Thanks, Jason. Here is a link to the judgment for those who haven’t read it. I am trying to write something about the case for an Australian audience so I’ll save my substantive comments for that.

 

It is disappointing that the case was heard by a five-member bench given the importance of the issue as measured by the number of cases struggling with it in the Court of Appeal in recent decades, and existence of a ‘lively controversy’ identified by Lewison LJ in Davies v Davies [2016] EWCA Civ 463 [39], although I guess it does not satisfy any of the criteria for a bigger bench unless it is considered ‘a case of great public importance’.

 

It may seem perverse not to be satisfied with 85 pages or so (in the WLR) of reasoning, but given the extent of the disagreement between Lord Briggs and Lord Leggatt on fundamental issues, it would have been good to see some of the other justices explain their thinking (as the justices of the High Court of Australia might have done).

 

With best wishes,

Andrew

 

 

Dear Colleagues:

 

I would be very interested to know what you thought of Guest v Guest.

 

From my point of view, Lord Briggs judgment (for the majority) is very disappointing and relies on lots of hand waving to fairness, injustice, and unconscionability. I don’t think he ever comes up with a good answer as to what unconscionability actually is. Its not detrimental reliance, he says on many occasions. It is not strictly the loss of expectation, since the courts do not have to always award that. Then what is it? How do I know that it is not unconscionable for the widow to demand her cottage back in violation of her promise in Sledmore v Dalby (1996) 72 P & CR 196 other than the fact “that the court was palpably offended at the injustice of [the defendant’s] conduct in insisting upon his supposed equity at a time when he hardly needed the property”.  Is it just conventional morality? I guess it is now unconscionable for the wealthy to demand performance of contracts or trusts or for them to launch tort claims against the uninsured.  Why is the doctrine limited to property? Why does this principle not swallow the whole law of contract? It is a just an incoherent mishmash of concepts, plucked from history, thrown into Martini shaker, and paraded around as an explanation.

 

In contrast, Lord Leggatt’s judgment (with which Lord Stephens concurred) is an internally coherent explanation of the contours and the component parts of proprietary estoppel or the property expectation claim, as he calls it--how they interrelate and fit together--and an externally coherent explanation as to how this doctrine coexists with the law of contract and property formality rules in a non-contradictory fashion. Moreover, he demonstrates how this could be a claim about injustice. And his history seems better. (The only failing is that he does not discuss why it is limited to promises to convey land). Now, one can disagree that the doctrine should exist or whether it was truly discernible from the earlier authorities about estopping the enforcement of rights, but at least his version of it makes sense. (In fact, for those who do not think that proprietary estoppel or property expectation claims are needed, I would be interested to know how you would have decided: quantam meruit?)

 

Congratulations go out to all the ODGers who were prominently cited. I would provide a list but I’m afraid to leave anyone out!

 

(Un)happy Reading,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)