Proprietary Estoppel Flashcards
Theoretical Discussions
Proprietary Estoppel
What is the nature of the right arising from proprietary estoppel?:
• Orthodox view is that PE works in two stages: (1) The acquiring of the ‘inchoate equity’ once the requirement for PE are made out, and (2) the court order which actually gives B a specific right.
o Why should a right merely arise on a court order here, when it doesn’t for any other area of law e.g. contract, tort, unjust enrichment, trusts (esp. note outright rejection of RCT).
o PE is supposedly a means of acquiring rights- it fails to do this if the rights are then discretionary (this might be justifiable if English property law gave judges unfettered discretion over who should get a proprietary right in each situation, but it does not).
o Adds confusion on what remedy should be given and on what basis.
o Can’t fit sensibly into either category of in personam (lest the property is sold & B is left without enforceable rights) nor in rem (lest a commitment of A to pay B money-a contractual right-become enforceable against TP who bought the property from B).
- McFarlane says a better view would be to see the right promised as arising as soon as the requirement for PE are me t and not requiring a court order. Thus if A committed to giving B a personal right e.g. a licence then B has a right in personam, while a commitment to give a right in rem will bind a TP buyer. Obviously big problem is that it doesn’t fit with the case law e.g. doesn’t explain cases where the courts award a different right to the one promised (see above).
- How to interpret s.116(a) LRA 2002: ‘for the avoidance of doubt…an equity by estoppel… has effect from the time the equity arises as an interest capable of binding successors in title ….’? Straightforward interpretation would mean that the right is prima facie enforceable against a TP, even where the award is a monetary one. This is unfair on the TP. Mcfarlane suggests a creative interpretation (albeit somewhat strained), i.e. that s.116 only relates to commitments to confer a specific right (ie. A right in rem over the property).
Theoretical Discussions
Proprietary Estoppel
How is the remedy determined in proprietary estoppel cases?
• The remedy chosen will be the minimum equity to do justice (per Scarman LJ in Crabb v Arun DC), though this doesn’t tell us how the minimum equity is to be assessed (i.e. expectation or reliance, and whether discretionary or not). Possible remedies are the grant of proprietary rights e.g. easement (Crabb v Arun DC), personal rights e.g. licence for life (Greasley v Cooke), or monetary compensation.
• Expectation interest as basis for relief:
o In Cobbe Lord Walker says that PE estopps A from denying the right to B that A committed to giving B. This equates to protection of the expectation interest in specie (would it be possible to use monetary compensation ever? Possibly e.g. if it’s impractical to award B the right he was promised e.g. a licence to live in A’s house if A&B are on bad terms)
o This approach sees PE as preventing A’s defence to a cause of action by B e.g. B claims ownership of the house, A adduces his title to the house, B defeats this defence by stopping A from raising it.
o In many cases B has been awarded his expectation interest in this way e.g. easement in Crabb; freehold in Pascoe v Turner; property promised to be bequeathed under the will in Re Basham. However some modern cases don’t e.g. Jennings v Rice; Ottey v Grundy (though these may be considered overruled by Cobbe).
• Reliance interest as grounds for relief:
o The formulation of PE makes A liable where he is responsible for B’s loss suffered through detrimental reliance. It therefore seems logical to make A compensate B for this reliance loss.
o Doesn’t match cases where B is awarded a proprietary interest despite suffering losses that were probably much less (e.g. Gillett- he got free accommodation for 30 years rather than paying an expensive mortgage) or cases where explicitly opposite reasoning is used (Cobbe). However it can explain some cases e.g. Crabb v Arun DC, where B gave up one interest (easement) on the basis that A promised him an equivalent one (a different easement).
• Discretionary Approach (NB conceptualisation of PE as a way of preventing A from raising a defence implies expectation interest, which is incompatible w/ discretionary approach, though no explicit disapporoval)
o In Jennings v Rice, A committed to giving B the house and its contents in her will, on which B detrimentally relied. The house etc was worth 1.5m, while B spent £200k doing up the house. CA (Walker LJ) awarded £400k as a ‘proportional’ award that took account of expectation interest and reliance interest. The two discretionary elements are
♣ Proportionality between reliance and expectation. This will be ad hoc/arbitrary, except where PE arises in response to a bargain where the expectation interest and detriment required to earn it have been established, so that the parties will have settled the expectation interest as proportionate to the reliance interest. This means the expectation interest can just be used.
♣ Factors to take into account, such as tax repercussions, parties’ conduct, need for a clean break, change in A’s situation, other claims to A’s estate; and ‘other possible factors’.
o Problems:
♣ What is basis for giving relief by a means that isn’t pegged to reliance nor expectation? Relief is being governed by something (proportionality & ‘factors’) that isn’t relevant to establishing PE.
♣ Admission of ‘other factors’ reduces legal certainty
♣ How is ‘proportionality’ determined? Arbitrary
o Caselaw
♣ There are some other cases where judges don’t reason remedies on clear basis i.e. of reliance/expectation damages, and must therefore be assuming some ‘discretionary approach’. However these don’t support the approach of Jennings v Rice as there are different types of discretion e.g. Denning just did what he though was ‘equitable’ (not proportional) in Crabb, while in Campbell Walker LJ said he had very wide discretion, but appears only to mean discretion as to methods and whether to use expectation or reliance, but not a hybrid (for quantification appears to use reliance measure of value of B’s ‘reliance’ minus the benefits B got out of the relationship e.g. free accommodation; NB he chose not to award the property promised because of administrative inconvenience e.g. solicitors’ fees in transfer).
Theoretical Discussions
Proprietary Estoppel
What is the Basis for Proprietary Estoppel?
• One argument is that PE arises to effect otherwise ineffective transfers, thus giving effect to reasonable expectations. E.g. it overcomes formalities in Pascoe v Turner situation (where A commits to give B the house & B detrimentally relies on this, court ordered A to transfer freehold to B, even though the commitment had been made without being in writing, as s.2(1) LPA requires and without registration as LRA requires). Similarly in Crabb v Arun DC, where, in addition to lack of formalities, there was no enforceable contract. However:
o Doesn’t account for cases where expectation measure isn’t used to determine award to B
o Undermining formalities also undermines the policies parliament intended them to have (evidentiary, cautionary, channelling,, publicity etc)
o PE sometimes gives effect to unreasonable expectations e.g. Gillett v Holt, though NB more sceptical line in Crabb v Arun DC. Perhaps reasonableness of expectation depends on context e.g. easier to satisfy under domestic arrangement than commercial dealings.
• Prevention of unconscionable conduct: Used by many judges e.g. Oliver J in Taylor Fashions Ltd; Walker LJ in Jennings v Rice etc. However
o This could be said of any legal obligation (e.g. performance in a contract is to prevent the unconscionable outcome of one party being exploited; unjust enrichment to prevent payee unconscionably keeping money not intended for him etc). A particular form of acquiring rights deals with a particular form of conduct. ‘Unconscionability doesn’t reflect this.
o Doesn’t explain basis for determining quanitity/method of award (is the unconscionable element detrimental reliance/deprivation of expectation/something else?_
• Protect B from suffering losses where he reasonably relied on a commitment made by A (McFarlane). Basic principle that B should be free to dispose of property in a way that he wishes to do- liberal idea of freedom to use property to welfare maximise. This is undermined if B is ‘tricked’ into disposing of money on a false basis. Sounds principle. Problems (though these are overcome by saying law is changing/wrong in these respects):
o Doesn’t explain cases where reliance measure isn’t used e.g. Jennings v Rice; Cobbe etc
o Doesn’t explain traditional insistence on a right over property as opposed to anything else, since a belief in any type of right is capable of inducing a person to undertake expenses, though rule does seem to be weakening.
• Distributive justice: PE operates to allocate welfare in a way that reflects the implications of the parties’ relationship. This explains the varying methods used to calculate awards, (1) in cases where B, a carer, lives free/cheaply with A, B is awarded a monetary award not necessarily connected to reliance/expectation, but aimed at housing B in a similar way to what he enjoyed during the relationship between A and B e.g. Jennings; Campbell; Ottey v Grundy; (2) A buys a house for mistress B to live in and tells her she can have it. She is awarded house so as to make a ‘clean break’ and give B a ‘secure future’ (Pascoe v Turner- award not made on basis of expectation); (3) Explains taking into account all the factors mentioned in Jennings v Rice. However
o This is nothing specifically to do with estoppel or resiling on a commitment
o Requirements of PE itself have nothing to do with distributive justice
INTRODUCTION
Proprietary estoppel can establish property rights without satisfying formality requirements, on the basis that someone who has made a representation or allowed another to labour under a misapprehension should not be allowed to deny what has been represented, after the other has acted upon it to his detriment.
NATURE AND USE OF ESTOPPEL
Originally estoppel was confined to representations of facts and didn’t extend to promises, and in promissory estoppel it was restricted to use as a shield. However, courts have routinely given effect to promises, and allowed it to be used as a sword (eg. to give C a lease, easement or fee simple, or a monetary remedy in some modern cases). It is especially important in two contexts: 1) overcoming lack of formalities in land transactions, 2) giving effect to expectations of a non-proprietary nature.
WHEN WILL AN ESTOPPEL ARISE?
Thorner v Major requires there to be a representation or assurance by landowner to C, and detrimental reliance. The requirements must be proved, rather than relying directly on unconscionability, though this is the ground on which it is based.
