The application of Cost Budgeting in Asbestos claims, a convention not easily disapplied

Further guidance has been given by the Asbestos Masters in the High Court as to the conventions regarding Cost Budgeting in mesothelioma and other asbestos disease cases.

The extempore judgment in Smith v W Ford & Sons (Contractors) LTD [2021] EWHC 1749 (QB) commented on the traditional convention, not rule of law, that Cost Budgeting be dispensed with in asbestos disease cases, which has been reinforced by the introduction of PD 3E paragraph 2(b). This 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.

Asbestos cases, for those unfamiliar with them, usually have the CMC listed much sooner than other Multi Track matters and can be listed within weeks or even shorter sometimes, of issue. The period for settlement following issue can often be as short as a few months. Despite the differences in life expectancy of the Claimants, no distinction is made in listing between mesothelioma and asbestosis cases, and fatal cases. In view of this, the listing arrangements cannot accommodate the often hotly disputed, budgeting process.

In the aforementioned case, submissions were made at the CMC on behalf of the Defendant that the usual convention should be disapplied and the case should cost managed. The submissions were made in three parts. Firstly, that the Claimant was deceased. Secondly, that the case was a heavily contested trial, and not a ‘straightforward’ disposal hearing. Thirdly, that it amounted to a general encomium in favour of costs budgeting.

It was observed by Master Davison who delivered the judgment, that all of the factors were considered by the Asbestos Masters and by the senior judiciary who devised the convention, and it deemed that ‘the factors that are generally in favor of costs budgeting were judged to be subordinate to the factors that I have mentioned’.

Interesting comments as to the interlink between Cost Budgeting and Detailed Assessment followed the decision in the second part of paragraph 9 of the judgment. Master Davison commented that 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. Acknowledgment was given that this was a ‘complex and somewhat sensitive issue’.

The decision in respect of the application of Cost Budgeting in these types of cases comes as no surprise, and it seems that the hurdle to be cleared for applying the cost budgeting process remains a high one. The latter comments however come as more of a surprise, with it being this writer’s opinion, and the consensus amongst many a Legal Costs professional that cost management has reduced the issues in dispute once it comes to the Detailed Assessment process. The forum of any debate as to the issue, and whether the opinion is shared amongst Masters in other divisions of the High Court remains to be determined at a later date.  

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