C onsultation Letter
Civil and International Justice Directorate
Civil Justice, Law Reform and International Division
T: 0131-244 2442 F: 0131-244 2195
E: Anne.Hampson@scotland.gsi.gov.uk
Recipients as in attached list at Annex D
6 February 2008
Dear Consultee
Consultation - Partial Regulatory Impact Assessment on a Proposed Bill to Reverse House of Lords Judgment in Johnston v NEI International Combustion Ltd
Introduction
The purpose of this letter is to invite you to provide information by 4 April 2008 to enable us to complete the attached partial Regulatory Impact Assessment. As you may be aware, the Scottish Government announced on 29 November 2007 its intention to introduce a Bill which will ensure that the House of Lords (HoL) Judgment in Johnston v NEI International Combustion Ltd published on 17 October 2007 does not have effect in Scotland. Kenny MacAskill, Cabinet Secretary for Justice, made a further announcement to Parliament on 13 December 2007 that, subject to Parliamentary timetabling, he expects to introduce a Bill before the summer recess. A final Regulatory Impact Assessment will be published when the Bill is introduced to Parliament.
Background
The HoL Judgment ruled that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. This Judgment is not binding in Scotland, but is highly persuasive and has already been cited in a Court of Session case.
The believes that people who were negligently exposed to asbestos and who go on to develop pleural plaques should continue to be able to raise an action for damages in Scotland. It proposes to enable them to do so by bringing forward a Bill to this effect. It is possible that the courts might look to the HoL Judgment in Johnston as authority in relation to claims in respect of other asymptomatic asbestos-related conditions.
Scottish Ministers do not wish this to happen and intend that the Bill which is introduced to Parliament will make clear that asymptomatic pleural thickening and asymptomatic asbestosis, when caused by negligent exposure to asbestos, continue to give rise to a claim for damages in Scotland.
Consultation Period
The consultation period is shorter than the standard 12 weeks because of the need to be ready to introduce the Bill.
Responding to the Consultation
Annex A provides details on responding to this consultation. Please ensure that Annex B, the Respondent Information Form, is completed and returned with your response. Further information on the Scottish Government consultation process is contained in Annex C. If you are aware of anyone not on the copy list at Annex D who would be interested in this consultation, it would be appreciated if you would draw it to their attention.
Thank you for taking the time to respond to the consultation on this partial Regulatory Impact Assessment.
Yours sincerely
Mrs Anne Hampson