WHEN WILL AN ESTOPPEL ARISE?
i. Representation or assurance to C by landowner O that C has an interest
Mistake:
o C needs to believe that he has an interest, or that O is committed to creating one (easier to prove if the detriment is very substantial, as one can still suffer detriment in the hope that it would turn out well, for example in the expectation that a longstanding practice will continue)
♣ Crabb v Arun DC: C was negotiating with O for an easement and after a draft agreement was reached O erected substantial gates to allow C to access and C was permitted to start to use the access. In reliance, C disposed part of the land that provided an alternate access and allowed himself to become landlocked. Held that although C wasn’t under a mistaken belief that he had an easement, there was still estoppel because it was reasonable for him to believe that he would be given an easement after erecting the gates
♣ Griffiths v Williams: O (C’s mother) assured C that their home would be C’s for life – CoA rejected the argument that C wasn’t mistaken as to her right. It was enough that it would be unconscionable for O to go back on the representation – in family settings, a distinction between C having a right and C will be given a right is difficult
WHEN WILL AN ESTOPPEL ARISE?
i. Representation or assurance to C by landowner O that C has an interest
Incomplete negotiations cases:
o Estoppel will not give legal effect to negotiations or explicitly non-binding agreements, but one can point to circumstances outside negotiations to justify an expectation (eg. Crabb v Arun DC pointing to the gates, or Salvation Army v West Yorkshire)
♣ AG of Hong Kong v Humphreys Estate: pending negotiation C was allowed occupation under a license that make it clear that it might be revoked. C incurred significant detriment, but PC rejected his claim – therefore reliance on incomplete negotiation is unlikely to give rise to estoppel
♣ Salvation Army v West Yorkshire MCC: O acquiesced in a letter from C warning that detriment was going to be incurred – claim succeeded when C incurred the detriment
WHEN WILL AN ESTOPPEL ARISE?
i. Representation or assurance to C by landowner O that C has an interest
Cases of promise to leave property by will:
o Difficult because O’s intention could have changed, and testators have an inherent freedom to decide whom to give property to.
♣ Gillett v Holt: CoA upheld a claim in estoppel, but in that case there were repeated assurances, in front of witnesses, over a substantial period of time.
♣ A common case is where C is caring for O in O’s old age and O responds by promising to leave property to C: Cambell v Griffin, Jennings v Rice, Powell v Benny
WHEN WILL AN ESTOPPEL ARISE?
i. Representation or assurance to C by landowner O that C has an interest
o Recent HL cases:
♣ Cobbe:
C spent lots of money obtaining planning permission for O’s land which he was negotiating with O to buy. Held that C was well aware that there was no contract and he’d proceeded in the hope of a contract. This is inadequate for estoppel, as it would be to allow C to claim a contractual right when he is well aware that there has been none.
• Lower Courts found for C because of very substantial expenditure, and the subsequent increase in value of O’s property meant gains for O
• HL still allowed C to recover expenditure through unjust enrichment, and the decision is just but analysis posed problems:
o Lord Scott suggest that proprietary estoppel is a form of promissory estoppel which requires a representation of fact – this poses problems for huge number of cases that enforced promises
o Lord Walker distinguishes a commercial and family setting – in commercial settings parties are aware of the significance of a contract and the relevant law. But he suggests that C must believe the assurance is ‘binding and irrevocable’ which is far from clear in caselaw
♣ Thorner: similar facts to Gillett but weaker because there was no overt representation – O was taciturn and his intentions often had to be inferred from conduct. HL found assurance, Lord Walker holding that the assurance must be ‘clear enough’ while Lord Neuberger said it must be ‘clear and unequivocal’, but both held to satisfy the test. Observed that Cobbe is not as highly restrictive as feared, but gave no analysis as to the reasoning there.
• Therefore promises CAN be the basis for estoppel – in Thorner there is a ‘reasonable reliance’ test that it is reasonably foreseeable that C might act on it. O needn’t intend reliance – test is objective.
• Lord Neuberger said that under this test the commercial/family divide will come into play because in the former it’s less likely to be ‘reasonable’
WHEN WILL AN ESTOPPEL ARISE?
i. Representation or assurance to C by landowner O that C has an interest
Uncertain expectation is tolerate
o Many cases said that it is unnecessary for the parties to specify the interest (especially in family settings where parties don’t usually think in categories of interest in land) – probably explained by the fact that the court has discretion as to remedy.
♣ BUT uncertainty as to the property to which the interest relates is more difficult: Thorner discussed this – the property was a farm that could grow or diminish in size. Court said it wasn’t a problem as long as the court could identify the farm at the date the assurance was enforced. However Lord Walker suggests that some element of certainty is still required (eg. ‘financial security’ would not be enough)
WHEN WILL AN ESTOPPEL ARISE?
- Encouragement or acquiescence by owner
o O must have some responsibility for C’s reliance – this requires knowledge (actual or constructive – objective test: Thorner) of the claim and detriment. This is difficult where:
♣ Both are genuinely mistaken (C thinks there’s a right and O thinks C’s merely hoping for one) – objective test is important
♣ O merely acquiesces in C’s expectation – then actual knowledge is important
WHEN WILL AN ESTOPPEL ARISE?
ii. Reliance
- Reliance must be reasonable (more important for promises – less likely that reliance on a representation will be unreasonable)
- Difficulty: motivations are usually mixed, but was resolved in Greasly v Cooke where CoA held that the burden was on O to prove that C didn’t rely on the assumption/expectation. In that case C was assured by O (family) that she could stay in the house for life, and she looked after the house etc. O argued that C’s conduct was explicable by her living with family but CoA said that O had to prove this
o Therefore it’s enough that expectation/assumption is one of the reasons for detriment - Reliance doesn’t have to be on O’s conduct – it can be on C’s own mistaken belief that the land belongs to him and can be unaware of O.
WHEN WILL AN ESTOPPEL ARISE?
iii. Detriment
- Because of presumption of reliance, detriment will likely be most contentious in future cases
- Many kinds:
o Building a garage on one’s land on the basis of a right of access
o Selling part of one’s land leaving one landlocked
o Leaving one’s existing home where there is a right to remain and an existing job
o Looking after O or members of O’s family - Detriment will NOT be found where C’s actions can be viewed as contributing to the cost of running the home or as a substitute for rent.
- Family relationships: Difficult because people living together go out of their way to assist one another – how far can this count as detriment?
o Coombes v Smith: parties became lovers and when C became pregnant, she moved into O’s house, claiming detriment in leaving her husband, becoming pregnant and raising a daughter, failing to look for a job and doing work on the house. All REJECTED – she left her husband as a result of an unhappy marriage, became pregnant because she wanted a child (at any rate the judge wasn’t sure if pregnancy could be detriment), failure to look for a job is difficult to rely upon, and work on the house was because she was living there and at any rate wasn’t detriment because it enhanced her occupation
o Grant v Edwards: more generous approach adopted, where ‘setting up house together, having a baby, making payments to general housekeeping expenses’ sufficed – referring to Gillett v Holt and its acceptance that giving up other opportunities can count towards detriment. Don’t know where this leaves coombes - Modern focus on unconscionability may lead the court to conclude that detriment doesn’t justify a remedy if C also obtained significant benefits.
THE EFFECT OF ESTOPPEL
i. Use as a sword
Though promissory estoppel cannot be used as a sword, it can in the property context, allowing C to force a transfer of a fee simple (Dillwyn v Llewelyn), or to receive a lease or license (Crabbe v Arun DC). Where the claim is based on a mistake, the courts have openly recognized such claims, but it becomes more difficult where the expectation is a promise – because then it appears to be encroaching into the law of contract and giving effect to promises without consideration. But Dillwyn accepted an obligation to transfer land, and Thorner recognized that proprietary estoppel frequently applies to promises.
This position may seem indefensible: why is it that in one case O promises C his house causing C to leave accommodation with security of tenure, and in another case O promises C £100,000 to buy a house and C does the same thing, C only gets to rely on estoppel in the first case? Perhaps the answer lies in the discretionary remedies in proprietary estoppel that doesn’t exist in promissory estoppel.
THE EFFECT OF ESTOPPEL
ii. Remedy
- Originally, there was a narrow view of discretion merely as to how to give effect to a promise, as it might be inappropriate to enforce the promise directly because C has died or literal enforcement will result in two parties that don’t like each other sharing a house.
- But more recently there was a move towards more extensive discretion, based on Scarman LJ’s dictum in Crabb v Arun DC that the court should confer upon C the ‘minimum equity to do justice’, signaling a move away from expectation towards reliance
o Pascoe v Turner – in reliance on O’s statement that the house and its contents were C’s, C spent much of her capital in improving it with O’s encouragement, so that the court held that the fee simple be transferred to her. It chose this over awarding her a right to reside for life because it feared that O would do everything in his power to deny C any lesser right than the fee simple. The important point is that the court thought it had a choice.
o Sledmore v Dalby: work was undertaken in property in the expectation that C would live there – CoA held that no remedy should be given because C had enjoyed 18 years of free occupation, had little need for the property, and O was in desperate need of money. Surprising stress on needs of C and O which seem inappropriate in property settings. Hobhouse J also thought the remedy was restitutionary.
o Gillett v Holt: assurance represents the maximum extent of the equity, and explored the minimum
o Jennings v Rice: facts similar to Gillett (promise of property on O’s death, C provided services to elderly O) – CoA held that though C had been promised a house valued at £400,000, a monetary sum of £200,000 would be awarded, the cost of employing a live-in carer. Thus there is no right to fulfillment of the expectation.
♣ Aldous LJ: the essential requirement is ‘proportionality between the expectation and the detriment’
♣ Walker LJ (Aldous and Mentell agreeing): distinction between cases where there is a ‘mutual understanding in reasonably clear terms’ as to what C is to receive (where the risk of disproportionality is reduced and the natural response is to fulfill the expectation) and those whose expectations are uncertain (where expectation will only be the starting point and the court will look at surrounding circumstances to determine appropriate remedy) - Applying Jennings v Rice will likely cause difficulties as the distinction between the two classes of cases is fine (eg. if O explicitly agrees that C is to have the house if she looked after O until his death, and O dies very soon after, would it be proportionate to give C the house?)
- Grundy v Ottey applies a test of ‘appropriate remedy in respect of the unconscionable conduct’
- C’s conduct may influence the remedy
PROPRIETARY STATUS OF ESTOPPEL
A. EFFECT ON THIRD PARTIES
i. Position after a remedy is given
Once C has the interest, it binds purchasers in the normal way. But the court order is unlikely to create the interest in itself – usually it orders O to transfer the interest. Until O does this, C has no more than an equitable interest.
PROPRIETARY STATUS OF ESTOPPEL
A. EFFECT ON THIRD PARTIES
ii. Position before a remedy is given
a. Under Registered land
This is important where the land is sold or transferred before the court is asked to give a remedy. Most old controversy is resolved by s116 LRA 2002 (‘equity by estoppel … has effect from the time the equity arises as an interest capable of binding successors in title’). Note that on one interpretation the section (the time the equity arises as an interest capable of binding successors in title) would have no role, and this is unlikely.
