The Convention Against Cost Budgeting in the Asbestos List: Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB)

Samuel Cuthbert discusses the judgment of Master Davison in  Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB) which reasserts the convention that costs budgeting does not apply to cases in the Asbestos List. 

Background

There is a convention that cost budgeting is disapplied for cases in the Asbestos List. This is captured in the White Book commentary at 3DPD 5.3 as follows:

“The convention of dispensing with costs budgeting in asbestos disease cases has been reinforced by the introduction of PD 3E paragraph 2(b) which indicates that in all cases where there is limited or severely impaired life expectation (five years or less remaining) the Court will ordinarily disapply costs management.”

In this case, the Defendant had made an application to displace this convention and impose costs budgeting. Master Davison’s judgment, given ex tempore on that point in the course of the CMC, has wider application for cases in the Asbestos List.

The Judgment

Master Davison dismissed the Defendant’s application and dispensed with costs budgeting. The Master held that the convention that budgeting be dispensed with reflects the fact that matters typically need to progress very quickly in the Asbestos List. Both case management and final hearings are often listed comparatively soon after the issue of the Claim Form. Further, the Asbestos Masters do not distinguish between mesothelioma, asbestosis cases, and fatal cases for the purposes of listing. All such cases are listed for CMC very quickly, despite the differences in life expectancy in those categories of cases. Such listing arrangements cannot accommodate costs budgeting. 

Master Davison’s judgment takes the Defendant’s three arguments in turn. 

First, the fact that the case in hand was a deceased case was not significant. No distinction was made on that ground because of the administrative burden it would impose and its potential effect on living cases. 

Second, the fact that this case was a heavily contested trial was also not sufficient to take the case out of the ordinary. Heavy contest is characteristic of lots of asbestos cases, and the expert evidence in such case is also often complex. 

Third, in relation to the Defendant drawing attention to the benefits of costs budgeting across the board, Master Davison held at [9]:

“[…] these factors were considered corporately by the Asbestos Masters and by the senior judiciary who devised the present system and approved the convention that costs budgeting should not usually apply. The factors that are generally in favour of costs budgeting were judged to be subordinate to the factors that I have mentioned.” 

Two further observations were then made in relation to this. The Defendant had not produced any evidence to demonstrate that costs in asbestos cases are disproportionate or inadequately controlled. The Defendant could not therefore displace the convention of dispensing with costs budgeting. Moreover, Master Davison observed that QB Masers, Chancery Masters, and Costs Judges do not agree with the Defendant’s position that costs budgeting controls costs better. He did not recognise the Defendant’s dichotomy that imposing costs budgeting represents tight controls of costs in contrast to the ‘free-for-all’ that ensues without it. 

Comment

This is a notable judgment for asbestos practitioners. As is evident from the opening line of Master Davison’s judgment, it is handed down with the approval of the other Asbestos Masters. Its restatement of the reasons for the convention in favour of displacing costs budgeting in the Asbestos List may head off similar challenges in the future.

Master Davison held at [5] that the listing arrangements cannot accommodate costs budgeting and stated: “And I would add that they cannot accommodate too many debates, or contested hearings, about whether costs budgeting should or should not apply”. The Master’s comment at [9] that this hearing was not the appropriate forum for debates about “complex and somewhat sensitive” issues, speaks to the special considerations that underly the need for an Asbestos List. Practitioners need no reminding of the particular difficulties faced by litigators on this list, the existence of the ‘Show Cause’ procedure, expedited timetabling and case management by specialist Masters serve to meet these difficulties. It is hard to see how cost budgeting can be accommodated within this schema, it is suggested that the Master’s decision is therefore the right one.  

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