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The requirement for a Costs Budget in asbestos claims was explored in Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB).

The well-established convention that costs budgeting should not usually apply to Asbestos claims was confirmed in the case of Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB).

Background

The Defendant’s application for costs budgeting to apply to a case in the Asbestos List was refused.

An extempore judgment was provided by Master Davidson during a CMC in an asbestos case from the Asbestos List and is relevant for all cases in the List.

The convention

There is a convention in place for costs budgeting to be dispensed with in asbestos disease cases. This has also been reinforced by the introduction of PD 3E 2(b) (now found at PD 3E A paragraph 1. which states;

“In cases where the Claimant has a limited or severely impaired life expectation (5 years or less remaining) the court will ordinarily disapply cost management under Section II of Part 3.”

The running of asbestos cases

CMCs in asbestos cases can be listed within days or weeks of an issued claim form and can be listed for trial and concluded within a few months from when the case was first issued. The time frame is usually much shorter than other multi track matters.

The Asbestos Masters when administering the List made no distinction, in terms of listing, between mesothelioma and asbestosis cases, and fatal cases.

Based on the listing arrangements it was decided asbestos cases cannot accommodate costs budgeting.

The Defendant’s three arguments

  1. This is a deceased case.
  2. This is a heavily contested Trial.
  3. It amounted to general encomium in favour of costs budgeting.

Master Davison’s response

  1. No distinction is to be made on the ground that the Claimant is deceased. It would cause an administrative burden and have “a profound knock-on effect on living cases”.
  2. It is not unusual or out of the ordinary for asbestos cases to be heavily contested with disputed and complex evidence.
  3. Careful consideration was made by the Asbestos Masters and Senior Judiciary when deciding that costs budgeting should not usually apply to these cases. There is no evidence the detailed assessment is not controlling adequately the costs in these cases. The Defendant would need to show the costs are disproportionate and not adequately controlled for the convention to not apply.

Decision

Master Davidson refused the Defendant’s application and followed the convention to dispense with costs budgeting.

Comment

One striking point made by Master Davison was 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. This is a large topic and a complex and somewhat sensitive issue.”

It will be interesting to see what further comments are made by the Judiciary in relation to costs budgeting in the future.

Nicola Magrath is a Costs Solicitor at A&M Bacon Ltd, where we have a team of costs experts who have a wealth of experience in dealing with all legal costs issues. Should you have any queries in relation to budgeting or legal costs, please do contact our specialists and award-winning team. You can contact Nicola or the team on 01733 350 880 or visit our website www.aandmbacon.co.uk for more information.

Published 15 July 2021

Author – Nicola Magrath

 

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