Proprietary estoppel, promises and mistaken belief

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Mee, John
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This chapter considers the restrictive vision of proprietary estoppel put forward by Lord Scott and Lord Walker in the House of Lords in Yeoman’s Row v Cobbe [2008] UKHL 55. It explains that the impact of taking their arguments seriously would be the elimination (or, at least, the severe restriction) of one of the three distinct principles subsumed within proprietary estoppel, ie the promise principle stated by Lord Kingsdown in Ramsden v Dyson. The chapter suggests that, although the approach in Cobbe runs counter to the current of equitable development over the last forty years, it does highlight important issues of principle surrounding the scope of proprietary estoppel. Despite the tendency to downplay the role of promise within the doctrine, the pre-Cobbe version of proprietary estoppel ventures into the territory of the law of contract, doing so only in respect of promises related to land/property (without any convincing justification as a matter of principle for this restriction). Rather than seek to deal comprehensively with the very large question as to the merits or otherwise of Lord Kingsdown’s promise principle, this chapter seeks to address a more modest set of questions. First, it points out that the particular concern which seems to have animated the judges in Cobbe – that it is wrong to allow C to succeed on the basis of a promise which C knows is binding only in honour – can be accommodated within the conventional modern understanding of proprietary estoppel, without any need to eliminate or severely curtail Lord Kingsdown’s principle. Secondly, the chapter addresses the seductive suggestion that a distinction should be drawn between the commercial and the domestic contexts, with the restriction upon proprietary estoppel suggested in Cobbe applying only in the commercial context. It concludes on the basis of a number of different arguments, that this suggestion does not represent a desirable avenue of development for the law. One of the points made against any application of a mistake requirement in the context of the promise principle is that this requirement makes sense only in the context of the acquiescence principle; the suggestion that it should be applied more broadly appears reminiscent of attempts in the past to apply the probanda to all proprietary estoppel cases. In terms of the future development of the law of estoppel, what is needed is a willingness to separate out for analysis the distinct principles which have, for historical reasons, been grouped together under the heading of proprietary estoppel. The emphasis on ‘unconscionability’ and ‘synthesis’, encouraged by the overrated judgment of Oliver J in Taylor Fashions, have contributed to the current confused state of the law. Following the debacle represented by Cobbe, it is time for a somewhat more reflective approach.
Proprietary estoppel , Equity , Law
Mee, J. (2011) 'Proprietary estoppel, promises and mistaken belief', in: Bright, S. (ed.) Modern Studies in Property Law, Volume 6. Oxford: Hart Publishing.
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