TOROPDAR V D

[2009] EWHC 567 (QB), Queen’s Bench Division, Mr Justice Christopher Clarke, 20 March 2009

Procedure – Declaratory relief – Personal injury claim – Action for negative declaration – Whether application should be granted – Whether application should be entertained in personal injury cases – CPR Part 40.20

D, a 10-year-old boy, ran out in front of a car driven by the claimant, and suffered severe injuries. The claimant’s insurers, exercising subrogation rights, sought a declaration of non-liability. The court held that on the facts the claimant was not entitled to a declaration, given the speed of his driving and the local conditions. The court also considered whether a declaration should be granted in such circumstances, and concluded that a negative declaration should be made in a personal injury case if it would serve a useful purpose. It might be refused if it would be unjust, eg, because the injured party at that stage has no legal representation, because the outcome might depend upon finding further information or because the victim is not ready to go to trial. A declaration would also be refused if a claim had not been seriously canvassed.