Modern Law Review - September 1968 - Garner - LOCUS STANDI IN ACTIONS FOR A DECLARATION

LOCUS STANDI IN ACTIONS FOR A
DECLARATION
BY Order 15, r. 16, of the Rules of the Supreme Court 1965, a single
judge of any Division of the High Court is empowered to “ Make
binding declarations of right whether or not any consequential
relief is or could be claimed.”
As has been made clear by several writers,’ the declaration is a
remedy which has in administrative law for some time been enjoying
an increasing popularity. On the other hand, i t is a discretionary
remedy which cannot be demanded as of right and it will, indeed,
be refused if the court considers that some other remedy (in particu-
lar, certiorari) is more appropriate.’ As Dr. Yardley has shown in
relation to proceedings for certiorari, prohibition and mandamus,s
the court’s discretion in granting one of these remedies may be
exercised in such a manner as to regulate the nature of the interest
that must be possessed by the plaintiff in order to justify pro-
ceedings being taken by him; if the court considers an adequate
interest to be lacking, its discretion will be exercised so as to
refuse the plaintiff a remedy although it might grant the same
remedy on the same facts to a different plaintiff who is able to show
an adequate i n t e r e ~ t . ~
Like most other systems of law, English law does not favour
the granting of an actio popularis, and therefore, as in the case of
other remedies, a declaration will be refused unless the plaintiff
can show he has a sufficient interest. The problem may resolve
itself, however, in practice into how close, how serious or how
personal must be this interest. This question is not made any easier
of solution by the existence of the competing remedy of the relator
action, where the Attorney-General a t the relation of some person
“ interested ” asks for an injunction or possibly only a declaration
“ in the public interest.” Here it is a matter for the Attorney’s own
discretion as to whether he will lend his name to the proceedings,
1 Sea Lord Denning in his Harnlyn Lectures, Freedom under the Law (1049) at
p. 153, and articles by (3. J. Rorrie at 18 M.L.R. 138 and by I. Zamir a t
[1958] P.L. 341, and also the latter author’a book The Declaratory Judgment
(1969).
2 See Punton V. Ministry of Pensions and National Insurance ( N o . 2) [106,1] 1
All E.R. 448.
3 Two articles by this writer, at (1956) 71 L.Q.R. 388 and (1957) 73 L.Q.R.534.
4 Or locus standi; in Arnerioa the same idea is known as “ standing,” and in
French droit administmtif as ” intdrdt pour agir,” or “ intdrdt,” simpliciter;
in Belgian droit administratif, it is said that l’intdrdt droit &tre personnel ”
‘ I
( M o s t , Prdcir de Droit Administratif Belge, B. 523).

512
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SEPT.1 9 ~ 8 LOCUS STANDI IN ACTIONS FOR A DECLARATION 513
and this discretion will not be controlled by the court: as was

