What is a Declaratory Order?

loremolis · 12-02-2013 12:25AM #1

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 · 12-02-2013 12:31AM

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 · 12-02-2013 12:38AM

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 · 12-02-2013 12:42AM

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 · 12-02-2013 12:48AM

Declarations are often sought in contract cases. In equity.

loremolis · 12-02-2013 11:51PM

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 · 12-02-2013 11:52PM

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 · 13-02-2013 12:02AM

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 · 13-02-2013 12:06AM

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 · 13-02-2013 12:08AM

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 · 13-02-2013 12:15AM

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

Procrastastudy · 13-02-2013 12:39AM

NoQuarter wrote: »

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

I presume its the judge that has final say?

NoQuarter · 13-02-2013 12:56AM

Procrastastudy wrote: »

I presume its the judge that has final say?

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

NoQuarter · 13-02-2013 12:48PM

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 · 13-02-2013 05:27PM

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 · 13-02-2013 06:59PM

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 · 13-02-2013 07:02PM

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 · 13-02-2013 07:06PM

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 · 13-02-2013 07:16PM

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 · 13-02-2013 08:09PM

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 · 13-02-2013 10:15PM

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 · 13-02-2013 10:19PM

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 · 13-02-2013 10:39PM

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 · 13-02-2013 10:52PM

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 · 13-02-2013 10:57PM

No consolidated legislation for 1934.

NoQuarter · 13-02-2013 10:58PM

Procrastastudy wrote: »

No consolidated legislation for 1934.

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

Procrastastudy · 13-02-2013 11:00PM

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 · 14-02-2013 12:52PM

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 · 17-02-2013 03:36PM

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 · 17-02-2013 04:37PM

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 · 17-02-2013 05:20PM

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.

What is a Declaratory Order?

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