Cwmni Rheoli Pentref Marina Conwy Cyfynedig (Conwy Marina Village Management Company), Re

A court will not ordinarily determine a dispute or give advisory guidance where no defendant is before it. A Part 8 claim without a named defendant is available only in the specific circumstances provided by the Civil Procedure Rules and applicable practice directions. The representative-party rules may instead be used where persons with opposing interests can be identified.

The power under section 84(2) of the Law of Property Act 1925 is discretionary. It should not be used merely because the statutory language could encompass the issue, particularly where conventional proceedings can identify the opposing parties and determine all relevant defences. Persons who may be bound under section 84(5) should receive adequate warning before the court proceeds without joining them.

The claimant management company issued a Part 8 claim seeking the court’s construction of restrictive covenants affecting houses and flats at a marina, particularly whether they permitted holiday lettings and Airbnb use. The claim initially named the management company as both claimant and defendant, but the defendant was later removed. Despite several directions hearings, no opposing or representative defendant was joined.

The claimant relied on CPR 8.2A and section 84(2) of the Law of Property Act 1925. The central issues were whether the proceedings were properly constituted without a defendant and, if so, whether the court should exercise its declaratory jurisdiction.

1. Constitution of the proceedings. The claim was not properly constituted. The ordinary function of the court is to determine disputes between parties, rather than provide advice or approve a party’s proposed conduct. No effective or useful determination of the covenant could be made where no person with an opposing interest was before the court.
2. Procedural rules. CPR 8.2A did not apply to these proceedings. Practice Direction 64A and Practice Direction 64B concerned particular trust-related circumstances and did not extend the rule to this case. CPR 19.6 and 19.7 provided an adequate procedural route for suing persons who took the contrary position and, where appropriate, joining one of them as a representative defendant. CPR 19.8A was a specific power and did not provide a general route to judgments binding non-parties.
3. Section 84(2). Assuming that the claimant fell within the statutory language, section 84(2) conferred a discretionary power. It did not oblige the court to determine the construction or enforceability of a restriction whenever the provision could apply. The usual purpose of the jurisdiction was to provide declaratory relief to a person seeking to act in a way which might contravene a restrictive covenant.
4. The court had no sufficient reason to use that exceptional procedural route here. The claimant could bring ordinary proceedings against persons taking the contrary view, with construction, estoppel and waiver issues properly pleaded and determined. The members who might be bound under section 84(5) had not been adequately warned that the court might decide the covenant’s meaning in proceedings to which they were not parties.
5. The court therefore declined to determine the covenant and declined to exercise the assumed section 84(2) power. It did not decide whether the proceedings had become a nullity through non-service. The proceedings were stayed, with liberty to the claimant to apply to lift the stay in appropriate circumstances.

This was a first-instance decision. The judgment records six earlier directions hearings before a Master or Deputy Master concerning the identification and joinder of a defendant, but no earlier judgment or appeal is stated.