him. If the petitioners had title and interest to sue as well as victim status so too did the named persons. Every claimant or potential claimant for damages for pleural plaques and the insurers of employers were in the same position. This was in effect an actio popularis. It would not be necessary for other claimants to come into the action. The eleven named persons represented the full gamut of claimants. He understood the position to be that they had contacted the solicitors now acting for them and said that they wanted to come into the proceedings. The solicitors had undertaken to act on a speculative basis and granted the named persons indemnities for expenses. It was not his intention to duplicate matters at the first hearing but he might wish to add something to the submission for the Scottish Ministers. The alternative would be that the named persons would revive their damages actions and the insurers would raise precisely the same issue in those actions. Otherwise the named persons would be deprived of access to the courts. The Act was due to come into force in June 2009. The victims' rights would be affected by the present proceedings and they were able to provide a non-governmental view to the court.

[4] Turning to his written note of argument, Mr O'Neill stated that what was sauce for the goose was sauce for the gander. This process would be res judicata so far as the lawfulness of the 2009 Act was concerned. In their written notice of opposition to the motion the petitioners had not provided any specification. They merely asserted that Rule of Court 58.8(2) did not apply. The named persons would be able to lodge answers and adjust in time before the date set down for the first hearing. The Scottish Ministers themselves had not by then lodged answers and Mr O'Neill had no idea whether the Advocate General for Scotland would come into the proceedings. On behalf of the named persons he had no intention to engage in needless duplication of any submission but it was essential that the named persons be allowed into the action as their Convention rights were affected and the decision in the case would be res judiciata as far as the lawfulness of the 2009 Act was concerned. It was always the case that where the lawfulness of a general statute was involved many people might be affected by it. It would not necessarily follow from allowing the named persons into the proceedings that many other persons would also seek to come in. The named persons were seeking to come into the proceedings out of concern for the efficient and expeditious use of court time as there was no possibility of conjoining their existing damages actions with the petition proceedings. The 2009 Act affected the class of persons of which the named persons were members and whom he represented. With reference to paragraph 2.12 of the written note of argument, a fair trial would be one between the petitioners and the named persons. The petitioners could not escape from the position that the named persons had title and interest. The 2009 Act had a direct and beneficial effect upon the named parties and gave them a right with a self-evident economic value. In these proceedings their rights and interests were threatened. They were entitled to be heard on the question of the lawfulness of the 2009 Act in an ordinary action or in these proceedings. The potential detriment to them was clear as they either had a right to damages or they did not. The Scottish Ministers might not pursue all points in their answers and by way of oral submission: if the Scottish Ministers did a sterling job then Mr O'Neill might have nothing or very little to say by way of oral submission.

Submission for the Petitioners
[5] On behalf of the petitioners the Dean of Faculty stated that the motion was opposed on the grounds of title, interest and that the court should not exercise its discretion in favour of the named persons under Rule of Court 58.8(2).

[6] The Dean began his submission by making certain general observations. He asserted that the oral and written submissions made by Mr O'Neill involved a number of confusions. The motion was not concerned with public interest intervention, but with whether eleven named persons should be allowed to come into the proceedings. It was not appropriate to confuse the patrimonial interest of these named persons if the Act were valid with the logically prior issue whether the Act was valid. This confusion had manifested itself in a number of ways. If the Act were not valid then the named persons had no identifiable Convention right. Their interest had been determined by judicial process in the House of Lords in the case of Rothwell v Chemical Insulating Company Ltd [2007] UKHL 39. The House of Lords had provided certainty where before there had been none. The House of Lords had said that potential claimants never had a claim for damages for pleural plaques and therefore never had a right of action protected by Article 1 of Protocol 1 of the Convention. The question of the validity of the Act arose because, its stated objective being clear, it affected the Convention rights of the petitioners. The named persons had neither title nor interest to enter a process which affected the Convention rights of only the petitioners. The petition was not concerned with their patrimonial interest if the Act were valid. There was a matter of principle at stake here. In a question about the infringement of Convention rights or other illegality by the Scottish Parliament it was not for those who would benefit by that infringement or illegality to defend the Parliament: it was for the Lord Advocate to defend the Parliament. To take an example, if the Scottish Parliament decided to legislate on a reserved tax matter and thereby acted unlawfully, the logic of Mr O'Neill's submission was that every taxpayer who potentially benefited by the unlawful Act would have title and interest to enter the proceedings to defend the Act.

[7] The Dean then turned to consider the terms of Rule of Court 58.8. He submitted that title and interest were required because the named persons would become parties to the proceedings and conduct them as they saw fit. The position could be reached where the Scottish Ministers accepted that the 2009 Act was invalid and the named persons could submit that it was valid. There was a contrast to be drawn with Rule of Court 58.8A, which dealt with public interest intervention, and under which a person could be allowed to enter the process without title and interest and without becoming a party, and could present written or oral submissions. If an application were made by the named persons under Rule of Court 58.8A the requirements of title and interest would not have to be met.

[8] Title and interest to defend the 2009 Act lay in the first instance with the Lord Advocate: Adams v Scottish Ministers 2003 SC 171 at 184H, 187A, E, H and 188C. The appropriate contradictor in proceedings where the question of the validity of an Act of the Scottish Parliament was in issue was the Lord Advocate. Public interest did not in itself confer on a member of the public title and interest to challenge the decision of a Minister: Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527 per Lord Clarke at 533G.

