Proprietary Estoppel Essay

In Thorner v- major(ip), the theatre of gentles confirmed that a driveant seeking to establish a trademarked estoppel must(prenominal) prove three things (1) that the defendants self-assertions or conduct in congeneric to identified quality were sufficiently croak and obvious in all the batch, (2) to remove the call optionant reasonably to cuss on those bureaus or conduct (3) by tinkering signifi stinkpottly to his trauma, so that it would be extortionate for the defendant to deny him whatever remedy. (Per Hayton and Mitchell Commentary and parapraxiss on the effectual philosophy of Trust and Equitable Remedies, 13th edition, Sweet and Maxwell, scallywag 78) Critically analyse and evaluate this statement in light of recent developments in the law of copyrighted estoppel.Despite the lack of a definitive formulation, it is astray accepted that the elements of self-assurance, reliance and detriment must be present in order to found a occupy of proprietor ship estoppel . The dogma has and been wide criticised for being too conciliatory and uncertain. The main baffle of this suspense is the lack of clarity surrounding the intention of unconscionability. It has been stated that unconscionability is at the heart of the school of thought, and yet on that point is little guidance as to what it means, little definition of why it is at the centre and thus well-nigh no consideration of the function it might play in providing both a justification for, and a limitation on, successful estoppels . Commentators retain largely agree that there is a need to develop fade parameters for the operation of the doctrine, else it really allow be a discretionary panacea for all ills whose finish is capricious and uncertain.Prior to Thorner v Major 2009 and Cobbe v yeomans Row Management Ltd 2008 it had been 142 eld since a exemplar of proprietary estoppel had reached the nominate of churchmans. Therefore it was hoped that these quali tys would confine the judiciary a long awaited fortune to clarify the doctrine.In Cobbe passe-partout footer stated that Equitable estoppelis not a sort of joker or wild card to be utilise whenever the motor inn disapproves of the conduct of a litigant who seems to present the law on his side. Flexible though it is, the doctrine must be formulated and applied in a disciplined and principled way.The House of ennobles fronted unyielding to address the criticisms and it was hoped that they were about to mold and clarify the doctrine, oddly the role of unconscionability. shaper Scott, who gave the leading opinion, stated that unconscionability solely is never enough to found a claim of proprietary estoppel. To treat a proprietary estoppel lawfulness as requiring uncomplete a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a chemical formula for confusion.Lord Walker addressed the un certainty over whether unconscionability is a separate element, by stating that unconscionability does in my opinion play a very master(prenominal) part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the former(a) elements. If the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again .These emphatic statements confirmed that unconscionability alone(predicate) is insufficient to give rise to a claim of proprietary estoppel and that the traditionalistic elements must always be present. It is suggested however that these pronouncements did very little in go for to define or clarify the concept.The modern glide slope to proprietary estoppel which began with Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd 1982 follow a broad foot race of whether in the circumstances the conduct complained of is unconscionable without the necessity of forcing those incumbrances into a Procrustean slam constructed from rough un transformable criteria. Despite this statement the judgement in Taylor Fashions did not rely on unconscionability alone. The court infallible the three traditional elements to be present, albeit adopting a new claimant centred approach to establishing them. Therefore the statements in Cobbe regarding unconscionability atomic number 18 uncontroversial and do not signifi messtly alter its point within the doctrine.The judgement in Cobbe was regarded as a severe curtailment of the doctrine and was believed to pass water greatly narrowed the scope of its operation. It was stock-still image that it had led to the the death of proprietary estoppel This was not cod to the outcome of the case, but receivable to the controversial conclude behind this decision.Lord Scott attempted to rein in the doctrine by focusing on the traditional elements of proprietary estoppel and restricting the doctrine via their operation. He focus on t he assurance or embodyation element, which requires that the claimant must hand been led to believe that he has or he will acquire an lodge in in the defendants vote down. He stated that the take assurance was of a certain interest and this meant that the claimant must specify the interest in the quality he believed he had or would pick up.Cobbe dealt with a case of proprietary estoppel in a commercial scope. Therefore Mr Cobbes was not an hope that he would, if the planning application stick toed, become entitled to a certain interest in land but an forethought of pull ahead negotiations leading, as he hoped and expected, to a formal subjugate .Lord Scott stated that this was not the sort of expectation of a certain interest in land that Oliver J in the Taylors Fashions case or Lord Kingsdown in Ramsden v Dyson had in mind and so the claim failed. This requirement for a specialised assurance narrowed the scope of operation of the doctrine and was inapposite with prev ious salute of Appeal decisions much(prenominal) as Gillett v Holt and Jennings v Rice where a claimant had an expectation of a future interest in land.Lord Walker further restricted the doctrine by stating that the claimant must believe that the assurance on which he or she relied was binding and irrevocable. Therefore the claimant must not only believe that the landowner has do a announce, but overly believe that the promise is licitly binding.He make it clear that circumstance was important. In the municipal or family context, the typical claimant is not a business person and is not receiving legal adviceThe focus is not on intangible legal rights but on the tangible property which he or she expects to get. As the parties involved in Cobbe were persons experienced in the property world, both parties knew that there was no legally binding contr flake, and that either was therefore exonerate to dis slide by the negotiations without legal liabilitythe fact is that he ran a commercial risk, with his eyes openThis lying-in is also unsuitable with Gillett v Holt which explicitly addressed, and rejected, the archetype that the revocability of wills pr compensatets a promise to make a will forming the basis of a proprietary estoppel claim. Surprisingly it was Lord Walker who gave the leading judgement in that case and acknowledged here that It may possibly be that slightly of the interior(prenominal) cases might have been unflinching differently if the temperament of the claimants belief had been an unveil vigorously investigated in cross-examination. Thus casting query on previous court of appeal