An Example Of A Reflective Report

An Example of a Reflective Report

Estoppel can be found in both common law and equity. Within the common law, estoppel is only applicable to statements of fact.[1] As an equitable remedy, akin to other forms, it builds upon the notion of fairness, whereby it stops a person from asserting the opposite, if by words or conduct they have misled another.[2] Equitable estoppel is an overarching concept in both obligations and property law, in the form of promissory, and proprietary estoppel, respectively.

A learning outcome of the block guide is to have a basic understanding of proprietary and promissory estoppel . The PBL that invited us to consider these concepts was a problem that concerned the incomplete transfer of property. Our client was to receive property from his friend, unfortunately his friend died and it had then transpired that the property had not been correctly transferred to our client. The learning objectives prompted us to explore what constitutes valid consideration and what equitable remedies may be available to our client in the absence of such.

The elements that are required of each estoppel were found within the block guide however, during my studies at YLS I have realised that I cannot understand principles of law without contextualising them. I therefore consulted case law whereby the principles had been laid: Willmott v Barber for proprietary estoppel,[3] and the High Trees Case for the revival of promissory estoppel.[4] Looking at the facts and judgments of the cases, in conjunction with literature that Denning had produced regarding estoppel, helped me to understand that the estoppels were developed to mitigate the unfairness that would have resulted, if the cases had been subject to the rule of law.[5]

I was careful to look for current case law regarding the estoppels, as not only was this a criticism of my work received in my feedback last year, but I was also conscious that the law would most likely have adapted and evolved since it was established. I found that Denning s doctrine of promissory estoppel had been approved and developed in later cases .[6]

Regarding proprietary estoppel, I discovered that the case of Taylor Fashions widened the scope of the applicability of the rule,[7] by determining the test as one of unconscionability as opposed to the confines of the five probanda .[8] I felt as though the foundations of these principles gave me a good starting point, to consider the block guide task of comparing and contrasting the case law of Yeoman s Rowe v Cobbe,[9] with that of Thorner v Major.[10] Through drawing comparisons between the cases, I understand that the courts will more readily apply proprietary estoppel in a domestic setting, as was the case in Thorner whereby the court upheld the rule in Taylor Fashions.[11] The facts of Yeoman s and Thorner were similar to the extent that, in each case, a man had acted to his detriment in the belief of a certain state of affairs , only for the other party to assert the contrary.[12] However, the commercial context underpinning the parties conduct in Yeoman s resulted in Cobbe only being able to attain a claim under unjust enrichment. I found this exercise useful, as it allowed me to apply the law to the problem scenario confidently. I was aware of situations where proprietary estoppel was both likely and unlikely to be applicable, and as the PBL was that of a domestic setting, I was confident in the applicability of the test laid in Taylor Fashions,[13] and found that our client might have a claim under proprietary estoppel, but as is the nature of equity, it is only a discretionary remedy.

Studying the foundations of equity within lectures. developed my understanding that both estoppels share the same foundations: the notion of unconscionability . Through the block guide and my own research for PBL, I learnt that they both share similar principles. The subtle differences between the two being: that proprietary estoppel requires a detrimental change to occur to the person in reliance upon the promise or conduct, and can be used as a shield and a sword in court whereas promissory estoppel only requires a change and can only be used as a shield . Although I felt comfortable applying each estoppel to a problem scenario, I did not fully understand the concepts, as I did not understand why these differences in the estoppels existed. Discussions within PBL and lectures had not clarified why the estoppel doctrine cannot be applied in equal measure to both foundation stream modules, and yet Lord Denning had expressed his favour of combining them into one .[14]

My inability to draw sound distinctions between the two was a result of case law. When considering the doctrines, the court would draw upon similar language in describing the nature of the estoppel. In Super Chem Products Ltd it was held that promissory estoppel would be established only if the representation of the person who ought to be estopped was clear and unequivocal [15] and, although it was accepted in Murphy v Burrows that even vague assurances can found an estoppel , the nature and quality of assurances do matter in establishing proprietary estoppel.[16] In other words, assurances must be clear and unequivocal . Further to this, the lords themselves appear to be conflicted on this issue. Lord Scarman believed that distinguishing between the estoppels was of the slightest assistance ,[17] Lord Scott considered proprietary estoppel a sub-species of promissory estoppel,[18] and Lord Walker considered them to be two distinctly separate doctrines.[19]

In light of this, I turned to journal articles, being worried that there may have been something I had missed, or that I may have misunderstood an aspect of the case law. A development from last year is that I now choose the more authoritative sources, as these engage in greater depth and rigour of the subject than less learned material does. The articles affirmed what I had already understood that the relationship between promissory estoppel and proprietary estoppel has proven remarkably intractable .[20] Although the articles did not directly provide the answers I sought, discussing instead how equity is fusing with the common law,[21] they did prove useful as they highlighted developments of equity that occur in other jurisdictions, particularly Australia.

