Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 37

DAMAGES: ASSESSMENT AFTER JUDGMENT AND ORDERS FOR PROVISIONAL DAMAGES

(Past version on 01/09/2000).

I.     ASSESSMENT OF DAMAGES AFTER JUDGMENT


1. Assessment of damages (O. 37, r. 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 a judge or master as
directed by the Court, and the party entitled to the benefit of the judgment
may, after obtaining the necessary appointment and, at least 7 days before the
date of the appointment, serving notice of the appointment on the party
against whom the judgment is given, proceed accordingly. (L.N. 153 of 2008)

(1A) Upon judgment being given for damages to be assessed, the following
directions shall, unless the Court directs otherwise, take effect
automatically-

   (a)  there shall be discovery of documents within 14 days in accordance
        with Order 24, rule 2, and inspection within 7 days thereafter in
        accordance with Order 24, rule 9;

   (b)  each party shall serve on the other parties, within 6 weeks, written
        statements under Order 38, rule 2A of the oral evidence which the
        party intends to lead on any issues of fact to be decided at the
        trial;

   (c)  photographs, plans and the contents of any police investigation report
        shall be receivable in evidence at the hearing and shall be agreed if
        possible;

   (d)  the record of any proceedings in any court or tribunal shall be
        receivable in evidence upon production of a copy thereof certified as
        a true copy by the clerk or other appropriate officer of the court or
        tribunal;

   (e)  at the time of making of the application for an appointment, the
        master shall be notified of the estimated length of the assessment and
        any other matter which may affect the setting down of the assessment.
        (L.N. 153 of 2008)

(2) Notwithstanding anything in Order 65, rule 9, a notice under this rule
must be served on the party against whom the judgment is given.

(3) The attendance of witnesses and the production of documents in proceedings
under this Order may be compelled by writ of 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 a trial.

1A. Assessment of costs as damages (O. 37, r. 1A)

Where damages to be assessed pursuant to a judgment to which this Order
applies consist solely of costs claimed on an indemnity basis, such assessment
shall proceed as for a taxation of costs under Order 62 and the provisions of
that Order shall apply as if an order for taxation of costs on
the indemnity basis had been made.

2. Certificate of amount of damages (O. 37, r. 2)

Where in pursuance of this Order or otherwise damages are assessed by a
master, he shall certify the amount of the damages and the certificate shall,
when judgment is entered, be filed in the Registry. (L.N. 153 of 2008)

3. Default judgment against some but not all defendants
(O. 37, r. 3)

Where any such judgment as is mentioned in rule 1 is given on failure to give
notice of intention to defend 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.

4. Power to order assessment at trial
(O. 37, r. 4)

(1) Where judgement is given for damages to be assessed, the Court may order
that the action shall proceed to trial before a judge as respects the damages.

(2) Where the Court orders that the action shall proceed to trial, Order 25,
rules 5 to 10-

   (a)  with the omission of so much of rule 10(1) as requires the parties to
        serve a notice specifying the orders and directions which they desire;
        and

   (b)  with any other necessary modifications, apply as if the application to
        the Court in pursuance of which the Court makes the order, were a case
        management summons under Order 25. (L.N. 153 of 2008)

5. Assessment of value (O. 37, r. 5)

The foregoing provisions of this Order 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.

6. Assessment of damages to time of assessment
(O. 37, r. 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.

II.     ORDERS FOR PROVISIONAL DAMAGES FOR PERSONAL INJURIES


7. Application and interpretation (O. 37, r. 7)

(1) This Part of this Order applies to actions to which section 72E
of the Ordinance (in this Part of this Order referred to as "section 72E")
applies.

(2) In this Part of this Order "award of provisional damages" (暫定損害賠
償裁決) means an award of damages for personal injuries under which-

   (a)  damages are assessed on the assumption that the injured person will
        not develop the disease or suffer the deterioration referred to in
        section 72E; and

   (b)  the injured person is entitled to apply for further damages at a
        future date if he develops the disease or suffers the deterioration.

8. Order for provisional damages (O. 37, r. 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-

   (a)  the plaintiff has pleaded a claim for provisional damages; and

   (b)  the Court is satisfied that the action is one to which section  72E
        applies.

(2) An order for an award of provisional damages shall specify the disease or
type of deterioration 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 disease or type of deterioration and may in respect of each
disease or type of deterioration 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.

9. Offer to submit to an award (O. 37, r. 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) 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 disease or suffer the deterioration referred to
        in section  72E and identifying the disease or deterioration 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 28
days after the offer was made, 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). (L.N.
153 of 2008)

10. Application for award of further damages
(O. 37, r. 10)

(1) This rule applies 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, within 21 days after the expiration of the period of
notice referred to in paragraph (3), take out a case management summons as to
the future conduct of the action. (L.N. 153 of 2008)

(5) At the determination of the case management summons 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, mode and date of the hearing of the application for further damages.
(L.N. 153 of 2008)

(6) Only one application for further damages may be made in respect of each
disease or type of deterioration 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, with the necessary modifications, apply 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.

"award of provisional damages" (暫定損害賠償裁決)