[9] Each case turned upon its own facts and circumstances. The challenge to the Act in these proceedings was on the basis that it infringed the petitioners' Convention rights. It did not matter that, if the Act were valid, it conferred rights on the named persons. Those who stood to benefit if the Act were valid were not in the same relationship to the Act as those whose rights were infringed. That was the fundamentally wrong premise in Mr O'Neill's submission. The named persons had no possession in light of the decision in Rothwell and if the Act were invalid they would never have a possession. The 2009 Act was not yet even in force. If Mr O'Neill were correct the repeal of the Act would be a breach of the named persons' Convention rights. Mr O'Neill had not made out any ground upon which the named persons had title and interest to become parties to the proceedings. They did not have title and interest merely because they were interested in the outcome.

[10] Even if the named persons had title and interest, it would be a matter for the discretion of the court whether they should be admitted to the process. The case of Adams made clear that it was for the Lord Advocate to deal with the public interest where an Act of the Scottish Parliament was challenged. The Dean posed the question, what do these named persons bring to the party? If a refusal of their motion would amount to a breach of their Convention rights, the court could not refuse applications by others in the same position. If they had something to contribute to the proceedings, an application could be made under Rule of Court 58.8A for public interest intervention. In that event Mr O'Neill might be able to persuade the court on the question of public interest. Where there was a question of the infringement of Convention rights of a person by an unlawful Act of the Scottish Parliament, it was not for those who might benefit from it to defend the Parliament or the Scottish Ministers: it was for the Lord Advocate to do so. The motion should be refused on the ground of lack of title and interest and in the exercise of the court's discretion.

Submission for the Lord Advocate

[11] Mr Mure for the Lord Advocate did not oppose the motion. He stated that the Lord Advocate would defend the Act at the first hearing and that the Advocate General for Scotland would not appear or be represented at the first hearing. If the Convention rights of the named persons were in issue, it was a matter for the discretion of the court whether they should be allowed to enter the proceedings. Rule of Court 58.8(2) did not make any reference to title and interest as requirements for leave to enter the process in a judicial review application. Nor did it say what the test was which the court had to apply. As the Lord Advocate saw the matter, the named persons were the very class who benefited by the terms of the 2009 Act.

Response for the Named Persons

[12] Mr O'Neill in response to the Dean stated that the Dean had equated title and interest to sue with title and interest to defend in proceedings already raised. The two authorities to which Mr O'Neill had referred in his note of argument (Norwich Union Life Insurance Society v Tanap Investments UK Limited 2000 SC 515 at 525 and Zurich General Accident and Liability Insurance Company v Livingston 1938 SC 582 per Lord Moncrieff at 590) dealt with the question who might come into proceedings which had been raised. The named persons would have title and interest to defend the Act in the ordinary actions for damages which had been raised. Nothing could change in this process. If the Dean had his way, only the Convention rights of the petitioners would be considered. It was unlikely that any floodgates would be opened. The 2009 Act singled out a class of people and the named persons fell within that class of people. The Act could be seen as conferring a possession under Article 1 of Protocol 1 in the form of a right to compensation. It did not follow from the fact that the Lord Advocate had title and interest to resist the application that others could not be allowed to enter the process. It was only Rule of Court 58.8(2) which fell to be considered.

Conclusion and discussion
[13] Having considered the competing submissions, I reached the view that, in determining the motion, I required to have regard to Rule of Court 58.8(2), which provided, so far as relevant, that "any person who is directly affected by the issue raised may apply by motion for leave to enter the process", but did not specify what criteria the court had to apply in deciding whether or not to grant leave. That being so, it seemed to me that the court had to exercise a wide judicial discretion in determining whether or not to grant leave.

[14] The first question which I had to address was whether the named persons fell into the category of persons directly affected by the issue raised. In my opinion they did. If the statute under challenge were valid it would either confer upon them, or eliminate any uncertainty about, a right to recover damages for wrongfully caused asymptomatic pleural plaques. In these circumstances I did not think that there could be any doubt that they were directly affected by the issue raised. The test which I had to apply was whether they were directly affected by the issue raised, not the common law test of title and interest to sue.

[15] The second question which I had to address was whether, in the exercise of my discretion, I should grant the named persons leave to enter the process. The fact that they were directly affected by the issue raised did not give them an automatic right to enter the process. It was no doubt correct that it was in the first instance for the Lord Advocate, representing the Scottish Ministers, to defend the validity of an Act of the Scottish Parliament. It did not follow from that that members of a specific group upon whom the Act conferred or confirmed a right to damages did not have a separate, private interest to defend the validity of the Act. The floodgates consideration was in this context an important one, but no other parties had applied to enter the process, and even if they did at that late stage, the court could prevent a multiplicity of persons entering the process by exercising its discretion to refuse further parties leave to do so without good cause. As I had been assured that, if the named persons were granted leave to enter the process, the arranged timetable would be adhered to and that Mr O'Neill would not engage in duplication of any submission made on behalf of the Scottish Ministers, I concluded that I should exercise my discretion by allowing the named persons to enter the process.

Decision

[16] I therefore decided to grant the motion. I found the petitioners liable to the named persons in the expenses of the motion. I refused the Dean's motion for leave to reclaim my decision as I considered it important in the interests of justice that the arranged timetable for the first hearing should be adhered to. I have written this opinion at the request of the Inner House following upon the reclaiming motion against the subsequent decision of Lord Emslie at the first hearing, which also brings my interlocutor of 8 May 2009 under review.