Critically analyse and assess the remedy of proprietary estoppel.

This set of guidelines continued to be used in cases of proprietary estoppel for the next one hundred years, the result was a doctrine which became strict and narrow. It should be noted however, that the importance of the Willmott v Barber probanda has declined in recent years. It became apparent that it “did not constitute a comprehensively applicable formula”.

The decision in Crabb v Arun District Council  D owned two plots of land  but only had one access to road, when he sold a plot of land he assured the buyer orally that access to it would be granted.  When he sold the other plot he did not reserve this right access  to the new plot.  The court clearly stated that they had been called upon ‘…to satisfy the equity several years earlier they would  have ordered the plaintiff to pay something for the easement which they were recognising’  However owing to the defendants subsequent conduct meant that compensation was no longer payable, the equity was therefore a right , whose very nature was akin to a “deserted wife’s equity”   Lord Denning adopted a more modern approach based on detrimental reliance he also quoted cases of both promissory and proprietary estoppel.  LJ Scarman however relied upon the Willmott v Barber probanda.  He also declared that the council were estopped from asserting their legal rights.

The leading case of Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd saw Oliver J. take a broader more relaxed approach to the Willmott v Barber probanda he said ”….it would be unconscionable for a party to be permitted to

deny that which, knowingly, or unknowingly, he has allowed or encouraged  another to assume to his detriment”.  He did not disregard the five probanda, but instead, felt that they may well be necessary when the defendant has done a positive act.  However there are certain essential elements that need to present these are, representation which must be relied upon by the claimant, this reliance on the representation must lead the claimant to act on his detriment.  This became known as the broader approach and as such the courts no longer regard the five probanda as the criteria.

Instead of the Willmott v Barber  probanda we now have the broader approach with its three inter related elements, these are representation, reliance and detriment.

 The first element in the broader approach is the one of representation, as can be seen in Re Basham (Dec’d) it was stated that ‘where a claimant acts on the encouragement of the owner, this can be seen as representation’.  This was a clear case of representation as the plaintiff had spent money on the property under the belief that the deceased had promised her that he would leave it to her in his will.  Sitting as a deputy judge on the case Edward Nugee QC stated “….if the belief that B will leave the whole of his estate to A is established by sufficiently cogent evidence, I see no reason in principle or in authority why the doctrine of proprietary estoppel should no apply so as to raise an equity against B in favour of A extending to the whole of B’s estate”.   The deceased had through words or conduct led her to believe that have some entitlement to the land.   This could also be seen in Pascoe v Turner  where the Court of Appeal ordered a fee simple owner to transfer his estate to his former partner.  On the breakdown of the relationship he had promised her that the house and everything in it was hers.  On the strength of this promise she spent money on improvements to the property, based on this expenditure the Court decided to uphold a finding of proprietary estoppel.

However in Layton v Martin  the claimant was not granted proprietary estoppel as the plaintiff had only been promised financial security and not assets relating to land.  Scott J. held that proprietary estoppel can only arise in connection with some particular asset or assets.

The second element is that of reliance, and is closely linked to the third element that of detriment.  It must be shown that the claimant relied upon the representation to the extent that they were influenced or induced.   This element can be a problematical area in trying to determine who is to prove if the reliance did occur or not. As Lord Denning stated in Greasley v Cooke “…once it is shown that a representation was calculated to influence the judgement of a reasonable man, the presumption is that he was so influenced”.    In Taylor Oliver J.  suggested that ‘…it is for the claimant to prove reliance’.  This means that the burden of proof reliance rests on the person contesting the estoppel as could be seen in Wayling v Jones   the courts usually go to some lengths in awarding the substance of the representation of entitlement originally

made to the claimant.  

The element is as previously noted the one of detriment, in many cases detriment consists of the expenditure of money, as could be seen in Pascoe and also Grant v Edwards Lord Bridge  stated that to use detriment to obtain proprietary estoppel the claimant must,  “show that he or she acted to his or her detriment of significantly altered his or her position in reliance on the  (representation)”  In his judgment in Gillett v. Holt Robert Walker L.J. said that he thought that Carnwath J. had taken "too narrowly financial a view of the requirement of detriment"  and that detriment need not consist of quantifiable financial detriment. The other heads of detriment established in Mr. Gillett's case will now be considered in order to ascertain to what extent the Court of Appeal's decision has widened the concept of detriment.  

Rosalyn Wells wrote “the claimant must show that he acted or refrained from acting and that his acts or failure to act would be detrimental,...….the principles relating to detriment have not been clarified and it is not easy to ascertain to what extent the court can now take into account matters of personal nature as opposed to matters which have a financial or proprietary element”.

Patrick Milne wrote in his article Proprietary estoppel and the element of unconscionable conduct,   “the court needs to take particular account of circumstances at the time of the transfer order to determine whether the purchaser’s current conduct was unconscionable”.

 Lim Teng Huan v Ang Swee Chuan saw the Privy Council  remove proprietary estoppel from its roots in equity, it held that all that was required to claim proprietary estoppel  is representation, reliance and detriment and that no unconscionable conduct  was necessary. However in  Matharu v Matharu  u Lord Roch  turned it all around again by returning to the Willmott  v Barber  criteria for establishing proprietary estoppel.  The daughter in law remained in the father’s house after breakdown of the marriage and the death of the son.  Court of Appeal held that she had proprietary estoppel  and could stay in the house for as long as she wished.  However the discretion of the court can and is very often surprising as was seen in Taylor v Dickens  Taylor worked as a gardener and was told by his employer that he would inherit the house when she died, this was confirmed in three wills that she had drawn up.  But before she died she revoked all three wills, his claim failed as inheritance by estoppel requires specific promise.

In both Campbell v Griffin and Jennings v Rice   were both decided through the proportionality issue, it was seen that there must be proportionality between the remedy and the detriment.  In Jennings it was confirmed that giving effect to the representor’s promises is the only way of doing justice to the claimant.  Bringing proprietary estoppel right up to date is the case of Ottey v Grundy  claimant had given up career to look after deceased person to her detriment.  She was not named in the will, it was held that she had gone beyond the role of girlfriend and there was reliance upon the promise made,  once reliance was made upon the promise ,it then became irrevocable in equity.   The most recent case is Pamela Jiggins V Maureen Ellen Brisley & 5 ORS   the deceased’s daughter-in-law had an equity in her deceased mother-in-law's flat under the doctrine of proprietary estoppel because she and her husband had funded a right to buy purchase on the understanding that they would be left the flat on the death of the surviving parent.

It would appear that  the doctrine of proprietary estoppel is  a very important part of the law of this country, but like the other estoppels it  does seem to have had a confusing history as seen in Matharu   where Lord Roch  reverted back to  the Willmott v Barber criteria some 100 years after its conception and  most after it was replaced by the three element approach of  Taylor Fashions .  The doctrine has to rely on the judges understanding of proprietary estoppel, along with their willingness to grant the estoppel.  Like all estoppels proprietary estoppel is not an easy area of the law to try to understand.  In some cases the decision seems fair and others seem unfair.

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