In January 2010, we told you that Lord Emslie in the Court of Session had rejected a challenge from a group of leading insurance companies in relation to the Damages (Asbestos-related Conditions)(Scotland) Act 2009 ("the 2009 Act"). (Click here to view our previous e-update). He decided that the insurers did have sufficient title and interest to petition for judicial review of the 2009 Act, however, he accepted that as pleural plaques could lead to an increased risk of developing mesothelioma (a tumour covering the lining of the lung), sufferers could seek compensation.
It was estimated by insurers that this decision could result in payouts to employees who have been exposed to asbestos totalling billions of pounds, and so the insurers lodged an appeal with the Inner House of the Court of Session.
The results of the second leg are in, and it is a victory for the Scottish Government once again!
In the appeal, the insurers sought to challenge the validity of the 2009 Act. Questions were also raised by insurers and the respondents regarding title and interest to sue and defend. In its lengthy and detailed decision, although the court found that the third to tenth respondents (the individuals who have been diagnosed with pleural plaques and have raised, or intend to raise, an action of damages against his or her former employer) should not have been allowed to be parties to the proceedings, it ultimately upheld the previous decision of Lord Emslie.
So what does this mean? Well, insurers find themselves back in the position they were in 15 months ago, facing potential payouts totalling billions of pounds. No doubt an appeal to the Supreme Court will be the next step? Watch this space!
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
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