The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court said that such orders might be useful in simplifying international court actions, and that a primary motive for seeking the order was to establish a UK jurisdiction was not determinative. Lord Woolf summarised the modern position on granting negative declarations: ‘The approach is pragmatic. It is not a matter of jurisdiction, it is matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the court should not be reluctant to grant such declarations. They can and do assist in achieving justice . . . While negative declarations can perform a positive role they are an unusual remedy insofar as they reverse the more usual roles of the parties. The natural defendant becomes a claimant and vice-versa. This can result in procedural complications and possible injustice to an unwilling ‘defendant’. This in itself justifies caution in extending the circumstances where negative declarations are granted, but, subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so.’
Judges:
Lord Mustill, The Master Of The Rolls Lady Justice Hale
Citations:
Gazette 09-Mar-2000, Times 14-Mar-2000, [2000] EWCA Civ 48, [2000] 1 WLR 2040
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Messier-Dowty Ltd and Another v Sabena Sa and others ComC 3-Dec-1999
Application by 2 and 3 defendants for an order suspending proceedings in England pending production and consideration of expert report. Whether, pursuant to Supreme Court Act 1981 s. 49(3) and CPR 3.1(2)(f), there were ‘compelling circumstances’ . .
Cited – Guarantee Trust Co of New York v Hannay and Co 1915
A negative declaration should be granted by the court only in exceptional circumstances: ‘I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every . .
Cited by:
Cited – Financial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .
Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Point Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005
It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Jurisdiction
Updated: 23 May 2022; Ref: scu.135970
