School of Law

LW360/363 Equity

1. Title: “Traditionally, a distinction has been drawn between cases in which promissory and proprietary

estoppel may arise, although there have also been

suggestions to the effect that making such a distinction is not helpful.” Delany, Equity and the Law of Trusts in

Ireland (2011), pp. 802-803. Discuss this statement with reference to relevant legal

and academic authority

Student Name: John Dunlevy

Student ID: 10360615

Year & Course: Final year, LLB

Lecturer: Joe McGrath/Lucy-Ann Buckley

Word Count:5,467

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According to Cooke, Estoppel in its many forms is perhaps ‘’the most powerful and flexible

instrument found in any system of court jurisprudence’’1. It is a doctrine which operates in

common law as well as equity and has been the subject of significant change in recent years.

Equitable estoppel in the past was part of the subliminal legal system but over the last two

decades it has emerged from the darkness and become a crucial aspect of the Law on equity.

Its rise is attributed to the increase in frequency with which promissory and proprietary

estoppels have come before the courts2 . It’s crucial to note that like any aspect of law,

question marks hang over both these concepts of estoppel. The most prominent and

controversial of these questions is whether the divisions that exist between both promissory

and proprietary estoppel are beneficial in terms of the application of both doctrines. The

purpose of this essay is to disentangle the law of estoppel and to decipher whether the

distinctions that exist between proprietary and promissory estoppel are necessary and helpful.

This essay will achieve this by firstly providing a brief explanation of the law on estoppel,

then moving on to address the differences surrounding both doctrines use as a cause of action

and the remedies open to either form of estoppel.

In order to address the question above, one most firstly gain an understanding of the law

surrounding proprietary and promissory estoppel. The roots of both these doctrines stem

from the concept of estoppel by representation. As a result both promissory and proprietary

estoppel apply to situations where a promise or representation is made. According to Mee

‘’Proprietary estoppel is available to a claimant who acted to her detriment on the basis of an

expectation or belief that she was, or would become entitled to an interest in land’’3 This

classic formulation is drawn from the founding case of proprietary estoppel which is

1 Elizabeth Cooke, The Modern Law of Estoppel (1 st edn, Oxford University Press 200) 2 John Mee, ‘Lost in the Big House: Where Stand Irish Law on Equitable Estoppel’ (1998) 33 IJ 187 3 John Mee, ‘Lost in the Big House: Where Stand Irish Law on Equitable Es toppel’ (1998) 33 IJ 187, 188

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Ramsden v Dyson4. This case laid the foundations for the establishment of the three main

elements which are essential to finding a claim based on proprietary estoppel. These elements

according to Lord Walker in Thorner v Major5 are ’’a representation or assurance made to

the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of

his reliance’’. It must be noted that these three requirements are interlinked and intertwined.

This is proven by the fact that the quality of the assurance which is given impacts upon the

level of reliance that is placed on it and that the amount of detriment suffered is influenced by

the level of reliance. It must be noted that these three elements are vital as they must be

satisfied in order for the assertion of a legal right to be considered unconscionable 6. A key

point to note about proprietary estoppel is that it can create a cause of action and thus is

classed as an offensive mechanism. It must also be acknowledged that if the claimant is

successful in invoking proprietary estoppel, he or she will have a vast array of remedies open

to them7. Promissory estoppel on the other hand is a doctrine which is ‘’triggered when a

claimant has acted to her detriment on the basis of a promise that another party will not

enforce his strict legal rights’’8 . The case which promissory estoppel is founded upon is that

of Central London Property Trust Ltd v High Trees House Ltd9. It must be noted that

promissory estoppel can’t give rise to right for a cause of action which implies it may only be

employed as a defensive mechanism. It therefore protects the promisee from the promisor

enforcing his/her rights in a manner which is inconsistent with the original terms of the

promise. This was established in Combe v Combe10 where Birket LJ outlined that promissory

