Date: Fri, 11 Apr 2003 09:36:46 +0100

From: Paul MacMahon

Subject: Estoppel in the HL

Estoppel is a malleable idea which has been used in a variety of ways, often to get around inconvenient doctrines in other areas of the law. I am working on a thesis in which I will seek to delineate these various roles. I agree with Adam that estoppel has been used in all the ways that he identifies. I would say, however, that Adam's classification leaves out estoppel's role as a 'rule of evidence'. Where A makes an untrue statement about a present state of affairs to B, and B relies on that statement to her detriment, A is precluded from denying the truth of that state of affairs as against B. That is how estoppel was seen in the nineteenth century. We cannot dismiss this as mere history, because it continues (in England and elsewhere) to be the basis for estoppel by representation and estoppel by convention (and also some of proprietary estoppel).

Estoppel (of the 'proprietary' flavour) most certainly has been used to enforce informal dispositions of land (as Moriarty showed in (1984) 100 LQR). If we moved, as Jason advocates, to a tort understanding of estoppel, we would lose a lot of valuable law. In very many of these cases there is no challenge to the doctrine of consideration, either because (i) they are gifts, and you don't need consideration for a gift (eg Pascoe v Turner) or (ii) they are bargains (eg Crabb v Arun DC or Waltons Stores). The (main) role of estoppel in such cases is not to subvert consideration but to dispense with the need for formalities. The cases do not (properly understood!) posit a reliance-based harm, but instead posit the enforcement of a disposition or voluntary undertaking.

In High Trees and in some proprietary estoppel cases, the doctrine of consideration has been subverted. I suspect that Jason and I will not be able to agree on whether this is a good idea. I am sure, however, that we do agree on one thing - it is rather sneaky of the courts to claim that they are upholding the doctrine of consideration while dispensing with it under the name of 'estoppel'.

Getting back to the Actionstrength case, Jason and Adam both seem keen to award Actionstrength damages for losses incurred in reliance on the oral guarantee. I am considerably less enthusiastic. Can we identify a wrong done by St-Gobain to Actionstrength (apart from failing to honour its promise)? That is one worry I have about using the label of 'estoppel' in this way. If we want to recognise a duty not to cause economic loss by misleading another, let us call a tort a tort.

Paul MacMahon

Student,
New College,
Oxford

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