said by Farwell L.J.,6
‘(It is for the Attorney-General to determine whether he should
commence litigation, but i t is for the court to determine what
the result of that litigation shall be. ...
That is to say, the
court cannot say you ought never to have instituted these
proceedings ’: it must listen to his application, and then ad-
judicate whether there should be an injunction granted or not.”
Care should be taken therefore to exclude relator actions from
consideration of the extent of the plaintiff’s interest in cases where
he is asking for a declaration without the assistance of the Attorney-
General.
A further complicating factor is the existence of the alternative
remedy of an injunction; in many of the leading cases concerning
declarations an injunction is asked for in addition to a declaration.
This complication does not, however, seem to be of the first im-
portance, as the courts appear t o take precisely the same attitude
to the question of the locus standi of the plaintiff when an injunction
is asked for as they do when the remedy sought is a declaration.
Indeed, the locus classicus of comments on the standing of the
plaintiff in an action challenging an act of a statutory body on
the ground of ultra vires is an injunction case. I n W a r e v. Regents
Canal C O . ~Lord Chelmsford L.C. said (at p. 228):
(‘Where there has been an excess of the powers given by an
Act of Parliament but no injury has been occasioned to any
individual, or is imminent and of irreparable consequences, I
apprehend that no one but the Attorney-General on behalf of
the public has a right to apply to this court t o check the
exorbitance of the party in the exercise of the powers confided
to him by the legislature. If an individual has sustained no
damage, and there is no reason to apprehend that he will sustain
damage, notwithstanding his being nearer to the possible cause
of injury than the rest of the public, he has no peculiar
position or claim to entitle him to become a redresser of a
public grievance or to complain of the disregard of the pro-
visions of an Act of Parliament.”
The action for a declaration asks for a ‘(declaration of right ,’;
therefore one would expect the court to require the plaintiff to be a
party to the “ right,” or for his legal cc rights ” t o be affected
or t o be in jeopardy as a consequence of the administrative or other
decision which i t is sought to attack in the action. Thus, in a
straightforward case arising out of contract the plaintiff in such
an action will normally be a party t o the contract or a third party
claiming t o be entitled to enforce the contract, or possibly to be
In Att.-Gen. v. Birmingham, Tame and Rea District Drainage R o a d [1910]
1 Ch. 48 at. 61; cited in Att.-Den. v. Her& [19sO] 8 All E.R.207 at p. all,
6
both of whit% were injunction cases.
(1858)3 De G. & J. 212.
7 As in F o l q v. Glassique Coaches Ltd. [1934] 2 K.B.1.
VOL. 31 18
514 THE MODERN LAW REVIEW VOL. ai
exempt from its provisions.8 Declarations are not popular remedies

in the law of tort, for obvious reasons, but the plaintiff may seek
a declaration only, in a case where some question of title is in issue ;
here again the plaintiff clearly has property ‘‘ rights ” to justify
his action. I n property law and the law of trusts, the declaration is
a much more popular remedy, but even here the jurisdiction is
confined to declaring the rights and duties of the plaintiff and the
defendant inter se.l0 There must always be a real issue in dispute,”
that issue must be “justiciable,”12 and there must always be a
defendant “ presently existing who has a true interest to oppose
the declaration sought ” 1 3 ; or, in other words, there must be
“ a proper contradictor.” l 4
Sometimes it is said that the plaintiff’s ‘‘ private rights ” must
be affected, as in a case where a declaration was refused for want
of locus standi, because (said Lord Westbury, L.C.) lS “ I cannot
see any private right which this incorporated Stockport company
has in the matter. I do not see how the overleaping of their limits
by the Manchester Corporation [this was a case where the plaintiff
alleged that the corporation were acting ultra vires] inflicts any
amount of private injury upon the plaintiffs so as to entitle them
to seek redress in a court of justice.” I n L.P.T.B. v. Moscrop,18 an
employee of the L.P.T.B., who was a member of the Y trade union,
was not allowed to bring an action for a declaration to the effect
that a condition in his terms of employment that he might be
represented in cases of discipline by an official of the X trade union
was unlawful because he was not also allowed to be represented by
an official of his own trade union. Certainly the case turned on a
construction of the Trade Disputes and Trade Unions Act 1927,
but it is clear that their Lordships in the House of Lords were of
the opinion that the plaintiff had insufficient interest to support his
action :
* As in L . P . T . B . v. Mosmop [1942] 1 All E.R.97;and see below.
9 See, for example, the unusual case of Loudon V. Ryder ( N o . 2) [1963] Ch. 423.
10 A declaration “ of right ” cannot be binding on the public rut large unless the
Attorney-General is joined u0 plaintiff (see, for example, Taff Vale Ry. v.
Ponfypridd U.D.C. (1905) 69 J.P. 961, where & declarahion to the effeot that
the defendant had rights to lay pipes in, a certain way hecause i t was a public
road was suid to be not binding on the public), nor will such proceedings be
binding on other persons (the deolarrdion in Dyson V. Att.-Gen. [1911] 1 K.B.
410, to the effect that a resolution of the House of Commons was insufficient
justification for the levying of income tax on the plaintiff, would not have
prevented subsequent potential plaintiffs in the same situation from bringing
similar aotions).
11 The court will not answer hypothetical questions: Re Barnato, Joel V. Sauges
119491 1 All E.R. 616; Re Croydon D e a e l o p e n t Plans 1954 and 1959 [1967]
2 AN E.R. 589.
12 Cox v. Green [1966] 1 All E.R.268.
13 Per Lord Dunedin (applyin Scot8 law) i Russian Commercial and Industrial
Bank v. British Bank lo7 lforeign Trade %9%l] 2 A.C. 438 at p. 448.
14 Ibid.
15 I n Stockport District Waterworks Co. v . Manchestor Corporation (1W7)L.T.
545 at p. 548.
18 [1942] 1 All E.R.97.
SEPT. 19G8 LOCUS STAND1 IN ACTIONS FOR A DECLARATION 515
‘‘ what special interest has the plaintiff to enable him to bring

this action? We are not here concerned with anything but his
civil right, if any, under the section. I think it is plain that
there has been no interference with any private right of his,
alleged breach of the general prohibition. ...
nor has he suffered special damage peculiar to himself from the
$9 17
Cases where a declaration is sought against-or on behalf of-

some local government or other public agency are regulated, it
would seem, by the same principles as those applicable to a private
law situation; it is still true that, even if we now have the beginnings
of a ‘‘ system ” of administrative law,’* our public law is part
of the general fabric of the ordinary law and is not a separate body
of ‘‘ jurisprudence,” as in France. In some cases in the public law
sector, the locus standi of the plaintiff seems to approximate to
that expression of no very precise meaning beloved of the drafts-
man when granting a statutory right of appeal, namely, a person ‘‘
aggrieved.” In the Privy Council case of Att.-Gen. of Gambia V.
N’Jie,lB Lord Denning said 2o : “ The words ‘ person aggrieved ’ are
of wide import and should not be subjected to a restrictive inter-
pretation. They do not include, of course, a mere busybody who is
interfering in things which do not concern him; but they do include
a person who has a genuine grievance because an order has been
made which prejudicially affects his interests.” Although, as we
have seen, the words “ person aggrieved ” do not appear in the
rule giving the High Court jurisdiction to grant a declaration, that
jurisdiction is something very like the explanation given to those
words by Lord Denning, and the courts will expect of the plaintiff
who comes to ask for a declaration much the same qualifying
interest. Thus, the landowner who wanted to know whether the
operations he was carrying out on his land amounted to development
for which planning permission would be required was allowed to
ask for a declaration, even where some alternative means of ob-
taining an answer to the same question was provided by the
statute,21 and so was a former police officer who had resigned but
was then dismissed in accordance with a procedure which he alleged
(and was able to establish) did not observe the principles of natural
justice.2a
On the other hand, it was doubted whether a would-be plain-
tiff who was seeking to impeach the validity of a planning per-
mission in respect of a particular parcel of land had a sufficient
interest in the subject-matter when it transpired that he lived some
ten miles away and had no greater or closer interest in the problem
than the fact that he was a user of the highway which passed the
1‘ Ibid. at p. 104, per Viscount Maugham.
18 See pet Lord Reid in Ridge V . Balduin [1963] 2 All E.R.66 at p. 76.
l9 [l96l] 2 All E.R. 504.
2” At p. 611.
21 P y x Granite Go. Ltd. V. Minister of Housing and Local Government [1959] 3
All E.R. 1.
22 Cooper v. Wilson [1037] 2 A l l E.R.726.
516 THE MODERN LAW REVIEW VOL. ai
Again, in Gregory v. London Borough of Camden,2s the

plaintiff landowner was held to have insufficient status to seek a
declaration to the effect that a planning permission authorising
development on land at the back of his garden was ultra vires the
local planning authority. In this case Paul1 J. differed from the
earlier case of R. v. Hendon R.D.C., ea! p. C h o ~ l e y ,where ~~
the facts (so far as this issue is ooncerned) were very similar, but in
the Hendon case the remedy sought was a certiorari, and the basis
on which the court was asked to intervene was very different. So far
as Gregory is inconsistent with Hendon, it is submitted that Gregory
is more consonant with principle and is likely to be followed.28 In a
recent case from Ceylon,20the Privy Council held that the plaintiff,
who had been a mayor of a town whose charter of incorporation
had been wrongly (as it was held) revoked, had insufficient interest
to obtain a declaration to that effect, although it was an incidental
consequence of the revocation that he had lost his status as mayor :
“ The appellant was no doubt mayor at the time of its dissolution,
but that does not give him the right to complain independently
of the council. He must show that he is representing the council.
or suing on its behalf or that by reason of certain circumstances
the council cannot be the plaintiff 30 .” ...
Where the plaintiif is one of a large number of persons affected
by the decisions, this will not affect his status; thus, a taxpayer
required to pay a specific tax will be able to sue as he, in common
with millions of others, will be affected and has an “ interest.” 31
Also, a ratepayer, because of his liability to pay rates, is apparently
entitled to impeach the validity of a decision of the local authority
that will have an effect (however slight) on the rates he will have
to pay. This seems to follow from Prescott v. Birmingham Cor-
p ~ r a t i o n ,where
~~ a ratepayer successfully obtained a declaration
to the effect that the local authority were acting ultra vires in
seeking to allow old age pensioners to travel free on public transport
in the city. The effect of this decision on the amount of the rates
which Mr. Prescott would have had to pay was obviously very small,
25 R . v. Bradford-on-Aaon R.D.C. [1964] 2 All E.R. 492, per Widgery J. at
p. 494 (a certiorari case).
26 [1966] 2 All E.R. 196.
27 [I9331 2 K.B. 696.
28 The decision in Gregory is p e r h p s weakened on the locus standi point, because
it seems clear that the laintiff could not have succeeded on the wbstance of
his case: see, for exam$e, Simpson v. Corporation of Edinburgh, 1961 S.L.T.
17.
29 Durayappah v. F e r n a n h [1967] 2 All E.R. 152. The flaw in the Minister’s
decision dissolving the corporation in this case was L failure to observe the
principle of natural justice of avdi alteram partem, and therefore, as their
Lordships held, the decision was not a nullity but only voidable. As in
Ridge v. Baldwin (supra), a voidable decision can be impeached only by the
person directly a f f e e d ; but yparently (although the decision did not establish
the point) a lower quality of interest would have been suffioient to enable
a plaintiff to impeach a decision which was a nullity ab initio.
30 Per Lord Upjohn at . 160.
31 Dyson v. Att.-Gen. fi911] 1 K.B. 410.
[I9541 3 All E.R. 698.
S E ~1968
. LOCUS STAND1 IN ACTIONS FOR A DECLARATION 517
but the question of his locus standi to bring the action does not
seem to have been raised, nor is it referred to in the judgments at first
instance or in the Court of Appeal, nor in the report of the argu-
ments of learned counsel. Many of the earlier cases on vires affecting
local authorities have been relator actions with the Attorney-
General as plaintiff ss (see above), and the '' declaration " locus
standi of the ratepayer-plaintiff could not then have been in issue.
In New Zealand, h o ~ e v e r , ~a' declaration was refused to a rate-
payer who claimed that his local authority were acting ultra vires
in adding sodium fluoride to the public water supply for the purpose
of reducing the incidence of dental caries among local residents; it
was held that the plaintiff had not sustained any interference with
any private right of his, and that therefore he could not sue
except in a relator action with the assistance of the Attorney-
Of course a ratepayer has locus standi to question the amount of

rates for which he personally may be liable,36 but (in spite of
Prescott v. Birmingham Corporation) it is unlikely that the English
courts would ever accept as sufficient some interests that have been
accepted by courts in other jurisdictions in similar circumstances.
Thus, in France, a firm of travel agents were allowed to challenge
a local by-law subjecting excursion charabancs to the same re-
strictions as and a " users' association )) was permitted
to question the validity of an order withdrawing a tramway service
from a particular district of B ~ r d e a u x . In
~ ~the United States the
power of the federal courts to grant a declaration stems from
the jurisdiction given to the courts in any " case or contro-
versy by Article 8 of the Constitution, and in administra-
))
tive cases the standing of the plaintiff depends on section 10 ( a )

