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Published online by Cambridge University Press: 02 January 2018
The current distinctions between different forms of estoppel are inappropriate and traditional orthodoxy is being challenged by judges and by academics. It is now necessary to recognise that the organising concept for the doctrine of estoppel is unconscionability because the function of estoppel is to restrain injustice arising from unconscionable conduct. The form ofestoppel, known as promissory estoppel, and stemming from the decision in Central London Property Ltd u High Trees House Ltd, is not triggered by the organising concept of unconscionability. It should be regarded, therefore, as an exceptional contractual response, in various situations, to the requirement of consideration. It follows that, in principle, estoppel based upon the concept of unconscionability, may be employed as an independent cause of action. There is ample evidence that this already happens in the context of claims concerning land. This article seeks to demonstrate that estoppel can and should be treated as an independent cause of action in a more general context.
1. [1947] 1 KB 130.
2. See eg the Law Reform (Miscellaneous Provisions) Act 1989.
3. A good example of this is to be found in the case of Greasley v Cooke [1980] 1 WLR 1306; see the note by Woodman, , ‘Estoppel By Part Performance’, (1981) 44 Google Scholar MLR 461.
4. Almagamated Investment Property Co Ltd v Texas Commerce International Bank Ltd [1981] 1 All ER 923, 935.
5. (1988) 164 CLR 387, at 45–59.
6. (1886) LR 1 HL 129 at 170.
7. [1981] 3 All ER 189 at 191.
8. See the discussion by Baker, The Future of Equity’, (1971) 93 Google Scholar LQR 529, especially at 538–539.
9. There are many instances where this is recognised. For judicial recognition see Brandon LJ in Amalgamated Investment Property Co Ltd v Texas Commerce International Bank Ltd [1981] 3 All ER 577, 591, and Lord Denning MR in Crabb v Arun District Council [1975] 3 All ER 865 at 871. Recognition is also given by Mescher ‘Promise Enforcement by Common Law or Equity’ (1990) 64 ALJR 536 at 549 and by Evans ‘Choosing the Right Estoppel’, [1988] Conv 366.
10. Op cit, above n 8.
11. Ridge, The Equitable Doctrines of Part Performance and Propreitary Estoppel’, (1988) 16 Google ScholarMULR 725, especially at 728–729.
12. See Mescher op cit; above n 9, p 547.
13. (1954) 70 LQR 326, 329.
14. Thompson ‘Proprietary Estoppel’, (1981) SJ 539.
15. Op cit, below n 24.
16. Op cit, above n 8 and 10. Atiyah From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law (Oxford, Clarendon Press, 1978).
17. Ibid at 6.
18. Atiyah Pragmatism and Theory in English Law, The Hamlyn Lectures (London, Stevens & Sons, 1987).
19. Below.
20. See in general, Feminist Theory and Legal Strategy (Bottomley & Conaghan (ed) Oxford, UK, and Cambridge USA, 1993, Blackwell).
21. See Gardner, A Woman's Work’, (1991) 54 Google Scholar MLR 126.
22. The recognition that law is not a posited order appears to be more easily accepted by feminist theorists than by male counterparts. This may be entirely coincidental and be of no significance. It is not within the scope of this book to examine the extent of the correlation but note Bottomley and Conaghan, op cit, above n 20: ‘It is in the academy that law has been (partly under the influence of the social sciences) most frequently presented as an internally coherent, undifferentiated model which leaves one only with the choice of submission or resistance in the narrow sense of the word. In practice we experience law as more complex and hence more open to incursions.’
23. Per Lord Coke, Co Litt 352a.
24. A course of action advocated by Thompson ‘From Representation to Expectation: Estoppel as a Cause of Action’ [1983] CLR 257.
45. (1762) 1 Wm B1 363.
26. (1892) LR 19 Ind App 203.
27. Ibid at 215–216.
28. Op cit, above n 11 at 727.
29. Jackson, Estoppel as a Sword’, (1965) 81 Google Scholar LQR 84.
30. See in general, Bentley, and Coughlan, Informal Dealings with Land after Section 2’, (1990) 10 Google Scholar LS 325.
