Declaratory Judgments in Theoretical Cases: The Reality of the Dispute

It has long been recognised that a declaratory judgment may have special advantages in many contexts. Bailhache J. once went so far as to describe the power to grant declarations as one of the most useful functions of the Commercial Court in England,1 and, when the case went on appeal, Atkin L.J. described the declaration as \u27one of the most valuable contributions that the courts have made to the commercial life of this country . 2 Despite the unqualified warmth of dicta such as these, the courts in England and Canada have stressed that there are limits to the availability of a declaration and one of the most important of these is that a declaration will not normally be granted unless there is a real and not merely an academic or theoretical dispute between the parties. The emphasis placed on this restriction in cases where the remedy has not otherwise been handled with any lack of liberality seems to lend special importance to determining the factors the courts have in mind when deciding whether a dispute is real or unreal