What is a Declaratory Order?

loremolis

What exactly is a Declaratory Order from the High Court?

My understanding is that where legislation is unclear on a certain matter and an individual seeks to have it clarified or seeks clarification on a point of law then they can ask the courts for a Declaratory Order on the matter. Is this correct?

NoQuarter

No. A declaratory order is more personal. A person would seek a declaratory order if, for example, someone made a defamatory statement about them. They could ask the court for a declaratory order to the effect that the defamatory statement is not true.

Or a declaratory order saying a person is the owner of something or doesnt owe something etc etc. Lots of circumstances it can be used.

johnnyskeleton

loremolis wrote: »

What exactly is a Declaratory Order from the High Court?

My understanding is that where legislation is unclear on a certain matter and an individual seeks to have it clarified or seeks clarification on a point of law then they can ask the courts for a Declaratory Order on the matter. Is this correct?

It could be a clarification of the law, but it is unlikely to happen that people would bring proceedings seeking only a declaration to clarify the law. They would usually fight whatever case is before them and ask the judge to decide the law, appealing that decision if they think its wrong, and if the point is important enough a high court judge will write a judgment telling everyone what the law is ie no declaration needed. In those circumstances the actual order will be for payment of damages, an injunction etc.

More common types of declaratory order would be:
1) a declaration as to X persons property rights in a property dispute;
2) a declaration that a contract has been breached in a commercial context;
3) declarations of unconstitutionality of a statute or incompatibility of a statute with the echr;
4) declarations that X persons rights have been breached in a public law area;
5) declarations of parentage in a succession context (usually in the circuit court);
6) declarations of a public right of way.

If someone brought proceedings seeking a declaration that X law is interpreted as meaning Y, this will rarely be entertained by the courts as it is litigating a hypothetical (if the person has not already acted) or it will be a matter to be resolved at trial (if they have). An exception may be where a commercial entity anticipates difficulties with a certain piece of legislation that will cost them millions and there is no government body to approve to give guideance as to their actions. But such is very rare indeed.

Procrastastudy

loremolis wrote: »

What exactly is a Declaratory Order from the High Court?

My understanding is that where legislation is unclear on a certain matter and an individual seeks to have it clarified or seeks clarification on a point of law then they can ask the courts for a Declaratory Order on the matter. Is this correct?

You might be thinking of case stated where a lower court asks a higher court to clarify a point of law.

Tom Young

Declarations are often sought in contract cases. In equity.

loremolis

johnnyskeleton wrote: »

An exception may be where a commercial entity anticipates difficulties with a certain piece of legislation that will cost them millions and there is no government body to approve to give guideance as to their actions. But such is very rare indeed.

thank you for your post, very helpful.

Are there any examples of this type? I'd really appreciate it if you can point me towards one.

loremolis

Procrastastudy wrote: »

You might be thinking of case stated where a lower court asks a higher court to clarify a point of law.

No, it's not a case stated. But in any event, does a case stated have to arise from a lower court or can anyone initiate one?

johnnyskeleton

loremolis wrote: »

thank you for your post, very helpful.

Are there any examples of this type? I'd really appreciate it if you can point me towards one.

I can't give case names but an example would be where company A hires company B to design a software programme and half way through design a dispute arises. As company B has the code and company A is fearful that they might sell it on to Company A's competitor, company A might bring proceedings seeking a declaration that they own the intellectual property to the programme because, while what is done so far may not have a significant commercial value to company A (as it is incomplete), it would have a significant value for their competitor.

Hope that explains it a bit more.

johnnyskeleton

loremolis wrote: »

No, it's not a case stated. But in any event, does a case stated have to arise from a lower court or can anyone initiate one?

Has to be from a lower court. Forgive me if I'm presumptuous, but if you are thinking about a bringing a case yourself to clarify a law I would really recommend speaking to a solicitor.

It is so rare that the courts entertain such cases that a consultation with a solicitor costing a few quid could save you tens of thousands in a hopeless adventure.

Procrastastudy

loremolis wrote: »

No, it's not a case stated. But in any event, does a case stated have to arise from a lower court or can anyone initiate one?

Anyone? It's the court (the judge) rather than a party to the case. Is that what you mean? See below.

District to High and Circuit to Supreme if I remember correctly.

NoQuarter

A case stated can be made by application of either party.

Procrastastudy

NoQuarter wrote: »

A case stated can be made by application of either party.

I presume its the judge that has final say?

NoQuarter

Procrastastudy wrote: »

I presume its the judge that has final say?

Pretty much obliged to send it up unless he considers it frivolous.

NoQuarter

Coincidentally came across this passage by Hogan J just now in relation to above:

IRISH LIFE AND PERMANENT PLC PLAINTIFF
AND
MALCOM DUFF AND SUSAN DUFF

[2013] IEHC 43

4. I should also say that in my view this case raises several important points of law which, on reflection, might usefully have been finally determined by the Supreme Court on a case stated from this Court. But since neither party requested a case stated, I consider that I have no such jurisdiction to state a case for the purposes of s. 38 of the Courts of Justice Act 1936, as the power so to state a case is expressly made contingent on a request in that behalf by one of the parties to the appeal.

KoukiKeith

johnnyskeleton wrote: »

If someone brought proceedings seeking a declaration that X law is interpreted as meaning Y, this will rarely be entertained by the courts as it is litigating a hypothetical (if the person has not already acted) or it will be a matter to be resolved at trial (if they have).

F v West Berkshire Health Authority [1990]
(Trespass case)

F's Mother sought a declaratory order that, in the absence of F's consent, the performance of a sterilisation op would not be an unlawful act amounting to battery.

^^^^^ Just stumbled across this case a minute ago.

P.s. it was granted on medical necessity grounds.

loremolis

johnnyskeleton wrote: »

Has to be from a lower court. Forgive me if I'm presumptuous, but if you are thinking about a bringing a case yourself to clarify a law I would really recommend speaking to a solicitor.

It is so rare that the courts entertain such cases that a consultation with a solicitor costing a few quid could save you tens of thousands in a hopeless adventure.

Not presumptious, you're spot on. There is a specific law that I would like clarified but I'm not considering any particular option on how to do that at the moment. I certainly won't be taking any case until I consult with a solicitor/barrister and get a definitive professional opinion on the matter.

A declaratory order is something I've heard without knowing what is involved and no better place to ask about it than here.

Procrastastudy

loremolis wrote: »

Not presumptious, you're spot on. There is a specific law that I would like clarified but I'm not considering any particular option on how to do that at the moment. I certainly won't be taking any case until I consult with a solicitor/barrister and get a definitive professional opinion on the matter.

A declaratory order is something I've heard without knowing what is involved and no better place to ask about it than here.

Why not go the whole hog and ask for clarification here?

loremolis

johnnyskeleton wrote: »

It could be a clarification of the law, but it is unlikely to happen that people would bring proceedings seeking only a declaration to clarify the law. They would usually fight whatever case is before them and ask the judge to decide the law, appealing that decision if they think its wrong, and if the point is important enough a high court judge will write a judgment telling everyone what the law is ie no declaration needed. In those circumstances the actual order will be for payment of damages, an injunction etc.

More common types of declaratory order would be:
1) a declaration as to X persons property rights in a property dispute;
2) a declaration that a contract has been breached in a commercial context;
3) declarations of unconstitutionality of a statute or incompatibility of a statute with the echr;
4) declarations that X persons rights have been breached in a public law area;
5) declarations of parentage in a succession context (usually in the circuit court);
6) declarations of a public right of way.

If someone brought proceedings seeking a declaration that X law is interpreted as meaning Y, this will rarely be entertained by the courts as it is litigating a hypothetical (if the person has not already acted) or it will be a matter to be resolved at trial (if they have). An exception may be where a commercial entity anticipates difficulties with a certain piece of legislation that will cost them millions and there is no government body to approve to give guideance as to their actions. But such is very rare indeed.

Numbers 1, 3 & 4 cover it for the most part.

Its also along the lines of the exception mentioned in your last sentence. Any examples of that particular tpye of case?

I will of course be taking legal advice on the declaratory order route it as it appears to be an option.

Thank you for your time and explanation.

loremolis

Procrastastudy wrote: »

Why not go the whole hog and ask for clarification here?

I thought the charter didn't allow me to ask something like that.

Obviously there is a difference between knowing that a certain procedure exists and may be utilised and asking if I should utilise that procedure in my particular circumstances.

If I'm allowed to ask for comments on the particular law then I'm happy to do so in the knowledge that I'm not seeking any legal advice.

