Day v Bryant (declaratory relief - costs - QOCS)

A court may grant a binding declaration of fact even where no damages or other remedy is claimed. The power is discretionary. The court should consider justice to each party, whether the declaration serves a useful purpose, and any special reasons for or against granting it. A defendant accused of serious wrongdoing may have a legitimate interest in factual vindication after the claimant’s case has been abandoned, provided the claimant had a sufficient opportunity to respond.

Where a personal injury claim is struck out for abuse of process, the QOCS costs protection does not prevent enforcement of a costs order under Civil Procedure Rules 1998, rule 44.15(1)(b). Factual findings in a declaratory counterclaim are made on the balance of probabilities and do not establish criminal innocence beyond reasonable doubt.

The claimant brought a damages claim alleging historic sexual assault by the defendant. The claim was later struck out after prolonged non-compliance and failure to confirm an intention to proceed. The defendant maintained a counterclaim seeking factual declarations denying the assault and alleging that the claim was fabricated.

The claimant did not participate in the counterclaim trial. The court had to decide whether declaratory relief could properly be granted in his absence, whether the claim had been struck out for abuse of process for the purposes of the QOCS exception, and whether the evidence justified the declarations sought.

1. Declaratory jurisdiction. The court had power to make binding factual declarations although the counterclaim sought no damages. The discretion required consideration of justice to claimant and defendant, the usefulness of the declaration, and any special reasons for or against it. The authorities did not make abuse of process or claimant default a prerequisite to such relief.
2. Fairness despite absence. The claimant’s failure to participate did not prevent the court deciding the counterclaim. He had been given sufficient opportunities to respond. The court was entitled to assess the documentary and hearsay evidence objectively, while recognising that allegations dependent upon oral testimony required caution and that the court should not construct a positive case for an absent party.
3. Standard and findings. Any factual declaration was made on the balance of probabilities. It could not establish criminal innocence beyond reasonable doubt. On the evidence, the allegation that the defendant had sexually assaulted the claimant at the fire station was false. The claimant had fabricated the asserted boxing career and had made false and fundamentally dishonest allegations in pursuit of compensation and publicity.
4. QOCS. The claimant’s conduct since November 2016 amounted to abuse of the court’s process. The automatic strike-out for failure to prosecute therefore fell within Civil Procedure Rules 1998, rule 44.15(1)(b). There was no material distinction between striking out the claim and striking out the proceedings for this purpose. In the unusual case of a claim accompanied by a counterclaim, the exception applied to the claim of the party who had enjoyed QOCS protection.
5. The court made declarations that the claimant had sought to undermine the administration of justice by false allegations, had alleged resulting physical and psychological damage, had contrived a fundamentally dishonest claim for compensation, and had used public services and the media for self-aggrandisement and publication.