of the Administrative Procedure Act 1946 ; " any person suffering
legal wrong ...
shall be entitled to judicial review thereof." 4 1
33 Att.-Gen. v. Fulham Corporation [1921] 1 Ch. 440; A t L C e n . v. Smothioick
Corporation [l932] 1 Ch. 662; Att.-Gen. v. Crayford U.D.C. [196'2] 2 All E.R.
147; in each of the first two named cases t h e relators were ratepayers. Other
cases involvin que~tionsof wires have been brought by way of appeal from a
decision of a %strict auditor under a. 129 of the b 1 Government Act l933.
or by appeal against an order for payment made by a local authority under 8.
187 (3) of the same Act (see, e.g., Grainger V. Liverpool Corporatcon [1954]
1 All E.R. 333).
34 Collins v. Lower Hutt City Corporation [196l] N.Z.L.R.250.
36 A hint which was promptly taken by associates of the plaintiff, elthou h they
were eventually unsuccessful on the merits in t h e Privy Council: Att.-&n. for
New Zealand v. Lower Hutt City Corporation [1964] 3 All E.R.179.
38 Waterson v. Hendon B.C. [1959] 2 All E.R. 760.
5' Cook et F d s , C.E., May 5, 18W; see Brown and Garner, French Administra-
tive Law (1067) at p. 81.
38 Syndicat des Proprktaires du @artier Croix-de-Segwy-Tivoli, C.E., December
21, 1906.
41 I n American state administrative law, it is provided in the Revised Model
State Act, 8 . 15, that " a person who is aggrieved by a final decision in a con-
tested case is entitled to judicial review," and s. 2 of the Uniform Declaratory
Judgments Act (which does not specifimlly refer to administmtive rules, but
has been so applied in some jurisdictions) provides that " any person inferested
518 THE MODERN LAW REVIEW VOL.31
It is a matter for argument as t o whether in the federal j u r i 5

diction an adverse effect in fact is enough t o give standing, or
whether there must be a deprivation of a legal right r a ; a possible
economic injury as a consequence of competition from a broad-
casting station is apparently sufficient t o give a rival radio station
standing to question a decision of the Federal Communications
Commission to grant a licence to the first-named tati ion."^ It seems,
on the other hand, to be established that a plaintiff will not normally
be allowed to institute legal proceedings in order to protect the
rights of another.44 I n a more recent case, however, a circuit court
of appeals held that representatives of the listening public had
sufficient standing to intervene as parties in a proceeding held by
the Federal Communications Commission, and to contest the re-
newal of a licence to operate a television station.4s This may be
contrasted with the Canadian case of Cowan v. Canadian Broad-
casting C~rporation,'~in which the plaintiff, a Toronto resident,
claimed a declaration t o the effect that the C.B.C. were acting ultra
vires in transmitting French language propammes only, t o the
exclusion of programmes in the English language (which had
previously been transmitted), from their broadcasting station in
Toronto. I n this case the Ontario Court of Appeal, relying
principally on Ware v. Regents Canal CO."~held that the plaintiff
had insufficient locus standi; " a plaintiff, in attempting to restrain,
control or confine within proper limits the act of a public or quasi-
public [sic !] body which affects the public generally, is an outsider
unless he has sustained special damage or ' can show that he has
some special interest, private interest, or sufficient interest.' ')4 8
The Canadian approach, rather than that of the American
federal courts, is the one most likely t o be acceptable to English
courts; thus, in Thorne v. B.B.C.49 the statement of claim was
struck out as disclosing no cause of action, where a plaintiff sought
under a deed, will, written contract or other writings constituting a contraot,
or whose rights, status or other legal relations are afected by a etatute, muni-
cipal ordinance, contract or franchise, may have determined any questlon of
construction or volidity arising under the instrument, statute, ordinance,
contract or franchise,,and obtain a declaration of rights, status or other legal
relations thereunder (italics are the present author's) : see State Administra-
tive Law by Frank E. Cooper, 1966, p. 246.
42 See I<. C. Davies, Administrative Law Treatise, 5 22.01.
43 F.C.C. v. Sanders Bros. Eadio Station, 309 U.S. 470 (f?O).
44 Tileston v. Ullman, 318 U.8. 44 (1943), where a physician was held to have
insufficient standing to challenge the validity of a state prohibition on the
glvin of advice about the use of contraceptivee, although he alleged the
prohifition would affect adversely the health of some of his patients. This
cam differed from the earlier decision in Pierce V. Society of Sisters, 268 U.S.
510 (1925). but is now more merally accepted in the federal jurhdiction.
45 The appellants argued thot 8 e licence renews1 should be refused, bmause (it
waR alleged) the station provided a disproportionate amount of commercialfl
and entertainment, and did not give a fair presentation of controversial issuea,
particularly on racial matters: see Office of Communication of United Church
of Chnst v. P.C.C., 350 F. 2d 994 (1966),noted in Annual Survey of Anwrican
Law, 1966, Part I, s t p. 29. 46 (1966) 56 D.L.R. (2d) 578.
47 Sll~ll. 4 8 Per Schroeder J . A . at p. 580.
49 [l(fC)7] 1 W.L.R. 1104; [1967] 2 All E.R. 1225, C.A.
SEPT.1968 LOCUS STAND1 IN ACTIONS FOR A DECLARATION 519
an injunction against the B.B.C., alleging that they had broadcast

