ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HON MR JUSTICE ARNOLD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE JACKSON
| MILEBUSH PROPERTIES LIMITED
|- and -
|TAMESIDE METROPOLITAN BOROUGH COUNCIL
MS JUDITH JACKSON QC and MR ALAN JOHNS (instructed by Eversheds LLP) for the Respondent
Hearing date: 12th January 2011
Crown Copyright ©
Lord Justice Mummery :
Introduction and background
"(3) Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d)-
(a) against the person entering into the obligation; and
(b) against any person deriving title from that person."
" 58. …Milebush claims no private law right enforceable against either Tameside or Hillingdon. It seeks declaratory relief against Tameside on the footing that it is directly affected by the interpretation placed upon the Principal Agreement. But why should the court grant Milebush a declaration against Tameside in circumstances where, even if Milebush was right on the construction of clause 3.5 as it presently stands, Hillingdon would retain a discretion not to enforce, or to vary, clause 3.5? It would be a pointless exercise. Counsel for Milebush had no real answer to this point."
A. Declaration issue
Court of Appeal's role
Submissions of Milebush
" …So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event."
"…the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else."
Discussion and conclusion
B. Construction issues
Submissions of Milebush
Discussion and conclusion
Lord Justice Moore-Bick :
". . . a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.
. . . the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else."
"It cannot of course be suggested that any stranger or officious busybody, however remotely connected with a patient or with the subject matter of proceedings, can properly seek or obtain declaratory or any other relief (in private law any more than public law proceedings). But it can be suggested that where a serious justiciable issue is brought before the court by a party with a genuine and legitimate interest in obtaining a decision against an adverse party the court will not impose nice tests to determine the precise legal standing of that claimant."
"Since that decision the courts have developed the jurisdiction to grant declaratory relief in a number of cases which, though distinguishable from the present, are nevertheless not altogether dissimilar to it. We have now reached a position where the court is prepared in an appropriate case to fill much of the lacuna left by the disappearance of the parens patriae jurisdiction by granting something approaching an advisory declaration. In my judgment, the passage which I have cited from Lord Diplock's speech in the Gouriet case  AC 435, 501 can no longer be taken to be an exhaustive description of the circumstances in which declaratory relief can be granted today. It is to be regarded rather as a reminder that the jurisdiction is limited to the resolution of justiciable issues; that the only kind of rights with which the court is concerned are legal rights; and that accordingly there must be a real and present dispute between the parties as to the existence or extent of a legal right. Provided that the legal right in question is contested by the parties, however, and that each of them would be affected by the determination of the issue, I do not consider that the court should be astute to impose the further requirement that the legal right in question should be claimed by either of the parties to be a right which is vested in itself."
"The dispute raises a justiciable issue; it concerns the legal rights of the patient; all proper parties, including the patient, are before the court; and the determination of the issue affects the rival claimants and their rights and obligations to the patient. In my judgment the court is entitled and bound to decide it."
"In his first Hamlyn Lecture given in 1949, Freedom Under the Law, Sir Alfred Denning identified the challenge facing the court as being to develop "new and up-to-date machinery" (p 116). The first element of the machinery identified in the lecture was the remedy of declaratory relief. The court's power to make a declaration (or "declaration of right") was derived from the Court of Chancery and was originally supposed to be restricted to declaratory judgments as to existing private rights (see Guaranty Trust Co of New York v Hannay & Co  2 KB 536, which sets out the early history). Sir Alfred Denning saw the need to develop its scope in order to control the abuse of executive power, and over the half-century which has elapsed since his lecture it has performed a crucial function in the emergence of the modern law of judicial review. The development of declaratory relief has not however been confined to judicial review. Doctors and hospitals have increasingly been assisted by the ability of the courts to grant advisory declarations. It was at one time thought that an interim declaration could have no practical purpose. The developments in other jurisdictions showed this was not the situation. Now the http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=10&crumb-action=replace&docguid=I71F54A60E42311DAA7CF8F68F6EE57ABCPR acknowledge that just as interim injunctions can be granted so can interim declarations. RSC Ord. 15, r. 16 still remains part of the Civil Procedure Rules. Its transitional life is about to come to an end. The Rule Committee has approved a new rule, CPR r. 40.20, which omits any mention of "rights". It merely states: "The court may make binding declarations whether or not any other remedy is claimed.""
"(1) The power of the court to grant declaratory relief is discretionary.
(2) 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.
(3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question.
(4) 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; (in this respect the cases have undoubtedly "moved on" from Meadows.)
(5) 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.
(6) 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.
(7) 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."
"Moreover it cannot be said here, in my view, that the procedures under Order 53 are so peculiarly suited to this dispute (as they would be in a claim to set aside subordinate legislation or to prohibit a government department from acting) that it would be a misuse of the court's process to allow the originating summons to continue. On the contrary it seems to me that the procedure by way of originating summons in the Commercial Court is as least as well, and may be better, suited to the determination of these issues than the procedure by way of judicial review."
Lord Justice Jackson: