Proprietary Estoppel Essay

In Thorner v- Major, the hearth of victors confirmed that a claimant pursuance to establish a copyrighted estoppel must prove three things (1) that the suspects assumptions or conduct in relation to place station were sufficiently clear and unambiguous in all the passel, (2) to lead the claimant jolly to rely on those boldnesss or conduct (3) by acting signifi nookietly to his detriment, so that it would be unconscionable for the defendant to deny him any remedy. (Per Hayton and Mitchell comment and cases on the virtue of Trust and Equitable Remedies, 13th edition, Sweet and Maxwell, pageboy 78) Critically analyse and evaluate this statement in light of recent developments in the law of proprietary estoppel.Despite the lack of a expressed formulation, it is widely accepted that the elements of assurance, credit and detriment must be evidence in order to found a claim of proprietary estoppel . The teaching has just been widely criticised for being too flexible and un original. The main fare of this unbelief is the lack of clarity surrounding the role of unconscionability. It has been stated that unconscionability is at the heart of the teaching, and yet there is undersized guidance as to what it means, little explanation of why it is at the centre and thus virtually no consideration of the role it might play in providing both a justification for, and a limitation on, successful estoppels . Commentators collapse largely agree that there is a need to develop clear parameters for the operation of the doctrine, else it genuinely will be a discretionary panacea for all ills whose lotion is unpredictable and uncertain.Prior to Thorner v Major 2009 and Cobbe v Yeomans Row Management Ltd 2008 it had been 142 geezerhood since a case of proprietary estoppel had reached the hold of lords. thusly it was hoped that these cases would possess the judiciary a long awaited prospect to clarify the doctrine.In Cobbe master key go-cart stated that Equitable estoppelis non a sort of joker or wild card to be used whenever the court disapproves of the conduct of a litigant who seems to accept the law on his side. Flexible though it is, the doctrine must be hypothecate and applied in a disciplined and princip take way.The House of Lords appeared goaded to address the criticisms and it was hoped that they were about to do and clarify the doctrine, especially the role of unconscionability.Lord Scott, who gave the leading judgement, stated that unconscionability alone is never enough to found a claim of proprietary estoppel. To treat a proprietary estoppel equity as requiring n both a proprietary claim by the claimant nor an estoppel against the defendant precisely simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion.Lord pushchair addressed the uncertainty all over whether unconscionability is a separate element, by stating that unconscionability does in my opinion play a very(prenominal) important part in the doctrine of equitable estoppel, in integrative and confirming, as it were, the other elements. If the other elements appear to be present that the result does non shock the conscience of the court, the analysis needs to be looked at again .These emphatic statements confirmed that unconscionability alone is insufficient to give rise to a claim of proprietary estoppel and that the traditional elements must ceaselessly be present. It is suggested however that these pronouncements did very little in practice to define or clarify the concept.The modern approach to proprietary estoppel which began with Taylor Fashions Ltd v Liverpool capital of Seychelles Trustees Co Ltd 1982 adopted a broad taste of whether in the circumstances the conduct complained of is unconscionable without the necessity of forcing those incumbrances into a Procrustean bed constructed from whatsoever invariant criteria. Despite this statement the judgement in Taylor Fashions did non rel y on unconscionability alone. The court ask the three traditional elements to be present, albeit adopting a parvenu claimant centred approach to establishing them. Therefore the statements in Cobbe regarding unconscionability are uncontroversial and do not signifi foundationtly alter its position within the doctrine.The judgement in Cobbe was regarded as a severe curtailment of the doctrine and was imagined to wee greatly contract the scope of its operation. It was notwithstandingtide thought that it had led to the the death of proprietary estoppel This was not due to the outcome of the case, but due to the controversial reasoning prat this decision.Lord Scott attempted to rein in the doctrine by nidus on the traditional elements of proprietary estoppel and restricting the doctrine via their operation. He cerebrate on the assurance or representation element, which requires that the claimant must have been led to believe that he has or he will acquire an gratify in the def endants unload. He stated that the compulsory assurance was of a certain interest and this meant that the claimant must specify the interest in the situation he believed he had or would have.Cobbe dealt with a case of proprietary estoppel in a commercial context. Therefore Mr Cobbes was not an expectation that he would, if the planning application succeeded, become entitled to a certain interest in land but an expectation of further negotiations leading, as he hoped and expected, to a formal contract .Lord Scott stated that this was not the sort of expectation of a certain interest in land that Oliver J in the Taylors Fashions case or Lord Kingsdown in Ramsden v Dyson had in mind and so the claim failed. This requirement for a limited assurance narrowed the scope of operation of the doctrine and was mismatched with previous(prenominal) administration of Appeal decisions such as Gillett v Holt and Jennings v rice where a claimant had an expectation of a future interest in la nd.Lord Walker further restricted the doctrine by stating that the claimant must believe that the assurance on which he or she relied was binding and irrevocable. Therefore the claimant must not only believe that the landowner has make a promise, but withal believe that the promise is legally binding.He do it clear that context was important. In the domestic or family context, the typical claimant is not a business person and is not receiving legal adviceThe focus is not on intangible legal rights but on the tangible home which he or she expects to get. As the parties involved in Cobbe were persons experienced in the property world, both parties knew that there was no legally binding contract, and that either was thence free to discontinue the negotiations without legal liabilitythe fact is that he ran a commercial risk, with his eyes openThis restriction is also discordant with Gillett v Holt which explicitly addressed, and rejected, the notion that the revocability of wills prevents a promise to make a will forming the basis of a proprietary estoppel claim. Surprisingly it was Lord Walker who gave the leading judgement in that case and acknowledged here that It may possibly be that some of the domestic cases might have been persistent differently if the nature of the claimants belief had been an issue vigorously investigated in cross-examination. Thus casting doubt on previous court