Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 37

DAMAGES: ASSESSMENT AFTER JUDGMENT AND ORDERS FOR PROVISIONAL DAMAGES

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 I. ASSESSMENT
OF DAMAGES AFTER JUDGMENT

1. Assessment of damages by a master (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 master, and the
party entitled to the benefit of the judgment may, after obtaining the
necessary appointment from a master 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. (HK)(1A) Upon judgment being given
for damages to be assessed, the following directions shall, unless the Court
directs otherwise, take effect automatically- (L.N. 383 of 1996)

   (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)  subject to subparagraph (c), where any party intends to place reliance
        at the hearing on expert evidence, he shall, within 21 days after the
        time for inspection of documents has expired under subparagraph (a),
        disclose the substance of that evidence to the other parties in the
        form of a written report, which shall be agreed if possible;

   (c)  where subparagraph (b) applies to more than one party, the reports
        shall be disclosed by mutual exchange within the time provided;

   (d)  unless such reports are agreed, the parties shall be at liberty to
        call as expert witnesses those witnesses the substance of whose
        evidence has been disclosed in accordance with the preceding
        subparagraph, except that the number of expert witnesses shall be
        limited in any case to two medical experts and one expert of any other
        kind;

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

   (f)  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;

   (g)  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. 363 of 1990)

(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 before a
master 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.

(HK)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. (L.N. 404 of 1991)

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.

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 judgment is given for damages to be assessed, the Court may-

   (d)  order that the action shall proceed to trial before a judge

(with or without a jury) as respects the damages.

(3) Where the Court orders that the action shall proceed to trial, Order 25,
rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires the
parties to serve a notice specifying the orders and directions which they
desire and with any other necessary modifications, apply as if the application
to the Court in pursuance of which the Court makes the order, were a summons
for directions under Order 25.

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 INJURES

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

(1) This Part of this Order applies to actions to which section 56A
of the Ordinance (in this Part of this Order referred to as "section 56A")
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 56A; 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  56A
        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 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  56A and identifying the disease or deterioration in
        question; and (L.N. 404 of 1991)

   (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 21
days after receipt of the offer, 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).

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 three 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 take out a summons for directions as to the future
conduct of the action within 21 days after the expiry of the period of notice
referred to in paragraph (3).

(5) On the hearing of the summons for directions 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.

(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. (Enacted 1988)