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Cost Budgeting in the Asbestos List

02/09/21. This Judgment was given extempore during a CMC. However, the Master decided that given that it involves the common issue of cost budgeting within the Asbestos List, it was set into print. It has been distributed more widely than otherwise would be the case. The Judgment states that approach contained has the approval of the Asbestos Masters.

Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB) per Master Davison.

The Background

The Judgment notes that there is a convention (though no rule of law) that costs budgeting is generally dispensed with in the asbestos list. This convention is set out in the White Book, at 3DPD 5.3 “Costs budgeting at the CMC in mesothelioma and other asbestos disease cases”:

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.”

The Master noted that this convention reflects the speed at which the Asbestos List is dealt with. First CMCs can be within days or weeks of issue, and trials can be within 3 months. For administrative reasons, there is no distinction made by the Masters between the different forms of asbestos-related injury. Neither is a distinction made as to whether such conditions are expected to be fatal.

The Master notes that such listing arrangements cannot accommodate cost budgeting.

The Defendants’ Arguments

The Defendant raised that this was a deceased case, and so without the urgency of a living case. The Master dealt with this simply by repeating the above. If there was a distinction there would be an administrative burden attached which would affect the living cases.

The Defendants also set out that this was a ‘heavily contested trial’ and not a ‘straightforward disposal process’. The Master found that this did not take the case out of the ordinary. A large number of such cases were disputed on medical or engineering evidence. The Master noted that this case was, in fact, more straightforward than some since the Helsinki criteria would not apply.

The Defendants’ third point was in relation to what was described as a ‘general encomium’ in favour of cost budgeting. The Master stated in relation to asbestos claims there is a general convention that this would not apply. He found that the factors in favour of cost budgeting were subordinate to the other factors already raised. He also found that there was no evidence that detailed assessment does not adequately control costs in asbestos cases.

The Master’s view was that if there was an analysis between budgeted and non-budgetted industrial disease cases, he would be surprised if there was much difference. If the Defendants wanted to displace a convention based on an assertion, they would have to prove the point. The Master took the view that there was not a tight control of costs on one hand, and a free-for-all on the other.

The Decision

In short, the Master followed the convention and dispensed with costs budgeting.

Conclusion

It is clear from this short Judgment that the Asbestos Masters will not easily be persuaded to order cost budgeting in the Asbestos List.

There was a hint of a wider view as to the utility of cost budgeting:

QB Masters, Chancery Masters and Costs Judges do not necessarily share this defendant’s expressed confidence that costs budgeting controls costs better, or more effectively, than detailed assessment. This is a large topic and a complex and somewhat sensitive issue. The present hearing is not, perhaps, the forum to debate it at any length. “

This chimes with my own experience. Indeed, the QB Masters appear very willing to dispense with cost budgeting on other disease cases or indeed general personal injury cases, though usually in the event that both parties are content to do so.

This article was originally published at https://jimhester.me

Image ©iStockphoto.com/Alexey Emelyanov

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