ABSTRACT
The doctrine of proprietary estoppel is a very powerful, remedial doctrine. That it is a ‘remedial’ doctrine means that the courts are empowered to award a wide range of proprietary or personal remedies dependent on the circumstances such that those remedies take effect from the date of the court judgment forwards. There are two stages to making a proprietary estoppel claim: first, proving the three elements of the estoppel and, second, identifying the appropriate remedy on the facts. (There are other forms of estoppel in English law but this chapter will focus on proprietary estoppel.)
First, the elements of the estoppel. Proprietary estoppel arises in circumstances in which the defendant has made a representation to the claimant on which the claimant has relied to their detriment. Therefore, the three elements of proving the estoppel are: representation, reliance and detriment. In the decided cases, a representation may involve the making of a specific promise on one particular day or, frequently, it involves the making of a series of representations over time which when taken together create an understanding in the claimant’s mind which it was reasonable for them to have formed. Remarkably, in Thorner v Major, just such an understanding was formed by the claimant from the circumstances even though the parties had never actually discussed the question at issue. Reliance is a question of fact requiring a link between the representation 298and the actions which the claimant took as a response. The concept of detriment has been treated differently in different cases: spending money is the clearest example of suffering detriment, but in some cases even agreeing to move house with one’s children in reliance on a promise that you will all have a new home if you do so has been held to be detriment. So, there are differences on the authorities as to the meaning of detriment.
Second, the remedies. Once the court has accepted that entitlement to the estoppel has been demonstrated then the court will identify the appropriate remedy. The courts have awarded a wide range of remedies spanning a spectrum from outright ownership of the property in question, through to a mere award of money in compensation for the detriment suffered. Given that different cases have based their remedies on compensation for detriment, the fulfilment of a promise that had been made, or more general response to unconscionability, the doctrine of proprietary estoppel appears to be an equitable doctrine in the most discretionary sense. By way of example, in Jennings v Rice the claimant received £200,000 in cash, whereas in Pascoe v Turner the claimant was awarded the fee simple over the home which was the subject of the representation. In other cases such as Gillett v Holt the claimant has been awarded a combination of property rights and money.
Proprietary estoppel is said to be a remedial doctrine because the nature of the remedy is not known until the end of the case. This makes proprietary estoppel the opposite of constructive trusts. Whereas constructive trusts, considered in Chapter 12, were said to arise on an institutional basis (that is, retrospectively from the time of the unconscionable act and automatically without any discretion on the part of the court), proprietary estoppel arises on a remedial basis (that is, prospectively from the date of the court order with the precise nature of the remedy being at the court’s discretion). 1
