Challenging the Convention of Dispensing with Costs Budgeting in Asbestos Disease Cases: Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB)

As enunciated by Master Davison, in a recent case management conference (CMC) in the case of Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB), there is a ‘firm convention’ that costs budgeting is disapplied in the Asbestos List (for mesothelioma and other asbestos disease cases). This is not a ‘rule of law’, but it is nevertheless codified in the White Book, at paragraph 3DPD.5.3.

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The effect of this ‘important and well-established’ convention, the Master went on to state, is to ensure that the Asbestos List is ‘conducted with despatch’, i.e. promptly and efficiently. As a result, the 1st CMC in asbestos disease cases is generally listed within days or weeks of an issued Claim Form, with trials typically being listed for a date within 3-months of the date of issue.

Irrespective of the ‘big difference’ in life expectancy between mesothelioma and asbestosis (or pleural thickening) cases (and the fact that in fatal cases, life expectancy does not even arise as an issue), Asbestos Masters make no distinction in terms of listing, for each category of asbestos injury. Administering the List in this way has consistently led to ‘rapid’ CMCs and ‘very similar’ case arrangements, with the only difference being that not all trials obtain permission to be expedited.

Master Davison generalised that it is a ‘simple fact of life’ that asbestos disease cases cannot accommodate costs budgeting, nor can they accommodate ‘too many debates, or contested hearings’ about whether costs budgeting should or should not apply.

Regardless of the Master’s overview of costs budgeting in asbestos disease cases, defendant counsel sought to distinguish this case on the basis (1) that it was a deceased case, (2) that there was set to be a ‘heavily contested trial’ and (3) that there was a ‘general encomium’ of arguments pointing in favour of costs budgeting.

However, none of these grounds were sufficient to depart from the convention and dispense with costs budgeting.

In response to the defendant’s 1st submission, the judge accentuated once more that Asbestos Masters make no distinction on the matter of costs budgeting for non-living cases. To do so would impose an administrative burden with profound knock-on effects for non-fatal cases. As for the 2nd submission, he observed that it was not ‘out of the ordinary’, or ‘unusual’, to encounter disputed and often complex medical and engineering evidence. By contrast, such issues were ‘commonplace’. In fact, this case was more ‘straightforward’ to dispose of than a ‘complex’ one where the Helsinki criteria fell to be applied (the need to show that exposure exceeded 25 fibre/ml years).

Moving on to consider the wider aspects of this ‘complex and somewhat sensitive’ issue, Master Davison opined that, were non-budgeted costs in asbestos cases to be compared against budgeted costs in other industrial disease cases, there would not be ‘much, if indeed any, difference’. It is perhaps for this reason that QB Masters, Chancery Masters and Costs Judges are in joint agreement that costs budgeting does not provide better, or more effective, control of costs in asbestos cases than the process of detailed assessment. There is no evidence to the contrary and, should defendants wish to displace the convention, they ‘must show, rather than merely assert’ that costs in such cases are ‘disproportionate or adequately controlled’.

Thus, the Master decided to refuse the defendant’s application to circumvent the normal procedure on costs:

‘I do not agree with the Defendant's characterisation of this case as presenting a dichotomy between the tight control of costs on the one hand and a free-for-all on the other. That is, in my view, inaccurate’.

Full text judgment can be accessed here.

The decision to promulgate this ex tempore judgment on BAILII was influenced by the fact that it deals with an issue common to all cases in the Asbestos List and also because it carries the approval of all Asbestos Masters.