Is that ok?

johnnyskeleton

KoukiKeith wrote: »

F v West Berkshire Health Authority [1990]
(Trespass case)

F's Mother sought a declaratory order that, in the absence of F's consent, the performance of a sterilisation op would not be an unlawful act amounting to battery.

^^^^^ Just stumbled across this case a minute ago.

P.s. it was granted on medical necessity grounds.

That's an interesting case but again the declaration is a form of indemnity to allow the operation to proceed based on the circumstances of the case. It is not, as such, a declaration as to what the law is which clarifies the law for other cases.

NoQuarter

loremolis wrote: »

I thought the charter didn't allow me to ask something like that.

Obviously there is a difference between knowing that a certain procedure exists and may be utilised and asking if I should utilise that procedure in my particular circumstances.

If I'm allowed to ask for comments on the particular law then I'm happy to do so in the knowledge that I'm not seeking any legal advice.

Is that ok?

Asking for clarification of a law and what it means or what way we think it will be interpreted is what we do here!

Procrastastudy

NoQuarter wrote: »

Asking for clarification of a law and what it means or what way we think it will be interpreted is what we do here!

Its what you do - I just fumble around with it like the Irish rug... oh well never mind.

loremolis

Procrastastudy wrote: »

Why not go the whole hog and ask for clarification here?

Ok, the law I'm referring to is Section 19 and Section 20 of the 1934 Electricity Supply Amendment Act No. 2 1934:

http://www.irishstatutebook.ie/1934/en/act/pub/0038/sec0020.html

http://www.irishstatutebook.ie/1934/en/act/pub/0038/sec0019.html

Sorry, for some reason I can't cut an paste the sections without taking up 4 pages.

Ths law relates to the procedure for notifying the Electricity Supply Board before constructing buildings or structures under electricity lines.
As far as I can tell, there have been no amendments to this law or it hasn't been repealed.

Under SI 445/2000 the functions under Sections 19 & 20 were transferrd to Eirgird under Section 8 (2) (c) here; http://www.irishstatutebook.ie/2000/en/si/0445.html#article8

So it looks like they are still in place.

From Section 19 it looks like the Minister referred to (presumably the Minister for Communications Energy and Natural Resources) has the final say in the matter.

NoQuarter

loremolis wrote: »

Ok, the law I'm referring to is Section 19 and Section 20 of the 1934 Electricity Supply Amendment Act No. 2 1934:

http://www.irishstatutebook.ie/1934/en/act/pub/0038/sec0020.html

http://www.irishstatutebook.ie/1934/en/act/pub/0038/sec0019.html

Sorry, for some reason I can't cut an paste the sections without taking up 4 pages.

Ths law relates to the procedure for notifying the Electricity Supply Board before constructing buildings or structures under electricity lines.
As far as I can tell, there have been no amendments to this law or it hasn't been repealed.

Under Si 445/2000 the functions under Sections 19 & 20 were transferrd to Eirgird under Section 8 (2) (c) here; http://www.irishstatutebook.ie/2000/en/si/0445.html#article8

So it looks like they are still in place.

from Section 19 it looks like the Minister referred to (presumably the Minister for Communications Energy and Natural Rsources) has the final say in the matter.

Given that this law was introduced long before the Planning and Development Acts and before Health and Safety Legislation is it still valid?

I was just about to post that SI for you. Well they look to be in place, the best place to check is the consolidated legislation on westlaw as irishstatutebook doesnt update their Acts. I'd check for you now but I dont have access unless I'm in work.

However, it is worth taking proper advice on that Act for a couple of reasons. First, it pre-dates the 1937 Constitution and so isnt afforded the "presumption of constitutionality" that post-37 Acts are. Secondly, that Act has already had at least 1 of its provisions struck down for being unconstitutional. See ESB v Gormley in 1985.

Actually, it was its father act and not the amended act that had provisions struck down but still, worth a consultation with a solicitor if you have a real problem with it.

Procrastastudy

No consolidated legislation for 1934.

NoQuarter

Procrastastudy wrote: »

No consolidated legislation for 1934.

Thanks. I'm pretty sure they are still active provisions anyway.

Procrastastudy

With it being an amendment act would one need to look for the original act? I was looking for the 1927 act but its not consolidated either.

I was actually slagging the new Westlaw off the other day but actually - I'm liking it now. (complete aside!)

loremolis

NoQuarter wrote: »

I was just about to post that SI for you. Well they look to be in place, the best place to check is the consolidated legislation on westlaw as irishstatutebook doesnt update their Acts. I'd check for you now but I dont have access unless I'm in work.

