provisional damages

There is a similar procedure available to a defendant faced with a claim for provisional damages.

Initially only the High Court had jurisdiction to award provisional damages.

Whilst the county court may now award provisional damages in personal injury cases, they must be claimed in the particulars of claim.

The real difficulty for insurers is that settlement of a claim for provisional damages is significantly more difficult than for an ordinary action.

What is certain is that the plaintiff's solicitor must not overlook the provisional damages machinery when advising a client whose medical prognosis is guarded or unclear.

On the other hand, he can ask for provisional damages and get a lesser sum now which may seem unattractive even though he can go back for more later.

The court can make an order for provisional damages at trial or on an earlier settlement, but the settlement must be approved even if the plaintiff is not under a disability.

Where a plaintiff claims aggravated, exemplary or provisional damages the particulars of claim must so state and the facts relied on must be pleaded (Ord 6, r 1B).

The detailed provisions of Ord 22, r 6A, which incorporate RSC, Ord 37, and relate to provisional damages in personal injury actions should be considered.

Once accepted there can be no further award for compensation at a later time unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos related injuries.

However, it seems that if the plaintiff claims provisional damages, the defendant's failure to give notice of intention to defend does not entitle the plaintiff to sign judgment (Ord 37, r8(5)).

The limitation date can, in due course, convert to an ASO date if the case is issued in the county court and eventually a disposal or provisional damages review date.

Under Ord 18, r8 the plaintiff must plead both the claim for provisional damages and the facts relied on to support it as specified by s32A of the Supreme Court Act 1981.

Automatic directions under RSC Ord 25, r8 will apply to claims for provisional damages when they are at the immediate damages stage, unless the plaintiff wants to call more than two medical experts.

PROVISIONAL DAMAGES - see 'DAMAGES'

If an order for provisional damages is made, the court will make an award of immediate damages excluding any for the risk that the plaintiff will develop the specified disease or suffer the specified deterioration.

The Particulars of Claim (equivalent to a Complaint) must contain a concise statement of the facts on which the claimant relies, together with details of any interest claimed and whether aggravated damages or provisional damages are claimed.

On the other hand, pursuers' agents will doubtless maintain that any pursuer who faces the prospect of osteo-arthritis in an injured joint, or degeneration in a back complaint faces serious deterioration and is entitled to take advantage of the provisional damages scheme.

They deal with awards of provisional damages where the plaintiff proves or the defendant admits that there is a chance that the plaintiff's health will change or will get worse because he may develop a serious disease or suffer a serious deterioration in his mental or physical condition.

Under Ord 37, r9 the defendant can make a written offer to the plaintiff tendering a sum in satisfaction of the plaintiff's claim on the basis that he will not suffer the disease or deterioration claimed and identifying the disease or deterioration in question and agreeing to the court making an award of provisional damages.