It is controversial that estoppel should bind purchasers because nobody knows exactly what C is entitled to – but to what exactly is the purchaser bound? If a monetary remedy is ordered, then how can that be thought as binding on third parties as it isn’t in itself an interest in land? We can look at s116 as holding the estoppel binding rather than the interest that is given – so that what is binding is C’s right to the court’s exercise of discretion (so that if the order is monetary then it is a direct order for the purchaser to pay). However McFarlane argues that the two positions (before/after the court orders a remedy) should not be distinguished – a purchaser is bound by the remedy that C is entitled to as long as it is proprietary in nature (but this is difficult to reconcile with s116 and doesn’t give effect to the discretionary nature of remedies).
PROPRIETARY STATUS OF ESTOPPEL
A. EFFECT ON THIRD PARTIES
ii. Position before a remedy is given
a. Under unregistered land (not governed by s116)
Earlier cases (before the Act) widely held estoppel to be binding on purchasers, but that was before wide discretionary remedies developed. However, recently the courts didn’t think this was an objection and continued to recognize the binding of purchasers, even where monetary remedies are involved. The use of estoppel for non-proprietary interests is also recent, but the court still held them binding (whether or not the purchaser had notice).
PROPRIETARY STATUS OF ESTOPPEL
B. ASSIGNABILITY OF BENEFIT OF ESTOPPEL
The issue was never squarely addressed by the cases, but there’s no reason why not. It has been suggested that in the family context licenses are not assignable, but this is an unnecessary generalization.
OTHER MEANS OF GETTING AROUND FORMALITY REQUIREMENTS
i. Mutual benefit and burden
Agreements conferring rights that are dependent on performance of corresponding duties under the contract: duties may not be binding on purchasers. Halsall v Brizell concerned an agreement to maintain central facilities in exchange for payment; held that the successor, though not bound by the agreement to pay in itself, cannot receive the benefits of the agreement without also accepting the obligation. But in Rhone v Stephens, HL restricted this principle to situations where the benefit is made conditional upon performance of the burden – this means either 1) explicitly conditional or 2) reciprocity and relevance of burden to the exercise of the benefit (eg. V selling to P imposing a number of obligations doesn’t satisfy the reciprocity requirement to allow V a claim against P’s purchasers – another problem in Rhone is that the benefit must in theory be able to be repudiated, so attaching conditions to a fee simple don’t apply).
It was applied in ER Ives v High: agreement that D would allow the foundations of flats to remain on his land provided that he would get access to the garage to his house across the back of the flats. No legal easement was executed and no equitable easement arose – but CoA held that as long as the foundations remained, the right of access was good upon subsequent purchasers.
This doctrine is similar to estoppel but operates because of the purchaser’s continuing to take the benefit, rather than because of the purchase of land itself. Thus it operates outside the normal interests in land rules, and operates only insofar as the benefit is being asserted.
OTHER MEANS OF GETTING AROUND FORMALITY REQUIREMENTS
ii. Donor doing all in his power
Where the property cannot be transferred by the actions of the parties alone (eg. transfers of shares which need to be registered by the company, and of land which needs to be entered on the register), then if there is a contract then there is an equitable right of specific performance, but if it is a gift, then Milroy v Lord requires that the settlor must have done everything that was necessary in order to render the settlement binding on him. Thus using the wrong form is fatal.
OTHER MEANS OF GETTING AROUND FORMALITY REQUIREMENTS
iii. Recognition of gifts upon death
Secret trusts: If T leaves property to L in his will on the oral understanding that L should hold on trust for B, then a secret trust is enforced against L.
Mutual wills: If A and B both make wills leaving the property to each other but should they outlive the other, to the same C. If the intention is that the property should ultimately go to C, then the survivor cannot later change his mind.
Strong v Bird: An ineffective but immediate gift becomes complete on donor’s death if the donee is appointed personal representative or administrator.
Donations mortis causa: If someone contemplating death makes a gift conditional upon death, then the gift is effective even though it doesn’t satisfy the requirements for inter vivos gifts or those in the Wills Act.
Crabb v Arun DC [1976] Ch 179
P had access to a road at point A and wanted access at point B. He had a meeting with D and they agreed that P could have another access point “in principle”. D then built a fence as agreed with P and put in a gate at point B, so that P now had his second access. P later assigned his rights to access point A to a 3rd party so that his only access to the road was at the gate at point B. D then replaced the gate with a fence, locking P in. CA allowed P’s claim.
Lord Denning: Estoppel can give a cause of action concerning rights or interests over land and is founded in equity. This is “proprietary estoppel”. In this case D lead P to believe that he would have a right to access the road at point by putting in a gate etc and P relied on this, so that it would be inequitable to allow D to go back on his implied granting of the right.
Lawton LJ found a firm agreement between D and P and stated that D had given an undertaking and therefore P had a right top access at point B. Estoppel is to “mitigate the rigours of strict law”.
Greasley v Cooke [1980]
Woman contributed to looking after household because of promise that she could live in the house rent-free for life. The court allowed her to do so. It held that although non-financial contribution cannot confer a proprietary interest, it may constitute detriment for the purposes of estoppel. Also, once reliance had been proved, the burden was on the other party to show that she had not acted to her detriment.
Per Lord Denning MR: Financial expenditure is not necessary to invoke proprietary estoppel.
Taylor Fashions v Liverpool Victoria Trustees [1982]
contract of lease on a house which they had the option to renew. However D claimed that the option was void because the houses weren’t registered under the land registration act. Oliver J said the correct approach to any estoppel is by “ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment”. Because of the circumstances in each case, he said that one P could rely on estoppel, whereas the other P could not.
Re Basham [1986]
This was a case where P was promised by the deceased that she would inherit his house, but he died intestate and she sought a declaration against the deceased’s administrators of his estate, D, that the house was hers. The court granted it, holding that that the principle of proprietary estoppel was not limited to acts done in reliance on a belief relating to an existing right, but extended to acts done in reliance on a belief that future rights would be granted. Since the plaintiff had established that she had acted to her detriment in reliance on her belief, encouraged by the deceased, that she would ultimately benefit by receiving the deceased’s property on his death, she was absolutely and beneficially entitled to the deceased’s residuary estate.
Yeoman’s Row v Cobbe [2008]
The claimant had entered into an oral (unenforceable) agreement with defendants in connection with the redevelopment of their property. The defendants’ unconscionable behaviour in withdrawing from the agreement once planning permission for the redevelopment had been obtained did not result in a proprietary estoppel or a constructive trust in favour of the claimant.
Lord Scott: Proprietary estoppel is just a species of the ordinary form of estoppel: It prevents A from denying that which he represented to be true. Therefore it cannot be a means of acquiring rights itself here, since all the defendant is estopped from denying is the existence of an unenforceable agreement.
Lord Walker: The courts should be slow to introduce uncertainty into commercial transactions by overready use of equitable concepts such as fiduciary obligations and equitable estoppel. Proprietary estoppel can be a means of acquiring rights, but the claimant must have an actual ‘expectation’ of acquiring rights, rather than just a ‘mere hope’, as here. Hence the agreement had to have been ‘binding and irrevocable’.
Thorner v Major 2009
D implied that he would leave his farm to P in his will. P had worked for free on D’s land for many years for free, and D had entrusted P with money to pay death duties etc. He entered P in his will as implied, but, due to an argument with another relative who stood to inherit a separate asset, tore it up and died intestate. P claimed that he acquired the rights to the farm via proprietary estoppel, and the HL allowed his claim.
Lord Walker: Proprietary estoppel is a means of acquiring rights, but that the agreement had to be ‘sufficiently certain’ (however he did not repeat the claims from Yeoman’s Row v Cobbe that the agreement had to be ‘legally binding’ or ‘binding and irrevocable’). This is still a high threshold, as in Crabb v Arun DC where negotiations were at a very advanced stage.
Wayling v Jones [1995]
X promised P that in return for all the help P gave him in running his businesses, P would inherit them on X’s death. This did not happen under X’s will and P sued the estate, D, under proprietary estoppel for the business he ought to have received. CA allowed P’s claim, stating that once the plaintiff had shown that the promises were made, and that the plaintiff’s conduct was such that inducement could be inferred, the burden of proof shifted to the defendants to establish that the plaintiff did not rely on those promises.
Gillett v Holt [2000]
P promised D that he would leave property to him in his will and even announced it at family gatherings, however D did not leave it to P. P claimed the property under proprietary estoppel, and the court allowed his claim, the belief being sufficiently certain. Robert Walker LJ: “unconscionability” was the key to proprietary estoppel, and the requirement of detriment was only considered as part of a broad investigation into unconscionability. It was not necessary to show an irrevocable promise, since the doctrine of proprietary estoppel made it irrevocable (Circular argument: it claims the doctrine makes statements definite, when actually the doctrine does not bite in the first place unless the understanding is definite itself- Gardner). He accepts the broad view that the court should “look at the circumstances in each case to decide in what way the equity can be satisfied”.
Pascoe v Turner [1979]
Mrs Turner had been Mr Pascoe’s housekeeper and subsequently cohabited with him. After ten years of living together, he eventually informed her that he was leaving her to move in with a new woman. Mrs Turner was very distressed but was somewhat consoled when Mr Pascoe informed her clearly, in front of witnesses, that the house and everything in it was hers. She made several improvements to the house, incurring expense. He then told her that he was determining her license to remain and she had to leave within 2 months. CA was a clear case of proprietary estoppel and the minimum equity to do justice to her was to order the conveyance of the property as he had promised.
Cumming Bruce LJ: In determining the appropriate measure of relief, “the court should consider all the circumstances, and Mrs. Turner having at law no perfected gift or licence other than a licence revocable at will, the court must decide what is the minimum equity to do justice to her having regard to the way in which she changed her position for the worse by reason of the acquiescence and encouragement of the legal owner.” i.e. whatever is equitable in the circumstances. In this case, granting her a licence to remain would be inadequate since Mr. Pascoe could sell the house and a new purchaser would not necessarily be bound to honour her interest.
Sledmore v Dalby (1996)
The plaintiff sought possession of a house. She had owned it with her late husband. The defendant lived in and had done much work on the house, but the deceased left it all to the plaintiff. She sought possession after the defendant paid no rent. CA Held: The will created no sufficient legitimate expectation to justify the claim of equitable interest on D’s part. The plaintiff’s and defendants needs had to be balanced (D had only made minimal use of the house and had other accommodation, unlike P who had none), and an equitable remedy should not be used to create an injustice. The plaintiff’s need was more pressing. D had lived in the house for 20 years rent free and the equity created by his expenditure had expired.
