RE AXA GENERAL INSURANCE LTD

[2009] Scots CSOH 57, Court of Session, Outer House, Lord Glennie, 27 April 2009

Judicial review – Damages (Asbestos-related Conditions) (Scotland) Act 2009 – Whether injunction should be granted to prevent Act coming into force – European Convention on Human Rights, article 6

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed by the Scottish Parliament on 11 March 2009 and received the Royal Assent on 17 April 2009. The effect of the Act is to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281, holding that asymptomatic pleural plaques (ie, areas of fibrous thickening of the pleural membrane surrounding the lungs) resulting from exposure to asbestos did not constitute damage capable of giving rise to a cause of action in damages for negligence. This was an application by insurers for an injunction preventing the Act from coming into force pending a judicial review of the Act. The allegation was that the Act was outside the competence of the Scottish Parliament because it contravened article 6 of the European Convention on Human Rights (protection of property), in that it retroactively conferred liability. The court ruled that the case was not a particularly strong one and that an injunction would be refused.