NGO intervention in Axa case changes law on access to courts

Friends of the Earth Scotland intervention leads to change in Scots law on who has the right to have a case heard in court.

Friends of the Earth Scotland today (12 October 2011) celebrated a ruling (1) from the UK Supreme Court in London, which changes the interpretation of ‘title and interest’ in Scots Law, and will now allow campaigning groups to more easily and effectively challenge poor decisions in the courts in the public interest.

The question whether or not sufferers of pleural plaques could be involved in the court action between Axa and the Scottish Government opened a window of opportunity to question the out-dated practice of how Scottish courts decide on who should or shouldn’t be allowed to take a case to court.

Friends of the Earth Scotland is understood to be the first Scottish NGO to intervene in a case at the UK Supreme Court. The organisation took the decision to intervene in the case (2) as it provided an opportunity to challenge the restrictive interpretation that courts in Scotland have traditionally placed on ‘title and interest’, which is the Scots Law test of standing: the right to have your case heard by the court. Despite supporting the involvement of the pleural plaque sufferers, the Scottish Government opposed Friends of the Earth Scotland’s intervention.

Juliet Swann, Head of Campaigns at Friends of the Earth Scotland, said: “We are delighted that two of Scotland’s most eminent judges have recognised the inequality in the Scots law interpretation of ‘standing’ and the damaging effect decades of judge-made law has had on the development of public law in Scotland. It is only right that a judicial ruling should correct the failings of the current system.

“We would challenge the Scottish Government to take heed of this decision, speed up the implementation of the Gill Review, which suggested both that standing be reformed and that the costs of accessing the courts be decreased, and act to ensure the law adequately provides for easy and affordable access to justice.”

For many years the courts have required individuals to show a private, often property-based, interest in the impacts of the decision being challenged in court. Today’s ruling states that the test used in private injury cases should not apply where there is an impact of general concern to the wider public. Instead, Scottish courts should now apply the same test used by the courts in England and Wales, which enables representative organisations, such as community, campaigning or welfare groups, to take forward court challenges in the public or wider interest.

‘Title and interest’ has been an issue in a number of high-profile environmental cases in recent months such as when local resident, Molly Forbes, was deemed not to have ‘title and interest’ in her judicial review against Donald Trump and Aberdeenshire Council.

More recently, local Ayrshire resident Marco McGinty’s challenge against the inclusion of the proposed new coal-fired power station at Hunterston in the National Planning Framework saw Scottish Ministers challenging his title and interest to sue. Mr McGinty’s case was backed by a number of organisations who felt the development was not in the public interest but were unable themselves to challenge the decision in the courts.

Frances McCartney, the solicitor who acted for Friends of the Earth in the intervention, said: “This ruling provides clarity on the interpretation of ‘title and interest’ in Scots law and is a massive step towards people in Scotland having the same rights as people in England and Wales to challenge public body decision making.

“Lord Hope and Lord Reed both explicitly recognise that it is necessary for the rule of law that courts be able to consider cases affecting the public interest. For that to happen, groups acting in the public interest and representing those affected by such issues should be able to take cases to the court, even if the group has not been personally affected. Whilst no-one wishes to rush to litigation, it is important that courts do have a last resort mechanism for wrongful decision making being brought to their attention.”

Lord Hope’s decision that “a personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent” vindicates the work of Friends of the Earth Scotland and the Environmental Law Centre Scotland to convince the Scottish Government and the courts that a property or a geographic interest shouldn’t need to be shown to be able to challenge decisions in court.

ENDS

For media enquiries, please contact: Per Fischer, Press Office, Friends of the Earth Scotland
 t: 0131 243 2719

Notes to Editors

1. The UK Supreme Court ruling can be found online at:
www.supremecourt.gov.uk/news/latest-judgments.html

2. The relevant case is: AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland). Case ID: UKSC 2011/0108. The case related to insurance claims by victims of asbestos exposure who suffer from pleural plaques – scarring of the lungs. The insurers challenged the validity of a 2009 Act of the Scottish Parliament that ensured that individuals could sue for damages if they contracted the condition. The insurers challenged the ‘title and interest’ of a number of individuals with pleural plaques to argue against the case. For more information, see:
www.supremecourt.gov.uk/current-cases/CCCaseDetails/case_2011_0108.html

3. Para 62. Lord Hope of Craighead. “I think that the time has come to recognise that the private law rule that title and interest has to be shown has no place in applications to the court’s supervisory jurisdiction that lie in the field of public law. The word “standing” provides a more appropriate indication of the approach that should be adopted. I agree with Lord Reed (see para 170, below) that it cannot be based on the concept of rights, but must be based on the concept of interests… a person may have a sufficient interest to invoke the court’s supervisory jurisdiction in the field of public law even although he cannot demonstrate that he has a title, based on some legal relation, to do so.`”

Para 63. Lord Hope of Craighead. “I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words “directly affected” which appear in rule 58.8(2) capture the essence of what is to be looked for… The inclusion of the word “directly” provides the necessary qualification to the word “affected” to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.”

Para 100. Lord Reed. “The third issue is one of importance in Scottish public law. It concerns the circumstances in which, in judicial review proceedings in Scotland, a person may be granted leave to take part in the proceedings as a person “directly affected by any issue raised”. This issue arises in relation to the third to tenth respondents, who are individuals who have been diagnosed with pleural plaques, and whose cross-appeal on this matter was supported by the Lord Advocate. There was also a written intervention on this issue by Friends of the Earth Scotland.”

Para 159. Lord Reed. “In considering the approach adopted by the Inner House, it is appropriate to begin by reminding oneself of the nature of an application to the supervisory jurisdiction of the court (in the context of public law: the following discussion is not concerned with applications made in relation to private bodies), and of how it differs from an ordinary action. Putting the matter broadly, in an ordinary action in private law the pursuer is seeking to vindicate his rights against the defender. The right on which the action is founded constitutes his title to sue. In proceedings of this kind, if a person who has not been convened as a defender wishes to be made an additional defender, that must be on the basis that his property or other rights are liable to be affected by the outcome. In that sense, he must have a title to defend the proceedings… An application to the supervisory jurisdiction, on the other hand, is not brought to vindicate a right vested in the applicant, but to request the court to supervise the actings of a public authority so as to ensure that it exercises its functions in accordance with the law.”

Para 169. Lord Reed. “These practical difficulties reflect the problem which, as I have explained, arises as a matter of principle if the court’s approach to standing in judicial review is based upon the approach followed in ordinary actions under private law. The approach to standing which was stated by Lord Dunedin in the Nicol case is appropriate to proceedings where the function of the courts is to protect legal rights: in that context, only those who maintain that their legal rights require protection have a good reason to use the procedures established in order for the courts to perform that function. The essential function of the courts is however the preservation of the rule of law, which extends beyond the protection of individuals’ legal rights…. There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights. A rights-based approach to standing is therefore incompatible with the performance of the courts’ function of preserving the rule of law, so far as that function requires the court to go beyond the protection of private rights: in particular, so far as it requires the courts to exercise a supervisory jurisdiction. The exercise of that jurisdiction necessarily requires a different approach to standing.”

4. Friends of the Earth Scotland is * Scotland’s leading environmental campaigning organisation * An independent Scottish charity with a network of thousands of supporters and active local groups across Scotland * Part of the largest grassroots environmental network in the world, uniting over 2 million supporters, 77 national member groups, and some 5,000 local activist groups – covering every continent.
www.foe-scotland.org.uk