Interim Damages - Competent in Course of Proof

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.