4 Ramsden v Dyson [1866] L.R 1 H.L 129 5 Thorner v Major [2009] 1 WLR 776, 786 6 Hilary Delany, ‘Is There a Future for Proprietary Estoppel as we Know It?’ (2009 ) 31 DULJ 440 7 Paul Coughlan, ’’Equity-Swords, Shields and Estoppel Licences ‘’ (1993) 13 DULJ 188 8 John Mee, ‘Lost in the Big House: Where Stand Irish Law on Equitable Estoppel’ (1998) 33 IJ 188 9 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 10 Combe v Combe [1951] 2 KB 215, 224

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estoppel should be utilised as ‘’a shield and not a sword’’ .The result of this is that the

doctrine only affords negative protection to the claimant11.

The next issue which must be addressed is whether the distinction that is drawn between both

doctrines use as a cause of action is beneficial. Unconscionab ility plays a key role in this

area as both doctrines are based ultimately on equity’s desire to prevent the claimant being a

victim of unconscionable conduct. Despite this principle governing proprietary and

promissory estoppel, only proprietary estoppel may give rise to a cause of action12. However,

the fact that unconscionability is the overarching principle governing proprietary estoppel,

has resulted in the doctrine being engulfed in a cloud of confusion. This confusion is fostered

by the inability of the courts to adhere to the concept of unconscionability and the three

essential elements which it permeates when dealing with a claim for proprietary estoppel. As

a result of this malpractice, there have being suggestion that the future existence of

proprietary estoppel and the concept of unconscionability are under treat.

As already highlighted the three key elements which are necessary to establish proprietary

estoppel are assurance, reliance and detriment. In relation to assurance the quality of the

assurance is the key feature which determines whether the assurance is sufficient to give rise

to proprietary estoppel13. The second essential element is reliance. The key to this element is

the reasonableness of the belief or assurance on which the reliance is place. The authority for

this is Thorner v Major14. In relation to the final element of detriment, the key to satisfying

this element is that the detriment suffered must be substantial. This is proven in the case of

Bracken v Byrne 15 where the making of a planning application was held not to be sufficient

11 Paul Coughlan, ’’Equity-Swords, Shields and Estoppel Licences ‘’ (1993) 13 DULJ 188 12 John Mee, ‘Lost in the Big House: Where Stand Irish Law on Equitable Estoppel’ (1998) 33 IJ 187 13 Elizabeth Gavin, ‘ Unconscionability and Proprietary Estoppel: Striking a Balance Between Formulaic and

Subjective Approaches’ (2012) 30 ILT 88 14 See note 5 15 Bracken v Byrne [2006] 1ILRM 91

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detriment. The symbiosis that exists between these elements is down to the concept of

unconscionability. Unconscionability is the governing principle which underpins each of

these interdependent elements and is classed as an organising doctrine for proprietary

estoppel as it ensure each of the three elements asserts and reinforces the overall goal of

equity which is to prevent unconscionable conduct16 . The roots of this overarching principle

can be found when the court moved away from its rigid adherence of the five probanda in the

case of Taylor Fashions v Liverpool Victorian Trust17. This judgement outlined that the

application of the concept of unconscionability in proprietary estoppel has a broad and

flexible approach.

Further expansion has taken place in relation to the overarching principle of

unconscionability and the right to a cause of action. The developments in the law centre

around the acceptance that mere prove of unconscionability is all that is necessary in order to

successful ground a cause of action in proprietary estoppel18. The implication of this

approach is that the three essential and inter connected element are surplus to requirement

and thus irrelevant. Lord Brown- Wilkinson triggered this expansion in Huan v Ang Swee

Chaun 19 through the statement ‘’ it is enough, in all the circumstances, it is unconscionable

for the representor to go back on an assumption which he permitted the representee to

make’’. The discrepancies in this broad and flexible approach began to appear a number of

years later which prompted criticism and calls for its rejection as it created confusion around

proprietary estoppel and its use for a cause of action. Orgee v Orgee20 is the first case to

question the flexible approach. In this case the court refused to grant a claim for proprietary

estoppel for a protected agricultural tenancy of a farm. This is despite the fact the claimants

