Graeme Carling v W P Bruce Limited - Court of Session 20th
January 2006
The Pursuer raised an action for damages after a road traffic
accident. The Defenders admitted liability. Proof was part heard
over four days in November 2005, and set down for eight further
days in late April and early May 2006. At 4 January 2006, the
Pursuer enrolled a motion for interim damages of £300,000 against a
sum sued for of £900,000.
Rule 43.11 states that:
"(1) A Pursuer may, at any time after defences have been lodged,
apply by motion for an order for interim payment of damages to him
by the Defender.
(2) On a motion under paragraph (1), the Court may, if satisfied
that-
(a) the Defender....has admitted liability to the Pursuer in the
action.... ordain that Defender to make an interim payment to the
Pursuer of such amount as it thinks fit...."
While accepting that there was no reported case where this had
occurred, as the rule does not create a cut off point in procedure
beyond which the motion cannot be made, the Court rejected the
Defenders' contention that such a motion was incompetent during
proof.
It was noted that liability had been admitted, excluding the
need to look at the part of the rule dealing with cases where
liability is not admitted but is likely to be established. The only
live issue was therefore how much to award.
Medical evidence was hotly contested and only partly heard at
the time of the motion, and therefore the Court agreed with the
Defenders' submission that it was neither possible nor appropriate
to prejudge the issue to the extent of predicting the likely final
award.
However, past wage loss and the services claim had been agreed
at £181,000 and, under deduction of £116,500 already voluntarily
paid, these sums could not exceed a reasonable proportion of what
that final award would be, with solatium and future wage loss still
to be decided upon. Accordingly, an interim award of £64,500 was
made.
A motion for interim damages is thus likely to succeed, if
liability is admitted or likely to be established, at least to the
extent of agreed heads of claim, even if the balance of the claim
is still fiercely contested and hard to judge. Negotiating around
that figure may avoid the cost of arguing such a motion before the
court.
