Declaratory relief awarded to a potential defendant where injured party failed to institute proceedings despite several threats.

09/06/2008

The High Court has ruled that, in certain circumstances, where there is a delay in issuing proceedings, a potential defendant can seek declaratory relief to nullify any potential liability that may have be found upon the institution of proceedings.

In [i]Eidha v. Toropdar, there had been a significant delay in the defendant instituting proceedings following a motor accident which took place in 2002. The defendant was severely injured to the extent that it was apparent he might never regain full mental capacity. In June 2005 a letter indicating intent to institute proceedings was sent by the defendant's solicitors following a detailed pre-action letter in April 2005.

The proceedings were never issued.

In December 2006, the claimant commenced proceedings for declaratory relief to the effect that he was not liable to the defendant for any personal injury or consequential damage to the defendant as a result of the accident. The claimant asserted that the defendant's omissions and / or negligence were alone the cause of the accident. The defendant subsequently applied for an order that the issue of whether such a declaration was appropriate be tried as a preliminary issue and failed on this application, with the judge ordering a trial on all issues except for quantum of damages.

On appeal, the defendant argued that the issue of the declaration should be tried as a preliminary issue due to possible costs risks in being forced to litigate an issue concerning liability prior to him making a claim.

Mr Justice McCombe ruled that due to the delay in bringing proceedings that the declaration procedure was appropriate and the appeal was dismissed.

(Eidha v Toropdar [2008] All ER (D) 07 (Jun))

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