Date: Fri, 11 Apr 2003 10:47:48

From: Adam Kramer

Subject: Estoppel in the HL

And on this point:

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

I think the wrong was tortious, although not necessarily part of an existing tort. Yes it was economic loss caused by making a promise (reasonably relied upon) and not keeping it, perhaps a fortiori of the recognised part of negligence dealing with assuming responsibility for achieving a result (assumption of responsibility re: performance of a service), although under the tort of negligence St-Gobain would, of course, have had to fail to take reasonable care to keep their promise. I'm sure they did, but it seems to miss the point a little, perhaps not unlike in the case of causing loss by making threatening orders: Welton v North Cornwall DC [1997] 1 WLR 570.

Adam Kramer

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