16 Elizabeth Gavin, ‘ Unconscionability and Proprietary Estoppel: Striking a Balance Between Formulaic and Subjective Approaches’ (2012) 30 ILT 88 17 [1982] QB 133 18Hillary Delany, ‘Is There a Future for Proprietary Estoppel as we Know It?’ (2009 ) 31 DULJ 440 19 Huan v Ang Swee Chaun [1992] 1 WLR 113, 117 20 Orgee v Orgee [1997] EG 152 (CS)

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had satisfied the unconscionability requirement which was laid down by Lord Brown-

Wilkinson. The rationale for their decision was the expectation which the claimant has as a

result of both the assurance and reliance elements must be of a concrete nature in order to

successful raise proprietary estoppel. This judgement stipulates the need for the three

essential elements in a claim for proprietary estoppel. It therefore raised doubts and generated

confusion surrounding proprietary estoppel and the concept of unconscionability21. Taylor v

Dickens22 is another case which highlights the shortcomings of this expansionists approach.

Weeks J. in this case, highlighted that justice will not be appropriately served if the court

were to hold a person to their assurance purely on the basis that it is classed as unjust. The

claimant must prove the three essential elements mentioned above if they wish to bring a

successful action for proprietary estoppel23. This case also highlighted the issue that any

form of unconscionable conduct could come within the parameters of proprietary estoppel if

the court based the doctrine on the concept of unconscionability. This would in turn have

implications for the law of contract as it would bypass contractual consideration. These

decisions highlight the failure and malpractice of the court as it adopt an unduly abstract

approach to proprietary estoppel and its ability to give rise to a cause of cause of action in the

Haun v Ang Swee Chaun24 case. The faults and failings of such an approach are identified in

proceeding case law. However both Orgee v Orgee25 and Taylor V Dickens26 demonstrates

the courts negligent practices as they restrict the application of the doctrine and its use as a

cause of action to a narrow set of circumstances which exclude unconscionability. This

removes completely the flexibility aspect of the doctrine which is vital to its operation.

21 Pawlowski, ‘ New Limits on Proprietary Estoppel Doctrine’ (1998) 114 (7) LQR 351 22 Taylor v Dickens [1998] 1 F.L.R. 806 23 Pawlowski, ‘ New Limits on Proprietary Estoppel Doctrine’ (1998) 114 (7) LQR 351 24 See note 20 25 See note 21 26 See note 23

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As result of the intense condemnation in the wake of Taylor v Dickens27, the concept of

unconscionability was restored to its original position of being the fundamental aspect of

proprietary estoppel. The defining case which signified this reversal was Gillet v Holt28.

This case outlined that unconscionability permeates all 3 elements of proprietary estoppel and

that in order to ensure justice is administered appropriately; the court must view the issue in

its entirety and must be satisfied that the three necessary elements are satisfied and thus the

conduct will be deemed unconscionable29 . This decision was reinforced in the case of

Jennings v Rice30. This case outlined that the essence of equity is to avoid unconscionable

conduct therefore the concept of unconscionability is essential to giving rise to a right of

proprietary estoppel. It also specifics that proprietary estoppel is only applicable if the three

essential elements of assurance, reliance and detriment make it unconscionable. Turner v

Jacob31 highlighted that following Lord Browne Wilkinson’s comments the courts moved

away from ‘’ the set criteria’’ and this was a movement which had to be quelled by adopting

the approach outlined by Robert Walker L.J in Gillet v Holt32.

