Hopes, Expectations and Revocable Promises in Proprietary Estoppel

Date01 November 2009
AuthorNick Piška
Published date01 November 2009
demonstrations andtheir policinghas been highlightedrecentlyby the tragic death
of IanTomlinson at the G20 protests in London in April 2009.The need for cer-
tainty inthe interpretation and application of the provision has been raised by the
Joint Committee for Human Rights (JCHR) in its Report of March 2009.
Relying on the Explanatory Notes to the Bill, the Committee stated that:
the new o¡ence will only be committed where the information in question is
‘such as to raise a reasonable suspicion that it was intended to be used to assist in
the preparation or commission of an act of terrorism, and must be of a kind that
was likely to provide practical assistant to a person committing or preparing an act
of terrorism’.
However, those notes were prepared onthe basis of the Court of Appeal decision
in KvR. Even given this narrower interpretation of the relevant provisions, the
Committee said the following:
Legal uncertainty about the reach of criminal o¡ences can have a chilli ng e¡ect
on the activities of journalists and protestors. We therefore recommend that,
to eliminate any scope for doubt about the scope of the new o¡ence in section 76
of the CounterTerrorism Act20 08, guidance be issued to the police about the scope
of the o¡ence in light of the decision of the Court of Appeal, and speci¢cally
addressing concerns about its improper use to prevent photographing or ¢lming
What hope for this new o¡ence now?
Hopes, Expectations and Revocable Promises in
Proprietary Estoppel
Nick Pis
This note dicusses the House of Lords’ decisions in Cobbe vYeomans RowManagement Ltd (Cobbe)
andThornervMa jor (Thorner)regarding the nature and scope of proprietary estoppel. It considers
the historical development of the modern law of proprietary estoppel, the circumstances in
which equity will render a promise irrevocable, and the role of context in the ascription of
44 Joint Committee on Human Rights, Demonstratingrespectforrights? A human rights approachto policing
protes t (7
Report20 08^09)para 94.
45 ibid, quoting theExplanatory Notes, para 233.
46 ibid para 95.
Kent Law School, Universityof Kent. An earlier version of this paper was presented to the Oxford
University Property Law Discussion Group in November20 08. I would like totha nk MichaelAsh -
down, Maria Drakopoulou and SarahWorthington for their commentson earlier drafts of this paper.
Hopes, Expectations and Revocable Promises in Proprietary Estoppel
998 r2009 The Author.Journal Compilation r2009 The Modern Law Review Limited.
(2009) 72(6) 9 84^1015
Proprietary estoppel has developed into oneof equity’s sharpest instruments in its
interventions in the common law and statutory regulationof land and the distri-
bution of assets on death. In those contextsthere is a balance to be struck between
the need for certainty and the needto hold people to theirbargains and promises.
The need for certainty is usually met by imposing strict formality requirements
on transactions, which in turn determine what constitutes a bargain or promise.
This is not always an adequate construction of reality; bargains take place and
promises are made outside of law’s ordering of reality.
Proprietary estoppel calls
into question this conception of the bargain by recognising certain transactions
that do not meet the required formalities.The question is how far equity will go
in giving e¡ect to promises falling outside law’s ordering of reality. What is the
rationale for equitable intervention? Is equitable intervention concerned with the
nature of the defendant’s promise or the state of the claimant’s mind? To what
extent are the boundaries of equitable intervention determined by the context
of the transaction? Two recent House of Lords decisions have had tograpple with
these questions in thecontext of worku ndertaken in anticipation of a contract for
the redevelopment of land
and promises to an expectant heir.
Mr and Mrs Lisle-Mainwaring formed a company,Yeoman’s Row Management
Ltd, as a vehicle to purchase a block of £ats for development. In 2001Mr Cobbe,‘a
very experienced property developer’, was introduced to Mrs Lisle-Mainwaring.
In 2002 an oral agreement in principle was reached.The substance of the agree-
ment was that Mr Cobbe would, at his own expense, apply for planning permis-
sion for the development, and that upon the grant of planning permission and
obtaining of vacant possession,Yeoman’s Row would sell the property to Mr
Cobbe for an upfront payment of d12 million. Mr Cobbe would then develop
the property in accordance with the planning permission, and would pay Mrs
Lisle-Mainwaring half of the gross proceeds of sale exceeding d24 million. In
accordance with the agreement in principle Mr Cobbe set about obtaining plan-
ning permission, which involved a substantial amount of work, of which Mrs
Lisle-Mainwaring was both aware and encouraged. Planning permission was
granted in 2004. The following day Mrs Lisle-Mainwaring informed Mr Cobbe
that she no longer wished to proceedwith the agreementin principle and that any
new agreement would have to be on the basis of a minimum initial payment of
d20 million. Mr Cobbe brought proceedings againstYeoman’s Row seeking relief
in proprietary estoppel, constructive trust and restitution.
1 See M. Dixon,‘The Reach of Proprietary Estoppel:A Matter of Debate’ [2009] Conv 85.
2 In particular the Lawof Property (Miscellaneous Provisions) Act1989 and the Wills Act 1837.
3 I. Stramignoni, ‘When Law Stands Still: Land Contracts in English Law and Law’s ‘‘Abandon-
ment’’ of EverydayLife’ (2001)12 Law and Critique 105.
4Cobbe vYeoman’sRow Management L td [2008] UKHL 55, [2008]1 WLR1752.
5Thorner vMajor [2009] UKHL 18, [2009] 1 WLR 776.
Nick Pis
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(6) 984^1015

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