Guest and another v Guest
| Jurisdiction | England & Wales |
| Judge | Lord Briggs,Lady Arden,Lady Rose,Lord Leggatt,Lord Stephens |
| Judgment Date | 19 October 2022 |
| Neutral Citation | [2022] UKSC 27 |
| Court | Supreme Court |
[2022] UKSC 27
Lord Briggs
Lady Arden
Lord Leggatt
Lord Stephens
Lady Rose
Appellants (David George Guest and Josephine Guest)
Thomas Dumont KC
William Moffett
(Instructed by Thrings LLP (Bristol))
Respondent (Andrew Charles Guest)
Penelope Reed KC
Philip Jenkins
(Instructed by Clarke Wilmott LLP (Taunton))
Heard on 2 December 2021
Lord Briggs ( with whom Lady Arden and Lady Rose agree)
“One day my son, all this will be yours”. Spoken by a farmer to his son when in his teens, and repeated for many years thereafter. Relying on that promise of inheritance from his father, the son spends the best part of his working life on the farm, working at very low wages, accommodated in a farm cottage, in the expectation that he will succeed his father as owner of the farm, to be able to continue farming there, and in due course to pass on the farm to his own children.
Many years later, father and son fall out. It does not matter who is to blame for the falling out, but they can no longer work together or even live in close proximity. The son has no alternative but to leave, to find alternative work and rented accommodation for himself and his family elsewhere. Meanwhile the father cuts him out of his will. The facts of this case differ from the above common example only because the father David Guest has two sons, Andrew and Ross as well as a daughter Jan. Andrew was not promised the whole of the farm (“Tump Farm”) as an inheritance, but only a sufficient (but undefined) part of it to enable him to operate a viable farming business on it after the death of his parents.
What if anything can the law do for Andrew? There is no contract between them which Andrew can enforce. The farm was not put into trust for the parents for life with remainder to be shared between Andrew, Ross and Jan. The Inheritance (Provision for Family and Dependants) Act 1975 is unlikely to assist Andrew because he can still earn a living. Anyway his parents may have many years to live. And the farmhouse is their home. Most people would think that Andrew has been very unfairly treated by his father, but many would also think it strange if the court were to require David to give Andrew a viable share of the farm now, when he had promised to do so only upon his and his wife's death. Why should Andrew receive a share of the farm earlier than he had been promised it, because of a family dispute for which he may have been no less to blame (if blame is the right word at all) than his father?
Providing a remedy for Andrew is a task for which the courts have recourse to equitable principles. One of the principal functions of equity is to put right injustice to which the law is otherwise blind, by restraining the rigid application of legal rules where their implementation would be unconscionable. Two legal rules are engaged here. The first is that a promise is not enforceable unless it is made part of a contract. The second is that a person is free to change his will until he dies (or loses mental capacity to do so). David was, in accordance with those rules both free to renege upon his promise to Andrew, and to do so both by evicting him and then changing his will. But equity may in such circumstances provide the promisee (here Andrew) with a remedy if a promise has been made to confer property upon him in the future, (or an informal assurance that the property is already his) in reliance upon which he has acted to his detriment. The remedy is called proprietary estoppel. The word “proprietary” reflects the fact that the remedy is all about promises to confer interests in property, usually land. The perhaps quaint word “estoppel” encapsulates the notion that the equitable wrong which has been threatened or done is the repudiation of the promise where it would be unconscionable for the promisor to do. So the equitable remedy is to restrain, or stop or “estop” the promisor from reneging on the promise. The court may require the promise to be performed by the promisor or, if he has died in the meantime, by or at the cost of his estate. It may in limited circumstances affect successors in title of the promisor to the relevant property.
Equitable remedies are generally more flexible than those afforded by the common law and they are always discretionary. The very notion of the specific enforcement (or performance) even of a contractual promise is equitable in origin. It exists to fill the lacuna in the common law remedy of damages, where the nature of the underlying property is such that damages would be an inadequate remedy. But there is no cause of action for damages for breach of a non-contractual promise. Equity is not in this context merely providing an ancillary remedy in support of a common law cause of action, for which damages is the primary remedy. Under the doctrine of proprietary estoppel the specific enforcement of the promise or assurance is the primary remedy for the unconscionability threatened or occasioned by its breach.
