NEWFOUNDLAND AND LABRADOR
REGULATION 90/05

Rules of the Supreme Court, 1986 (Amendment)
under the
Judicature Act

(Filed September 26, 2005)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division, on September 16, 2005, makes the following Rule.

Dated at St. John's, September 26, 2005.

Barry R. Sparkes, Q.C.
Registrar of the Supreme Court
Secretary, Rules Committee

RULES

Analysis

        1.   Rule 44A Added

                      RULE 44A
        ADVANCE
        PAYMENT OF
        DAMAGES

              44A.01                   Advance payment of
            damages
44A.02                   Application
44A.03                   Determination of
            amount
44A.04                   Payment
44A.05                   Multiple
            applications

 

        2.   Commencement

 

        1. The Rules of the Supreme Court, 1986 are amended by adding immediately after Rule 44 the following:

RULE 44A
ADVANCE PAYMENT OF DAMAGES

Advance payment of damages

 

44A.01. Before damages are assessed, a judge may order the defendant to make an advance payment to the plaintiff on account of special damages if the court is satisfied that

             (a) the defendant against whom the order is sought has admitted liability for the plaintiff's damages, or

             (b) the plaintiff has obtained judgment against the defendant with damages to be assessed.

Application

 

44A.02. In any application for an advance payment of special damages, the plaintiff must specify, supported by affidavit evidence, the amount and nature of the special damages for which payment is sought.

Determination of amount

 

44A.03. In determining the amount of an advance payment, the judge may take into account any circumstances that the judge considers relevant, including

             (a)  the amount of special damages already incurred or likely to be incurred before damages are assessed,

             (b)  any counterclaim by the defendant,

             (c)  the extent, if any, to which the plaintiff may be found to be contributorily negligent,

             (d)  any failure by the plaintiff to mitigate the amount of special damages, and

             (e)  the needs and resources of the plaintiff and the means of the defendant, including the availability to the defendant of insurance to indemnify the defendant in respect of the plaintiff's claim.

Payment

 

44A.04. The judge may order that payment under rule 44A.01 may be made by lump sum, by instalment, or by both.

Multiple applications

 

44A.05. A plaintiff may make more than one application pursuant to this Rule.

Commencement

        2. This rule shall come into force on January 1, 2006.

 

©Earl G. Tucker, Queen's Printer