Despite the strong reinforcement of the decision in Gillet v Holt33, there remained some

doubts about the unconscionability concept and the three essential and interconnected

elements which it permeates. Some legal commentators outlined, that despite the legal

principle regarding unconscionability being of paramount importance, there was still the

trend of overlooking the three essential elements and deciding a claim of proprietary estoppel

purely on the basis of avoiding unconscionable conduct34 . This criticism prompted a revolt

as the court withdrew its support for the unconscionability approach and criticised the

27 See note 24 28 [2001] CH 210 29 Hilary Delany and Desmond Ryan, ‘ Unconscionability: A unifying Theme in Equity?’ (2008) 72 Conv 401 30 [2003] 1 P & C.R 8 31 [2006] EWHC 1317 (ch) 32 See note 29 33 See note 29 34 Hilary Delany, ‘Is There a Future for Proprietary Estoppel as we Know It?’ (2009 ) 31 DULJ 440

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doctrine through its decision in Cobbe v Yeoman Row Management Ltd 35. This case centred

on a gentleman’s agreement for the sale of a property. However one of the parties was

unhappy about the terms of the agreement and wanted to renegotiate the terms. Cobbe then

brought and action for proprietary estoppel but it was rejected by the court. The case raised

two key questions about the law of estoppel. The first centred on the reliance element. The

case highlighted that the claimant must be of the belief that the assurance upon which he/she

has placed their reliance is irrevocable and binding36. Walkers L.J judgement signifies that

the courts are adopting a strict approach to proprietary estoppel once again. The courts also

addressed the question surrounding the concept of unconscionability and how its flexible

approach to the doctrine of proprietary estoppel generates uncertainty and unpredictability in

terms of when the doctrine can arise37. According to Lord Scott if the law was to rely on

unconscionability it would be a grave miscarriage of justice38 . Lord Scott also made an

interesting input by stating that where the requisite statue formalities are not complied with,

proprietary estoppel cannot be utilised to render an agreement enforceable where the

agreement was void due to its failure to comply with section 2 of the Property (Miscellaneous

Provisions) Act 198939. If Lord Scott’s approach was adopted it denies the existence of

proprietary estoppel as it effectively state that proprietary estoppel entails an application of

particular facts of either estoppel by representation or promissory estoppel40. This highlights

the malpractice of the court as Lords Scott’s purposed approach essentially rewrites the law

surrounding proprietary estoppel as it denies that it is and was in the past an independent

means of acquiring a right to a cause of action41. The House of lords fosters more confusion

as it eliminates the afore mentioned difference between both proprietary and promissory

35 [2008] 1 WLR 1752 36 ‘Proprietary Estoppel - The Pendulum Swings Again?’ [2009] 73 Conv 141 37 ‘Proprietary Estoppel - The Pendulum Swings Again?’ [2009] 73 Conv 141 38[ 2008] 1 WLR 1752 39 Hilary Delany, ‘Is There a Future for Proprietary Estoppel as we Know It?’ (2009 ) 31 DULJ 440 40 Andrew Robertson, ‘The Death of Proprietary Estoppel’ (2008) LMCLQ 449 41 Andrew Robertson, ‘The Death of Proprietary Estoppel’ (2008) LMCLQ 449

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estoppels by eliminating proprietary estoppel despite the fact the needs which proprietary

estoppel fulfil remain. The need in question is to provide protection to a person who relies on

the assurance of another that he/ she will obtain rights in relation to another’s land.

It is clearly emphasised that from the arguement above that proprietary estoppel use as a

cause of action which distinguishes it from promissory estoppel is detrimental to the

application of the doctrine. The reason being is the opaque nature of the law, specifically the

confusion surrounding whether the concept of unconscionability is applicable in determining

whether the doctrine of proprietary estoppel arises or not. This opacity and vagueness which

surrounds the concept of unconscionability and proprietary estoppel is due to the negligence

of the courts when applying the doctrine. This is demonstrated by the over and back nature of

the judgements which praise or criticise and adopt or reject the concept of unconscionability

as the underlying requirement for proprietary estoppel and its use as a cause of action.

