8: Entitlement to damages Flashcards
What is meant by statutory interest?
A rate of interest prescribed by legislation, often 8% per annum under the Senior Courts Act 1981.
Where does the court’s discretion arise from?
From s35A SCA 1981 for High Court Claims and s69 County Courts Act 1984 for County Court claims, both usually providing an 8% per annum rate.
What is another piece of legislation related to statutory interest?
The Late Payment of Commercial Debts (Interest) Act 1998, applicable to commercial debts.
Can the court refuse statutory interest if there has been a delay?
Yes, the court can refuse if there has been an unreasonable delay in bringing the claim to court.
What is the purpose of damages/an award in tort?
To put the claimant in the position they would have been in if not for the tort.
In which document do you make it clear whether you are seeking interest on any amounts awarded by the court?
The particulars of claim.
What must be pleaded about the claimant’s physical injuries?
Information on the age of the claimant, effect of the injury, and a medical report substantiating all injuries.
How is the medical report classified in terms of evidence?
As expert evidence.
What is the main type of award for general damages?
Pain, suffering, and loss of amenity;
How will the court assess the level of these damages?
Based on the medical report and claimant’s witness evidence, using Judicial College Guidelines.
What time period does the loss of future earnings head cover?
The loss of earnings likely to be suffered from the trial date to retirement.
What is a multiplicand?
The claimant’s annual loss, including income increases and career progression.
What is the multiplier?
A figure from the Ogden Tables, adjusted for accelerated receipt and mortality.
What is the basis of the loss of earning capacity head of damages?
Compensation for disadvantage in the labour market due to injuries, even without actual loss of earnings. (Smith v Manchester)
What does loss of congenial employment compensate for?
Loss of enjoyment of the job, particularly for vocations like firemen, nurses, and police officers.
What do future expenses cover?
Expenses likely to be incurred after the trial, such as medical care and maintenance.
When might provisional damages be necessary?
When there is a chance of disease development or deterioration in the claimant’s condition.
What are special damages?
Pecuniary (financial) losses suffered from the accident date until the trial date, aimed at reimbursement.
What third-party losses and expenses can be claimed?
Expenses incurred by third parties (carers), such as travel for hospital visits and services provided to the claimant.
Can a claimant claim private medical treatment form even though it is free on the NHS?
Yes, they can.
Can the cost of nursing care be claimed?
Yes, e.g. reasonable expenses and value of wages reasonably foregone.
When must the court award interest on personal injury damages?
When the damages awarded exceed £200.
What are the interest rates on different types of damages?
Special damages: half the court’s special account rate (0.625%) from the date of the accident to trial;
General damages: 2% per annum from the date the claim form is issued;
Future loss: No interest.
Do claimants have to mitigate their losses in contract and tort cases?
Claimants must take reasonable steps to minimize their loss. The burden of proof is on the defendant to show the claimant failed to mitigate their losses.
When is there an entitlement to claim interest before proceedings are issued?
Only if there is a specific contractual clause providing for interest or if the Late Payment of Commercial Debts (Interest) Act 1998 applies (at 8% above the base rate).
What are the types of interest entitlement after proceedings are issued up to judgment?
Under an express contractual provision;
Under an implied contractual provision;
By virtue of the court’s discretion to award interest.
How is the amount of interest due calculated?
Amount of claim x (Number of days / 365) x (Interest rate / 100);
Round up all figures to two decimal places.
Under which laws can interest be claimed if there is no contractual provision for interest?
SCA 1981
CCA 1984
Late Payment of Commercial Debts (Interest) Act 1998
What does the LPCD(I)A 1998 apply to?
Debts incurred in the course of business. Creditors can claim for reasonable costs incurred in recovering the debt if the debtor did not pay on time;
Under LPCD(I)A 1998, how long do businesses and public authorities have to pay?
Businesses have 60 days to pay, extendable by agreement;
Public authorities have 30 days to pay with no negotiation for longer periods;
What are the fixed penalty charges under LPCD(I)A 1998?
Fixed penalty charges:
£40 for debts up to £999.99,
£70 for debts £1,000-£9,999,
£100 for debts £10,000 or more.
What is the interest rate under LPCD(I)A 1998?
The Bank of England base rate for the period during which the debt falls due plus 8 percent.
What is the difference between the interest rate of the County and Senior Courts Acts and the Late Payments rate?
County/Senior: 8% per year
Late Payments: Base rate PLUS 8%
