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What is a declaratory judgement?

A declaratory judgement (also known as declaratory relief or ruling) occurs when a plaintiff, concerned with a legal wrangle before there has even been damages or broken laws, asks for a judgement to be made on the facts as they stand. A judge can deliver his or her opinion on what he or she considers are the rights of each party, and this is then legally binding.

The requirements

An actual situation A declaratory judgement can be made only where there is an actual controversy as opposed to a hypothetical one. In other words, a judgement cannot be made on a situation that might arise, but rather on a situation that is in the process of arising. For instance, a person who is being threatened with legal action may apply for a declaratory judgement because the act of threatening is sufficiently real. When are they applied? Such judgements are useful in wrangles over contracts, deeds, leases, and wills. For instance, an insurance policy may come into dispute, thereby causing the insurance company to ask for a judgment that defines the application of the policy. People or companies that want to ascertain their legal rights under certain laws may also seek a declaratory judgement.

Other factors

Advisory opinion Although a declaratory judgement is said to be the same as an advisory opinion, it is in fact very different. An advisory opinion is unable to resolve a case or controversy because it is only an opinion whereas a declaratory judgement is legally binding. In addition, a judgement may be issued with award of damages or with an injunction. Cease-and-desist letters Sending a cease-and-desist letter can be risky because the recipient may choose to respond by seeking a declaratory judgement in his or her own area. This effectively means that the sender of the original letter will lose the legal initiative, and will be required to appear in a court in the recipient's jurisdiction. UK example In the case of Malone v Metropolitan Police (1979), there was a claim for declaration that the tapping of the plaintiff's phones had been an unlawful interception, based on the right of property privacy, confidentiality, and breach of human rights. However, in this instance, the court decided that it could not make any declaration because the treaty under which the plaintiff was claiming protection was said to be not justiciable in England.

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