A further distinction that exists between both promissory and proprietary estoppel is the

range of remedies which are available to both doctrines. Proprietary estoppel has a wide array

of remedies open to it due to the wide discretion which the court has. These remedies may

range from creating an incorporeal right over land to merely preventing the land owner from

ejecting the claimant from the land42 . The key to determining which remedy is the most

accurate and appropriate depends on whether the reliance or expectation based approach is

adopted by the courts. However, the process of deciding on which approach to adopt has

been at the heart of much disagreement and controversy in the legal world43. Much of the

controversy is attributed to the courts inability to grasp an understanding of the law

surrounding proprietary estoppel. As a result, doubts have emerged relating to the whole

42 Paul Coughlan, ’’Equity-Swords, Shields and Estoppel Licences ‘’ (1993) 13 DULJ 188 43 Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217

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remedial process surrounding proprietary estoppel and questions have been raised about the

future of the doctrine.

The expectation based approach was established in the case of Ramsden v Dyson44. It must be

noted that the expectation based approach is more far reaching than its reliance based

counterpart as it has an extensive array of remedies available to it. The reason being, as

outlined by Edward Nugee in Re Basham45 is that its goal is to make good ‘’so far as may

fairly be done between the parties, the expectations which the deceased encouraged’’. This

process of making good the expectation through the expectation based approach involves the

expectation being fulfilled and honoured. This fulfilment generally involves the expectation

being quantified and it then being compensated. It must be noted that this compensation

generally takes a monitory form46. This expectation approach is adopted in the Irish

jurisdiction through the case of Smyth v Halpin47 which involved the expectation being

satisfied by a transfer of a fee simple remainder interest to the claimant. However one of the

key shortcomings surrounding the expectation based approach would be the possibility of the

courts under or over compensating the claimant. This defect which underpins the approaches

effectiveness is down to the uncertainty and difficulty surrounding the quantification of some

forms of detriment suffered by the claimant and also uncertainty surrounding the claimant

expectation. This is highlighted by the question of how one would compensate an individual

for the expenditure of their time and effort. This difficulty has lead courts over compensating

claimants and failing to adhere to the minimum equity concept because they are unsure how

to fulfil the expectation which was generated. The minimum equity concept is where the

court must identify through its analyse what the minimum equity is to do justice to the

claimants rights. Another issue with the expectation based approach is that if there is a

44 Ramsden v Dyson [1866] L.R 1 H.L 129 45 Re Basham [1986] 1 WLR 1498, 1510 46 Andrew Robertson, ‘The reliance Basis of Proprietary Estoppel Remedies’ (2008) 72 Conv 295 47 [1997] 2 ILRM 38

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practice of over compensating then the contractual requirement of consideration will not be

adhered to48. Despite these shortcomings, the court always felt the need to meet the

claimant’s expectation and therefore adopted the expectation based approach when dealing

with proprietary estoppel. The courts malpractice is demonstrated here as there application of

the expectation based approach has created a compensation culture in terms of satisfying the

expectation even if it is impossible to quantify. Also the courts negligent practices are evident

by their failure to acknowledge the consideration requirement when applying the approach,

which has produced more controversy.

The alternative to this is of course the reliance based approach which was laid down in the

case of Ramsden v Dyson49 and it implies that to escape detriment being suffered by the

relying party, the court should force or compel the opposite party to fulfil or satisfy the

assumption on which the reliance was placed. This implies that in some cases the reliance

based approach to detriment will result in a smaller reliance interest in comparison to an

expectation interest created by the approach discussed above. It must be noted that the

reliance based approach outlined in Ramsden v Dyson50 wasn’t adopted in this jurisdiction

but did gain a footing in Australia51. The key case which lead to the implementation of the

reliance based approach in this jurisdiction was Grundt v Great Boulder Proprietary Gold

Mines Ltd52. Dixon J. in this case outlined that ‘’to avoid or prevent a detriment to the party

asserting the estoppel by compelling the opposite party to adhere to the assumption upon

which the former acted or abstained from acting’’53 . This statement laid the foundations for

the adoption of the reliance based approach in future cases by stating it was a viable option.