Campbell v Griffin [2001]
P was the lodger of X and Y and eventually ended up being a carer for them too, in return for which they promised that he would have a “home for life”. However only Y made the change to his will leaving the house to P, whereas X, who died later and whose will took precedence, left he property to her relatives, D, whom P sued for possession. CA allowed proprietary estoppel.
Robert Walker LJ: The court has to look at all the circumstances to decide hot to grant “the minimum equity to do justice to the plaintiff’”. The court had wide discretion. On the one hand, P had taken great care and expense on behalf of X and Y, but on the other had been living virtually rent-free and often in sole occupation of the house. Here, a fixed sum of £35k was appropriate, as being given a lifetime licence on trust would be too complex.
Jennings v Rice [2002]
P, a gardener, looked after his employer for many years without pay, on the understanding that she would “see him alright” in the end. She in fact left him nothing in her will, and P sued her estate, D. CA upheld the finding of proprietary estoppel and awarded £200k. CA held that its job in granting relief was the avoidance of unconscionable result, and the “most essential requirement is that there must be proportionality between the expectation and the detriment” (per Aldous LJ) i.e. the remedy must be proportionate to the loss.
Walker LJ: In addition to pursuing proportionality between reliance and expectation, the court will consider tax repercussions, parties’ conduct, need for a clean break, change in the claimant’s situation, other claims to the defendant’s estate, and ‘other possible factors’
Yeoman’s Row v Cobbe [2008]
Lord Hoffmann: “To treat “proprietary estoppel equity” as requiring neither a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion.” See also Lord Scott’s dictum above.
Effect of estoppel rights
LRA 2002 s 116:
An equity by estoppel, and a mere equity, has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority).
Henry v Henry
In Henry and Mitchell v Henry [2010] UKPC 3, the Privy Council have given further consideration to the doctrine of proprietary estoppel. The judgment of the PC was delivered by Sir Jonathan Parker and it will be of particular interest as it demonstrates the continuing importance of the Court of Appeal’s excellent judgment in Gillett v Holt [2000] EWCA Civ 66 as well as raising (without deciding) the interesting issue of the remedy when section 116, LRA 2002 is in issue in relation to third party buyers after the estoppel has been established.
In summary, the facts are that Geraldine Pierre, who people referred to on St Lucia simply as “Mama”, allowed Calixtus Henry’s grandmother to build a house on her land and live there. Calixtus was born there and continues to live there to this day. Mama visited Calixtus’ plot daily and treated him like a son. Mama was regarded as such because of her refusal to leave St Lucia and for her willingness to let people live on her land in exchange for working on it. Calixtus was the only man up to the task. His evidence was that “Mama stated many times to me … that she would leave the land for those that worked the land and for those that cared for her in her home country”. Mama also promised him that because he lived on the land, cultivated it, and cared for her, that he would be given her share of the land on her death. The plot provided food for Calixtus and his family, as well as Mama; that he took food to her and sold any leftovers. Mama left her share in her will to Theresa Henry.
At first instance, the judge found that Mama had made a clear representation to Calixtus but that Calixtus had not acted to his detriment because he had lived on it rent free for decades, it had been his source of livelihood, and he had reaped its benefits. Further, his interest could not bind the subsequent purchaser of the land. The Court of Appeal found that Calixtus had acted to his detriment and awarded him effectively Mama’s share of the property, his “expectation interest”.
In the Privy Council, the issue was as to how the principles of proprietary estoppel should apply in this case. The question was whether Calixtus had acted to his detriment. The Board said that the process of deciding whether there had been sufficient detriment was to weigh up the advantages and disadvantages suffered by Calixtus in reliance on Mama’s promises. The process, in effect, is similar to a proportionality assessment (as to which see below). The Board followed the approach taken in Gillett that, although the criteria for establishing a claim in proprietary estoppel can be viewed individually, they are often intertwined and, in this case, that was certainly so. The Board was accordingly required to revisit the question of detriment and found that because he remained working on the land (unlike others), caring for Mama and providing food for her, and effectively depriving himself of the opportunity for a better life elsewhere Calixtus had established detriment and his equity. He had opted for a “hard life, in which he has had to struggle to make ends meet and to provide for his family, in circumstances where more attractive prospects beckoned elsewhere.
Calixtus had an overriding interest, which bound subsequent purchasers. It was argued, drawing on Gray and Gray’s excellent Elements of Land Law at para 9.2.93, that proprietary estoppel connotes an inchoate remedy which can be satisfied in a number of different ways including the payment of money depending on all the circumstances of the case. Section 116, although simple in utline, is really rather a tricky provision because although the equity arises when the detriment has been done, that does not actually affect the potential range of remedies. In relation to the equivalent provision to section 116, the Board found that it did not arise in this case because it had not been originally pleaded. However:
The Board does not rule out the possibility that cases may arise in which the particular circumstances surrounding a third party purchase may, notwithstanding the claimant’s overriding interest, require the court to reassess the extent of the claimant’s equity in the property. [56]
With respect to the parties in this claim, this was the most interesting and important issue of law (see my reflective piece which touches this issue in relation to section 2, LPMPA, but could have amplified further in relation to section 116) and it’s a shame that the Board were not able to address it.
Thus, the remedy was in issue. The Board stressed the following idea: “Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application” (at [65]) – a comment which should be in the heads of all practitioners and students (although I fear it won’t be in the minds of the latter).
Calixtus got one half of Mama’s share, now vested in Theresa Henry, as the minimum equity to do justice to his claim. They might have done more here to justify this outcome, but the overall feeling is that Calixtus was not best served by the St Lucian courts.
Will an inchoate equity bind purchasers?
could be an overriding interest which binds a third party
Smith (2011) problems with operation of S. 116 LRA 2002
Controversial because nobody knows what C is entitled either because the expectation is uncelar or because the remedy lies in the courts’ discretion.
Purchaser needs to know what is binding on them!
More difficulties arise if the remedy is monetary as how could that bind a purchaser? A right to money is not in itself an interest in land.
Davies v Davies
the two conflicting lines of authority re discretion of the court
The Law
In deciding how to satisfy the equity the court has to exercise a broad judgmental discretion. This discretion is not unfettered. There are two conflicting lines of authority:
- The essential aim of the discretion is to give effect to the Claimant’s expectation, unless it would have a disproportionate effect; and
- The aim of the discretion is to ensure that the Claimant’s reliance interest is protected, to as to compensate them for the detriment suffered.
Davies v Davies
The Facts
Mr and Mrs Davies are dairy farmers. The farm business was owned by a company but the land was owned by Mr and Mrs Davies directly. The net value of the whole farming enterprise in 2014 was approximately £4.4m. Ms Davies worked on the farm for long hours at low wages over many years, in reliance upon her parents’ assurances that the farm would one day be hers.
In 2012 Ms Davies’ parents brought proceedings to evict her and her family from the farmhouse. Ms Davies brought a counter claim for an interest in the farm, land and business.
The dispute was divided into two parts: one to decide whether Ms Davies had raised an equity and two to decide how that equity should be satisfied. In Davies v Davies [2014] EWCA Civ 568 the Court of Appeal upheld the High Court decision that Ms Davies had a valid claim for equitable relief based on proprietary estoppel. Ms Davies was therefore entitled to an equity over the farm and/or the farming business.
Davies v Davies
Decision at Trial
The extent of the equity Ms Davies was entitled to was decided in Davis v Davis [2015] EWHC 015 (Ch). The equity could have been satisfied either by a monetary payment, a licence to stay in the farmhouse or in some other way.
The trial judge said that this was not a case where the expected benefit and the expected detriment were equivalent nor disproportionate. The reasons for this were:
- Mr and Mrs Davies made numerous differing representations to Ms Davies over the relevant period;
- Ms Davies left the farm for a second time in 2001 and said she had “given up” and “had no expectations regarding the farm”; and
- Ms Davies expectation of the fam was dependent on her continuing to work in the business which did not happen.
The trial judge commented that Ms Davies had not “positioned her whole life” on the basis of her parents’ assurances and took expectation as the appropriate starting point.
The trial judge identified two strands of detriment that Ms Davies suffered, namely: - Working on the farm for long hours without full payment; and
- She would have enjoyed shorter working hours in a working environment of her choosing had she not been working on the farm and she would have been free of the difficult working relationship with Mr and Mrs Davies.
Ms Davies argued that she should be awarded the land and the business, which was what was promised to her. Mr and Mrs Davies case was that Ms Davies should be given a sufficient sum for accommodation and for a share in the farm and business, and on this basis offered Ms Davies £350,000.
The trial judge rejected both arguments and held that the accommodation element did not sufficiently accommodate the expectation and detriment. The trial Judge also found that the accommodation element did not reflect the promise that Ms Davies could live in the farmhouse for life.
The trial judge ruled £1.3m as the appropriate award for Ms Davies. This amount was just over one third of the net value of the whole farming enterprise which was a fair reflection of the expectation and detriment and other factors set out in his judgment. Mr and Mrs Davies appealed the High Court’s decision.
Davies v Davies
Court of Appeal
The Court of Appeal held that the trial judge had applied too broad a brush, failed to analyse the facts with sufficient rigour and failed to explain why he had reached the conclusion that he did. The Court of Appeal also found that the trial judge did not explain what expectation (out of the numerous differing representations) he regarded as the starting point.
In regards to the two broad strands of detriment suffered by Ms Davies, the Court of Appeal held that:
1. Ms Davies had no intention of inheriting the land between 2001 and 2006 when she initially left the farm, and following her return the expectation lasted for at best three years until her final departure in 2012. The Court of Appeal therefore held that a relatively modest sum should be awarded.
- The effect of her final departure in 2012 meant that Ms Davies was free to work in a working environment of her choice with shorter working hours and be free of the difficult working relationship with Mr and Mrs Davies. The Court of Appeal held that the time period during which she gave up these freedoms was at best four to five years and therefore, again, an award would be relatively modest.
