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P. The power in this court to make declarations
P.The power in this court to make declarations
This court has a discretionary jurisdiction to grant declaratory relief under section 19 of the Senior Courts Act 1981 and rule 40.20 of the English Civil Procedure Rules or “CPR”. In Rolls Royce plc v. Unite the Union [2009] EWCA Civ 387 at [120], the Court of Appeal summarised the approach to be taken in regard to the granting of declarations as follows:
The power of the court to grant declaratory relief is discretionary.
There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant.
Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question.
The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue.
The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on “private law” issues. This may particularly be so if it is a “test case”, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned.
However, the court must be satisfied that all sides of the argument will be fully and properly put. It must, therefore, ensure that all those affected are either before it or will have their arguments put before the court.
In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.
I shall refer to these points as Rolls Royce Principles (i) to (vii).
- Heading
- A. Introduction
- B. The Park Proceedings (proceedings commenced in South Carolina)
- The “Cape” defendants to the Park Proceedings
- D. Constitution of the Park Proceedings in South Carolina
- E. Apparent conclusion of the Park Proceedings
- F. The receivership application in the South Carolina courts
- G. Exorbitant nature of the Receivership Order
- H. Mr Protopapas as the First Defendant in these proceedings
- The Tibbs Proceedings
- J. Third party claims
- K. “Single economic unit”: the factual basis for the Receivership Order and the Third Party Claim
- Declarations and orders made by Mann J in the proceedings before him
- The Cape Scheme and the David Richards J Order
- N. The Settlement Agreement
- O. The claims in the present proceedings
- P. The power in this court to make declarations
- Q. Is this a case where it is appropriate for this court to consider making declarations?
- R. Are the declarations properly and soundly based?
- T. Declarations at paragraphs 4 and 5 of the draft order
- Conclusions