To pick up a different point, the language of “discretion” is also sometimes unhelpful to claimants.

 

I once had a case where the claimant was seeking an interim injunction to restore his possession based upon a contractual licence for life which had allegedly been agreed with his children in exchange for transferring them title to his house. The agreement pleaded was plainly oral, and so the judge accepted there was no serious issue to be tried based upon the agreement (s.2 LPMPA 1989). We accepted that there was an arguable case on proprietary estoppel.

 

However, it is plain that an interim injunction can only be given in aid of a “presently enforceable legal or equitable right”, and the judge accepted that because of the “discretionary” nature of the relief, a claimant arguing proprietary estoppel does not have the right contended for until after trial. (We conceded that the “inchoate equity” could be the subject of an injunction, but only one restraining the sale of the property to third parties).

 

 

1. I don’t think I claimed that when estoppel is operating as a rule of evidence that that was specific to the common law.
2. “What’s the difference in a case like Inwards v Baker from an order restraining the defendant from exercising his legal right to possession of the land during the plaintiff’s life and one where the court orders the defendant to grant a life interest to the plaintiff (cf Crabb v Arun DC, where the court orders D to grant an easement to P)?  It’s difficult to see much difference between the two, yet Rob would presumably say the first is a legitimate application of the doctrine of equitable estoppel, while the second one stinks.”

The difference between the two is that the granting of a life interest (or the easement in Crabb v Arun) gives the claimant a right erga omnes (or if we’re in the realm of equitable easements etc, a right that the rightholder grants such a right) which can be conveyed to others. That is quite different from barring a rightholder from asserting a right (here to exclude). A successor in title may also be barred from asserting the right (as in Inwards v Baker) but that too isn’t a right in relation to the the land exigible erga omnes. The son in Inwards v Baker had a right exigible against others because of his occupation, but the source of that isn’t estoppel.

 

Like Leggatt, I don’t think “equitable estoppel” is always a misnomer, but it is if it is being used to do something other than bar or restrain the assertion of rights (by which as Timothy said, I intend to include powers and immunities). Lots of equitable rules don’t take that form, and so resorting to the label “equity” doesn’t seem to me to be an improvement.

 

 

I’m not sure Rob is right to say that estoppel properly-so-called is different at common law and in equity, with common law estoppel being about litigants being barred from asserting a fact (a rule of evidence) and equitable estoppel about litigants being barred, or restrained, from asserting a right.

 

For a start, common law estoppel is not about someone being barred from asserting a fact.  People can assert whatever they like.  It is more precisely about those situations where, for one reason or another (estoppel by representation, estoppel by deed, etc) a litigant is barred from leading evidence to prove the untruth of a fact alleged by the other party to the litigation.  In this sense, it operates in the same way as an admission and a presumption.  It is method of proof of fact, and therefore part of the larger subject called ‘The Law of Proof’, which, for some reason, we call ‘The Law of Evidence’ (a bit like calling the law of torts, the law of negligence).  But crucially, we see exactly the same phenomenon in equity, where litigants will be equally prevented in certain circumstances from leading evidence to prove the untruth of a fact alleged by the other side.  An example is Hopgood v Brown [1955] 1 WLR 213, where the plaintiff sought equitable relief (a declaration) because of a representation of fact by the defendant as to where the boundary between their two plots of land lay and on which representation the plaintiff had relied upon to his detriment.  The CA held that the defendant was estopped from leading evidence to prove the untruth of its representation of fact and granted the declaration sought.  The question we should ask ourselves is why on earth this process should be confined to the common law, why fact-finding in equity should be any different.  So, on this basis at least, equitable estoppel properly-so-called is no different to common law estoppel properly-so-called. 

 

Rob, however, says that equitable estoppel is different, that it’s about one party to the litigation being prevented from relying on his legal rights.  He cites Inwards v Baker.  I think it’s interesting that in that case, only one judge of the three spoke in terms of estoppel.  Lord Denning MR, giving the leading judgment, never mentions the word, speaking only of the son having ‘an equity’, whatever that might be.  The judge who does mention estoppel does so only once, in a three-paragraph concurring judgment.  The third judge just agrees.  So it’s pretty slender authority.  Moreover, to say that equitable estoppel is about equity preventing people from relying on their legal rights is just a statement about how equity works in many other cases.  So, eg, where the Rochefoucauld v Boustead doctrine applies, defendants are told they cannot assert their legal rights.  In fact, in trusts generally, this is what trustees are told when they seek to use their legal rights for their own benefit.  You see the same thing with constructive trusts arising as a response to a mistaken payment, with judges talking about it being unconscionable for the recipient to assert his legal beneficial entitlement.  The list goes on.  I know Rob says this is how equity operates, and he’s right.  But the point is that it’s not equitable estoppel, just equity.  Which then leaves us looking for an explanation of what happened in Inwards v Baker.  And as noted above, Denning just says, unhelpfully, that is ‘an equity’. 

