Proprietary Estoppel in a Procrustean Bed
| Date | 01 May 1995 |
| Author | Patrick Milne |
| Published date | 01 May 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02019.x |
The Modem Law Review
[Vol.
58
Proprietary Estoppel in a Procrustean Bed
Patrick
Milne”
The two approaches to proprietary estoppel
The starting point in considering proprietary estoppel is generally taken to be
Ramsden
v
Dyson’
and, in particular, sections from the speeches
of
Lord
Cranworth LC2 and Lord King~down.~ Lord Cranworth LC’s approach was
before long reformulated into five
probanda
by Fry
J
in
Willmott
v
Barber4:
In
the
first place the plaintiff must have made a mistake as to his legal rights. Secondly, the
plaintiff must have expended some money or must have done some act (not necessarily upon
the defendant’s land)
on
the
faith of his mistaken belief. Thirdly, the defendant, the possessor
of the legal right, must know of the existence of his own right which is inconsistent with the
right claimed by the plaintiff
.
. .
Fourthly, the defendant, the possessor of the legal right,
must know of the plaintiffs mistaken belief of his rights
.
.
.
Lastly, the defendant, the
possessor of the legal right, must have encouraged the plaintiff in his expenditure of money,
or
in
the other acts which he has done, either directly or by abstaining from asserting his legal
right.s
Lord Kingsdown took a broader approach which, again, has been later restated in
its essentials, this time by Oliver
J
in
Taylors Fashions Ltd
v
Liverpool Victoria
Trustees
Co
Ltd.6
This approach:
is directed rather at ascertaining whether, in particular individual circumstances, it would be
unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly,
he has allowed or encouraged another to assume to his detriment than to inquiring whether
the circumstances can be fitted within the confines of some preconceived formula serving as
a universal yardstick for every form of unconscionable behaviour.’
Both the narrow and broad approach can be seen as requiring (and it seems that
all cases where proprietary estoppel has been made out involve) detrimental
reliance on a belief which is inconsistent with the legal right being asserted and
which was encouraged or created by the legal owner.* Above all, both
approaches are concerned ultimately with unconscionable cond~ct.~ That the
narrow approach is concerned with preventing unconscionable conduct
is
evident
from
Taylors Fashions
and is implicit in what was said by Lord Cranworth LC and
Fry
J
in
Ramsden
v
Dyson
and
Willmott
v
Barber
respectively. Satisfaction of the
probanda
not only establishes that there has been detrimental reliance on a belief
encouraged by a person with an inconsistent legal right, it also proves that the
*University
of
Teesside.
1
(1866)
LR
1
HL
129.
See eg
Crabb
v
Arun District Council
[1976] 1
Ch
179, 192A, 194D;
Taylors
Fashions Ltd
v
Liverpool Victoria Trustees
Co
Ltd
[1982] QB 133, 144D.
2 (1866)
LR
1
HL
129, 140-141.
3
ibid
at
170.
4
5
ibid
at
105- 106.
6
(1880)
15
Ch
D 96.
[1982]
QB
133.
His Lordship later adhered to this formulation
in
the Court
of
Appeal
in
Habib Bank
Ltd
v
Habib Bank AG Zurich
119811 1
WLR
1265, 1285.
--
7 [1982] QB 133, 151H-152A.
8
The Privv Council in
Attornev General
of
Honn
Kona
v
Humuhrev’s Estate (Queen’s Gardens) Ltd
[1987]
Ak
114
confirmed thaithere must 6e a bkef wlhich has beencreated or encouraged by the’legal
owner.
A
hope
or
pure assumption, however reasonable, is insufficient.
Ward
v
Kirkland
[1967] 1
Ch
194,
at
235C-E.
9
412
0
The Modem Law Review Limited
1995
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