ORDER
37
ASSESSMENT OF DAMAGES
Assessment of damages by Registrar (O. 37, r. 1)
1.
—(1)
Where
judgment is given for damages to be assessed and no provision is made
by the judgment as to how they are to be assessed, the damages shall,
subject to the provisions of this Order, be assessed by the Registrar,
and the party entitled to the benefit of the judgment shall, within
one month from the date of the judgment, apply to the Registrar
for directions and the provisions of Order 25, Rule 3 shall, with
the necessary modifications, apply.
(2)
On the hearing of the application
for directions, the Registrar may, in addition to making such orders
as are necessary and appropriate under Order 25, Rule 3, give directions
as to the time by which a notice of appointment for assessment of
damages shall be filed and such notice upon being filed must, notwithstanding
anything in Order 62, Rule 10, be served not later than 7 days thereafter
on the party against whom the judgment is given.
(3)
If the party entitled to the benefit
of the judgment fails to comply with paragraph (1), the Court may,
on the application of the party against whom the judgment is given,
proceed to assess damages or make such other order as it thinks
just.
(4)
The attendance of witnesses and the
production of documents before the Registrar in proceedings under
this Order may be compelled by subpoena, and the provisions of Order
35 shall, with the necessary adaptations, apply in relation to those proceedings
as they apply in relation to proceedings at the trial.
(5)
Subject to any directions given by
the Registrar pursuant to this Rule, the party entitled to the benefit
of the judgment must file a notice of appointment for assessment
of damages within 6 months of the date of judgment.
(6)
A party shall not file a notice of
appointment for assessment of damages by the Registrar pursuant
to this Rule unless directions for filing and exchange of affidavit evidence
pursuant to Order 25, Rule 3 or 8, have been given or complied with,
as the case may be.
(7)
If that party does not file the notice
of appointment for assessment of damages within the prescribed period,
any other party may apply for directions.
Certificate of amount of damages (O. 37, r. 2)
2.
Where
in pursuance of this Order or otherwise damages are assessed by
the Registrar, he shall certify the amount of the damages.
Default judgment against some but not all defendants
(O. 37, r. 3)
3.
Where
any such judgment as is mentioned in Rule 1 is given in default
of appearance or in default of defence, and the action proceeds
against other defendants, the damages under the judgment shall be
assessed at the trial unless the Court otherwise orders.
Power to order assessment by Registrar or at trial
(O. 37, r. 4)
4.
The
Court may, in the case of any such judgment as is mentioned in Rule
1, order either —(a)
that the assessment of the damages
shall be made by the Registrar; or
(b)
that the action shall proceed to trial
before a Judge as respects the damages,
and where the Court orders that the
action shall proceed to trial, Order 25, Rules 2 to 7, shall, with
the omission of so much of Rule 7 (1) as requires the parties to
serve a notice specifying the orders and directions which they desire
and with any other necessary modifications, apply as if the application
to the Court, in pursuance of which the Court makes the order, were
a summons for directions under Order 25.
Assessment of value (O. 37, r. 5)
5.
Rules
1 to 4 shall apply in relation to a judgment for the value of goods
to be assessed, with or without damages to be assessed, as they
apply to a judgment for damages to be assessed, and references in
those provisions to the assessment of damages shall be construed
accordingly.
Assessment of damages to time of assessment (O. 37,
r. 6)
6.
Where
damages are to be assessed (whether under this Order or otherwise)
in respect of any continuing cause of action, they shall be assessed
down to the time of the assessment.
Application and interpretation (O. 37, r. 7)
7.
—(1)
This
Rule and Rules 8 to 10 shall apply to actions for damages for personal injuries.
(2)
In the following Rules of this Order, “award
of provisional damages” means an award of damages for personal
injuries under which —(a)
damages are assessed on the assumption
that a contingency will not happen; and
(b)
the injured person is entitled to
apply for further damages at a future date if the contingency happens.
Order for provisional damages (O. 37, r. 8)
8.
—(1)
The
Court may, on such terms as it thinks just and subject to the provisions of
this Rule, make an award of provisional damages if the plaintiff
has pleaded a claim for provisional damages.
(2)
An order for an award of provisional
damages shall specify the contingency in respect of which an application
may be made at a future date, and shall also, unless the Court otherwise
determines, specify the period within which such application may
be made.
(3)
The Court may, on the application
of the plaintiff made within the period, if any, specified in paragraph
(2), by order extend that period if it thinks it just to do so,
and the plaintiff may make more than one such application.
(4)
An order for an award of provisional
damages may be made in respect of more than one contingency and
may in respect of each contingency specify a different period within
which an application may be made at a future date.
(5)
Orders 13 and 19 shall not apply in
relation to an action in which the plaintiff claims provisional
damages.
Offer to submit to an award (O. 37, r. 9)
9.
—(1)
Where
an application is made for an award of provisional damages, any defendant
may at any time (whether or not he makes a payment into Court or
makes an offer to settle) make a written offer to the plaintiff —(a)
to tender a sum of money (which may
include an amount to be specified, in respect of interest) in satisfaction
of the plaintiff’s claim for damages assessed on the assumption
that the injured person will not develop the contingency and identifying
the contingency in question; and
(b)
to agree to the making of an award
of provisional damages.
(2)
Any offer made under paragraph (1)
shall not be brought to the attention of the Court until after the
Court has determined the claim for an award of provisional damages.
(3)
Where an offer is made under paragraph
(1), the plaintiff may, within 21 days after receipt of the offer,
give written notice to the defendant of his acceptance of the offer
and shall on such acceptance make an application to the Court for
an order in accordance with the provisions of Rule 8 (2).
Application for award of further damages (O. 37,
r. 10)
10.
—(1)
This
Rule shall apply where the plaintiff, pursuant to an award of provisional
damages, claims further damages.
(2)
No application for further damages
may be made after the expiration of the period, if any, specified
under Rule 8 (2), or of such period as extended under Rule 8 (3).
(3)
The plaintiff shall give not less
than 3 months written notice to the defendant of his intention to
apply for further damages and, if the defendant is to the plaintiff’s knowledge
insured in respect of the plaintiff’s claim, to the insurers.
(4)
The plaintiff must take out a summons
for directions as to the future conduct of the action within 21
days after the expiry of the period of notice referred to in paragraph
(3).
(5)
On the hearing of the summons for
directions, the Court shall give such directions as may be appropriate
for the future conduct of the action, including, but not limited
to the disclosure of medical reports and the place and date of the
hearing of the application for further damages.
(6)
Only one application for further damages
may be made in respect of each contingency specified in the order
for the award of provisional damages.
(7)
The provisions of Order 29 with regard
to the making of interim payments shall apply, with the necessary
modifications, where an application is made under this Rule.
(8)
The Court may include in an award
of further damages simple interest at such rate as it thinks fit
on all or any part thereof for all or any part of the period between the
date of notification of the plaintiff’s intention to apply
for further damages and the date of the award.