The Court of Appeal did not consider that the trial judge had properly analysed the offer of £350,000 made by Mr and Mrs Davies. The Court of Appeal considered that the offer actually went some way towards satisfying Ms Davies expectations as the accommodation element attempted to provide Ms Davies with the equivalent in monetary terms of what she had been promised. The partnership element gave full effect to her monetary expectations and the company element actually exceeded her expectations and was equivalent to 85% of the value of the company at the time.
The Court of Appeal awarded Ms Davies £500,000 to allow for the delay in payment and the changes in the value of money since the expectations were created.
Davies v Davies
This case demonstrates the difficulty the courts have when exercising the broad discretion mentioned above in proprietary estoppel. It also demonstrates the difficulties of calculating a monetary award, especially where there has been numerous differing representations.
Despite not resolving the conflict between the two lines of authority, this case suggests that the clearer the expectation, the greater the detriment and the passage of time that the detriment was reasonably held, the greater the weight that should be given to that expectation.
Habberfield v Habberfield
Facts
centred around a farm with a value of approximately £2.5 million. In the Court of Appeal, the Defendant – Jane – appealed the decision of the judge below to award her daughter – Lucy - £1.2 million. Lucy had spent 30 years working on the family farm. Lucy did so on the basis of her late father’s assurances that Lucy would take over the dairy business when he retired and, ultimately, when both parents had passed, would inherit the entire farm.
In 2008, Lucy refused an offer to run the farm in partnership with her parents. Some five years later, in 2013, after a family dispute, Lucy left the farm. Lucy’s father died in 2014 and left the farm to Jane who closed the dairy unit. The judge below found that Lucy had established an equity based on proprietary estoppel. The elements of assurance, reliance and detriment were all there.
For the purposes of the appeal, the defendant argued, inter alia, that:
The claimant’s refusal to accept the partnership offer meant that it had not been unconscionable for her father to resile from his assurances;
The award was disproportionate to the detriment;
It was inappropriate to order the payment of a cash sum during the defendant’s lifetime
Habberfield v Habberfield
RE proportionality
A claimant’s expectation was not determinative of the relief which should be granted. Instead, the relevant question was whether the award was out of all proportion to the detriment. As Lord Justice Lewison wrote in his judgment:
‘The relevant comparison for the purposes of proportionality is a comparison between detriment and remedy. Nevertheless, proportionality is not a question of mathematical precision. Like all cases in which the court decides how to satisfy an equity, it must exercise a judgmental discretion, and may do so in a flexible way.’
The Lord Justices agreed that, to raise the £1.2 million, the farm would have to be sold. This was despite the fact that the sale would deprive the Defendant of her home; it was evidenced, though, that the Defendant had sufficient means to rehouse herself and meet any shortfall in income. The Claimant was 51 years of age. An immediate award was necessary so that she could begin farming on her own account. In addition, the breakdown of the familial relationships made a clean break especially attractive.
Habberfield v Habberfield
final consideration of payment
The final consideration for the Court was the time for payment. Since Lucy had received assurances that she would eventually receive the farm, but not necessarily before the deaths of both of her parents, and the effect of Birss J’s decision was to provide Lucy with a sufficient sum to acquire a viable dairy unit and land immediately, it was arguable that the eventual award exceeded her expectation. Further still, the impact of the order was to make Jane leave the farmhouse, which had been her home for many years. Lewison LJ stated that he found this ‘the most troubling aspect of the appeal’, but ultimately concluded that the order was within the judge’s discretion. In order to raise the money, the farm would have to be sold, but Jane had sufficient means to purchase a new home and meet the shortfall in her income. It was imperative that the award be paid so that Lucy could begin farming immediately, and this was particularly desirable in circumstances in which the family relations had broken down so completely. The appeal and cross-appeal were dismissed.
Mee ‘PE and inheritance: enough is enough?’ (2013)
It is noteworthy that the trial judge in Suggitt remarked that “[o]ne of the unfortunate features of this case has been the inability of the parties to compromise an obviously compromisable case”.130 Similarly, in Joyce v Epsom and Ewell BC,131 a proprietary estoppel case decided by the Court of Appeal in the same month as Bradbury, Davis L.J. complained that “[p]ragmatic compromise has eluded the parties”.132 Perhaps the courts should look to their own decisions rather than marvelling at the inability of the parties to reach a sensible compromise. Proprietary estoppel is a very powerful and a very unpredictable doctrine. In advising John Suggitt in advance, a solicitor might have warned him that he could fail in his claim or receive an intermediate remedy along the lines of Jennings or else, as happened in the case, he might hit the jackpot. How can the parties bargain in the shadow of the law of equity when that law is so “flexible”? The unpredictability *Conv. 297 of proprietary estoppel generates a great deal of additional (“bitterly fought and ruinously expensive”)133 litigation.
In terms of the related issue of generosity to claimants, part of the problem may be that all the fun in equity lies in providing remedies for claimants where “the rigours of strict law” will not allow it.134 The rhetoric of centuries encourages judges to “temper the harsh wind to the shorn lamb”.135 From the point of view of some judges (although other judges might have a different preference), it could seem more fulfilling to dispense discretionary justice to the parties before the court than to feel obliged to apply, in a more mechanical way, the strict rules of property law and succession law. However, there is a cost in terms of the certainty of the law, certainty that would benefit members of the public who would, as a result, never come into contact with the judges administering equity. Despite much reverential talk on the part of legal commentators and judges about equitable flexibility and the prevention of unconscionability, it is not in the public interest for the legal system to tolerate an indulgent and confused proprietary estoppel jurisdiction. It is to be hoped that the trend represented by Suggitt and Bradbury will not continue and that the courts will begin to take a more restrained and analytical approach.
Gardner ‘The remedial discretion in proprietary estoppel - again’ (2006)
the doctrine of proprietary estoppel does, properly speaking, have a particular aim: to redress the unconscionability that arises where the claimant acts detrimentally upon a certain kind of expectation, and the defendant is responsible for this by virtue of his behaviour (encouragement, acquiescence) towards the claimant.
And we have found that this aim makes it proper for the law to seek to respond to a multiplicity of variables. Given these findings, we can conclude that it is legitimate for the law to make use of a discretion, rather than a rigid rule, in this context. On the other hand, the courts have not done enough to make that legitimacy secure. Although the evidence is not all one way–the judgment of Robert Walker L.J. in Jennings v Rice 79 being on the whole an important effort in the opposite direction–they show signs of confusion as to the jurisdiction’s aim, and pay insufficient regard to at least two of the three ways in which discretionary decisions must be exposed to audit.
These deficiencies mean that, overall, this discretion cannot be sufficiently reconciled with the Rule of Law: it involves an unacceptable degree of rule by men (the individual judges), not laws. The reasons for this are, however, fully capable of repair. A clearer perception of the jurisdiction’s aim is readily attainable, as is a practice of greater transparency in the justification of chosen outcomes, and a sharper focus in appraising the aptness of these justifications. Although it does not go far enough, Robert Walker L.J.’s analysis represents a promising start on this project: efforts should now be made take it further.
Jennings v Rice Robert Walker LJ gives starting point to remedy in PE
Quote
+ key division
“[45] Sometimes the assurances, and the claimant’s4 reliance on them, have a consensual character falling not far short of an enforceable contract…. In a case of that sort both the claimant’s expectations and the element of detriment to the claimant will *L.Q.R. 493 have been defined with reasonable clarity…. In a case like that the consensual element of what has happened suggests that the claimant and the benefactor5 probably regarded the expected benefit and the accepted detriment as being (in a general, imprecise way) equivalent, or at any rate not obviously disproportionate…. [50] … In such a case the court’s natural response is to fulfil the claimant’s expectations. But if the claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognize that the claimant’s equity should be satisfied in another (and generally more limited) way. [51] But that does not mean that the court should in such a case abandon expectations completely, and look to the detriment suffered by the claimant as defining the appropriate measure of relief. Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant’s expectations…. In such cases the court has to exercise a wide judgmental discretion. [52] It would be unwise to attempt any comprehensive enumeration of the factors relevant to the exercise of the court’s discretion, or to suggest any hierarchy of factors. In my view they include … misconduct of the claimant as in Willis v Willis 6 or particularly oppressive conduct on the part of the defendant, as in Crabb v Arun District Council 7 or Pascoe v Turner. 8 To these can safely be added the court’s recognition that it cannot compel people who have fallen out to live peaceably together, so that there may be a need for a clean break; alterations in the benefactor’s assets and circumstances, especially where the benefactor’s assurances have been given, and the claimant’s detriment has been suffered, over a long period of years; the likely effect of taxation; and (to a limited degree) the other claims (legal and moral) on the benefactor or his or her estate. No doubt there are many other factors which it may be right for the court to take into account in particular factual situations. [56] … I respectfully agree with the view expressed by Hobhouse L.J. in Sledmore v Dalby, 9 that the principle of proportionality (between remedy and detriment) … is relevant ….”
- Bargain and non-bargain cases
Jennings v Rice Robert Walker LJ gives starting point to remedy in PE
A. Bargain cases
Where the parties have made a bargain in reasonably clear terms, defining both the claimant’s expectation and the detrimental reliance required of him in order to earn that expectation. Here, the relief should vindicate the claimant’s expectation.
Jennings v Rice Robert Walker LJ gives starting point to remedy in PE
B. non-bargain cases
here the claimant’s expectation is uncertain, or extravagant, or out of all proportion to the detriment which she has suffered. Here, the relief is arrived at by the exercise of a wide judgmental discretion, influenced–as relevant–by:
(i) the claimant’s expectation, but also proportionality with her detriment;
(ii) the parties’ conduct;
(iii) the need for a clean break;
(iv) alterations in the defendant’s assets and circumstances;
(v) the effect of taxation;
(vi) other claims on the defendant or his or her estate;
(vii) possible other factors.
THUS grants wide discretion
How does Lord Walker’s approach differ from other judges?
Such a division (bargain vs non-bargain) is absent from other discussions of the subject. In particular, Robert Walker L.J.’s colleague in Jennings v Rice, 11 Aldous L.J., made no use of the idea, but spoke in terms of a homogenous discretion. Likewise, in Ottey v Grundy 12 the Court of Appeal noted Robert Walker L.J.’s analysis, but presented it in an unfaithful way, denying it any determinative force, and exposing the whole spectrum of cases to a single, discretionary, approach.
