As we University academics are currently on strike (pension cuts – see today’s report and this Guardian article), I can catch up on a little blogging as a form of “teaching out”. While Bristol Combined Court was flooded, HHJ Matthews, an academic judge, heard and gave judgment (at the Rolls Building) in two proprietary estoppel cases of note: James v James  EWHC 43, and Smyth-Tyrrell v Bowden  EWHC 106 (ch). Both cases were factually problematic (at least on HHJ Matthews’ reading of the facts) for claims in proprietary estoppel, but that didn’t stop some interesting and not uncontroversial points being made. Whether or not this reflects a peculiar West Country jurisprudence for farmers – both cases involve farmers – these cases should not go without note. I have focused solely on the estoppel parts of these cases, but there is more in them.
If we take the James case first, this was an internecine dispute between a family following the death of the Dad (this was son against sisters and Mum, which is all rather sad). There were some important findings of fact about the Dad – he “did not make promises to transfer property”, was reluctant to make any commitments, and, until the early noughties had kept everything in his name (and after that point only to take advantage of any inheritance tax breaks). The high point of Sam, the Claimant son’s case was that, before buying some of the land that made up the extensive farm, the Dad had asked Sam whether he should buy it, because (as Sam put it) “I would be farming it one day”. But, as HHJ Matthews put it, at , “In the context in which it was made, and given the personalities of the two persons involved (the testator, reluctant to make any commitments, and Sam, keen to inherit his father’s property as the only son), I do not find this phrase to amount to a promise or assurance to leave the property to Sam. As with making a will, saying that it is your intention to do a thing is not at all the same as promising to do it”. Sam did believe that he was promised the farms but this was neither consistent with what was known about the Dad and “a reasonable person would not have misinterpreted the testator’s words and actions in this way”.
This rather disposed of the case, although there is something quite interesting – and controversial – about this use of “intention” as against “promise” in the context of estoppel, this most flexible of inchoate equities. A promise indicates ones intention, of course, but this seems to elevate the assurance requirement somewhat. On the facts as found by HHJ Matthews, this is less problematic in this case, but in a court of record, that suggests a further controversy around the notion of assurance that appeared to have been put to bed by Thorner. For the record, even if there had been a sufficient assurance, Sam would have lost on detrimental reliance – he simply hadn’t done enough because he was properly paid and there was no evidence that he had given up other opportunities: “… he was the kind of man who always did work hard at things he enjoyed doing, and who did not want to leave the family farm, where he had a job he enjoyed and some security, meanwhile hoping (and even believing) that it would work out well for him in due course as the only son” .
HHJ Matthews also makes some quite striking remarks on the question of remedy. Amazingly (to me, at any rate), the question of remedy remains an open judicial question (I’m afraid that we should have had more strikes to enable me to blog the incredibly important case of Davies v Davies on remedy). One question is whether it should be proportionate to the detriment or expectation-based. Most academics appear to favour the latter, and HHJ Matthews similarly favours the expectation-basis () other than in exceptional cases.
In those cases, there may be another way to satisfy the equity raised, without however necessarily requiring the remedy to be proportionate to the detriment. For myself I respectfully doubt how far a “sliding scale” approach would be useful. Just as a contract is either made and broken or not, either the promisor has created an expectation, on which the promisee has relied to his or her detriment, or not.
Smyth-Tyrrell can also be seen as a case on its own facts and, but for some heroic heavy lifting by my old mucker, Guy Adams, for the Claimants, would have been resolved quite easily. The case concerned a tumble down old house and barn. Smyth-Tyrell wrote to his neighbour, the D’s father, who owned the house/barn and offered to do it up in exchange for a 15 year lease at a rent based on its then value. The deal was done by an agreement which did not comply with s 2 LPMPA (the argument that s 2 precludes the use of estoppel – on which we have previously blogged quite a bit – was not run by D). Smyth-Tyrrell hoped that he would be able to buy the place at the end of the lease or at least keep it going. There were some inconsequential discussions about purchase, but the parties were too far apart in price and “I accept that the defendant’s father on more than one occasion entertained the possibility of selling, but I consider that this was more out of politeness and neighbourliness than because the defendant’s father had decided to sell”  – a polite way of saying that estoppel cannot arise as a result of bourgeois conversations (or something like that). HHJ Matthews held that “… neither the hope nor the expectation were agreed with the defendant’s father or family, and (apart from the discussions as to a possible sale themselves) were not the result of anything which the defendant or his family did or said. Accordingly, any expenditure by the claimants on the property was prima facie at their own risk” ().
The Smyth-Tyrrell’s claim was based on what HHJ Matthews terms, in a rather ugly way, “a promissory form of proprietary estoppel” (). Effectively summarising James as doctrine (in a Denning-like way), he said “This is an equitable doctrine focusing on a property owner’s promise to or expectation created in another person by the act of the former which was intended to be relied on by the latter, has been relied on by the latter to his or her detriment, such that it would be unconscionable for the property owner not to give effect to the promise or expectation. The property owner is compelled to make good the equity thereby created. This may be by performing the promise, or by something else. The doctrine accordingly gives effect to expectations.”
Even though there was no promise made, the court would like to the “whole course of conduct” between the parites to see if there was such an expectation or promise (spoiler alert: there wasn’t). Guy Adams relied, however, on Hoyl Group Ltd v Cromer Town Council  EWCA Civ 782 (another one which has been regrettably omitted), a case which makes interesting observations on estoppel by acquiescence. this is referred to as a negative by HHJ Matthews, ie “Suppose that Y (without X’s positive words or acts) comes to believe that X will in the future give him some right or interest, and X either realises that this is Y’s belief and does nothing to disabuse him, or (even if he does not realise this) nonetheless positively encourages Y to act in ways only consistent with Y’s having such a belief (so that, objectively speaking, it should be obvious to X what is going on)” (). Anyway, the facts did not support even this claim, and HHJ Matthews would not have found it unconscionable for D to insist on his strict legal rights anyway: “The claimants have had what they bargained for, and indeed more. Enough is enough” ().
As I say, interesting stuff in the West Country.
Now, back to Twitter to find out more about our employers’ volte-face since I started this note.