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RULE 44A
ADVANCE PAYMENT OF DAMAGES

Analysis



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 all or part of the special damages claimed; or

(b) the plaintiff has obtained judgment against the defendant with damages to be assessed, and, following notice of the plaintiffs application for advance payment given in accordance with rule 44A.07, the defendant has not filed any reply taking issue with the special damages, or sought any part thereof, for which the advance payment is sought.

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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.

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Determination of amount

44A.03. In determining the amount of an advance payment, the judge may take in to 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 at trial to be contributorily negligent;

(d) the extent, if any, to which the plaintiff may be found at trial not to have mitigated 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 plaintiffs claim.

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Payment

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

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Advance payment not a full determination

44A.05. An order for an advance payment of special damages is not a final determination of the extent of the plaintiffs claim in respect of the type or types of special damages for which the advance payment was sought, but the receipt by the plaintiff of an advance payment shall be considered to be a release of the defendant to the extent of such payment.

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Multiple applications

44A.06. A plaintiff may make more than one application pursuant to this rule.

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Notice to defendant

44A.07. Where a plaintiff obtains a judgment by default against a defendant with damages to be assessed, the plaintiff shall, notwithstanding rule 16.07, serve the defendant with notice of an application for an advance payment under this rule.

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Rule not exhaustive

44A.08. Nothing in this rule affects or precludes the right of a plaintiff to seek an advance payment of damages pursuant to the Automobile Insurance Act or otherwise at common law.

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