Proprietary estoppel and property rights
Susan Bright and Ben McFarlane
intro
article focuses on a particular aspect of the operation of proprietary estoppel: it asks when a proprietary estoppel claim will give rise to a property right. The inquiry proceeds on the linked assumptions that proprietary estoppel is a means of acquiring rights and that rights thereby arising take effect immediately, without the need for any court order.
ike any other means of acquiring rights, proprietary estoppel can give rise either to personal rights or to property rights: in some cases the estoppel claimant is acknowledged to have a personal right (e.g. to damages2 or a licence to use land3); in others a property right (e.g. a lien;4 an easement;5 a lease;6 or a freehold7)
Proprietary estoppel and property rights
Susan Bright and Ben McFarlane
what is the central argument and why?
The central argument of this article is that proprietary estoppel should give rise to a property right only if that is necessary to protect the claimant’s reasonable reliance. Where a personal right gives suffcient protection that will have to do, whatever the claimant may have been promised or expected; this may well mean that the circumstances in which a property right arises are more narrow than has been thought. The premise on which this argument rests is that, consistently with the law’s clear desire to contain the situations in which property rights arise a claim should give rise to a property right only if that is demanded by the principle underlying that claim.
Contained because of the fact that the advantages inherent in property rights necessarily confer burdens on other users of the property: see, for example, the approach in Hill v. Tupper (1863)
argued that proprietary estoppel is endowed with no more discretion than any other equitable source of rights.
Proprietary estoppel and property rights
Susan Bright and Ben McFarlane
‘Some may think that a search for such principles will be both futile and inappropriate. ‘
Futile as the broad discretion that characterises proprietary estoppel cannot be adequately described by specific principles; inappropriate because the fiexibility of the doctrine should not be circumscribed. Neither claim is accepted.
There are sound reasons why the operation of proprietary estoppel should be governed by a closely structured discretion. The basic imperative of treating like cases alike requires that the specific factors which guide a court’s decision be identified. It simply will not do to say that because the underlying purpose of estoppel is to “prevent unconscionability” the judge in each case has an openended discretion. Further, as in any area of law, the greater certainty conferred by elaborating specific principles lessens the risk of extensive and costly litigation. Certainty is at a premium in this particular context as third parties dealing with the land will need to know if the estoppel claimant has acquired a property right in that land. Moreover, as section 116(a) of the Land Registration Act 2002 confirms that rights arising through estoppel can take effect before an order of the court, it is no longer possible to argue that rights arising through estoppel should be determined on a discretionary basis and only have effect after a court order declaring their existence.
Proprietary estoppel and property rights
Susan Bright and Ben McFarlane
Conclusion
the goal of proprietary estoppel is to protect reliance on an expectation, for which A is responsible, that B has or will acquire a right in relation to land owned by A.
the wide discretion which apparently characterises proprietary estoppel has been exaggerated. When determining whether B has a right through estoppel, the court has the general discretion inherent in its equitable jurisdiction and can, for example, deny B’s claim due to a lack of “clean hands”. When assessing the nature and extent of B’s right, any flexibility the court possesses is inherent in, and constrained by, the need to do the minimum necessary adequately to protect B’s reliance. Finally, when deciding on the appropriate remedy to give effect to B’s right, the court can take into account the same wide variety of factors that are relevant whenever a court attempts to fashion a remedy. There is thus no special discretion which is unique to proprietary estoppel claims. Hence there is no need to assume that because the response to proprietary estoppel is not *C.L.J. 480 always moored to B’s expectation it is therefore free to float on an open sea of discretion.
A further theme has been that the courts must take more care in justifying a finding that B has acquired a property right. It has been contended that B will have a personal right against A which will persist after any transfer of the property by A. Further, this right will not just entitle B to reimbursement of out of pocket expenses but will rather extend to allowing B whatever damages are necessary to protect his reliance: in some cases, these damages should be designed to give effect to B’s expectation. Therefore, B should only acquire a property right where the possibility of binding future owners of A’s land is necessary to ensure that B’s reliance is adequately protected. This stands in contrast to the Law Commission’s preferred interpretation of section 116(a) of the Land Registration Act 2002, under which B’s estoppel claim is always capable of binding C. Where B’s reliance can be adequately protected by means of a purely personal right, it will be unnecessary and disproportionate for B’s claim to be capable of binding a transferee of the registered land.
should be emphasised that an inquiry into when proprietary estoppel gives rise to property rights should not be viewed in isolation. There is a wider question as to whether, and when, non-consensual sources of rights, such as unjust enrichment or wrongs, should give rise to property rights. The current inquiry has been confined to proprietary estoppel and has attempted to show first, that it is a non-consensual source of rights; secondly, that it clearly is capable of giving rise to property rights; and finally that it is possible to suggest principles regulating when such rights should arise. It may be that the approach suggested here can also be of use when investigating the ability of other non-consensual sources of rights to give rise to property rights.
Promises, detriment, and liability: lessons from proprietary estoppel
Ben McFarlane*
Sir Philip Sales
Conclusion
It was argued in Pt I that, chiefly through the doctrine of proprietary estoppel, English law has come to recognise a particular form of promise-based liability and that there are no grounds for restricting the operation of the underlying principle to cases where A’s promise relates to some land or other property owned, or about to be owned, by A.
It was argued in Pt II that, to understand that liability, it must be seen as independent from contract law and as not limited to preventing the unconscionable insistence on legal rights. It was also argued that, far from undermining the classic requirements of contract law, the principle can help to justify the strictness of those requirements, by providing a means of protecting B where it would “shock the conscience of the court” if A were wholly free to leave B to suffer a detriment as a result of B’s reasonable reliance on A’s promise, where it was reasonable for B to believe that A seriously intended that promise as one capable of being relied on by B. An analogy was drawn with the law of unjust enrichment, which also came to the fore in English private law only in the second half of the 20th century, and has also developed so that the underlying concern with preventing a particular form of interpersonal injustice is given effect through a set of more precise requirements, with the underlying aim of preventing unconscionable conduct having only a residual role in limiting the scope of A’s liability to B. It was also suggested that, like unjust enrichment, the promise-detriment principle has a secondary nature, and an important part of its justification lies in its relationship with primary legal rules, such as those regulating the transfer of property rights or the formation of contracts. This secondary nature may explain why the promise-detriment principle has been slow to win express recognition, but it does not undermine its practical and conceptual importance as a means of ensuring that A cannot exploit the strict nature of the primary legal rules in order to leave B to bear the costs of B’s reasonable reliance on A’s seriously intended promise.
Indeed, in fulfilling this function, the principle provides a manifestation of equity’s traditional concern to prevent opportunistic or oppressive conduct by A. It may be that, owing to the sheer scale of B’s potential detriment,173 cases arising in the proprietary context provide the clearest example of the principle’s importance; there seems, however, to be no sound reason why the principle should operate only in that context.
Confining and defining proprietary estoppel: the role of unconscionability
Martin Dixon
Unconscionability means going back on an assurance about formality, in conjunction with a ‘rights assurance’ that is ‘certain enough’ and detrimental reliance. Where the landowner has not made a ‘formality assurance’ (expressly or impliedly), it is not unconscionable to deny the ‘rights assurance’.
‘Subject to contract’ cases, regular sale/purchase situations and even regular inheritance discussions may be of this type because it is difficult, but not impossible, to prove a formality assurance in such cases.
Where there is no formality assurance, the claimant cannot succeed in estoppel because the formality rules deny the existence of the alleged property right or specify that it must be granted in certain ways. In this sense, proprietary estoppel is not in conflict with s 2 of the 1989 Act – or indeed any other statute imposing formality – because unconscionability (and hence estoppel) is inexorably bound up with the need for formality.
Estoppel has its own justification which supports the need for formality. Consequently, proprietary estoppel does not need a constructive trust to protect it and ‘failed contract’ cases are no different from any other type of case. Failed contract cases and ‘commercial’ cases look different from non‐bargain cases or domestic cases – and they are. Not, however, because they are ‘failed bargains’ to which s 2 applies and does not apply elsewhere, nor because they are ‘commercial’ and the parties should have known better, but rather because in both these contexts it is more difficult to prove that there has been a formality assurance that is subsequently withdrawn. An estoppel can exist and is not in conflict with any formality rule if, but only if, it is unconscionable to deny the rights assurance. It is unconscionable to deny the rights assurance only when it has been accompanied with an express or implied formality assurance.
The purpose of this analysis is not to require a mechanical search for a double assurance in the same way that it is tempting to search mechanically for a rights assurance, plus detriment and reliance. It is instead an attempt to explain that estoppel does not undermine the structure of property law as manifested by formality rules, and that it is not the expression of a thinly disguised unfettered judicial discretion. Rather, it seeks to explain estoppel as a principled and limited equitable doctrine that allows the creation of property rights through the front door. The front door is guarded by unconscionability, and it is not always open. Moreover, this analysis does not seek to deny that there is a role for judicial discretion in estoppel cases. Once an estoppel has been established on the basis of a double assurance and detrimental reliance, the court may respond to the equity in many ways. In so doing, the court may well take a broad view of the parties conduct,70 or it may seek to be even handed between those parties claiming use of the land,71 or it may try to fashion the remedy to best suit the circumstances of the parties as they now find themselves.72 In doing all of these things, the court may well use the language of unconscionability. This is unconscionability as a descriptive tool and it is very different from the defining concept explained above.
Constructive trusts and proprietary estoppel: the search for clarity and principle
Terence Etherton
Conclusion
Perhaps most curious of all, in policy terms, is that the House of Lords has relaxed the requirements for a constructive trust, in the form of the CICT, by the decision in Stack, while at the same time restricting, perhaps severely, the doctrine of proprietary estoppel. From a conventional equity perspective this is counter-intuitive. It might be said that they have shot the wrong beast. Proprietary estoppel, with its traditional requirements of a clear representation and detriment or change of position and the remedy restricted to the minimum to do justice, has usually been considered a more reliable and certain instrument for remedying unconscionable conduct than the rather fluid concept of the constructive trust. The attractiveness of proprietary estoppel is not undermined, but rather is enhanced, by the wide discretion of the court as to the choice of actual remedy (proprietary or personal), which makes it a particularly appropriate and sensitive tool for achieving justice.
