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AXA decision, Act left standing

The decision of the Supreme Court has recently been published in Axa General Insurance Ltd and Others v The Lord Advocate [2011] UKSC 46. As most will already know, the AXA case was an attempt by big insurers to overturn legislation from the Scottish Parliament. Pleural plaques are an asymptomatic condition caused by inhalation of asbestos fibres. It was previously viewed as justifying an award of damages. The Supreme Court determined in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 that pleural plaques did not justify an award of damages. The effect of this decision was reversed by legislation from the Scottish Parliament in the form of the Damages (Asbestos-related Conditions) (Scotland) Act 2009. It was the validity of this act that was in issue in the AXA case.

Perhaps unsurprisingly, the unelected Supreme Court did not choose to strike down the fairly limited legislative provision made in favour of sufferers of pleural plaques, though they did assert a power to strike down legislation in appropriate circumstances.

It seems likely that the vast majority of litigants will not seek to strike down legislation emanating from Holyrood. There are contained within the speeches a number of important comments on the present constitutional settlement. However, the most significant change for most litigants looks like it will be the removal of title and interest as a test in public law judicial review. This arose in the context of the third to tenth respondents – ordinary people who had pleural plaques and wanted to support the legislation. The argument on behalf of AXA was that they did not have title and interest to defend the petition.

Title and interest were familiar concepts. They have now been replaced with “standing”. It is not entirely clear how this test is applied. This step was explicitly intended to increase access to the courts in public law matters but how much of a change it will make is unclear - all we can do is wait to see how it is interpreted. As Lord Reed recognised “The supervisory jurisdiction has developed almost entirely through judicial decisions. One of the responsibilities of the courts is to ensure its continuing development, on an incremental basis, so as to meet the needs of the time. ”