Asbestos! To Budget or Not to Budget? That’s not the question!
The White Book commentary at 3DPD5.3 states as follows:
“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 of less remaining) the Court will ordinarily disapply costs management.”
It is a general expectation that when conducting an asbestos case that costs budgeting does not apply. This relates specifically to cases in the Asbestos List and is due to the expediency at which the court timetable, following issue, can take place. Trial can be listed within three months of issue!
In order to keep the efficiency of the Asbestos List, the listing arrangements cannot accommodate costs budgeting, nor does it have the time to accommodate contested hearings about whether costs budgeting should or should not apply. Asbestos cases are often complex, heavily contested, and expert evidence (both medical and non-medical) is often disputed. This is commonplace and the courts accounted for this when they put in place the convention to dispense with costs budgeting in these matters.
In the case of Smith v W Ford & Sons (Contractors) Ltd [2021], the Defendant argued that the matter was heavily contested and as such was not a straightforward disposal process. However, Master Davison did not agree with this argument and believed that the case was less complex than those where the Helsinki criteria fall to be applied. [Just as a reminder, the Helsinki criteria relates to the diagnosis and attribution of asbestos, asbestosis, and cancer.] The Defendant also argued that due to the arguments involved, the matter should require costs budgeting.
Master Davison stated, in an ex tempore judgment, that the convention not to apply costs budgeting was approved by the senior judiciary. Detailed assessment adequately controls the costs in asbestos cases, and there has been no evidence to suggest otherwise to date. Should the Defendant wish to argue that asbestos cases are disproportionate and not being controlled adequately, then that needs to be their argument.
However, looking at the matter from this angle does raise the rather uncomfortable subject of whether costs budgeting has actually sought to control costs more proportionately in other types of cases, lending itself to the argument that it should be utilised to adequately control the costs in an asbestos case. For the meantime, however, asbestos cases generally do not require costs budgeting.
Master Davison reiterated that whilst asbestos cases do technically fall under the realm of costs budgeting, if the matter is in the Asbestos List then convention dictates that costs budgeting is dispensed with.
Here at PIC we regularly undertake work on asbestos cases, as well as other mesothelioma and industrial disease cases. We are specialists in costs and during preparation of our bills we are mindful of proportionality, especially given the dispensation of costs budgeting in these matters. We are happy to help draw Bills of Costs on all your asbestos, mesothelioma, and industrial disease cases.
Susie Power
19.05.22