Whealing v Royal Institution of Chartered Surveyors

An application notice under CPR Part 23 cannot be used to obtain final and substantive relief, including declaratory relief, unless the rules specifically permit that course. A claimant must first issue originating process under Part 7 or Part 8 and pay the appropriate fee.

Declaratory relief is discretionary. The court will generally require a real and present dispute concerning a legal right, affected parties to be before the court or properly represented, and a useful and effective purpose for the declaration. Where the parties agree the matters sought to be declared and the declaration is intended to affect absent third parties, the court should refuse relief.

The claimant, acting in person, applied by form N244 against the Royal Institution of Chartered Surveyors for declarations concerning its insurance rules, listed insurers and policy wording. He had issued no Part 7 or Part 8 claim form and had paid only the fee for an application notice.

The defendant did not dispute the three matters identified in the application for the purposes of the hearing. The claimant explained that he sought declarations to support potential claims involving insurers and to avoid future proceedings. The court therefore considered both whether substantive declaratory relief could be sought by application notice and whether a declaration would serve any useful purpose.

1. Application refused. The court made no order on the substantive application and ordered the claimant to pay the defendant’s costs, summarily assessed at £500 plus VAT if appropriate.
2. A final injunction or other substantive relief ordinarily requires originating process. That principle continued after the Civil Procedure Rules. Proceedings are started by issuing a claim form under CPR 7.2(1), and the Part 8 procedure provides an alternative form of originating process. CPR Part 23 may be used for permitted pre-action relief, such as pre-action disclosure, but not for final substantive relief unless the rules expressly allow it.
3. The claimant could not use an N244 application to avoid issuing a claim form or paying the fee applicable to originating process. His proposed declarations were final and substantive because he intended them to avoid the need for later proceedings.
4. Declaratory relief under CPR 40.20 is discretionary. The court considered the principles summarised by Lord Justice Aikens in Rolls-Royce Plc v Unite The Union [2009] EWCA Civ 387, including the general need for a real and present dispute, the effect on the parties, the need to ensure that all affected sides are properly before the court, and whether the proposed declaration is the most effective resolution.
5. There was no issue between the claimant and RICS. The declarations would serve no useful purpose and were sought partly to influence third parties who were not before the court. The court therefore declined to exercise its discretion to grant them. The claimant’s late assertion that correspondence revealed a dispute could not alter the decision because the court could act only on the evidence before it.

This was a first-instance decision. The judge refused permission to appeal, finding no real prospect of success and no other compelling reason for an appeal. The claimant was informed that an appellant’s notice could be filed in the Court of Appeal within 21 days.