Toropdar v D [2009] EWHC 567 (QB)
Toropdar v D [2009] EWHC 567 (QB)
For the first time in a personal injury action in this jurisdiction, in a case in which the only other issue was the alleged negligence of the alleged tortfeasor, the court was asked to grant ‘negative declaratory relief’ in Toropdar v D [2009] EWHC 567 (QB). In the event, on the evidence, the court dismissed the driver’s action claiming that he had not been negligent, finding that even though he had been driving within the prevailing speed limit, he had been negligent for driving too fast and that that breach of duty had been causative of the accident in which the Defendant pedestrian had been injured catastrophically.There was no dispute that :
“The principles governing declaratory relief
72 CPR 40.20 provides
“The court may make binding declarations whether or not any other remedy is claimed”
73 The principles guiding the grant of negative declaratory relief were set out in the judgment of Lord Woolf MR in Messier-Dowty Limited v Sabena SA [2000] 1 WLR 2040, paragraphs 41 and 42;
“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 courts should not be reluctant to grant such declarations.”
The unusual nature of the negative declaration justifies caution, but,
“…subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so”.
74 In Financial Services Authority v Rourke [2002] C.P. Rep. 14 Neuberger J (as he then was) said:;
“It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration.””
Christopher Clarke J. held that:
“101. I should not be understood to be saying that insurers are, generally speaking, entitled to seek a negative declaration in personal injury actions. Such a course is and should be unusual. Prima facie it is for the would-be claimant to decide whether or not to make a claim or to start an action against the alleged wrongdoer and to run the risk of an adverse costs order. An attempt to seek a negative declaration may give rise to an injustice which the court will not countenance. This may be because the injured party cannot find funding so that he will be unrepresented or inadequately represented at any trial, or because success may depend on finding further information which may be forthcoming but is not yet to hand, or because the case is not otherwise ready for trial. Further the court is unlikely to be sympathetic to a claim for negative declaration in circumstances where a claim has never been seriously canvassed (even if at one stage asserted).
102 At the same time the fact that the defendant has not obtained and cannot obtain funding does not necessarily mean that an action for a negative declaration should not be entertained. The availability of funding is in large part dependent on the merits of the claim. In his judgment in this case McCombe J expressed the view that it did not seem right that a claimant should be prevented from bringing to trial an issue that is otherwise ready for proper resolution because the defendant’s potential claim is not strong enough to attract suitable funding for lawyers. “The matter” he said “should not be allowed to fester forever in the hope simply that something will turn up”.
103 Subject to the qualification that everything depends on the circumstances, I respectfully agree. In the present case the claim for a negative declaration was ready for proper resolution and D was fully represented. In other cases the fact that D has not secured legal representation may not necessarily be a ground for refusing a negative declaration.
104 There remains for consideration the appropriate procedure in cases where a declaration of non-liability is sought. In the present case Master Foster and McCombe J were asked to order a preliminary issue on what was said to be an issue of principle as to whether a declaration of non-liability could be made. In the result McCombe J ended up, in large measure, determining the issue identified by him without ordering it to be determined preliminarily. That led to the issue being available for re-argument before me, in circumstances where the factors in favour of dealing with, and declaring the merits of, the claim had become more compelling. By then Leading Counsel on both sides had been instructed and the case was ready for trial.
105 In cases of this kind, as it seems to me, the issue is not whether it can ever be right to grant a declaration of non-liability where the limitation period has not expired. The issue is, as McCombe J described it, whether or not, at the time when the matter is put before the court, it is right to allow the action for a negative declaration to proceed. That issue should be determined having regard to the factors that I have considered in this judgment (and any others relevant to the particular case). In some cases that may lead to the striking out of an action for a negative declaration; in others it may be that a stay is the appropriate remedy. Although a declaration is always a discretionary remedy, in most cases where an action for a negative declaration has been allowed to proceed, there should not then be a further round of argument at the hearing as to whether the court should be entertaining it at all.”
