As has been widely reported in recent weeks, the Supreme Court's judgment in AXA General Insurance Limited & others v The Lord Advocate & others ("the AXA judgment") addresses several issues of constitutional importance.
The AXA judgment upheld the lawfulness of the Damages (Asbestos-Related Conditions) Scotland Act 2009 ("the 2009 Act"), allowing the payment of damages to sufferers of pleural plaques, a scarring of the lungs caused by exposure to asbestos. Perhaps more significantly from a constitutional perspective, the AXA judgment also abolishes the "title and interest" test in public law proceedings.
AXA and other leading insurers sought to challenge the 2009 Act by way of a Judicial Review. The challenge was defended by the Scottish Government, the Advocate General for Scotland and a group of eight pleural plaques sufferers who wanted to support the 2009 Act. One of the arguments put forward on behalf of the insurers was that the pleural plaques sufferers did not have sufficient title and interest to defend the challenge.
Over the last century the rules on title and interest in Scots law have developed almost entirely through court decisions. Prior to the AXA judgment, parties were required to show that they had sufficient title and interest to initiate or defend proceedings before the Scottish courts (a far higher test than is currently required in England & Wales). The requirements for title and interest were interpreted restrictively and were particularly difficult for parties to meet in proceedings relating to matters of public law. For example, Molly Forbes was recently deemed not to have sufficient title and interest to challenge Aberdeenshire Council and their grant of planning permission to Donald Trump.
In the AXA judgment, the Supreme Court highlighted the difference between private rights and the public interest involved in Judicial Review proceedings. The Court ruled that the private law test of title and interest had no place in the public law sphere. Courts should instead refer to "standing" based upon a sufficient interest.
While it is not clear exactly how "standing" will be applied in a public law context, the Court clarified that what should be looked at is the interest of the person affected by or having reasonable concern in the matter to which an application relates. 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. In this case, the pleural plaques sufferers had sufficient interest to defend the insurers' challenge.
The abolition of the title and interest test represents an important milestone in the development of public law in Scotland. It will be particularly welcomed by representative organisations, such as campaigning and welfare groups who are keen to take forward court challenges in the public interest. We will watch with interest as the test of "standing" is developed.