of cost authorities relating to strainamentary promises .The reasoning in Cobbe left the doctrine in an uncertain position and If taken literally, this reformulation would have curtailed the reach of estoppel, and perhaps that was the target.Thorner v Major gave the House of Lords a chance to address these uncertainties and a further opportunity to clarify the doctrine definitively via the role of unconscionability. From the beginning the Lords made it clear that the decision in Cobbe had not severely curtailed, or even virtually extinguished, the doctrine of propriet ary estoppel (a rather apocalyptic view that has been suggested by some commentators).Thorner dealt with proprietary estoppel in the domestic context. One first cousin had worked undischarged on the others elevate for nearly 30 years on the understanding that he would inherit the originate on his cousins death. The cousin died intestate and the claim of proprietary estoppel had been rejected by the coquette of Appeal. One reason given for this failure was that the extent of the farm had fluctuated in the preceding years and so the interest the claimant expected to gratifying was not a sufficiently certain interest as required following Cobbe.The Lords in Thorner made it clear that the reasoning in Cobbes casewas directed to the unusual facts of that case and that in Cobbe there was no doubt about the physical identity of the property. However, there was total uncertainty as to theproperty interestIn this casethere isno doubt as to what was the subject of the assurance, namely the farm as it existed from era to time. Accordingly, the nature of the interest to be received by David was clear it was the farm as it existed on Peters death.They confirmed that the assurances should relate to identified property owned (or, perhaps, about to be owned) by the defendant. and that It would represent a regrettable and substantial emasculation of the beneficial principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly defined in every(prenominal) case. Context is bouncy, whereas a specific certainty may be required in a commercial situation, this will not necessarily be required in a domestic context.The Court of Appeal had also required that the nature of the assurance be clear and unequivocal . This test for clarity of assurance was that required in promissory estoppel, and may have been adopted here due to the conflation of the two forms of estoppel by Lord Scott in Cobbe . The parties in Thorner were taciturn and undemonstrative men and the assurances mainly consisted of nonparallel remarks and thence it was held that these assurances lacked the requisite certainty.The House of Lords loosened this restriction stating that I would prefer to conjecture that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is staggeringly capable on context . As the relationship between Peter and David was familial and personal, and neither of themhad much commercial experiencePeter made what were, in the circumstances, clear and unambiguous assurances that he would leave his farm to David, and David moderately relied on, and reasonably acted to his detriment on the basis of, those assurances, over a long period.The House of Lords had made it abundantly clear once again that everything is dependent on context. In a domestic context such as Thorner an oblique assurance may be clear enough even though a commercial case such as in Cobbe may require a much more specific assurance. Lord Walker also rejected Lord Scotts characterisation of estoppel I have some difficulty with Lord Scotts observationthat proprietary estoppel is a sub-species of promissory estoppel. The House of Lords in Thorner also sensitive that the correct approach for landowners intention was an objective test and that it was enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied uponIt is not necessary that Peter should have known or foreseen the grumpy act of reliance. The House of Lords allowed the proprietary estoppel claim to succeed even though there was no evidence that the claimant believed that the assurance was legally binding, therefore also rejecting Lord Walkers restriction in Cobbe.Thorner had hold a flexible approach to proprietary estoppel making it clear t hat everything was hugely dependent on context, re-affirming the holistic approach found in Gillett that in the end the court must look at the social occasion in the round. Lord Neuberger stated that it appears to me unlikely in the extreme that Lord Scott was intending impliedly to disapprove any aspect of the reasoning or decision of the Court of Appeal in Gilletts case Thorner effectively placed the doctrine back in the position it stood before Cobbe.It was said that the decision in Thorner had brought proprietary estoppel back from the brink. The apocalypsehas been averted and proprietary estoppel can continue to utilisation as an independent source of rights. It can thus perform its vital role as a broad and flexible doctrine. Thorner has clarified some of the uncertainties surrounding the traditional elements of proprietary estoppel that had been raised in Cobbe and followed in the Court of Appeal. It returned the formulation to a flexible and broad definition requiring iden tifiable property that the assurance must be in the circumstances, clear and unambiguous and that the assurance must reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon.Thorner did not however say anything regarding role of unconscionability, only affirming the uncontroversial position taken by Cobbe, whilst confirming the flexibility of the doctrine. Concentrating on the perceived morality of the parties behaviour can lead to an unacceptable degree of uncertainty of outcome, and hence I welcome the decision in Cobbes caseHowever, it is equally true that counsel on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity .Some commentators believe that this was an opportunity missed as Lord Scott may have chosen the wrong train to seat in Yeomans Row, but it is not clear that he chose the wrong destination Defining unconscionability is a difficult task and commentators have their own competing theories. Dixon believes that an estoppel is made out when a landowner makes a image assurance an assurance that the claimant will have some right over the representors landcombined with an assurance that the right will go after even if the formalities necessary to convey that right are not complied withUnconscionability exists when a formality assurance is withdrawn after detrimental reliance Balen and Knowles believe that this extra ingredient, for so long described as unconscionability, requires the court to ask whether the basis, or condition, on which the claimant incurred her detriment has failed.There is no consensus as to how unconscionability should be defined only that it should. It may be that the judiciary have missed an opportunity to clarify the doctrine or it could be that they have no desire to define unconscionability and thereby limit the application of the doctrineUncertainty can be a benefit as well as a burden, and while unconscionability of itself cannot generate an estoppel, the claim can be denied despite t he presence of an assurance, reliance and detriment by judicious deployment of the unconscionability card.