Estoppels Against Statutes
| Published date | 01 January 1966 |
| Date | 01 January 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01094.x |
THE
MODERN
LAW
REVIEW
Volume
29
January
l.966
No.
1
ESTOPPELS
AGAINST
STATUTES
ONE
of the many difflcult problems which arise in the application of
the doctrine of estoppel is the effect of an estoppel in the face of an
Act
of
Parliament. Can an estoppel ever be applied
so
as
to prevent
the normal application of
a
statutory rule?
It
is sometimes said
that
it
cannot, but the problem may well depend on the type of
estoppel which is pleaded and the nature
of
the statutory provision
against which
it
is pleaded. The examination of the relationship
between the plea of estoppel and the statutory provision throws light
on the nature of both.
In practice the application
of
an estoppel
in
the face
of
a
statute
appears to be no different from the application of that doctrine to
circumstances governed by common law. What
is
important
is
not
the source of the rule, but its nature. Similarly the type of estoppel
which is raised may be very relevant since the operation of an
estoppel
per rem judicatam
is different from the operation
of
an
estoppel arising by the acts of the parties. This latter expression
is used here to include estoppels by representation
or
eonduet and
estoppels by deed. The two main types of estoppel are dealt with
separately.
1.
ESTOPPELS
ARISING
BY
ACTS
OF
THE
PARTIES
The leading authority on the question
of
whether an estoppel can
be.pleaded to hinder the performance of
a
statutory duty is
Maritime
Electric
Co.
v.
General Dairies Ltd.l
In this ease the relevant
words
of
a
New Brunswick statute were:
''
No
public utility shall
charge, demand, collect
or
receive
a
greatcr
or
less compensation
for any service than
is
prescribed.
.
. ."
The Maritime Electric
Company,
a
public utility within the meaning of the Act, by mistake
considerably undercharged General Dairies
for
electricity supplied
1
iuw]
A.C.
610.
*
kublic Utilities Act
of
New
Brunawiok,
R.S.
1027,
c.
127
(a.
10).
1
VOL.
29
1
2
THE
MODERN
LAW
REVIEW
VOL.
20
to them. The Privy Council hcld the Maritime Electric Company
was not estopped from claiming the balance due to them although
the dairy company had paid more to the farmers for their cream
than they would have paid had the clcctricity been properly charged.
To
have admitted the estoppel would have had the effect of
rcpealing the statute in the particular case.
.
There was
a
considerable amount
of
existing authority to support
this decision.8
For
example it had been hcld in
R.
v.
Blenkinsop
‘
that the overseers
of
a
parish who had charged
a
railway company
only one-third
of
their correct share of the rates could recover the
balance in an action
for
arrears. The court held that an estoppel
could not arise in this case since the ratepayer’s liability was not
a
private debt but
a
public obligation. There are
a
number
of
later
decisions to the same effe~t.~
Subsequent authority shows that the result is the same in cases
where the statute lays down
a
duty to exercise
a
discretion.
In
Southend Corporation
v.
Ziodgson
0
the defendant,
a
Southend
builder, received
a
letter from the borough engineer and surveyor
to the effect that
a
certain plot of land had an existing use
as
a
builder’s yard. In reliance on this he purchased the land for use
in his trade. He pleaded against
an
enforcement notice from the
corporation that they were estopped from denying the land had an
existing use as
a
builder’s yard by the statement of their borough
engineer and surveyor. The Divisional Court held that the estoppel
could not be used to prevent the local authority assuming the
obligation under the Town and Country Planning Act
1947’
to
exercise their discretion with regard to the service
of
a
notice on
the owner and occupier of the land. To hold that they were
estopped by the borough engineer’s letter would effectively prevent
them from exercising this discretion.8
It
is equally well established
also
referred
to
Americnn nuthoritiee; Pittsburg, Cincinnati, Chicago
d
St.
Louis
By.
v.
Fink,
250
U.S.
577
(1MQ)
nnd
New
York
N.H.
d
H.R.
Co.
v.
York
d
Whitney
Co.,
102
N.E.
Repr.
(Mnee.)
866
(1018).
4
[1892]
1
Q.B.
48.
5
See,
c.
.,
Customs
and
Ezcise Commissioners
v.
Hebson
[1069]
2 Lloyd’s
Rap.
d2
esp. nt
p.
896;
Griflths
v.
Dacies
10481 1
K.B.
618.
Welch
v.
Nagy
[1060]
1
K.B.
466;
J.
and
P.
Stone
Ligkting
and
Radio
Ltd.
V.
Leuitt
10471
A.C.
u)9;
Hudson
v.
Hudson
[l948
P.
202;
Southend
Corporation
v.
“643
Ah.
99d
a
[1962]
1
Q.B.
416.
7
10
&
11
Qeo.
6,
c.
51.
8
Since the decieion
in
Hedley
Byrne
d
Co.
v.
Heller
[1964]
AX.
466
it
might be
thnt
on
nction
for
negligent mimtntement
would
lie agninet the borough engineer
if
ha
hnd
been negligent.
L
odgson
1062
1
Q.B.
416.
And
eee
KO
1
Hoong
v.
Leong
Cheong Mines
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