Whealing v Royal Institution of Chartered Surveyors

The court refused to grant declaratory relief where the applicant had sought final substantive declarations by way of an N244 application notice rather than by issuing an appropriate originating process under CPR Part 7 or Part 8. The judge held that declaratory relief is discretionary (see CPR 40.20) and, in general, requires a real and present dispute between the parties. The application was dismissed because there was no live dispute between the parties and because the procedural route used was inappropriate for final relief; the applicant should have issued a claim form and paid the appropriate fee. Costs were awarded to the respondent.

This was an application by Mr Matthew Whealing (a litigant in person) seeking declarations concerning the Royal Institution of Chartered Surveyors' (RICS) requirements for members' professional indemnity insurance and the definition and effect of the RICS Listed Insurer Agreement and Minimum Policy Wording. The applicant issued an N244 application notice requesting three declarations, relying on various RICS documents attached as enclosures. The RICS opposed the application and attended the hearing.

The court framed the principal procedural issues as (i) whether an application notice in form N244 may be used to obtain final, substantive declaratory relief without an originating process, and (ii) whether there was a sufficient live dispute between the parties to justify a binding declaration. The judge reviewed authorities on declaratory relief and the requirement for originating process, including Refson & Co Ltd v Saggers and principles summarised from Rolls-Royce Plc v Unite The Union. He noted that the Civil Procedure Fees Order differentiates fees for interim applications and for originating processes and that CPR 7.2(1) and Parts 7 and 8 require a claim form to start proceedings.

The court concluded that the N244 form was inappropriate for final declarations, that the applicant had not issued any originating process and had therefore not paid the appropriate fee, and that there was no real and present dispute between the parties to be resolved by a declaration. The judge also observed that declarations should not be granted merely to assist the applicant in future disputes with third parties who were not before the court. The judge therefore made no order granting the declarations, ordered that costs be paid to the respondent, refused permission to appeal, and gave directions in relation to the applicant's other pending matters.

The court made no order granting the declaratory relief sought and dismissed the application because the applicant sought final substantive relief by way of an N244 application without issuing an originating process under CPR Part 7 or Part 8 and because there was no real and present dispute between the parties; costs were awarded to the respondent and permission to appeal was refused.