administration relating to testamentary promises .The think in Cobbe left the doctrine in an uncertain perplex and If taken literally, this reformulation would have curtailed the reach of estoppel, and perhaps that was the point.Thorner v Major gave the House of Lords a chance to address these uncertainties and a further fortune to clarify the doctri ne definitively via the role of unconscionability. From the beginning the Lords do it clear that the decision in Cobbe had not severely curtailed, or even to the highest degree extinguished, the doctrine of proprietary estoppel (a rather apocalyptic examine that has been suggested by some commentators).Thorner dealt with proprietary estoppel in the national context. One cousin had worked unpaid on the others conjure up for nearly 30 years on the understanding that he would inherit the farm on his cousins death. The cousin died intestate and the claim of proprietary estoppel had been rejected by the dally of Appeal. One reason given for this failure was that the extremity of the farm had fluctuated in the preceding years and so the interest the claimant expected to receive was not a sufficiently certain interest as required following Cobbe.The Lords in Thorner made it clear that the reasoning in Cobbes casewas directed to the crotchety facts of that case and that in Cobbe the re was no interrogative about the physical identity of the property. However, there was pith uncertainty as to theproperty interestIn this casethere isno doubt as to what was the subject of the assurance, namely the farm as it existed from conviction to time. Accordingly, the nature of the interest to be received by David was clear it was the farm as it existed on barbs death.They confirmed that the assurances should relate to identified property owned (or, perhaps, about to be owned) by the defendant. and that It would represent a regrettable and substantial emasculation of the skillful principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly specify in every case. Context is vital, whereas a specific certainty may be required in a commercial situation, this will not inevitably be required in a domestic context.The Court of Appeal had also required that the nature of the assurance be clear and unequivocal . This test for clarity of assurance was that required in promissory estoppel, and may have been adopted here due to the conflation of the two forms of estoppel by Lord Scott in Cobbe . The parties in Thorner were taciturn and undemonstrative men and the assurances mainly consisted of diagonal remarks and therefore it was held that these assurances lacked the requisite certainty.The House of Lords loosened this hindrance stating that I would prefer to say that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context . As the relationship between motherfucker and David was familial and personal, and neither of themhad much commercial experiencePeter made what were, in the circumstances, clear and explicit assurances that he would pull his farm to David, and David reasonably relied on, and reasonably acted to his detriment o n the basis of, those assurances, over a long period.The House of Lords had made it abundantly clear once again that everything is dependent on context. In a domestic context such as Thorner an oblique assurance may be clear enough even though a commercial case such as in Cobbe may require a much more specific assurance. Lord Walker also rejected Lord Scotts video of estoppel I have some difficulty with Lord Scotts observationthat proprietary estoppel is a sub-species of promissory estoppel. The House of Lords in Thorner also clarified that the correct approach for landowners intention was an objective test and that it was enough that the pith he conveyed would reasonably have been soundless as intended to be taken hard as an assurance which could be relied uponIt is not necessary that Peter should have known or foreseen the particular act of reliance. The House of Lords allowed the proprietary estoppel claim to succeed even though there was no march that the claimant believed that the assurance was legally binding, therefore also rejecting Lord Walkers restriction in Cobbe.Thorner had kept up(p) a flexible approach to proprietary estoppel devising it clear that everything was hugely dependent on context, re-affirming the holistic approach found in Gillett that in the end the court must look at the matter in the round. Lord Neuberger stated that it appears to me marvelous in the extreme that Lord Scott was intending impliedly to disapprove any aspect of the reasoning or decision of the Court of Appeal in Gilletts case Thorner in effect placed the doctrine back in the position it stood before Cobbe.It was said that the decision in Thorner had brought proprietary estoppel back from the brink. The apocalypsehas been averted and proprietary estoppel can continue to function as an independent source of rights. It can thus perform its vital role as a broad and flexible doctrine. Thorner has clarified some of the uncertainties surrounding the traditional eleme nts of proprietary estoppel that had been raised in Cobbe and followed in the Court of Appeal. It returned the formulation to a flexible and broad definition requiring identifiable property that the assurance must be in the circumstances, clear and unambiguous and that the assurance must reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon.Thorner did not however say anything regarding role of unconscionability, only affirming the uncontroversial position taken by Cobbe, whilst confirming the flexibility of the doctrine. Concentrating on the perceived morality of the parties behaviour can lead to an unacceptable degree of uncertainty of outcome, and hence I welcome the decision in Cobbes caseHowever, it is equally true that focussing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity .Some commentators believe that this was an opportunity missed as Lord Scott may have chosen th e wrong train to ride in Yeomans Row, but it is not clear that he chose the wrong destination Defining unconscionability is a difficult task and commentators have their own competing theories. Dixon believes that an estoppel is made out when a landowner makes a prototype assurance an assurance that the claimant will have some right over the representors landunite with an assurance that the right will ensue even if the formalities necessary to convey that right are not complied withUnconscionability exists when a formality assurance is cloistered after detrimental reliance Balen and Knowles believe that this special ingredient, for so long described as unconscionability, requires the court to ask whether the basis, or condition, on which the claimant incurred her detriment has failed.There is no consensus as to how unconscionability should be be only that it should. It may be that the judiciary have missed an opportunity to clarify the doctrine or it could be that they have no d esire to define unconscionability and thereby limit the application of the doctrine precariousness can be a benefit as well as a burden, and while unconscionability of itself cannot pass on an estoppel, the claim can be denied despite t he presence of an assurance, reliance and detriment by judicious deployment of the unconscionability card.