The approach was explicitly refer to and utilised in the famed case of Walton Stores Ltd v

48 Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217 49 [1866] L.R 1 HL 129 50 [1866] L.R 1 HL 129 51 Andrew Robertson, ‘The reliance Basis of Proprietary Estoppel Remedies’ (2008) 72 Conv 295 52 [1937] 59 CLR 641 53 [1937] 59 CLR 641, 674

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Maher54 . The court advocated this approach by outlining the goal of proprietary estoppel was

to avoid detriment being suffered by a reliance on an induced or encouraged assumption

through the means of promise enforcement. However the court emphasised the limits

associated with the approach by stating that it’s a promise enforcement mechanism which is

restricted to enforcing the promise only to the extent necessary to avoid detriment being

suffered55. The reliance based approach was also emphasised in the Case of The

Commonwealth v Verwayen56 in which the court, specifically, Mason J. stated ‘’Court of

common law or equity may do what is required, but not more, to prevent a person who has

relied upon an assumption….which…the party estopped has induced him to hold, from

suffering detriment in reliance upon the assumption as a result of the denial of its

correctness’’. However the court also outlined that it was concerned with doing what is

required to prevent detriment being suffered and no more because to do more would result in

conflict between the approach and the concept of unconscionability. This implies that the

enforcement of promises is not the goal of the reliance based approach57. Despite the

seemingly perfect and flawless applications of the doctrine in the above named cases,

shortcomings due to the malpractice of the courts were identified. The first was that the actual

court decision in both Maher58 and Verwayen59 resulted in the fulfilment of the claimant’s

expectations by the court despite the fact it would have been possible for the courts to prevent

detriment being suffered through a lower level of compensation in both cases. This suggests

that the reliance based approach fails to satisfy the minimum equity in every case and actual

does more than is necessary to prevent detriment from being suffered which thus fosters

confusion. The second inadequacy which is identified would be that following the

54 [1988] 164 CLR 387 55 Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217 56 [1990] 170 CLR 394, 501 57 Elizabeth Cooke, ‘The Modern Law of Estoppel ’ (1st edn, Oxford University Press 200) 58 See note 55 59 [1990] 170 CLR 394

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Verwayen60 case, the Australian courts have failed to adopt the reliance based approach as

the sole means of satisfying the claimant minimum equity. This is verified in the case of

Giumelli v Giumelli61 in which the court opted for the expectation based approach to

proprietary estoppel and outlined that the claimant is perfectly entitled to have his expectation

met. This result in the perplexing and confusing situation where the reliance based approach

is backed by the High Court of Australia but not implemented in practice by the court. It must

be noted that this is also the case in the US jurisdiction, where the US approach to estoppel is

not what it seems62 . Both these shortcomings highlight the courts confusion surrounding the

reliance based approach as the courts negligence when applying the approach leads to these

shortcomings being created.

The Courts have acknowledged their mistakes and the inadequacies which they created of

and decided to search for a viable solution to the confusion surrounding the afore named

approaches in proprietary estoppel. The resolution which they decided upon was an approach

based upon proportionality. The proportionality approach centres around the requirement that

when the courts are considering the value of the claimants equity, they must ensure that there

is proportionality between the expectation and the detriment63. This revolutionary approach

was mentioned in previous decisions by the House of Lords but wasn’t discussed in any

detail until the case of Jennings v Rice64. The rationale behind this approach is that if the

claimant’s expectations are uncertain or inconsistent with the detriment he/she has suffered,

then the expectation should be used as a mere starting point for court analysis and shouldn’t

be satisfied by the court. However if they are proportionate then the expectations should be

fulfilled. The proportionality approach determines the appropriate remedy by analysing not

60 See not 60 61 [1999] 161 ALJ 473 62 Elizabeth Cooke, ‘The Modern Law of Estoppel’ (1 st edn, Oxford University Press 200) 63 Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217 64 [2002] EWCA CIV 159

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only the expectation and detrimental reliance but also considers the unconscionability of

permitting the promisor to go back on his or her assurance65. According to Delany the

adoption of this approach represents ‘’a return of the concept of minimum equity but more

carefully defined and structured’’66. The House of Lords affirmed Walkers LJ approach in the

case of Campbell v Griffin67.

