Proprietary Estoppel - Asserting a right or preventing a fact? It will be submitted in this essay that the term estoppel is not misleading. Further, that proprietary estoppel can conform to its definition yet still have the ability to oper

On the contrary, proprietary estoppel is said to have the potential to be used as a sword as well as shield with ‘a much more dramatic effect’ than promissory estoppel. Unlike promissory estoppel, a claim can be made where there is no actual promise. For example, ‘where one party makes improvements to another's land under a mistake and the other either knows of the mistake or seeks to take unconscionable advantage of it.’ An up-to-date exposition of the doctrine’s principles, to which there is ‘no disagreement’, can be found in the 2011 case of Suggit v Suggit. To establish a claim based on proprietary estoppel the claimant must ‘prove a promise, representation or assurance made to him or her, reliance on that promise by the claimant and detriment in consequence of his/her reasonable reliance.’

Additionally, in the ratio of  Suggitt, his honour Judge Kaye QC spoke of how it would be ‘unconscionable’ to not remedy the injustice. In comparison with other forms of estoppel, unconscionability is said to be a ‘necessary requirement’ to a proprietary estoppel claim, providing that it accompanies the aforementioned requirements. This view was recently shared by Lord Walker, who in Yeoman’s Row Management Ltd and another v Cobbe deliberated whether unconscionability was a separate element in making out a case of estoppel. He stated that it played a ‘very important part’ in ‘unifying and conforming’ the other elements. He explained, ‘if the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again.’ This judicial approval from Lord Walker is understood to be widespread.

It was previously thought that the aim of the courts was the enforcement of the promise and consequently the expectation, rendering proprietary estoppel akin to other forms. Or if the claimant's expectations were ‘uncertain, extravagant, or out of all proportion to the detriment’, the court would then look at alternative remedies. However, noted by Robertson, in a series of decisions the Court of Appeal rejected this and stated that the main aim was to ‘ensure proportionality between the remedy and detriment’. This supports the assertion that proprietary estoppel is not just ‘simply about preventing A from asserting a fact or right against B’. The Court of Appeals deduction suggests that proprietary estoppel is doing something ‘quite different’ from enforcing promises, conceivably instead it is ‘remedying the inequity’ as suggested by Smith.

A good example in which one can see the functionality of the doctrine is in Crab v Arun District Council. Here the claimant was induced by another to believe that a he had a right of access over the defendant's land, in reliance on this assurance the defendant sold his land. The defendants erected a fence where the right of way existed, which restricted access to the claimant's land and then requested that the claimant pay to keep his right. The Court of Appeal estopped the defendant from denying the existence of such right, and granted an easement to the claimant over the defendant's land. In this case it is possible to submit that the term 'estoppel' conformed to its definition, as it stopped the defendant denying the existence of the right. This was affirmed in the ratio of Scarman, L.J, who stated that the case must be that the defendant’s are ‘estopped by their conduct from denying him a right of access over their land to the public highway’. Equally, the case shows how proprietary estoppel can operate by itself to impose a duty on A to B as in this instance the Court of Appeal ordered A to grant B that easement, specifically protecting it giving rise to a cause of action.

In Jennings v Rice, Jennings ultimately worked and cared for Rice unpaid on the belief that he would appropriate her house. Rice died intestate and Jennings claimed inheritance on the basis of proprietary estoppel. Evidence showed that Jennings was led to believe he would receive some or all of the estate. In quantifying the equity to which he was entitled the Court of Appeal stated that the size of the estate exceeded his needs and reasonable expectation. Instead of giving him the house, the court ruled that the equity would be satisfied by a payment of £200,000. In this instance the claimant was not under a duty to honour the commitment to the defendant, instead that duty was to pay a sum of money, but a duty nonetheless. While this was being quantified, the defendant was ‘estopped’ in his actions.