There is now a hair’s breadth between the CICT of the Stack kind and a remedial constructive trust. We will have to wait to see whether there are further developments in the constructive trust to fill a void left by the impact of Yeoman’s Row on proprietary estoppel, and whether litigants and the courts will seek to employ and extend the law of restitution, including proprietary relief for unjust enrichment, to the same end. The alternative is that, faced with such possible (and to many equity and restitution specialists, ghastly) innovations, courts exercising equity jurisdiction will prefer to treat and apply Yeoman’s Row in the narrowest possible way.
What is sorely needed is a coherent legal framework across the boundaries of trusts, estoppel and restitution to provide principled remedies for unconscionable conduct in relation to the acquisition and ownership of land. A case by case approach, in the context of an adversarial system of increasingly specialist advocates, where they and busy courts have concentrated on the facts and outcome of the case in hand, has not worked well so far in this field. Nor has the ability of the law to provide practical justice been assisted by a rigid and restrictive approach to relief in restitution or by a mantra type invocation of the need for certainty.
The tension between the desirability of providing a remedy and the need for certainty in the law has always been a critical feature of judicial decision-making in the common law and equity.
The tension is resolved in different ways and with different results according to the context. Where loss or damage has been caused by unconscionable conduct, it would be wrong to provide a civil remedy if the ingredients of what is unconscionable conduct cannot be defined with sufficient clarity to satisfy requirement of the Rule of Law that laws should be clear and accessible.98 If, on the other hand, that threshold is capable of being satisfied, there is a powerful argument in favour of the provision of a principled remedy. In the case of unconscionable conduct, it is difficult to see why, as between the victim and the wrongdoer, the desirability for any greater degree of certainty than is necessary to meet the threshold should be a trump card, particularly if, as indeed is the case with proprietary estoppel, the court can fashion a proprietary or personal remedy taking into account all the circumstances. So far as concerns an innocent third party, certainty is a most important factor, especially in commerce. That is achieved in the case of a constructive trust and the right to relief for proprietary estoppel by the traditional principle of equitable interests or equities binding third parties who take with notice, but not otherwise.99
For those reasons, the necessity for certainty ought not to be an obstacle to the provision of a principled remedy for unconscionable conduct in relation to land, whether through an institutional constructive trust, proprietary estoppel, restitution, or indeed, properly fashioned, a remedial constructive trust.100 The problem is not one of certainty, but of achieving a coherent legal framework based on consistent policies within and between those different areas of law.
Constructive trusts and proprietary estoppel: the search for clarity and principle
Terence Etherton
Intro
When a person acts in an unconscionable way towards another, how should a court, in seeking to achieve “practical justice”,1 balance and reconcile values of certainty, consistency arising from precedent, overall coherence in the structure of the law, deference to Parliament on policy issues, and the provision of a remedy appropriate to reverse or prevent harm to the innocent party? The answer to this question, which is a profound one, lies beyond the scope of my address today. Those considerations, or some of them, do, however, underlie the decisions of the House of Lords in Stack v Dowden 2 on the so called Common Intention Constructive Trust (CICT) and Yeoman’s Row Management Ltd v Cobbe 3 on proprietary estoppel. Any review of those cases must inevitably touch on them.
The CICT and proprietary estoppel meet at the common ground of conduct, short of a binding and enforceable contract for the acquisition of land, which will enable a court to declare or grant a proprietary interest in land in favour of an innocent party. I am particularly interested to explore the extent to which the doctrines overlap or diverge, and the scope for their development in the future. This requires an analysis of the basic features of the doctrines, as propounded by the House of Lords in Stack and in Yeoman’s Row and subsequent case law. Time is very limited for this rather large topic, and so my analysis will necessarily be rather brief. Furthermore, I must emphasise that it is not part of my task today to say whether I think the decisions are right or wrong; and everything I say is necessarily subject to further thought in the light of submissions made in any case which I may have to decide in the future.
Constructive trusts and proprietary estoppel: the search for clarity and principle
Terence Etherton
Section on proprietary estoppel
Yeoman’s Row 55 is a jurisprudential milestone in the development and application of the doctrine of proprietary estoppel. Taken at face value, the analysis of Lord Scott, with whom Lords Hoffmann, Brown and Mance agreed, spells a severe restriction on the operation of the doctrine.
Lord Scott described proprietary estoppel as a sub-species of promissory estoppel.
“[a]n “estoppel’ bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture of fact and law, that stands in the way of some right claimed by the person entitled to the benefit of the estoppel”
Lord Scott emphasised that unconscionability is not enough to engage the doctrine of proprietary estoppel.59 It is probably fair to say, however, that no commentator or judge probably ever thought the contrary.
Constructive trusts and proprietary estoppel: the search for clarity and principle
Terence Etherton
Why is Cobbe difficult to reconcile with Crabb?
Other cases thrown into doubt by Yeoman’s Row are those in a commercial context, such as Crabb v Arun DC 67 and Yaxley v Gotts. 68 Lord Scott does not address Yaxley at all, and deals with Crabb on the somewhat summary basis that it was of no assistance to Mr Cobbe since:
“The case was one in which the DC had led Mr Crabb to believe that he could have access his land via a road belonging to the DC. In reliance on that promise Mr Crabb allowed his land to become otherwise landlocked. He was held entitled by way proprietary estoppel to a right of way as promised. The DC was estopped from denying that he had the right of way.”69
Lord Scott’s apparent endorsement of Crabb is difficult to reconcile with his analysis of the doctrine of proprietary estoppel since the factual situation in Crabb was that the claimant acted on the basis of a promise which the judge in that case found was “no definite assurance” and “no firm commitment” but only an “agreement in principle”, and that “some further processes”, presumably a formal written document, would have to be gone through before it would become binding
In the commercial sphere, Lord Walker did not comment at all on the correctness of Yaxley, in which he had delivered the leading judgment in the Court of Appeal; and his explanation of (in his words) the “difficult case” of Crabb is not altogether easy to reconcile with the fact that Mr Crabb’s own agent left the critical meeting believing that there were still other legal processes to be undertaken before a binding contract would come into existence
Apocalypse averted: proprietary estoppel in the House of Lords
BEN MCFARLANE.*
ANDREW ROBERTSON
Intro
In Yeoman’s Row Management Ltd v Cobbe the House of Lords allowed an appeal against a finding of proprietary estoppel, with the two main speeches suggesting severe restrictions on the doctrine
Less than a year later, in Thorner v Major [2009] UKHL 18; [2009] 1 W.L.R. 776, the House of Lords has brought proprietary estoppel back from the brink. The apocalypse (see per Lord Walker at [31]) has been averted and proprietary estoppel can continue to function as an independent source of rights. It can thus perform its vital role as a broad and flexible doctrine focused on the need to prevent a party (B) suffering detriment as a result of his reasonable reliance on another (A).
Apocalypse averted: proprietary estoppel in the House of Lords
BEN MCFARLANE.*
ANDREW ROBERTSON
the future test for PE
the significance of Thorner lies in the House of Lords’ confirmation that proprietary estoppel can continue to protect a party who has reasonably relied on an assurance by another as to that other’s future conduct. As to the details of the test for proprietary estoppel, the speeches in Thorner direct attention to three questions:
(1) whether A can reasonably be understood to have made a commitment or promise (as opposed to a mere expression of intention);
(2) whether reliance by B could reasonably be taken to have been intended by A; and
(3) whether B’s actual reliance can be regarded as reasonable in the circumstances. Thorner suggests that these questions are very closely connected, and indeed that a positive answer to the third question assumes positive answers to the first and second.
An objective test applies to each of the questions
First, it must be reasonably understood by B that A is making a commitment or assurance. Secondly, it will not be reasonable to rely unless the commitment reasonably appears to have been intended by A to be taken seriously by B. Since no specific acts of reliance need to be in view, it may be artificial to ask whether it appears that A intended the representation to be relied upon. The better question, and the focus in Thorner, is whether B can reasonably believe that A intended the commitment to be taken seriously: if it was, then this will provide strong support for a finding that reliance was reasonable.
Apocalypse averted: proprietary estoppel in the House of Lords
BEN MCFARLANE.*
ANDREW ROBERTSON
The future: the nature and scope of proprietary estoppel
The approach taken by the House of Lords in Thorner to the question of whether Peter had made the necessary assurance to David differs markedly from that of the Court of Appeal. The test adopted there closely resembles that applied in cases of “common law estoppel”, where a “clear and unequivocal” representation is required. In such cases, B does not seek to base an independent cause of action on A’s conduct; rather, B claims that A should be prevented from denying a particular state of affairs that is vital to B’s case. The effect of such an estoppel is thus preclusive and evidential.
Proprietary estoppel, as the House of Lords implicitly recognised in Thorner, is quite different from “common law estoppel”. It does constitute an independent cause of action: one which, as seen by their Lordships’ repeated reference to the concept, focuses on the need to protect B where he has reasonably relied on A. The key point is that, in particular circumstances, it may be reasonable for B to rely even in the absence of a clear and unequivocal representation from A.
It seems that Lord Scott is alone in insisting (at [18]) that, for the purpose of a proprietary estoppel claim, A’s assurance must have the same clarity and certainty as is needed to support a “common law estoppel”. Lord Neuberger (at [84]) emphasises that he does not intend to cast doubt on the need for such an assurance, even in a proprietary estoppel claim; but his Lordship then heavily qualifies that proposition by pointing out, for example, that it is generally sufficient for B to “establish that he reasonably understood the statement or action to be an assurance on which he could rely” (at [85]). Similar ideas were expressed by Lord Rodger (at [26]) and Lord Walker (at [56]). Where such reasonable reliance occurs, proprietary estoppel can perform its useful, and distinct, role of preventing B from suffering a detriment as a result of his reliance. This is consistent with the notion that a proprietary estoppel will arise only where A’s departure from the relevant assumption is unconscionable. A’s departure from an *L.Q.R. 542 assumption that A has induced B to adopt will be unconscionable only if B’s reliance on that assumption was reasonable.
In the short term, the decision in Thorner v Major, by implicitly rejecting the limits suggested in Yeoman’s Row v Cobbe, allows proprietary estoppel to continue to perform its vital role of protecting those who reasonably rely on assurances from another that they have, or will acquire, a right in relation to that other’s land. That role may call for intervention in commercial as well as domestic cases, although of course the inquiry as to whether A has made an assurance and of whether B’s reliance is reasonable will have to be sensitive to the particular background of the case (as noted, for example, by Lord Neuberger at [96]-[97]). In the longer term, the decision in Thorner v Major may force a re-examination of some of the more tricky questions relating to proprietary estoppel, such as the extent of the rights it gives rise to and the scope of its application beyond cases involving land. Any such analysis of those questions must accord a prominent role to the need to prevent B suffering a detriment as a result of his reasonable reliance on an assurance by A.
