9. What can the plaintiff do to reduce financial hardship during the period from the commencement of legal action up to the date of trial? Is it possible for the plaintiff to obtain some compensation from the defendant before the conclusion of the case?
The plaintiff may consider applying for an interim payment. This is an advance payment (made before the final conclusion of the case) that will be taken from any compensation, debt or other sum (excluding legal costs) which a defendant may eventually be held liable to pay.
There are often occasions when it is clear that the plaintiff has a strong case against the defendant with respect to liability and will recover damages at the end. However, the administration of justice takes time. The system of interim payments is devised to prevent the plaintiff from being kept out of his money for an inappropriately long period.
There are three grounds for the plaintiff to apply for an interim payment:
- the defendant has already admitted liability;
- the plaintiff has obtained judgment against the defendant but the amount of compensation is yet to be assessed by the court; or
- if the action proceeded to trial, the plaintiff would obtain judgment for substantial compensation against the defendant.
(Note: The grounds for applying for an interim payment in respect of sums other than damages are different. For details, please refer to Order 29, r 12 of the Rules of the High Court or Order 29, r 12 of the Rules of the District Court as appropriate.)
The plaintiff may make an application for interim payment by summons at any time after the writ has been served on the defendant and the time limit for him to acknowledge service has expired. The application must be supported by the plaintiff's affirmation or affidavit:
- verifying the amount of the damages, debt or other sums to which the application relates, and the grounds of the application; and
- attaching any documentary evidence relied upon by the plaintiff in support of the application.
If the application is successful, the court may make an order for an interim payment of such amount as it thinks just. An interim payment may be ordered to be made in one lump sum or in specified instalments. The payment is normally ordered to be made directly to the plaintiff.
Provisional damages for personal injuries
An interim payment should be differentiated from an award of provisional damages for personal injuries.
Generally, an award of damages in a personal injuries case is a once-and-for-all payment. However, this is not ideal for the plaintiff, as there are cases where there is a chance that the injury will get worse at some future date. To remedy the situation, the courts are given the power to make awards of provisional damages.
Provisional damages are appropriate in personal injuries cases where there is proved or admitted to be a chance that at some definite or indefinite time in the future, the plaintiff will develop some serious disease or suffer some serious deterioration in his physical or mental condition. In such cases, the court can award damages (known as provisional damages) on the assumption that the plaintiff will not develop the disease or suffer the deterioration. If the plaintiff does develop the disease or suffer the deterioration, he can go back to the court for further damages at a future date.
The plaintiff has to note that, in order to claim for provisional damages, it must be pleaded in his statement of claim. Where an application is made for an award of provisional damages, the defendant may at any time make a written offer to pay a sum in satisfaction of the plaintiff's claim for his present injuries and agreeing to the making of an award for provisional damages. The plaintiff is given 21 days to accept. If the offer is accepted, the plaintiff applies to the court by summons for the appropriate order.
For more information concerning personal injuries litigation, please go to another topic – Personal Injuries.