The pursuer, Guardian of the incapax who sustained severe head injuries in a road accident, sought interim damages of £500,000. Liability was admitted subject to 15% contributory negligence. Proof on Quantum was fixed for March 2009. Two previous interim payments totalling £250,000 had been received. Rule of Court 43.11 permits the Court to ordain the defender to make interim payment of “such amount as it thinks fit, not exceeding a reasonable proportion of the damages which … are likely to be recovered”. Lord Carloway commented that the Court requires to estimate what damages are likely to be recovered before it determines what a reasonable proportion might be and he advocates the use of “a broad axe with a blunt blade” in arriving at its estimate before determining the reasonable proportion on “a relatively conservative basis”.

The Court had regard to the pursuer’s “optimistic” and the defender’s “parsimonious” schedules of damages. Lord Carloway assessed solatium at £200,000, loss of earnings at £260,000, services at £75,000, care for the next 7 years at £105,000 and sundry expenses at £100,000. It was not possible to come to a view on future care after 7 years. A full liability valuation was comfortably over £750,000. Deduction of 15% produced £637,500. He considered that “a reasonable proportion” was three quarters of that sum, namely £478,125. The pursuer had previously received £250,000 and so he awarded interim damages of £230,000.

Rule of Court 43.11 give the Court a wide discretion, however, this judgement reflects a trend away from assessing “a reasonable proportion” of the damages at between 30% – 60% of the likely damages towards the upper end or in excess of that range. In ED’s Parent & Guardian v Argyll & Clyde Acute Hospitals NHS Trust in 2003 Lord Carloway had awarded less than 70% of the estimate where there was a particular need to obtain accommodation. No similar argument appears to have been submitted in the present case.