31. Op cit, above n 29 at 92.
32. (1854) 5 HLC 185.
33. Op cit, above n 29 at 88.
34. Op cit, above n 32 at 358.
35. Ibid at 401.
36. Lunney, Towards a Unified Estoppel’, [1992] Conv 239 Google Scholar.
37. (1884) 9 App Cas 605.
38. Denning ‘Recent Developments in the Doctrine of Consideration’, 15 MLR 1.
39. (1877) 2 App Cas 435.
40. (1888) 40 Ch D 265.
41. As acknowledged by Lunney op cit, above n 36.
42. [1951] 2 KB 215 at 219–220.
43. Op cit, above n 9 at 559–566.
44. [1975] 3 All ER 865.
45. ‘When is an Enforceable Agreement not a Contract? Answer: When it is an Equity’ (1976) 92 LQR 174.
46. Millett, Crabb v Arun District Council — A Riposte!’ (1976) 92 Google Scholar LQR 342.
47. Op cit, above n 24 at 277—278.
48. (1862) 4 De GF & J 517.
49. (1884) 9 App Cas 699.
50. Above.
51. See especially Evans ‘Choosing the Right Estoppel’, [1988] Conv 346.
52. [1981] 3 All ER 189.
53. Ibid at 190.
54. Op cit, above n 42 at 222.
55. [1991] 1 QB 1.
56. [1986] AC 898.
57. Op cit, above n51.
58. In particular, Lord Denning in Amalgamated Investment Property Co Ltd v Texas Commnce International Bank Ltd [1982] QB 84.
59. Op cit, above n 51 and 57.
60. Evans asserts that Moriarty ‘Licences and Land Law: Legal Principles and Public Policies’, (1984) 100 LQR 376 is wrong.
61. [1979] Ch 291.
64. Op cit, above n 61 at 300. 63. Op cit, above n 4.
64. [1973] 3 All ER 319.
65. Op cit, above n 58 at 122.
66. Op cit, above, n 16 p 101.
67. 3rd edn, 1977.
68. 3rd edn, 1984, Sweet and Maxwell, London.
69. (1990) 64 ALJR 540 at 540–546.
70. [1974] 1 WLR 1097.
71. Ibid at 1104.
72. [1987] AC 114.
73. [1982] 1 Lloyds Rep 456.
74. The reasoning of the various members of the High Court in the two cases vanes substantially.
75. See the decision in Lipkin, Gonnan v Kurpnule [1991] 3 WLR 10 in which the House of Lords introduced, for the first time in English law, a change of position defence to a restitutionary claim.
76. Jones, , ‘Change of Circumstances in Quasi-contract’, (1957) 73 Google Scholar LQR 49.
77. (1760) 2 Burr 1005.
78. See Mescher op cit, above n 9 p 543 citing Spence, Equitable Jurisdiction of the Court of Chancery, (1846) vol 1, p 411 quoted by P D Finn in ‘Equity and Contract’ in PD Finn (ed) Essay on Contract (1987) p 106.
79. (1880) 15 Ch D 96, 105.
80. [1981] 1 All ER 897.
81. Ibid at 911–912.
82. Op cit, above n 51.
83. Op cit, above n 3.
84. See Thompson op cit, above n 15.
85. Lord Browne-Wilkinson, ‘Constructive Trusts and Unjust Enrichment’ Holdsworth Club, 1991.
86. Op Cit, above n 35 p 250, footnoted at 69 and 70.
87. For an argument that part-performance, as estoppel, stems from the same principle of remedying unconscionable conduct, see Bentley and Coughlan, op cit, above n 30 at pp 330–331.
88. Steadman v Steadman [1976] AC 536, 560.
89. See Thompson, op cit, n 24 pp 261–263 and Dugdale, and Yates, Variation, Waiver and Estoppel: A Reappraisal’, (1976) 39 Google Scholar MLR 680.
90. ‘The time may soon be when the whole sequence of cases based on [promissory] estoppel may need to be reviewed and reduced to a coherent body of doctrine by the courts’ per Lord Hailsham in Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Ltd [1972] 2 All ER 271 at 282.