This prompted me to explore how the law relating to estoppel had developed in Australia, as I have found that comparing English law with that of other jurisdictions is a useful exercise, as it can illuminate English law. I discovered that the Australian case law of Walton Stores allowed for promissory estoppel, in certain circumstances, to be used as a sword as well as a shield , bringing it a stage closer to the doctrine of proprietary estoppel.[22] Although critics argued that the then new development of the law would lead to uncertainty, in the already ambiguous terrain of equity,[23] I soon discovered that other Commonwealth countries have adopted a unified approach to the estoppel doctrine.[24]

Although this does not necessarily mean that the other jurisdictions are correct in their approach, it does illustrate how they have recognised the similarity between the estoppels, as I have. Looking at the criticisms Australia faced when fusing the estoppels, allowed me to develop an understanding of why the English courts have avoided adopting a similar approach. The element of uncertainty that would come with such change, echoes the distinction drawn upon the cases of Yeoman s and Thorner the courts must have certainty within the commercial context, and keeping the doctrines separate helps to promote balance between achieving fairness, within both a commercial and domestic setting.

In order to further my understanding, of why nuanced differences exist between the estoppels, I must explore how Australia, Canada and New Zealand have developed estoppel, to account for the uncertainty that it may have brought with it.

Outside of YLS, the difficulties the courts face when bringing equity to the law, was illustrated when I found myself in a similar situation. My family own land that we let neighbours use, as they do not have gardens of their own, allowing them to grow crops and for their children to play. One of the neighbours asked if her friend could share her plot, to which we agreed. Recently, there has been a dispute between a few of the neighbours regarding the non-neighbour having use of the land, as we had stipulated that the land is to be used by local residents only.

It was apparent that we had not been clear in that, whilst we were happy for people to share their plots with others, they may not hand them on. We wanted to take an equitable approach to the situation we did not want to revoke our word to the neighbour or her friend, nor did we want to be unfair to the rest of the neighbours. This experience illustrated the difficulties the court faces when trying to attain fairness within the law. In being what we thought was equitable, we had created confusion and uncertainty amongst the neighbours, regarding eligibility to use the plots.

[1]Lord Denning, The Discipline of Law (first edition, Butterworths 1979)

[2] Moorgate Mercantile Co Ltd v Twitchings [1975] EWCA Civ QB 225 [242]

[3] Willmot v Barber [1880] EWCA Civ (Ch), [1881] All ER Rep Ext 1780

[4] Central London Property Trust LTD v High Trees House Ltd [1947] EWHC 130 (KB), [1947] 1 All ER 256

[5] Lord Denning, see n.1

[6] Collier v P MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329, [2008] 1 WLR 643 [31]

[7] Taylor fashions v Liverpool Victoria Trustees Co Ltd [1981] EWHC (Ch) [1981] 1 All ER 897

[8] Willmott v Barber [1880] see n.3

[9] Yeoman s Rowe Management Ltd v Cobbe [2008] UKHL 55 [2009] 1 All ER 205

[10] Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776

[11] Ibid

[12] Moorgate Mercantile Ltd v Twitchings [1975] see n.2

[13] Taylor Fashions v Liverpool Victoria Trustees Co Ltd [1981], see n.6

[14] Lord Denning, see n.1

[15] Super Chem Products Ltd v American Life and General Insurance Co Ltd and others [2004] UKPC 2 [2004] 1 All ER 713

[16] Murphy v Burrows and another [2004] EWHC (Ch) 1900 [109]

[17] Crabb v Arun District Council [1975] EWCA Civ [1975] 3 WLR 847 [858]

[18] Yeoman s Row v Cobbe [2008] see n.9 [14]

[19] Thorner v Major [2009] see n.10 [61]

[20] Kelvin F. K. Low Nonfeasance in equity [2012] LQR 63

[21] Anthony Mason The Place of equity and equitable remedies in the contemporary common law world [1994] LQR 238

[22] (1988) 164 CLR 387 (High Court of Australia)

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