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Dear All,

1. I agree with what Robert Stevens says in his reply to Lusina Ho: the change of position defence should be wide enough to embrace all the detriment suffered by D in Lusina's example.

2. As I understand the "novel and ingenious argument" that Robert Walker LJ found convincing in Derby v Scottish Equitable, it is that the defences of change of position and estoppel are mutually exclusive because change of position operates to knock out the detriment required for estoppel. Much as I support the withering away of estoppel now that we have change of position, I do have some concerns about this argument:

(1) Couldn't the defendant overcome the argument by simply saying: "I am here invoking the estoppel defence not the change of position defence" ie apply estoppel first.

(2) If the argument were correct, wouldn't it mean that, irrespective of the development of the change of position defence, a restitutionary claimant could always have defeated the estoppel defence by conceding that its claim for a mistaken payment was limited to the payment minus the defendant's detriment? Eg in Robert Walker LJ's example, by formulating the restitutionary claim as one for £750 rather than £1000? If so, the argument is not so much one of principle against the continuation of estoppel, but rather one indicating how tactically that defence can, and always has been able to, be avoided.

Andrew Burrows