Despite the seemingly faultless approach which was outlined in Jennings v rice68, various

academic commentators have highlighted the fault and failings associated with the

proportionality approach. Mee provides a very critical analysis of the proportionality

approach because it results in inconsistent and incoherent judgements being issued by the

courts69. In order to understanding the key fault which underpins this approach one must

expand on the actual proportionality approach itself. It must be noted that the proportionality

approach is an inquiry which incorporates two stages. A different set of criteria are applied at

each stage. The first stage is centred on the question of whether the detriment is proportionate

to the expectation. This involves an analysis of criteria which the court in Jennings v Rice 70

failed to elaborate on in the sense that they didn’t specify what discretionary criteria had to be

analysed. If the court concludes that there is proportionality between the two elements the

court will fulfil the claimant’s expectation71. If on the other hand the remedy is deemed to be

disproportionate, the second stage will come into play. This involves the court snubbing the

expectation remedy and formulating a lower remedy which would be proportionate. The

court must analyse all discretionary factors in order to develop a lower remedy. The overall

65 Simon Gardner, ‘The Remedial Discretion in Proprietary Estoppel -Again’ (2006) 122 LQR 492 66 Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217 67 [2001] EWCA CIV 990 68 See note 65 69 John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies” in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Hart Publishing, 2009), 389-418. 70 See note 65 71 John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies” in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Hart Publishing, 2009), 389 -418.

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effect of this is that two different approaches are applied to proportional and non-proportional

cases as there is a wider set of criteria considered in non-proportional than proportional

cases72. This is where the discrepancy surrounding the proportionality approach arises. The

issue with the approach is based on the level of expectation and the remedy which was

awarded. The differing sets of criteria which are applied lead to a scenario where if a person

has an expectation which is just within the expectation limits of the court and is deemed

proportional, the expectation is fulfilled. However if the individuals expectation is higher

than the limits set by the court, the courts will deem this disproportionate and thus frame a

remedy through broad judicial analyse. The result of this is that the court will award a remedy

which is significantly lower than the remedy which is awarded when the expectations of the

individual are satisfied. This will be the case despite the fact that all facts of the scenario in

question remain constant with the exception of the individual’s expectation. Therefore the

fact that a higher expectation leads to a lower remedy can’t be justified as the individual is

treated differently purely on the basis that their expectation is higher73. This completely

contravenes the well-established legal principle that like cases should be treated alike and

there should be no variation between judgements74. Therefore this anomaly is not a feasible

resolution to the issue surrounding the appropriate approach to adopt when seeking to remedy

an equity created by proprietary estoppel. This highlights the confusion and malpractice of

the courts as they failed to realise the shorting comings of the approach which they were

adopting in Jennings v Rice75. The application of the approach highlights the further

confusion which the courts have created by the fact that they have produced an approach

which essential achieves disproportionate remedies similar to the approaches which have

72 John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies” in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Hart Publishing, 2009), 389 -418. 73 John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies” in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Hart Publishing, 2009), 389 -418. 74 John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies” in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Ha rt Publishing, 2009), 389-418. 75 [2002] EWCA CIV 159

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gone before it and that they have failed to resolve the mistakes which they have made in

previous cases.

The above argument demonstrates that the law which distinguishes promissory and

proprietary estoppel is not beneficial for the application of proprietary estoppel. The rationale

behind this is that the law regarding the various approaches to deciding on an appropriate

remedy is vague and inconclusive. This is attributed to the court negligence when applying

both the expectation and reliance based approaches and also formulating the proportionality

based approach.

