Question & Answers on Lord Emslie's decision

Solicitor Advocate Frank Maguire, Senior Partner of Thompsons Solicitors represented victims at the Court of Session hearing into the judicial review of the pleural plaques case.

Here he answers some common questions about Lord Emslie’s decision to reject a bid by insurance companies to block the Scottish Parliament’s legislation enshrining in law the right to compensation of pleural plaques victims. 

Q: What affect will the ruling have going forward?

A: The immediate effect is that we will now be able to proceed with around 1,000 cases on behalf of clients who have been in legal limbo for the past two years since the House of Lords judgement. We always maintained that the House of Lords judgement did not cover Scottish cases, but the need to fight that particular battle was overtaken by the Scottish Government’s decision to introduce legislation enshrining in law the right to compensation for pleural plaques sufferers in Scotland.
 
Q: Will it lead to a rise in claims in Scotland?

A: I do not see any reason for an increase in claims in Scotland. Pleural plaques victims have been able to claim compensation for the last thirty years. Obviously there will be a short-term surge of cases while the backlog works its way through the courts. Thereafter the number of cases will reflect the general incidences of asbestos exposure which of course can take thirty and forty years to manifest itself.

Q: Will there be changes in the position in England and Wales as a result?

A: I believe the Westminster Government should now enact similar legislation for the rest of the UK. It is ironic that pleural plaques sufferers in Gordon Brown’s constituency which includes Rosyth Dockyard will now be able to claim compensation, but other MOD workers outside Scotland will not.”

Q: What is the likelihood of appeal?

A: The Insurance industry should abandon any thoughts of an appeal. The Scottish Parliament has legislated on the matter and a distinguished Court of Session judge had considered detailed submission and ruled that MSPs were perfectly entitled to pass this legislation.  In these circumstances the insurance industry should stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.

Q: Where do the insurers go form here?

A: In my view they should meet their obligations to the victims of pleural plaques.

Q: What affect will the ruling have on the costs for insurers?

A: Taking this judicial review will have involved insurers in very substantial costs which will only further escalate if they try any appeal.  Some of the major players in asbestos cases such as the Ministry of Defence, British Shipbuilders and some other insurance companies stayed out of the judicial review, no doubt on the basis that they considered that they did not have good prospects of winning. 

Pleural plaques cases settle for around £5,000 provisional damages to £10,000 full and final settlement depending on individual cases, so I can’t see the issue having a substantial effect on insurers. In many ways the importance of the judgement is that establishing compenstion for pleural plaques crystallises and makes certain the liability of insurers and defenders and so speeds up proceedings should the victims develop more serious conditions like the fatal asbestos related cancer Mesothelioma. Given that mesothelioma sufferers have a life expectancy of less than two years, anything that speeds up settlement of their compensation claims is of vital importance.

Q: Some people see this as political, has the whole issue become increasingly politicised?

A: If what is meant is that judges can come to conclusions which are unjust which are then remedied or improved by legislature then that is how our democratic system works.  That is what Lord Emslie quite rightly recognised. 

If however what is meant is that this is some political football for ulterior motives, then that has certainly not been the case.  The parties in the Scottish Parliament who are otherwise, on other issues, at loggerheads, for example SNP and Labour, were wholly united behind this legislation as were the Liberal Democrats and minority parties.  The vote was an overwhelming 98-16.

There is hardly a family in Scotland who has not somewhere been touched by the blight of asbestos and, as Kenny MacAskill stated, asbestos is a tragic legacy which has harmed Scottish citizens whose rights and concerns must be addressed by the Scottish Parliament.

Much the same can be said in many areas of England and Wales and, as I have indicated, similar legislation should be enacted by Westminster so that someone in Liverpool or Hull can have the same rights as someone on the Clyde.