Ex Ante and Ex Post Assessments of Damages – Crystal Balls vs. Rearview Mirrors?

Seminar Synopsis

When quantifying damages that accumulate over an extended period—be it years, months, weeks or even just days—two crucial questions often come up:

1. What information can be used in the assessment?
2. How can we best convert a series of ongoing losses into a single lump sum?

To address these questions, two principal methods are commonly used: the ex ante approach and the ex post approach.

Ex Ante Approach: Ignoring Hindsight Information

The ex ante approach calculates losses based on information available at the time of the breach. This method avoids using any information that became available after the breach, being commonly termed ‘hindsight information’.  Typically, a discounted cash flow (DCF) model is employed to discount the series of losses back to their present value at the time of the breach.

Ex Post Approach: Incorporating All Information

Conversely, the ex post approach utilises all information available up to the trial date, including data obtained after the breach.  This approach aims to provide a more accurate reflection of actual losses by incorporating post-breach developments and outcomes.  Similar to the ex ante approach, a DCF model is used, but here the losses are discounted to their present value at the time of the trial

Hybrid Approach: Combining Perspectives

In some jurisdictions, courts may adopt a hybrid approach. This starts with an ex ante assessment but allows for the inclusion of some post-breach information. This method seeks to balance the predictive nature of ex ante calculations with the accuracy provided by ex post data.

This seminar will compare and contrast these 3 approaches.

**Individuals from IVSC Member or Sponsor organisations are entitled to a discounted course fee of SGD$70.