Mellstrom v Garner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SALMON |
| Judgment Date | 28 January 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0128-7 |
| Date | 28 January 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0128-7
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Megarry)
Lord Justice Harman
Lord Justice Salmon and
Lord Justice Karminski
In the Matter of an Agreement in Writing dated 7th April 1967 made between Royston Donald Garner Michael Plant and John Desmond Finnigan of the one part and Graham Frederick Charles Mellstrom of the other part:
Mr. THOMAS BINGHAM (instructed by Messrs. J. Tickle & Co.) appeared on behalf of the Appellants (Defendants).
Mr. PHILIP GOODENDAY (instructed by Messrs. Harry I. Alkin & Co.) appeared on behalf of the Respondent (Plaintiff).
This is a dispute between chartered accountants who have accepted advice of perhaps the most unpromising sort that I have ever seen. How professional men like these — who after all must be comparatively familiar with documents having a legal flavour — can have put their names to such a farrago A of nonsense as this document passes my comprehension. It does not construe: it does not make sense at all. But now each party seeks from the Court a declaration as to the true interpretation of this nonsensical affair. It is not said that either of them has either broken any of its provisions or seeks to break them; it is not suggested that there are any facts whatever to be considered; and we are to make what in my younger days used to be called a declaration "in the air". That is against the principles of the Court of Chancery as I understand them.
The White Book, so far as it has got anything to do with it, in a note on what is now Order 15 Rule 16 (which originally was Order 25 Rule 5), says this: "No action…. shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed". "Wide words, it is true, but very much constricted under the practice of the Court even since 1915, when the well known case of Guaranty Trust Company v. Hannay was decided in a Queen's Bench Court of Appeal: (1915 2 King's Bench Reports page 536). In the White Book you find this at page 202 of the current edition: "Where specific relief, other than a declaration, is not claimed, the jurisdiction to make a binding declaration of right should be exercised with great caution" and, just above that, "The power to make binding declarations of right is a discretionary power". There are various examples given of that. It goes on; "A claim for a declaration only, not followed by a claim for consequential relief, will be carefully watched; but properly employed it is useful. Thus a declaration will not be made against a person who has assertedno right nor formulated any specific claim". That is precisely in point here. Neither of these people have claimed to do something which the other says they are not entitled to do. All they say is: "If I did it, it would not be any breach". That is not enough. There are various other instances in the course of the notes. There was one I remember about documents — Qdhams Press — which is in the notes, "where a claim was made for a general declaration of copyright in a class of documents (starting prices) and no infringement as regards existing documents was alleged or probable".
I think the judge here has gone beyond the jurisdiction allowed him under that Order. The plaintiff wanted a declaration that he was entitled to canvass customers of the firm, with certain exceptions. That would have been a gross breach of professional etiquette on his part and I do not think in any event the Court would give him a declaration that he was entitled to do something which is notoriously...
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...363-366 useless for any purpose or embarrassing or inequitable or unlawful for the Court to grant. See . Mellstrom v. Garner and Others (1970) 2 All E.R.9, 10 Guaranty Trust Company of New York v. Hanna Co. (1914) 15 All E.R. 24 and Vincent I Bello v. Magtus Eweka (198 I) 1 S.C, 101 at 121.......