Grade: 70
QUESTION
In determining whether the test of proprietary estoppel has been established, the court
draws on a wide range of factors. Critically discuss the doctrine of proprietary estoppel by
reference to the following issues:
(a) How the court determines the specificity of the assurance required and the approach
taken in the commercial context;
(b) How the court determines reliance;
(c) How the court determines detriment and, additionally, the role of detriment in
assessing unconscionability.
ANSWER
This essay aims to critically discuss the court’s approach to determining whether the test of
proprietary estoppel (PE) has been established. Whilst it retains critics on its unpredictability, the
wide scope for judiciary discretion enables a flexible application which prevents unconscionability.
This essay will first define PE before examining how the courts assess each element of the test,
questioning whether their approach is consistent, clear, and effective. Finally, this essay will
establish if the court’s wide discretion undermines or enhances PE and if it needs reform.
What is PE?
Originating from Ramsden v Dyson1, PE is where a person acts to their detriment in reliance on
assurances made that they would have a future property right. The doctrine governs the informal
emergence of property rights, despite rights usually requiring satisfaction of statutory formality
requisites such as written contracts or deeds. Therefore, PE is the courts’ “equitable jurisdiction” to
provide justice in situations where results arising from an application of rigorous legal rules would
cause results “sufficiently at odds with a party’s reasonable expectations to ‘shock the conscience of
the court’”.2
1
[1866] LR 1 HL 129.
2
Philip Sales, ‘Proprietary Estoppel: Great Expectations and Detrimental Reliance’ (2022).
, Grade: 70
Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co. Ltd3 outlined the four elements
required to make a claim to be assurance, reliance, detriment, and unconscionability, which are
considered holistically. Whilst Chitolie argues this criterion fails to provide clarity, leaving much to be
speculated or deduced from precedent,4 each element has thresholds to ascertain equity and mitigate
over-flexibility.
A. Assurance
Firstly, an assurance must have been made by a landowner to the claimant suggesting they had or
would have proprietary rights in the landowner’s land.5 This can take the form of express words,
passive informal promises, or inaction if they meet the ‘clear enough’ threshold established by Lord
Walker in Thorner v Major. 6 The court construed the claimant’s reliance on a compilation of hints,
indirect remarks, and words as binding despite no express representation having occurred, deducing
the effect of words depends on their ‘factual context’. Therefore “a statement that is ambiguous and
unclear can be clear and unambiguous in another”,7 with the courts deeming Habberfield v
Habberfield8 satisfied the threshold, but not Yeoman’s Row Management Ltd v Cobbe 9 because there
was “total uncertainty as to the subject of the benefit”.10 Subsequently, whilst a flexible contextual
examination “operates as a bar to prevent… unconscionable conduct”,11 parties are arguably
uncertain whether they can be liable for their words or conduct. This is emphasised by how the
Court of Appeal came to a different decision in Thorner, which suggests equivalent cases can be
3
[1982] QB 133.
4
S Chitolie, Is the Doctrine of Estoppel Sound in Theory and Practice? (University of Central Lancashire 2019)
<https://books.google.co.uk/books?id=XCN0zQEACAAJ>.
5
Thorner v Major [2009] UKHL 18.
6
ibid.
7
ibid per Lord Neuberger at 84.
8
[2019] EWCA Civ 890.
9
[2008] UKHL 55.
10
Thorner (n 5) per Lord Neuberger at 94.
11
Chitolie (n 4).
QUESTION
In determining whether the test of proprietary estoppel has been established, the court
draws on a wide range of factors. Critically discuss the doctrine of proprietary estoppel by
reference to the following issues:
(a) How the court determines the specificity of the assurance required and the approach
taken in the commercial context;
(b) How the court determines reliance;
(c) How the court determines detriment and, additionally, the role of detriment in
assessing unconscionability.
ANSWER
This essay aims to critically discuss the court’s approach to determining whether the test of
proprietary estoppel (PE) has been established. Whilst it retains critics on its unpredictability, the
wide scope for judiciary discretion enables a flexible application which prevents unconscionability.
This essay will first define PE before examining how the courts assess each element of the test,
questioning whether their approach is consistent, clear, and effective. Finally, this essay will
establish if the court’s wide discretion undermines or enhances PE and if it needs reform.
What is PE?
Originating from Ramsden v Dyson1, PE is where a person acts to their detriment in reliance on
assurances made that they would have a future property right. The doctrine governs the informal
emergence of property rights, despite rights usually requiring satisfaction of statutory formality
requisites such as written contracts or deeds. Therefore, PE is the courts’ “equitable jurisdiction” to
provide justice in situations where results arising from an application of rigorous legal rules would
cause results “sufficiently at odds with a party’s reasonable expectations to ‘shock the conscience of
the court’”.2
1
[1866] LR 1 HL 129.
2
Philip Sales, ‘Proprietary Estoppel: Great Expectations and Detrimental Reliance’ (2022).
, Grade: 70
Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co. Ltd3 outlined the four elements
required to make a claim to be assurance, reliance, detriment, and unconscionability, which are
considered holistically. Whilst Chitolie argues this criterion fails to provide clarity, leaving much to be
speculated or deduced from precedent,4 each element has thresholds to ascertain equity and mitigate
over-flexibility.
A. Assurance
Firstly, an assurance must have been made by a landowner to the claimant suggesting they had or
would have proprietary rights in the landowner’s land.5 This can take the form of express words,
passive informal promises, or inaction if they meet the ‘clear enough’ threshold established by Lord
Walker in Thorner v Major. 6 The court construed the claimant’s reliance on a compilation of hints,
indirect remarks, and words as binding despite no express representation having occurred, deducing
the effect of words depends on their ‘factual context’. Therefore “a statement that is ambiguous and
unclear can be clear and unambiguous in another”,7 with the courts deeming Habberfield v
Habberfield8 satisfied the threshold, but not Yeoman’s Row Management Ltd v Cobbe 9 because there
was “total uncertainty as to the subject of the benefit”.10 Subsequently, whilst a flexible contextual
examination “operates as a bar to prevent… unconscionable conduct”,11 parties are arguably
uncertain whether they can be liable for their words or conduct. This is emphasised by how the
Court of Appeal came to a different decision in Thorner, which suggests equivalent cases can be
3
[1982] QB 133.
4
S Chitolie, Is the Doctrine of Estoppel Sound in Theory and Practice? (University of Central Lancashire 2019)
<https://books.google.co.uk/books?id=XCN0zQEACAAJ>.
5
Thorner v Major [2009] UKHL 18.
6
ibid.
7
ibid per Lord Neuberger at 84.
8
[2019] EWCA Civ 890.
9
[2008] UKHL 55.
10
Thorner (n 5) per Lord Neuberger at 94.
11
Chitolie (n 4).