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Intro
The court’s approach to ‘identifying the remedy that should be awarded where proprietary estoppel is established’ can be split in two. It can be split into (1) the aim of relief (what the remedy seeks to achieve), and (2) the mode of relief (the specific means by which the aim is achieved). Luke Rostill, Associate Professor of Property Law at the University of Oxford argues that it is ‘necessary to distinguish’ the two. Using this distinction, I argue that (1) the aim of relief is ‘the minimum equity to do justice to the plaintiff’ and that this ‘justice’ demands that the proprietary estoppel do what is necessary to avoid an unconscionable result, and (2) the courts have a ‘broad judgmental discretion’ and must ‘look at the circumstances in each case in order to decide in what way the equity can be satisfied’. My discussion of the court’s approach first considers the competing views of the aims of the relief and finds that the unifying element of unconscionability in the case law supports Gardner’s position that the role of this jurisdiction is to rectify unconscionability. This underpinning aim helps explain the various modes of relief, for example between (i) awarding the claimant a property right in the land, (ii) awarding the claimant a personal right to use the land, and in some cases (iii) ordering a defendant to pay a sum of money. I argue that they are illustrative of the court’s tailor-made remedies which fall within this ‘broad judgmental discretion’ which ultimately seek to avoid an unconscionable result. Therefore, contrary to claims that ‘it is not currently possible describe the court’s approach in a way which is both clear and consistent with the results of the cases’, I argue that the doctrine must remain flexible in order to appropriately deal with the unconscionability in specific cases and that this approach is to be favoured over a more rigid method which may fail to satisfy the minimum equity for the sake of certainty. Historically, equity’s separation from strict law granted it greater scope to remedy injustices and the bedrock of unconscionability is a well-defined aim, ‘such that a judge can work to it as the law’s agent’.
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Aim of rectifying unconscionability
The court’s approach to identifying a remedy is driven by the aim of the relief. This aim is summarily presented by Gardner as ‘to rectify unconscionability, which can be understood as the extent to which the defendant’s role in the claimant’s detrimental reliance upon her expectations makes it right to hold the defendant responsible for it. This view is supported by the case law. Jennings v Rice is a key case because it confirms Lord Denning’s view that the basis of proprietary estoppel is the ‘interposition of equity’. Aldous LJ reasons that the ‘value of that equity will depend on all the circumstances’. The aim of relief can seem to vary from case to case as the court’s approach differs. In Crabb v Arun DC, the courts held that despite the absence of a formal agreement Mr Crabb had an equity arising from the District Council’s ‘discourteous and high-handed act.’ The court’s decision to grant an easement to Mr Crabb at no charge was argued as the adequate remedy given that he had already incurred losses from the land being inaccessible. In this case, the court granted a proprietary right and this right met the claimant’s expectation. It could not meet the detriment, because this would be difficult to quantify. The land had been landlocked for several years and Mr Crabb would have suffered from unquantifiable frustration. Therefore, the court’s approach should be interpreted as meeting the minimum equity and satisfying the claimant’s expectation was an appropriate way of accomplishing this.
SOPHIE: How do we know what the form of the expectation was in Crabb? We know he expected a right of access, but not necessarily that he expected it to take the form of an easement. Is there a possibility that the award was over and above the expectation interest in this case?
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Does not simply vindicate C’s expectation
However, it cannot be argued that the aim of relief is simply to vindicate the claimant’s expectation. This approach is suggested by the analysis of the Court of Appeal in Suggit v Suggit. Arden LJ supported the claimant’s argument that, ‘the courts have consistently, with very few exceptions, protected the claimant’s expectation interest when responding to estoppel and… the courts’ preference and tendency has been to protect expectations in full so far as possible’. Arden LJ then reinforced that ‘this does not mean that expectations are automatically satisfied in full’. Here we see the importance of separating the aim of relief from the mode. The differing modes of relief stem from the aim of avoiding an unconscionable result. For example, the view that the aim of relief in proprietary estoppel is always to vindicate the claimant’s expectation was rejected by the Court of Appeal in Jennings v Rice. This case should be binding on Suggit v Suggit and I argue that it is authoritative for the separation of the component parts of the court’s approach to identifying the remedy. Aldous LJ warns against the submission that the appropriate course was to satisfy the expectation because ‘[T]he rigidity of the approach… can lead to injustice which could not form the basis of an equitable result’. We can clarify the court’s approach by asserting that the aim of relief must be to do what is necessary to avoid an unconscionable result and this can include satisfying the claimant’s expectation as a mode of relief, as was the case in Inwards v Baker (licence to occupy), Crabb v Arun DC (easement) and Pascoe v Turner (fee simple).
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Differing aims of the remedy of PE
Nonetheless, I recognise that there are in fact differing opinions over the aim of the remedy. Bright and McFarlane argue that ‘the only satisfactory theory of proprietary estoppel is one which explains proprietary estoppel as generating rights in order to protect B’s reliance’. This is a more restrictive approach and reasons that the key ingredient should be the claimant’s reliance. Moreover, this view is judicially supported in by Lewinson J in Davies v Davies, in which he accepts that ‘[l]ogically, there is much to be said for the [reliance] approach.’ He reasons that, ‘in principle’, if a detriment can be fairly quantified and the claimant receives full compensation for that detriment then the foundation of the claim should be removed. Again, I argue that this aim may suffice in reaching the ‘minimum equity’ but the courts must principally aim to satisfy that equity and satisfy the detriment in those instances where it would be appropriate. Moreover, the courts usually do not seek to protect the claimant’s reliance and it could lead to unprincipled results if it were to displace the underpinning aim of relief which demands that the proprietary estoppel do what is necessary to avoid an unconscionable result. Robert Walker LJ states in Gillet v Holt that the finding of detrimental reliance ‘must be approached as part of a broad inquiry as to whether the repudiations of an assurance is or is not unconscionable in all the circumstances.’ I support Gardner’s view of the aim of the jurisdiction rectifying unconscionability over Bright and McFarlane’s theory of generating rights to protect B’s reliance, because it is more in tune with the case law and the flexibility of the doctrine is principled in its unifying element of unconscionability.
SOPHIE:Is there a possibility that it is more ‘in tune’ with the case law because the concept is devoid of any meaningful content?
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Shows courts don’t merely vindicate C’s reliance interest or C’s expection
Both, the view that the courts vindicate the claimant’s expectation and that it protects the claimant’s reliance interest, collapse when considering Sledmore v Dalby. In this case, the court at first instance gave effect to the expectation of the defendant who relied on proprietary estoppel. However, the Court of Appeal overturned their decision when they considered that the defendant’s children were grown up, that he was in employment and had use to alternative accommodation and only spent once or twice week there. Despite the claimant’s expectation and reliance interest, the court ruled in favour of the claimant who was an elderly woman and who could no longer afford to remain in her present home. The Court of Appeal emphasised. ‘… it is necessary to consider the extent of the equity created and what is, in the circumstances, the equitable way in which to give effect to it’. The court identified that no remedy should be granted because the broad inquiry showed that supporting the defendant’s claim in proprietary estoppel would leave the claimant homeless since she couldn’t afford to remain in her present home. The court were not willing to prioritise the expectation or the detriment of the defendant because this case was missing the essential unconscionability element. Jennings v Rice established that the court ‘must take a principled approach’. However, mechanistically vindicating the claimant’s expectation or protecting the claimant’s reliance would prioritise certainty over justice, going against the inherent purpose of equity.
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
Proportionality
Finally, the modes of relief are guided by the principle of proportionality. This principle steered the judges in Sledmore v Dalby away from a mechanistic approach. Hobhouse LJ argued that the ‘end result must be a just one having regard to the assumption made by the party asserting the estoppel and the detriment which he has suffered.’ This guide is unsatisfactory since it leaves little guidance as to how a judge should respond other than within the two innermost pints of expectation and detriment. However, I argue that contrary to the Privy Council’s assertion that that ‘proportionality lies at the heart of the doctrine’, proportionality is an instrument which can help guide the ‘broad judgmental discretion’. The courts must move away from judicial disagreement over the aim and modes of relief and begin to debate how best to apply a criterion that the judges can follow as they exercise this ‘broad judgmental discretion’. Gardner identifies seven possible factors affecting the remedy if one has to pass over the expectation criterion. I argue that the judges should be more proactive and, rather than using the expectation as a starting point, should consider all the facts of the case using these criteria within the scaffold of proportionality. Applying a criterion like the one proposed by Gardner would allow the judges to justify their remedy using a sliding scale. This would ensure the necessary discretionary freedom to satisfy the minimum equity and, as the substance of case law builds, criticisms of the court’s approach giving rise to uncertainty will slowly disintegrate.
Discuss critically the court’s approach to identifying the remedy that should be awarded where proprietary estoppel is established
In conclusion, proprietary estoppel is not just a way of informally acquiring rights when the necessary elements arise, but a judicial instrument which prevents unconscionability and acquiring rights is secondary to this. What does the remedy do? Does it protect the claimant’s expectation? Does it protect their detriment? The remedy is tailor-made with measured steps once the injustice is caught in the ‘broad judgmental discretion’ to do what is necessary to avoid an unconscionable result. These measured steps should be the focus of scrutiny in order to crystallise the doctrine’s approach. Building a substantial body of case law on a stable conception will allow courts to distinguish cases using established guidelines. For example, Gardner identified 7 possible factors affecting the remedy if one has to pass over the expectation criterion. Applying these 7 factors consistently will invite the necessary debate on the scope of each step and address the criticisms of uncertainty. On the other hand, judicial and academic doubt over the basis of proprietary estoppel and varying the modes of relief from case to case without reference to a ‘principled approach’ will continue to stunt its development and perpetuate this criticism.
SOPHIE: One thing to think about is whether ‘unconscionability’ as an aim is really helpful – does it collapse into broad judicial discretion (this is something that Gardner worries about when trying to explain the cases)? Flexibility may be necessary, but at what point – if any - does it become a problem?