However, it is worth taking proper advice on that Act for a couple of reasons. First, it pre-dates the 1937 Constitution and so isnt afforded the "presumption of constitutionality" that post-37 Acts are. Secondly, that Act has already had at least 1 of its provisions struck down for being unconstitutional. See ESB v Gormley in 1985.

Actually, it was its father act and not the amended act that had provisions struck down but still, worth a consultation with a solicitor if you have a real problem with it.

On the basis that the provisions are still active;

(i) Would the transfer to Eirgrid under the SI automatically give them the presumption of constitutionality?

(ii) Given that the Minister (presumably the Minister for Energy Communications, Energy & NR) makes the final decision as to whether or not to issue a building prohibition order, is there any obligation on him to clarify aspects of this legislation which appear unclear?

loremolis

I didn't thnk my questions were so difficult that no one would answer.

I'll pose one more.

The legislation above appears to suggest that the continued existence of any electricity transmission line on any (privately owned) land may or may not be allowed in circumstances where the landowner wishes to erect buildings or structures on their land.

From the wording of Section 19 it appears to me that the Minister makes the final call on the matter.

However, both the ESB and Eirgrid have a "Policy" for dealing with situations which would appear to be already well covered by Sections 19 and 20.
http://www.eirgrid.com/media/ESB%20Policy%20Torwards%20Landowners%20for%20Overhead%20lines.pdf

http://www.mullingar110kvproject.ie/files/statutory_particulars/Vol%20B%20-%20Statutory%20Particulars%20-%2007.%20ESB%20Policy.pdf

Clause 7 of this Policy deals specifically with development of buildings under electricity lines but it proposes a completely different set of criteria than Section 19 and 20.

To my mind it's as if a planning authority has a statutory procedure for a planning application but they also have a "Policy" for dealing with planning applications that is different.

Can a statutory body replace or substitute specifc legislation with a "Policy" for dealing with the same matter in a completely different way?

NoQuarter

loremolis wrote: »

On the basis that the provisions are still active;

(i) Would the transfer to Eirgrid under the SI automatically give them the presumption of constitutionality?

(ii) Given that the Minister (presumably the Minister for Energy Communications, Energy & NR) makes the final decision as to whether or not to issue a building prohibition order, is there any obligation on him to clarify aspects of this legislation which appear unclear?

(i) The SI is a regulation and not a statute so it doesnt demand the same presumption of constitutionality as a Statute. This regulation implements EC Directive No. 96/92/EC. Ministers are entitled to enact regulations to "fill in the gaps" of legislation. Challenges can and have been made to regulations on the basis that the Ministers have went outside of their power and essentially legislated, which is the Parliaments job instead of merely "filled in the gaps". The area of law is known as delegated legislation and ultra vires. The particular Minister in this case appears to be the Minister for Public Enterprise.

(ii) There would be no obligation to this effect that I am aware of. As above, if a citizen thinks the Minister has gone outside of his powers, a constitutional challenge can be mounted. You'll need proper legal advice for that one.

loremolis wrote: »

I didn't thnk my questions were so difficult that no one would answer.

I'll pose one more.

The legislation above appears to suggest that the continued existence of any electricity transmission line on any (privately owned) land may or may not be allowed in circumstances where the landowner wishes to erect buildings or structures on their land.

From the wording of Section 19 it appears to me that the Minister makes the final call on the matter.

However, both the ESB and Eirgrid have a "Policy" for dealing with situations which would appear to be already well covered by Sections 19 and 20.
http://www.eirgrid.com/media/ESB%20Policy%20Torwards%20Landowners%20for%20Overhead%20lines.pdf

http://www.mullingar110kvproject.ie/files/statutory_particulars/Vol%20B%20-%20Statutory%20Particulars%20-%2007.%20ESB%20Policy.pdf

Clause 7 of this Policy deals specifically with development of buildings under electricity lines but it proposes a completely different set of criteria than Section 19 and 20.

To my mind it's as if a planning authority has a statutory procedure for a planning application but they also have a "Policy" for dealing with planning applications that is different.

Can a statutory body replace or substitute specifc legislation with a "Policy" for dealing with the same matter in a completely different way?