The position that proprietary estoppel can operate positively and independently to found a cause of action and impose a duty on A to B by itself was described as firmly established in many cases up until the case of Yeoman’s Row Management Ltd and another v Cobbe. It was argued that the reasoning of Lord Scott seemed to be a ‘dramatic re-interpretation’ of proprietary estoppel’ as it had previously been understood and applied. The apposite factor of this case was not the result of this case (this is regarded as consistent with precedent), but the reasoning of his Lordship. Lord Scott referred to Lord Kingsdown who in Ramsden v Dyson said that ‘a person should have a certain interest in land’. Lord Scott interpreted this to mean that there should be certainty as to what the claimant’s interest was to be. Equally as contentious, Lord Scott expressed that proprietary estoppel is a sub-species of promissory estoppel, in that it could only operate to bar A from asserting some fact or matter of mixed fact and law that in stands in the way of a right claimed by B. The utterances of Lord Scott were widely contended, the judgement was said to have ‘spelled a severe restriction’ on the doctrine as it could no longer continue to function as an independent source of rights. McFarlane and Robertson suggested that the effect of this decision was that proprietary estoppel ceased to exist as a distinct doctrine, that is to say it was no longer ‘an independent means by which B can acquire a right against A’. Instead, the doctrine consists of ‘an application to particular facts of estoppel by representation or of promissory estoppel.

It could be said however, that the thoughts of McFarlane and Robertson where somewhat of an exaggeration. Thompson plays the reasoning down by proposing that Lord Scott’s remarks ‘must be read in the context of that particular case’ and that they ‘should not be applied generally to defeat a claim in estoppel where the claimant’s expectation is imprecise’. Similarly, Dixon suggests that there is ‘no doubt’ that their Lordships, excluding Lord Scott re-stated the law ‘in a manner that was consistent’ with the case law prior to Yeoman’s Row but that their Lordships felt it was decided correctly given the facts.

Their Lordships were given an opportunity to clarify the law just a year later in Thorner v Major. And they done just that by agreeing that Yeoman’s was decided correctly given the facts, but that the conception of estoppel suggested by Lord Scott should not be taken as defining the future scope of estoppel. However, Lord Walker did disagree with Lord Scott contending the view that proprietary estoppel is a sub-species of promissory estoppel. He also stated that views of McFarlane and Robertson that the decision in Cobbe ‘severely curtailed, or even virtually extinguished’ the doctrine of proprietary estoppel’ were ‘a rather apocalyptic view’. 

It can be said that proprietary estoppel is similar to other forms of estoppel in that it is based on A’s conduct and B’s reliance, and it can also prevent A from asserting a right against B. Though, there exists dissimilarities to other forms. Firstly, proprietary estoppel does not enforce promises all the time; it seeks to remedy the inequity. Secondly, it is doing more than just preventing A from asserting a fact or right against B, as it has been presented above in the case law it can operate by itself to impose a duty under certain circumstances. Lord Denning MR in Crabb upheld a similar interpretation in which he claimed that ‘there are estoppel and estoppel, some do give rise to a cause of action. Some do not. In the species of estoppel called proprietary estoppel, it does give rise to a cause of action’.

The term ‘estoppel’, however, is not entirely misleading as the doctrine can still ‘estop’ someone from relying on formalities while the courts remedy the inequity. As it has been shown above, a range of influential law from leading academics to the Law Lords frequently use the term ‘estoppel’ in the sense that it ‘estops’ an action. An apt description  which develops this notion is offered by Gray and Gray, who suggest that proprietary estoppel ‘provides a holding mechanism which affords time for the court to interpose a considered judgement as to whether, in the light of the parties' dealings, the legal owner's assertion of the power is ultimately conscionable’. 

The question as to the reliability of the term ‘estoppel’ is just one of many discrepancies surrounding the doctrine. Although it has been argued that proprietary estoppel may operate ‘against the backdrop of legal uncertainty’, it is irrefutable that there are principles that are consistently followed. As new and diverse family circumstances present new challenges, it could be argued that the doctrine is required to be flexible so as not to create an injustice. Indeed, one of the twelve maxims of equity is that ‘equity will not suffer a wrong to be without a remedy’. No wrong should be allowed to go underdressed if it is capable of being remedied.

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