Appellants factum - Woodward & Company

36exactly what declaration he seeks” 226 as a precondition to declaratory relief. It isdoubtful whether this was ever an accurate general statement of the law.124. In fact, aside from the trial decision in this case, there does not appear to be asingle reported judgment by an English or Canadian court relying on Harman L.J.’s dictain Biss for this proposition. To the contrary, Biss has been explicitly rejected as ageneral statement of the law by courts and commentators throughout theCommonwealth, as described below.3. The proper approach to declaratory relief: Biss rejected125. The law has developed a flexible and pragmatic approach to declaratory relief.The authors of the leading English text on declaratory remedies conclude that Bisscannot be regarded as a statement of general application, 227 noting:In practice it frequently happens that it is only after the court has determined thefacts that it will be possible to decide in what terms a declaration should begranted. As long as the parties are given an opportunity to address the court onany proposed declaration it is highly desirable that it should retain as wide adiscretion as possible as to the precise terms in which a declaration is granted. Itmay grant a declaration in terms that are more limited than those claimed or aresubject to conditions … 228126. The rationale for this approach is well expressed by the Hong Kong Court of FirstInstance in Lau Wing Hong & Others v. Wong Wor Hung & Another. 229In thisadverse possession case, the claimant made five alternative prayers as to the terms ofthe declaration, 230none of which precisely matched the boundaries of adversepossession ultimately found by the Court. The opposing party relied on Biss to arguethat the Court could grant only “specifically the relief or remedy … claimed” and was226 Trial Decision, para. 128 [underscore added].227 Rt. Hon. The Lord Woolf & Jeremy Woolf, Zamir & Woolf, The Declaratory Judgment, 3 rd ed. (London: Sweet &Maxwell, 2002) p.284.228 Rt. Hon. The Lord Woolf & Jeremy Woolf, Zamir & Woolf, The Declaratory Judgment, 3 rd ed. (London: Sweet &Maxwell, 2002)p.284 [underscore added]. See also: PW Young, Declaratory Orders, 2 nd ed. (Sydney: Butterworths,1984) p. 54.229 Lau Wing Hong & Others v. Wong Wor Hung & Another, [2006] 4 HKLRD 671.230 Lau Wing Hong & Others v. Wong Wor Hung & Another, [2006] 4 HKLRD 671, at para. 144