The court verdicts often contain orders for one of the parties to pay damages determined by state. The parties to the proceedings are thus at the basis of a new procedure, namely the damages assessment procedure. However, in that case the parties are not back to square one. In fact, the damage assessment procedure can be regarded as a continuation of the main proceedings, which merely aims to determine the damage items and the extent of the compensation to be paid. This procedure may, for example, concern whether a certain damage item is eligible for compensation or to what extent the compensation obligation is reduced due to circumstances on the part of the injured party. In this respect, the damage assessment procedure differs from the main proceedings, that regard to determining the basis of liability and thus the allocation of compensation.
If the basis of liability in the main proceedings has been established, the courts can refer the parties to the damages assessment procedure. However, such a referral does not always belong to the possibilities of the judge in the main proceedings. The basic principle is that the judge must, in principle, estimate the damage itself in the judgment in which it is ordered to pay compensation. Only if the damage assessment is not possible in the main proceedings, for example because it concerns future damage or because further investigation is required, the judge in the main proceedings can deviate from this principle and refer the parties to the damage assessment procedure. In addition, the damage assessment procedure can only apply to legal obligations to pay damages, such as those by default or tort. Therefore, the damage assessment procedure is not possible when it comes to an obligation to pay damages arising from a legal act, such as an agreement.
There are several advantages to the possibility of a separate but subsequent damage assessment procedure. Indeed, the split between the main and the following damage assessment procedure makes it possible to first discuss the issue of liability without the need to also address the extent of the damage and incur significant costs to substantiate it. After all, it cannot be ruled out that the judge will reject the liability of the other party. In that case, the discussion about the extent of the damage and the costs incurred for it would have been in vain. In addition, it is possible that the parties subsequently reach an out-of-court agreement on the amount of the compensation, if liability has been determined by the court. In that case, the expense and effort of the assessment is spared. Another important advantage for the claimant lies in the amount of the legal costs. When the claimant in the main proceedings only litigates on the liability issue, the costs of the proceedings are matched to a claim of undetermined value. This leads to lower costs than if a substantial amount of compensation were immediately claimed in the main proceedings.
Although the damage assessment procedure can be seen as a continuation of the main proceedings, it should be started as an independent procedure. This is done by service of the damage statement to the other party. The legal requirements that are also imposed on a subpoena must be considered. In terms of content, the damage statement includes “the course of the damage for which the liquidation is being claimed, is specified in detail”, in other words an overview of the claimed damage items. In principle there is no need to reclaim payment of the compensation or to state the exact amount for each damage item. After all, the judge will have to independently estimate the damage based on the alleged facts. However, the grounds for the claim must be specified in the damage statement. The damage statement drawn up is in principle not binding and it is possible to add new items even after the damage statement has been served.
The further course of the damage assessment procedure is similar to the ordinary court procedure. For example, there is also the ordinary change of conclusion and a hearing in court. Evidence or expert reports may also be requested in this procedure and court fees will be charged again. It is necessary for the defendant to re-establish a lawyer in these proceedings. If the defendant does not appear in the damage assessment procedure, default may be given. When it comes to the final verdict, in which it can be ordered to pay all forms of compensation, the usual rules also apply. The judgment in the damage assessment procedure also provides an enforceable title and has the consequence that the damage has been determined or settled.
When it comes to the damage assessment procedure, it is advisable to consult a lawyer. In the case of the defendant, this is even necessary. This is not strange. After all, the doctrine of damage assessment is very extensive and complex. Are you dealing with a loss estimate or would you like more information about the damage assessment procedure? Please contact the lawyers of Law & More. Law & More attorneys are experts in procedural law and damage assessment and are happy to provide you with legal advice or assistance during the claim procedure.