racial abuse, although he could not show that he personally had
suffered any injury.
Zamir makes the pertinent observation that “ no formula
generally applicable has been provided by legislation,” as a means
of determining the requirements that must be met to give a person
a standing in a declaratory action; and ‘& the judges have been
careful not to tie their hands by an exhaustive definition of locus
standi.” With that few would disagree.
CONCLUSION
To what extent can we venture to state principles which may be of
assistance in deciding whether a prospective plaintiff has sufficient
locus standi in this context ?
(1) In the &st place, it seems clear that the (‘interest ” for a
declaration must be at least as ‘‘ real ” as it is for certiorari, and
possibly it must be ‘(more so.”
(2) By ‘(reality ” of interest is meant some interest by reason
of the plaintiff’s legal rights being affected, his liability to pay a
tax the validity of which he is questioning, his property rights, or
by reason of his personal position vis-6-vis the public agency whose
action he is questioning (as in the instance where he needs to know
whether planning permission is required or some notice served on
him is valid or invalid).
( 8 ) In a case where the plaintiff is seeking to invalidate some
decision of a government agency he will need to have such an
interest as above mentioned if he is alleging that the decision is
voidable only.61
(4) In spite of the propositions already adumbrated, a rate-
payer-plaintiff , as such, may have sufficient interest to impeach the
validity of some act of his local authority, at least where that act
has financial consequences.6a
( 5 ) But if the would-be plaintiff is asking for the answer to a
hypothetical question, he will never be held to have a sufficient
interest to justify his taking proceedings, as the court cannot be
used as an expert consultant.
Further than this, one can only say that, like an elephant, an
‘‘ interest ’) is a difficult animal to describe with exactitude but
comparatively easy to recognise when one meets one.
J. F. GARNER.”
60 Declaratory Judgment at p. ‘245-246.
61 As in Ridge v. Raldwin f1964] 3 All E.R. 64; it is suggested in Du7aya pah
V. Feinando (note 28, supra) that no one but Mr. Ridge himself would gave
had a sufficient interest to impeach the action of the watch committee in
deciding against Mr. Ridge, without affording him a right to a hearing.
52 I t is, surely, doubtful whether, even in the face of Prescott v. Birmingham
Corporation (supra), a ratepayer a8 such would in *his country be held to have
sufficient standing, where the deckion impeached c m l d not possibly aflect tho
amount of the rates he would be liabsle to pay.
* LL.D., Professor of Public L a w , University of Nottingharn.

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LOCUS STANDI IN ACTIONS FOR A

( M o s t , Prdcir de Droit Administratif Belge, B. 523).

and this discretion will not be controlled by the court: as was

exempt from its provisions.8 Declarations are not popular remedies

‘‘ what special interest has the plaintiff to enable him to bring

Cases where a declaration is sought against-or on behalf of-

Again, in Gregory v. London Borough of Camden,2s the

Of course a ratepayer has locus standi to question the amount of

tive cases the standing of the plaintiff depends on section 10 ( a )

It is a matter for argument as t o whether in the federal j u r i 5

an injunction against the B.B.C., alleging that they had broadcast

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