Miller -Foulds v Secretary of State for Justice

Declaratory proceedings concerning an underlying private dispute must be properly constituted. The person directly affected should be joined as a defendant if the declaration is to bind that person or perform any useful function; notice or an invitation to join is insufficient. A public law claim against a public authority cannot be used to avoid that requirement. Nor does a possible claim for breach of statutory duty justify proceedings that leave the real private defendant absent. Where declarations would not bind that defendant, and the underlying issue can be addressed through existing evidence or proceedings, the claim may be pointless and an abuse of process. The application for permission to appeal was therefore refused.

Mrs Miller-Foulds challenged the existence, proof and arrears recorded in a 1991 mortgage possession order made in Brentford County Court. She brought proceedings in the Chancery Division against the Secretary of State for Justice, rather than Abbey National, the mortgagee and party directly concerned by the dispute. Abbey was informed of the proceedings and invited to join, but did not do so.

After a three-day trial, HHJ Pelling accepted secondary evidence of the order and held that the declarations sought were pointless and that the proceedings were an abuse of process. He refused permission to appeal. The central issue on oral renewal was whether the proceedings could properly proceed without Abbey, including in light of the proposed public-law and breach of statutory duty aspects.

Application refused. The Court of Appeal upheld HHJ Pelling’s conclusion that the proceedings were improperly constituted and abusive.

1. The real dispute concerned the mortgage account and the arrears allegedly recorded in the 1991 possession order. Abbey National was directly and crucially concerned by that dispute. If the proceedings were intended to bind Abbey or serve any useful function, Abbey should have been joined as a defendant. It was insufficient that Abbey had been informed of the proceedings or invited to seek joinder.
2. The declarations sought would not bind Abbey because it was not a party. The court therefore agreed that the proceedings were pointless. The availability of ample secondary evidence from which the existence and terms of the 1991 order could be proved reinforced that conclusion. The proceedings were consequently an abuse of process.
3. The proposed public-law aspects did not alter the result. A public-law claim may in appropriate circumstances be joined to a properly constituted private-law claim, but it could not be asserted in proceedings that were not properly constituted in relation to the private dispute. A possible claim for damages for breach of statutory duty against the Department was premature and did not justify proceeding without joining Abbey.
4. The court declined to determine the underlying merits of whether the 1991 order existed or whether the arrears were correctly stated. It agreed with the judge as to the constitution and propriety of the proceedings and refused the oral renewal of the application for permission to appeal.

• Court of Appeal (Civil Division): on 15 October 2009, the oral renewal of the application for permission to appeal was refused: [2009] EWCA Civ 1132.
• High Court, Chancery Division: HHJ Pelling, after a three-day trial, held on 20 November 2008 that the declaratory proceedings were factually and legally misconceived and an abuse of process, and refused permission to appeal.