The factors identified were as Allan Gore QC for the Defendant submitted, with the following qualifications.
“78. In addition Mr Gore submits that a series of principles or propositions may be derived from the decided cases as to how the court’s discretion is properly to be exercised. I set these out below:
• “a declaration of non liability can be made whenever it will serve a useful purpose” meaning that it must serve a useful purpose and “deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose” ;
• ““….a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made.” “Hardly ever” is not the same as “never” but the words warn us that we must apply some careful scrutiny.”
• “The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion.”
• “While negative declarations can perform a positive role, they are an unusual remedy in so far as they reverse the more usual roles of the parties. The natural defendant becomes the 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 …”
• “The question must be a real and not a theoretical question” ;
• “the person raising it must have a real interest to raise it” ;
• the person raising it “must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought”;
• a party against whom a right has not been asserted should be allowed to commence his own proceedings at a time and in a manner of his own choosing;
• the court should take into account justice to the claimant;
• the court should take into account justice to the defendant;
• the court should take into account whether there are any other special reasons why the court should grant the declaration;
• whether there are any other special reasons why the court should not grant the declaration;
• “The court should not, however, grant any declarations merely because the rights, facts or principles have been established and one party asks for a declaration. The court has to consider whether, in all the circumstances, it is appropriate to make such an order.”
79 Mr Jeffreys does not dispute that the propositions set out in the previous paragraph are potentially applicable. He submits, however, that, in the present case, if I was satisfied that there was no liability on the part of the claimant towards the defendant there was no reason why I should refuse to declare as much and good reason why I should.
Discussion
80 I agree that the propositions relied on are relevant, subject to two qualifications.
81 Firstly the observation of Lord Sterndale that “….a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made” must now be regarded as largely of historic interest. As Lord Woolf observed in Messier-Dowty there is no valid reason for taking an adverse view of negative declarations, whose use domestically has expanded over recent years. “Subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so”.
82 As to that, D (or rather his advisors) have asserted a claim but have so far, declined to bring it. The effect of that is that the claimant’s insurers must continue to reserve for this claim and the claimant himself must have an allegation of negligence hanging over him for an indefinite period. It is entirely legitimate for both of them to seek to have the Court decide whether or not the claimant is under any liability to D.
83 Secondly, I do not accept that a party against whom a right has not been asserted is, in all circumstances immune from any proceedings for a negative declaration. I can well understand that a court may decline to grant a declaration that a product as yet not manufactured would not breach the defendant’s copyright as in Wyko. But there may be cases in which a claimant can legitimately seek a declaration of non-liability even if the person against whom the declaration has been sought is not someone against whom any relief (other than a negative declaration) is sought or has not in terms asserted the contrary.”
It is submitted that the points which emerge are as follows.
• Insurers who are not defending proceedings already initiated against their insured should beware of peremptory claims for negative declaratory relief lest their insured is found (partly) to blame for an accident, thereby incurring a liability that might never have been the subject of an action;
• If negative declaratory relief is sought but rejected on the merits, that will give rise to a res judicata entitling the successful victim defendant to go on to claim damages which claim will be subject to an issue estoppel;
• While an accident victim is not immune from an attempt to seek negative declaratory relief, “such a course is and should be unusual. Prima facie it is for the would-be claimant to decide whether or not to make a claim or to start an action against the alleged wrongdoer and to run the risk of an adverse costs order”;
• As a discrete issue, that should be decided as a preliminary issue by reference to the factors identified, and only if decided in favour of the applicant for negative declaratory relief, should the action be allowed to proceed to be determined on the substantive merits of the case;
• Yet again, the court has emphasised that the speed limit is not ‘a target’ and drivers can and will be held to have been negligent for driving at excessive speed even if driving within the designated speed limit for the road in question.
Allan Gore QC
Paul Spencer
Counsel for the pedestrian victim