 

We are never going to understand cases such as Inwards v Baker and Guest v Guest until we stop thinking of either case in terms of estoppel.  Estoppel properly-so-called is a method of proof, both at common law AND in equity.  Once we move from the proof of facts and start restraining people from enforcing their rights at law, we’ve left the realm of estoppel completely.

 

One final thought.  What’s the difference in a case like Inwards v Baker from an order restraining the defendant from exercising his legal right to possession of the land during the plaintiff’s life and one where the court orders the defendant to grant a life interest to the plaintiff (cf Crabb v Arun DC, where the court orders D to grant an easement to P)?  It’s difficult to see much difference between the two, yet Rob would presumably say the first is a legitimate application of the doctrine of equitable estoppel, while the second one stinks.

 

Bill

 

 

That is much too strongly put. I don’t think the decision in Guest v Guest is a highpoint in our law, but our current court is very strong. We all get one or two things wrong.

 

On the decision, the analysis of what “estoppel” is properly about is far superior in Lord Leggatt’s dissent than in the majority. His history is also correct, the majority’s is not.

 

Estoppel properly so-called concerns either being barred from asserting a fact (a rule of evidence) or being barred, or restrained, from asserting a right. The latter is the historically equitable form. It takes the form other equitable rules do: a rule about another rule. Inwards v Baker is an example of “proprietary estoppel” in its correct form.

 

The justifiable scope of rules barring the assertion of rights is much wider than the scope of the rules for the imposition of duties. What has happened, since the 1970s, is that a rule concerning the barring of asserting rights has jumped the rails and become a free standing cause of action.  In my view, that is a very serious mistake, and it is a shame that the two judges who have tried to return estoppel to being about estopping (Lord Scott in Cobb v Yeoman’s Row, and now Lord Leggatt) have not been followed. Part of the blame for the mess we’re now in lies with the academics who were so critical of Lord Scott.

 

I agree with Leggatt that any claim we have here is not about “estoppel” and I do not understand how to properly interpret the limits of the new cause of action the Supreme Court is now recognising (one which does not, on my reading of the older cases, have a pedigree from earlier than the late 1970s.)

 

How should we deal with the kinds of cases?

 

Here I disagree with Leggatt.

 

It is again unfortunate that these claims have not been put in the alternative as ones for restitution. They are identical on their facts to the classic Supreme Court of Canada decision in Deglman. Work has been done under an agreement. That work was conditional upon the son inheriting. That condition has failed. He is entitled to the value of the work. That is nothing to do with “reliance”, detrimental or otherwise (or indeed any factual benefit to the counterparty).

 

Maybe (a difficult question) in some cases we might also be prepared to impose a constructive trust in the alternative.

 

The majority also confuse when equity is legitimately “discretionary”. When we are in the realm of court orders (eg injunctions, specific performance) a much wider range of reasons come into play than are relevant in determining our substantive rights and obligations. In such cases (in equity) the court’s order may appear “discretionary” because of those many additional reasons that need to be brought into account. Outside of the context of court orders, a glance at the other substantive areas of equity (eg the law of trusts) shows that that they aren’t meaningfully “discretionary” and it is a misfortune that claims based upon “proprietary estoppel” are now perceived as a matter of flexible judicial choice.

 

We will now have to return again to this difficult area.

 

Rob

 

 

 

 

 

Andrew,

 

You assume the non-speaking judges had reasons independent of those with whom they agreed.  I very much doubt that was the case.  And for that reason, the UK Supreme Court is very different to the HCA, where the judges do all seem to have views of their own.  Maybe that says something about the differences in calibre between the two courts.  You’re very lucky to have a much better bench than do we.

 

Best wishes,

 

Bill

 

 

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)

 

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