James Cleamon Baucom Plaintiff v Antonio Machado Ebanks First Defendant Rollin Ebanks Second Defendant
Jurisdiction | Cayman Islands |
Judge | D. Schofield,Schofield J. |
Judgment Date | 22 April 1994 |
Court | Grand Court (Cayman Islands) |
Docket Number | Cause No:548/1993 |
Date | 22 April 1994 |
and:
This is an application made by the plaintiff against the first defendant for an interim payment pursuant to Rule 49A of the Grand Court (Civil Procedure) Rules.
. The claim arises out of a motor vehicle accident which occurred on the 12th May 1993. The first defendant, whose representation is provided by his insurance company, does not deny liability. He has pleaded contributory negligence on the part of the plaintiff alleging that the Plaintiff was negligent in falling to wear the seat beltfitted to the vehicle. The allegation that this failure contributed to the injuries sustained by the Plaintiff is denied.
The rule of Court under which the application is made reads:
‘49A. (1) In an action for personal injuries the plaintiff may, at any time after the writ has been served on a defendant and the time limited for him to appear has expired, apply to the Court for an Order requiring that defendant to make an interim payment.’
It is as well here to recite Rule 49C sub-rules ( 1) and (2)
‘49C. (1) If, on the hearing of an application under rule 49A, a Judge in Chambers is satisfied—
(a) that a defendant against whom the order is sought has admitted liability for the Plaintiff's claim;
(b) that the plaintiff has obtained judgment against a defendant for damages to be assessed ;or
(c) that if the action proceed to trial, the plaintiff would succeed in the action whose injuries or death the plaintiff's claim arises and would obtain judgment for damages against the defendant or, where there are two or more defendants against any of them, he may, if he thinks fit and subject to subrule (2), order the defendant to make an interim payment of such amount as he thinks just, not exceeding a reasonable proportion of the damages which in his opinion are likely to be recovered by the plaintiff.
(2)No order shall be made under subrule (1) unless it appears to a judge in chambers that the defendant or, if there are two or more defendants,any of them is—
(a) a person who is insured in respect of the plaintiff's claim;
(b) a public authority or a statutory corporation; gor
(c) a person whose means and resources are such as to enable him to make the interim payment.’
In this case the first defendant is insured in respect of the plaintiff's claim. I may, therefore, if I think fit order the first defendant, who has admitted liability, to make an interim payment of such amount as I think just. This must not exceed a reasonable proportion of the damages which in my opinion are likely to be recovered by the plaintiff.
Three points, which were accepted by both counsel, fall to be made in respect of the exercise of this discretion. First, in determining the amount of damages I think it likely for the plaintiff to recover I must, of course, take into consideration the defendant's counterclaim. Second, it is not necessary for the plaintiff to satisfy the court of his need for an interim payment or that he will suffer prejudice if he does not obtain one (seeSchott Kem Ltd, v Bentley and Others [1990] 3 All E R 850 [1990] 3 All E R...
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