Page last updated at 16:53 GMT, Friday, 8 January 2010

Scottish asbestos law challenge rejected

Asbestos fibres
The judge ruled in favour of the asbestos damages act

A judge has rejected a bid to invalidate a Scottish Parliament law giving victims of an asbestos-related illness the right to claim damages.

Following a 22-day hearing at the Court of Session, Lord Emslie ruled against the move by UK insurance companies.

They disputed The Damages (Asbestos-related Conditions)(Scotland) Act which came into force last year.

It allows sufferers of pleural plaques, a benign scarring of the lungs, to make compensation claims.

The Holyrood law overturned a House of Lords ruling which said damages could not be claimed for the illness, which is not classed as a disease and has no symptoms.

Although pleural plaques does not cause or develop into a more serious asbestos-related condition, it does signify an increased risk of developing mesothelioma because of exposure to asbestos.

A judicial review of the act was brought by AXA General Insurance Ltd and other insurance companies.

'Differences of opinion'

The insurers said the act would benefit a small group of individuals who had suffered no harm and would impose a "disproportionate and excessive burden on insurers running into hundreds of millions, if not billions, of pounds".

Lord Emslie's written ruling concluded: "There is clearly room for differences of opinion as to whether the parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come."

But the judge said he did not accept that the insurers' complaints came anywhere near the standard of "irrationality" needed to invalidate an Act of the Scottish Parliament.

The Association of British Insurers (ABI) said they are now seriously considering the grounds for an appeal.

Justice Secretary Kenny MacAskill said he welcomed the decision.

He added: "The Scottish government believes that the legislation is right in principle and right in law and has been unequivocally upheld.

"I firmly believe that people with pleural plaques should be able to raise a claim for damages and I am pleased that this decision has gone in their favour.

"I sincerely hope that the insurers will now carefully reflect on what Lord Emslie has said and abandon any plans they have to raise an appeal in the Inner House."

The ABI's Director of General Insurance and Heath, Nick Starling said: "We are pleased that the judgment recognises the fundamental right of insurers to challenge legislation made by the Scottish Parliament, although we are disappointed that the judge did not feel able to overturn the law passed by the Scottish Parliament.

"Insurers will now be considering carefully this judgment, and are seriously looking at the grounds for an appeal against it.

"This is not the end of the road."

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