In drawing this essay to a close it is clear from the detailed analyses above that the

distinctions which exist between proprietary and promissory estoppel are not beneficial and

helpful. These distinctions have been detrimental to the doctrine of proprietary estoppel as

they have resulted in the doctrine being undermined by faults and shortcomings and being

engulfed in confusion. This confusion can be attributed to the courts and their negligent

application of the doctrine of proprietary estoppel. Their negligence and failure to apply the

doctrine appropriately has resulted in the doctrine being cast into a realm of uncertainty and

the law surrounding it becoming opaque and ambiguous. This is demonstrated by the various

contravening decisions of the court regarding the concept of unconscionability and its role

within the doctrine but also the courts chaotic application of the remedial approaches. The

distinction between both doctrines has put the future of proprietary estoppel under treat as

the decision leave the doctrines application up in the air. Also many legal professionals are

unbeknownst in terms of what approach will be utilised by the courts when they are faced

with a proprietary estoppel claim in the future. One may speculate on what the future may

hold for the doctrine. But one thing is for certain, proprietary estoppel and the distinctions

which impinges upon its operation have a long and winding road to travel in order to dispel

the confusion and uncertainty which underpins it.

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Bibliography

Elizabeth Cooke, The Modern Law of Estoppel (1st edn, Oxford University Press 200)

John Mee, ‘Lost in the Big House: Where Stand Irish Law on Equitable Estoppel’ (1998) 33

IJ 187

Paul Coughlan, ’’Equity-Swords, Shields and Estoppel Licences ‘’ (1993) 13 DULJ 188

Hilary Delany, ‘Is There a Future for Proprietary Estoppel as we know it?’ (2009) 31 DULJ

Elizabeth Gavin, ‘ Unconscionability and Proprietary Estoppel: Striking a Balance Between

Formulaic and Subjective Approaches’ (2012) 30 ILT

Pawlowski, ‘ New Limits on Proprietary Estoppel Doctrine’ (1998) 114 (7) LQR

Andrew Robertson, ‘The reliance Basis of Proprietary Estoppel Remedies’ (2008) 72 Conv

John Mee, “The Role of Expectation in the Determination of Proprietary Estoppel Remedies”

in Dixon (ed) Modern Studies in Property Law: Vol 5 (Oxford: Hart Publishing, 2009)

Hilary Delany, ‘ Satisfying Equity in Cases of Proprietary estoppel’ (2003) 25 DULJ 217

Simon Gardner, ‘The Remedial Discretion in Proprietary Estoppel-Again’ (2006) 122 LQR

492

Hilary Delany and Desmond Ryan, ‘ Unconscionability: A unifying Theme in Equity?’

(2008) 72 Conv

Andrew Robertson, ‘The Death of Proprietary Estoppel’ (2008) LMCLQ 449

Hilary Delany, Equity and the Law of Trusts in Ireland (5th edn, Thomson Reuters 2011)

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List of Cases

Ramsden v Dyson [1866] LR 1 HL 129.

Huan v Ang Swee Chaun [1992] 1 WLR 113.

Thorner v Major [2009] 1 WLR 776.

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130.

Jennings v Rice [2002] EWCA CIV 159.

Orgee v Orgee [1997] EG 152 (CS).

Taylor v Dickens [1998] 1 FLR. 806.

Gillet v Holt [2001] CH 210.

Cobbe v Yeomans Row Management Ltd [2008] 1 WLR 1752.

Re Basham [1986] 1 WLR 1498, 1510.

Smyth v Halpin[1997] 2 ILRM 38.

Grundt v Great Boulder Proprietary Gold Mines Ltd[1937] 59 CLR 641.

The Commonwealth v Verwayen [1990] 170 CLR 394.

Walton Stores Ltd v Maher [1988] 164 CLR 387.

Giumelli v Giumelli [1999] 161 ALJ 473

Jennings v Rice [2002] EWCA CIV 159.

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Campbell v Griffin [2001] EWCA CIV 990.

Taylor Fashions v Liverpool Victorian Trust [1982] QB 133

List of Legislation

Section 2 of the Property (Miscellaneous Provisions) Act 1989.