They arent replacing the legislation or the regulation obviously. They would simply be going against it. (I havent examined all the provisions so I dont know if they are or not).

Anyway, the answer to the question is that if their policy is at odds with the procedure outlined in the reglations/legislation, there may be a problem.

I cant go any further than that as it would be specific legal advice.

loremolis

NoQuarter wrote: »

The particular Minister in this case appears to be the Minister for Public Enterprise.

I'm not saying you're wrong, but where is this from? I had thought that the Minister for Communications, Energy and Natural Resources was the Minister responsible.

NoQuarter wrote: »

Anyway, the answer to the question is that if their policy is at odds with the procedure outlined in the reglations/legislation, there may be a problem.

I cant go any further than that as it would be specific legal advice.

Thanks, I'm not looking for any opinion on whether the policy is right or wrong when looked at in the light of the legislation.

I'm trying to understand how and whether a statutory body can have a policy for particular situation when legislation is in place to deal with the matter.

NoQuarter

loremolis wrote: »

I'm not saying you're wrong, but where is this from? I had thought that the Minister for Communications, Energy and Natural Resources was the Minister responsible.




Thanks, I'm not looking for any opinion on whether the policy is right or wrong when looked at in the light of the legislation.

I'm trying to understand how and whether a statutory body can have a policy for particular situation when legislation is in place to deal with the matter.

Check the very bottom of the SI for the signature of the Minister.

Well, legislation is usually very broad and will need further clarification and that is usually done through regulations. But when it all transfers down to an actual entity, sometimes the regulations are too vague and need actual policy to implement the regulations through administrative procedures etc etc. Again, I havent looked closely at this case. As long as the policy and actions of the entity arent inconsistent with the regulations and the main Act, there should be no problem. If, however, the policy is inconsistent with the regulations and Act and if it directly affects you, you should seek legal advice.

loremolis

NoQuarter wrote: »

Check the very bottom of the SI for the signature of the Minister.

Well, legislation is usually very broad and will need further clarification and that is usually done through regulations. But when it all transfers down to an actual entity, sometimes the regulations are too vague and need actual policy to implement the regulations through administrative procedures etc etc. Again, I havent looked closely at this case. As long as the policy and actions of the entity arent inconsistent with the regulations and the main Act, there should be no problem. If, however, the policy is inconsistent with the regulations and Act and if it directly affects you, you should seek legal advice.

The SI only transferred the powers of Sections 19 & 20 so it's the Minister for Industry and Commerce (now the Minister for COmm, En & NR) who is responsible.

I know this may be more relevant in a history forum than a legal one but and I'm not sure if modern day Oireachtas discussions on aproposed Bill shed any light on the considerations given to the particular reasoning behind a new law but the old debates on Sections 19 & 20 are particularly interesting, well, at least to me they are.:)

Small extract in relation to discussions on Section 19 in 1934.
It's amazing that they could keep records like this from so long ago.
http://historical-debates.oireachtas.ie/S/0019/S.0019.193408230007.html
Reference was made to that part of the Bill dealing with the prohibition of building in the danger area and the removal of transmission wires. It is not proposed to pay compensation. The Bill provides that no order can be made dealing with any building at present in course of construction, or at the time the order prohibiting [209] building in that area is made. A case might be made in theory for the payment of compensation in other cases, but certainly in over 80 per cent. of the possible danger areas no buildings are likely to be constructed at any time. If we put in a provision for compensation it would mean that any person who owned land would only have to propose to erect a building in the vicinity to become entitled to compensation. The Minister for Industry and Commerce decides whether the removal of transmission wires to permit building to be undertaken would involve unreasonable cost. If someone came alone and said that he proposed to erect, at a cost of £500,000, a factory employing 2,000 people, and if there is only one suitable site near the board's transmission lines, we would not hesitate to tell the board to take the transmission wires out of that. If it was proposed to erect some building of no particular value or importance it is obvious we would have to take into account what the cost of taking down and removing the transmission wires would be, before authorising the erection of the building or the removal of the wires.

NoQuarter

loremolis wrote: »

I know this may be more relevant in a history forum than a legal one but and I'm not sure if modern day Oireachtas discussions on aproposed Bill shed any light on the considerations given to the particular reasoning behind a new law but the old debates on Sections 19 & 20 are particularly interesting, well, at least to me they are.:)

.

I agree with you there!

Try reading far flung legislation all day and you'll soon enough grow tired of it!