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What are provisional damages?

I have a personal injury claim in the hands of my solicitors since my accident over 3 years ago. Court proceedings were started just before the 3rd anniversary of the accident but the case keeps getting “stayed”. I am told this is due to the femur fracture in my leg not healing properly. I am now tired of the ongoing case and want to bring it to settlement but my solicitors say they cannot do so because of my ongoing problems. Is it really true that I am prevented from settling my own case?

Luke Thompson, by e-mail


The short answer is no however you must balance the risks of settlement when you are unsure of your prognosis. The court can agree to a stay (pause) in proceedings when a case is not ready for settlement. Your solicitors are presumably concerned about the non-union of the bone in your leg and possible deterioration. One possible solution would be to ask your solicitors about “Provisional Damages”. It is sometimes possible to settle your claim on the basis of your current injuries and return to court later should there be a material deterioration with your leg. Such a settlement requires a court order. As court proceedings have already been started the Particulars of Claim should have referenced Provisional Damages. If they did not then you will need to apply to the court to amend that document. Expert medical evidence should be obtained to provide opinion on the risk of deterioration.

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