Negative declaration of liability

Toropdar v D (a minor by the Official Solicitor as his Litigation Friend) [2009] EWHC 567 (QB) 20 March

The claimant was driving his car when a 10-year-old boy ran out without stopping from the side of the road in front of a stationary bus. The boy was struck by the car and as a result of the accident, suffered catastrophic brain injury. Although a claim had been asserted on behalf of the boy, it had not been brought. The effect was that the claimant’s insurers had to continue to reserve for the claim and the claimant himself had to have an allegation of negligence hanging over him for an indefinite period. In the ordinary course the injured party would be the claimant and the alleged tortfeasor, the defendant. In this case the roles were reversed. The insurers of the claimant sought, by an action begun in his name, a declaration that he was not liable to the boy at all. No example had been found of a personal injuries case in which such a declaration had been sought when what was in issue were the core factual questions of breach of duty, causation and damage, as opposed to, for instance, jurisdiction, forum or applicable law. On the evidence the judge was not persuaded that the claimant was entitled to the declaration he sought, although it was entirely legitimate for both the insurers and the claimant to seek to have the court decide whether or not the claimant was under any liability. The deployment of an application for a negative declaration should be scrutinised and the use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved, the courts should not be reluctant to grant such declarations. The court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration. The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion. The court should not grant any declaration merely because the rights, facts or principles have been established and one party asks for a declaration. The court has to consider whether, in all the circumstances, it is appropriate to make such an order.