The role of expectation in the determination of proprietary estoppel remedies

Mee, John

The role of expectation in the determination of proprietary estoppel remedies

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MeeEstoppelRemediesExpectation.pdf(341.24 KB)

Date

2009-11-03

Authors

Mee, John

Publisher

Hart Publishing

Abstract

This paper analyses the various roles which expectation could play in relation to the determination of proprietary estoppel remedies. It argues, by a process of eliminating the various alternatives, that the only appropriate role for expectation is as a cap on a remedy determined on the basis of other factors. The first possible approach to be analysed is that the remedy would invariably be determined by reference to the expectation. It is pointed out that this runs into difficulties in the context of countervailing benefits and also requires a willingness, in certain cases, to grant a remedy which is disproportionate to the detriment suffered by the claimant. The second approach, supported by Jennings v Rice [2002] EWCA Civ 159, is that the fulfillment of the expectation should be the prima facie remedy, to be granted unless such a remedy would be disproportionate to the detriment suffered by C. The paper argues that such an approach does not stand up to close scrutiny and leads to demonstrably illogical results. It then looks at the possibility of treating the expectation as one factor in the determination of the remedy, as appears to be advocated by Gardner; the possibility of regarding the fulfilment of the expectation as a proxy for erasing the detriment, as argued by Robertson; and the possibility of linking the expectation and the detriment by reference to a bargain, as suggested by Robert Walker LJ in Jennings v Rice. By way of conclusion, some observations are offered in respect of the possible future development of equity's approach to proprietary estoppel remedies.

Keywords

Expectation , Proprietary estoppel

Citation

Mee, J. (2009) 'The role of expectation in the determination of proprietary estoppel remedies', in Dixon, M. (ed.) Modern Studies in Property Law, Volume 5. Oxford: Hart Publishing.