You are quite right that the author is Simon Gardner. In my frenzy to get the case comment out, I must have conflated him with Robert Walker LJ. Edit made.

Now, I haven’t read the Gardner piece yet - pressure of time - although I shall shortly, as I have a potential estoppel case surfacing. My comments are based on those in Sir Peter Gibson’s judgment. At paras 20 - 21:

“In considering that issue, I have been much assisted by the analysis conducted by Simon Gardner in his article, “The remedial discretion in proprietary estoppel – again” in (2006) 122 LQR 492. In an earlier article, “The remedial discretion in proprietary estoppel” (1999) 115 LQR 438, referred to with much praise by Robert Walker LJ in Jennings v Rice, paragraph 42, and by Mummery LJ in Cobbe v Yeoman’s Row Management Ltd [2006] 1 WLR 2964, paragraph 3, Mr Gardner addressed the question what was meant by the exercise of discretion involved in the determination of relief in proprietary estoppel. In his further article Mr Gardner described the position in the light of further authorities, including in particular Jennings v Rice. He noted Robert Walker LJ’s division of the range of possible situations into two classes with their differing approaches to relief. As he said at p 494, in the former category, which he called the bargain category, the relief should vindicate the claimant’s expectation; in the latter category, which he called the non-bargain category, the relief is arrived at by the exercise of a wider judgmental discretion, influenced – as relevant – by a number of factors including “the claimant’s expectation, but also proportionality with [his] detriment”.

Mr Gardner powerfully criticises Robert Walker LJ’s dichotomy, arguing instead for amalgamating the two categories so that a discretion as to outcome is always present, but it is unnecessary to decide whether that criticism is valid as Ms Bailey accepts as correct what the Lord Justice said and relies on his description of the bargain category, into which, she claims, the facts of the present case fall. ”

Based on these comments, Gardner is clearly being read as arguing for a wider exercise of discretion, with the removal of the (non)bargain distinction. Whether that discretion is itself more regimented isn’t discussed.

Thus, while I might well agree with you once I have read the Gardner piece, in the meantime, you may have to take the issue up with Sir Peter Gibson, not me .

I thought he was actually advocating a more regimented approach to judicial discretion relating to proprietary estoppel as per the conclusion of the article? He also implied that the present situation re the judicial discretion could be remedied through measures that he specifies?