A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).
The declaratory judgment is generally considered a statutory remedy and not an equitable remedy and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts.
The declaratory judgment is distinguished from another important non-monetary remedy, the injunction, in two main ways. First, the injunction has, and the declaratory judgment lacks, a number of devices for managing the parties. Second, the declaratory judgment is sometimes available at an earlier point in a dispute.
A declaratory judgment is generally distinguished from an advisory opinion because the latter does not resolve an actual issue or controversy. Declaratory judgments can provide legal certainty to each party in a matter when this could resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or all of the other issues in a matter.
It is typically requested when a party is threatened with a legal action or proffers to another party they have a right to action, something by right which they believe the have under a contract etc., but the litigation has not yet been filed; this can also be requested as part of a counterclaim belief to prevent any or further litigation from the same claimant (for example, when only a contract claim is filed which refers to rights/ terms in that contract). The point is the parties and courts are not expending huge resources on a court action which could be determined by judgement on a primary issue.
The statutory declaration is normally used by the claimant, however, it can be used by the defendant especially in contractual issues. In respect to timeshare, most timeshares are governed and operated by a contract. In the event an issue arises on a particular aspect of that contract which affect the validity of that contract and the obligation which binds the parties then that clause can be adjudicated on by way of a declaratory judgement. The testing of the issue will be remote from all the other aspects of the case which the disputing parties will face in the event of a full trial, so could be effective with regards to limiting costs of not only the consumer but the courts and the timeshare companies.
The tactic of seeking negative declarations is a well-established one in commercial litigation. As an easy explanation as to the issues.
The statutory negative declaration is normally used by a defendant, however, it can be used by the claimant in respect to counter claims from the defendant, especially in contractual issues. In respect to timeshare, most timeshares are governed and operated by a contract. In the event an issue arises on a particular aspect of that contract which affect the validity of that contract and the obligation which bind the parties then that clause can be adjudicated on by way of a negative declaratory judgment. The testing of the issue will be remote from all the other aspects of the case which the disputing parties will face in the event of a full trial so could be effective with regards to limiting costs of not only the consumer but the courts and the timeshare company.
The reason we have brought this matter to you is that experience tells us that timeshare companies do not always issue proceedings immediately and the disputed issue which the timeshare company has with the consumer drones on and on. For the consumer the not knowing, the repeated claims and threats of debt collectors are real and are very worrisome times.
It therefore makes absolute sense to look into the contract and see if such an issue exists whereby an issue can be challenged. This would destroy the basis of any further claims by the timeshare company and put the claims of fees purported to be due under the contract as legally void so unrecoverable. Thus any further demands made by the timeshare company will be deemed as harassment.
To engage in this will cost money, time and resources. If and when the clause and/or clauses are found a variety of expert advices will be required before proceedings are commenced. At this point the consumer finding will have to be sent to the timeshare companies asking them to cease and desist from their claims against the consumer. No doubt those companies will resist the claims and action will follow.
The reason we believe action will follow is that if a single consumer is successful then the entire business model of the timeshare company contract has been broken and they will not be permitted to claim monies from consumers under the terms of that existing contract. The ramifications for the timeshare company will be vast but it will require a lot of effort on behalf of us, our legal teams and of course you. Having said all that – it has to be worth it.
This being the case and to ensure we are open we would form a committee of people who could help us. It would be made up of consumers alone who would direct the process with our assistance if required. No one would be required to join the investigation and no one would be forced to contribute financially to an action. At all times it is entirely the consumer who will decide whether they want to pursue the action and who to act for them.
The Civil Procedure Rules
The principle governing the concept of declaratory relief is very succinctly detailed in Part 40.20 of the CPR which states:
The court may make binding declarations whether or not any other remedy is claimed.
Last modified: August 24, 2015