GLOSSARY

Provisional damages definition

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What does Provisional damages mean?

When the claimant's prognosis is uncertain, the court has the power to award provisional damages to avoid injustice to either of the parties. Then, if the claimant’s medical condition substantially deteriorates or improves, the court can revisit the general damages award.

Dispute Resolution

Provisional damages, in a claim for personal injuries, may be awarded where it is proved or admitted that there is a chance that the claimant will, as a result of the wrong done, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

Damages are assessed on the basis that the future incidence will not occur; but the claimant may apply for further damages in the future if the incidence does occur. Awards of provisional damages are governed by CPR Rule 41 and Practice Direction 41.

Minimise

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Wrongful conception, pregnancy and birth

Wrongful conception, pregnancy and birth The law relating to wrongful conception, pregnancy and birth can be conveniently broken down into four areas: • wrongful conception following a negligently performed sterilisation operation (male or female) resulting in the birth of a healthy child • wrongful conception following a negligently performed sterilisation operation (male or female) resulting in the birth of a disabled child • a disabled woman’s wrongful conception with a healthy child • wrongful birth where the claimant mother would have terminated the pregnancy had she been made aware that the child was or was likely to be disabled An action on behalf of a child (whether disabled or not) alleging that their birth (as opposed to any injuries) arose due to negligence (ie a claim for wrongful life) is not permitted. It appears that there is a statutory exception to this rule under section 1A of the Congenital Disabilities (Civil Liability) Act 1976 (CD(CL)A 1976), which permits a claim by a child where there has been negligent selection of an embryo for implantation or of the gametes. In reality, if a different embryo or different gametes had been selected then the particular child making the claim would not have existed. Following McKay there was further consideration of the scope of CD(CL)A 1976, s 1 when the claimant in Toombes alleged that the cause of her physical disability had been her mother’s

Asbestos—elements of a claim

Asbestos—elements of a claim Elements of the claim A claimant who has developed disease as a result of exposure to asbestos needs to prove: • a duty of care and/or a statutory duty on the part of the individual/company that exposed them to asbestos. The duty is to take reasonable care to ensure that a person was not exposed to a foreseeable risk of asbestos-related injury. In the case of Asmussen the claim was dismissed as on the prevailing standards and general knowledge regarding the dangers of exposure to asbestos of the time, it could not be said that the risk of injury ought to have been foreseen. See Practice Notes: Asbestos—the common law duty of care and Asbestos—statutory duty of care • a breach of the duty of care and/or the statutory duty (this will, in turn, involve issues as to whether it was reasonably foreseeable, at the time of the exposure to asbestos, that such exposure might lead to the development of disease and that the defendant failed to take all reasonably practicable steps to reduce the risk). Official guidance on asbestos levels such as HM Factory Inspectorate’s 1970 publication, Technical Data Note 13 may be a relevant consideration but is not a universal test of foreseeability. Thus, the case of Bussey can be seen as rejecting the notion that, even in claims which pre-dated publication of

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Defendant’s Part 36 offer to settle whole of claim

Defendant’s Part 36 offer to settle whole of claim Dear [insert organisation name] This offer is made pursuant to Part 36 CPR We are instructed to put forward an offer which is made pursuant to Part 36 of the Civil Procedure Rules as follows: [ Lump sum only The defendant offers the sum of £[insert sum] in full and final settlement of the whole of the claimant’s claim arising from this accident. The offer is net of interim payments already made [if possible state dates and amounts]. This offer takes into account any counterclaim. It is made without regard to any liability for any recoverable benefits under section 1 of the Social Security (Recovery of Benefits) Act 1997 and is therefore net of any such

Periodical payments order

Periodical payments order STOP PRESS: This Precedent is currently being reviewed as part of our quality control processes so that we can undertake checks on the document relating to formatting and content. CLAIM No.___________ IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION Parties 1 X Y (by her litigation friend A C) Claimant and 2 R B First Defendant and 3 C D Second Defendant _____________________ FINAL ORDER _____________________ BEFORE The Honourable Mrs Justice [________] sitting at the Royal Courts of Justice on [_______]. UPON hearing Counsel for the Claimant and Counsel for the Defendants. WHEREAS the Claimant has made a claim (the Claim) against the Defendants for personal injuries suffered by him arising out of the Defendants’ negligence on [___________]. AND WHEREAS the Claimant is a protected party and brings the Claim by her Litigation Friend, [___________]. AND WHEREAS the First and Second Defendants have each admitted liability to the Claimant on a joint and several basis. AND WHEREAS the First Defendant’s insurer, [________________], and the Second Defendant’s insurer, [______________] collectively ‘the Defence Insurers’, shall be responsible for and make periodical payments set out in the Schedule to this Order for the benefit of the Claimant subject to their indemnity limits referred to in Part 3 of the Schedule to this Order. AND WHEREAS the Defendants and the Defence Insurers have agreed with the Claimant that any failure to make the periodical payments shall give rise to a direct right of the Claimant to enforce this

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In a claim where liability was admitted and a client received a £3,000 interim payment, is there any obligation for that interim payment to be repaid to the defendant's insurers in circumstances where the client is not proceeding? The client has not responded and I am preparing to close their file on that basis.

In a claim where liability was admitted and a client received a £3,000 interim payment, is there any obligation for that interim payment to be repaid to the defendant's insurers in circumstances where the client is not proceeding? The client has not responded and I am preparing to close their file on that basis. An interim payment is a payment made by a defendant on account of a claimant's monetary claim before the court has made a final determination on the amount of that claim. For further guidance, see Practice Note: Interim payments—guiding principles. The Butterworths Personal Injury Litigation Service defines it as ‘a payment on account of any damages, debt or other sum (excluding costs) which that party may be held liable to pay’ . CPR 38.2(2)(b) provides that: 'where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue

Can you make a Part 36 offer to settle for a sum payable by instalments?

Can you make a Part 36 offer to settle for a sum payable by instalments? Can a defendant make a Part 36 offer to pay by instalments? With one exception, no. Under CPR 36.6(1) a defendant who is defending a claim and who wishes to make a Part 36 offer to pay a sum of money to settle the claim against them must offer to pay a single sum of money. Note also that for a defendant's offer to be effective as a Part 36 offer then any offer to pay the sum of money (or part of it) at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer, unless the offeree accepts it. This is subject to CPR 36.18(3) and CPR 36.19(1), see: Can you make a Part 36 offer to settle for a sum payable by instalments? — Personal injury claims—future pecuniary loss and provisional damages. CPR 36.6 applies as much to a claimant who is seeking to settle a counterclaim by payment of a sum of money, as it does a defendant to a claim. See the final paragraph of CPR 36.2 which notes that CPR 20.2 and CPR 20.3 provide that counterclaims and other additional claims are treated as claims and that references to a claimant or a defendant include a party bringing or defending

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Insurance & Reinsurance weekly highlights—11 August 2022

This week's edition of Insurance & Reinsurance weekly highlights includes: updates relating to the Ukraine conflict, cases and decisions, market practice, regulatory developments, dates for your diary and other news highlights reported over the past week.

PI & Clinical Negligence weekly highlights—4 August 2022

This week's edition of PI & Clinical Negligence weekly highlights includes analysis on an occupational disease claim which held a claimant’s right to further damages under a provisional damages order passes to their estate after their death. We also include two clinical negligence High Court decisions; one considering an application for claimant anonymity and the second ruling on a negligently performed surgery. In addition, we have our usual round-up of key cases and news and New Law Journal articles of interest.

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