Nonetheless there have been many cases where the court has recognised that full specific enforcement is not the appropriate remedy. The promise may be incapable of specific enforcement, for example where the underlying property is no longer in the hands of the promisor or his estate. The promised date for performance may lie so far in the future, or the date may be so unpredictable, that an order for performance on the promised date would be too insubstantial as a remedy. Or the early enforcement in full of a promise which, although repudiated, is years away from the due date for performance may give the promisee too much, or something radically different from that which was promised. The promisor may have other powerful equitable or moral claims on his bounty, so that the appropriation of the whole of the promised property to meet the claim of the promisee may be unjust to those other claimants, and be more the cause of unconscionable conduct than a remedy for it. Finally the magnitude of specific enforcement in full may be so disproportionate to the detriment undertaken by the promisee that something much less than full specific enforcement is needed to clear the conscience of the promisor.
These real-life difficulties (and those outlined above are only a few examples) have come to mean that in the field of proprietary estoppel equity is regarded as being at its most flexible in terms of remedy. Furthermore the lack of any necessary or even likely equivalence between the value of the expectation generated by the promise and the burden of the detriment undertaken in reliance on it has led, during the last 25 years, to a fundamental divergence of view about which, as between satisfying the expectation and compensating for the detriment, is or rather should be the true underlying aim of the remedy. The divergence is best understood, at the academic level, by reading Elizabeth Cooke's The Modern Law of Estoppel (2000) and Ben McFarlane's The Law of Proprietary Estoppel, 2 nd ed (2020). It is mentioned by Robert Walker LJ in Jennings v Rice [2003] 1 P & CR 8, by Dyson LJ in Cobbe v Yeoman's Row Management Ltd [2006] 1 WLR 2964, by Lewison LJ in Davies v Davies [2016] 2 P & CR 10 and by Floyd LJ in the Court of Appeal in the present case [2020] 1 WLR 3480. It even continued on the internet during the hearing of this appeal. It has been complicated by the well-known but often misunderstood dictum of Scarman LJ in Crabb v Arun District Council [1976] Ch 179, 198 that the court's remedy in that case was “the minimum equity to do justice”. Mr Tom Dumont KC for the Appellants placed this dictum in the forefront of his submissions, describing it as the golden thread which explains the nature and purpose of the remedy.
I shall in due course examine some of the many authorities to ascertain whether they answer this supposed conundrum. Relief on the ground of proprietary estoppel is a purely judge-made remedy, so that the assistance from authority is, if available, likely to be compelling. That said, the dicta mentioned above do not suggest that the search is likely to be a short or simple one. But it is worthwhile first to look at the problem from the perspective of first principles, free from authority. As I have already said, the remedy afforded under the label of proprietary estoppel is there to eliminate, or at least mitigate, the affront to conscience constituted by a decision by the maker of a non-contractual promise or assurance about property upon which the recipient has relied to their detriment to go back on it. Although part of the same doctrine, I can leave aside the cases about the informal assurance of a supposed existing right, because this case is about a promise of a future interest, no more and no less.
The equitable “wrong” (if that is the right word) is not the making of the promise in the first place. In almost all the cases, and certainly this one, the promise was genuinely made, in complete good faith, typical of the relations between a farmer and his eldest son, and it was adhered to over more than 25 years. Nor is the detrimental reliance to be classified as harm in any conventional sense. It is usually (and was in this case) something freely and willingly undertaken in the expectation of the fulfilment of the promise, not being daily counted as a cost, still less resented at the time when it was being incurred. Nor is it something which can necessarily or even usually be valued. In the present case, as in many where the promisee is a young person who gives up other career opportunities to work for their parents on the family farm, a measure of the supposed wages differential to date, coupled with interest, will not begin to recognise the improvement in life which further...
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