They Tried to Make Me File a Budget – I said No, No, No…

Master Davison closed the door, firmly, on costs budgeting in the Asbestos List in Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB). Philip Turton reports on the decision. The judgment can be read here.

It has long been the practice in the Asbestos List to dispense with costs budgeting. In living mesothelioma claims the need for urgency is paramount and the court does not, accordingly, concern itself with distractions. That position had been thought by some to be less clear in relation to fatal asbestos claims or claims for other, longer term, asbestos diseases, such as asbestosis or pleural thickening.

In Smith v W Ford & Sons (Contractors) Ltd the Defendant, in a fatal claim, endeavoured to persuade Master Davison that, contrary to usual practice, costs budgeting should take place. The death of the deceased, so it was submitted, removed the need for urgency which would arise in a living case; the live issues were complex and the trial was thus likely to be involved; costs budgeting generally was to be favoured, consistent with its position in the Civil Procedure Rules, in order to control the unreasonable generation of costs which were not warranted.

These submissions did not find favour. Within an ex tempore judgment, Master Davison identified the “firm convention” that costs budgeting was generally disapplied in the Asbestos List. Importantly, he confirmed that the Queen’s Bench Masters administering the Asbestos List made no distinction between categories of case, whether mesothelioma or other diseases, or between living and fatal cases. All were subject to a rapid listing for a first CMC and the arrangements for fixing a trial date and the directions to reach that point would be broadly similar (although not every category of case would attract an expedited trial, this generally being reserved for living mesothelioma cases).

The Master identified that the List depends upon its efficiency. If it is to operate effectively, a proliferation of debates and contested hearings is to be avoided. Importantly, time taken up on costs budgeting in fatal claims would have a knock-on effect on living cases which required the speediest attention. The burden imposed upon the Masters dealing with that List would increase and, by inference, efficiency would be tempered. This applied whatever the complexity of the case, the Master noting that a contested trial is not unusual in the Asbestos List which frequently encounters disputed and often complex expert evidence in both medical and engineering fields.

Thus, whilst costs budgeting was the default position generally under the Civil Procedure Rules, it was not the default in relation to the Asbestos List. The senior judiciary charged with devising the current system approved of the convention that costs budgeting would not normally apply and that the factors in favour of it were subordinate. The process of detailed assessment served as an effective control and there was no evidence that costs in asbestos cases were disproportionate. Perhaps tellingly, he added, “Queen’s Bench 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.” As the Master acknowledged, this was a sensitive and complex topic which, if it was to be debated, required a greater forum.

In the premises costs budgeting was dispensed with and it can reasonably be assumed, in the absence of any appeal, that costs budgeting will not ever take place in the Asbestos List. After this, “Costs budgeting dispensed with” can be regarded not just as the norm but as the fixed rule.