© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Estoppels
GENERAL
Normative justification for estoppels
- It would be unconscionable for the person to deny what they have represented or agreed
"[33] In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] 578, 616, estoppels bind individuals on the ground that it would unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into "the public law of planning control, which binds everyone." (See also Dyson J in R v Leicester City Council. ex p. Powergen UK Ltd [2000] JPL 629, 637.)" (R (oao Reprotech (Pebsham) Limited v. East Sussex CC [2002] UKHL 8, Lord Hoffmann)
Public authorities and estoppel
- Public authorities assert rights in the interest of the public, rather than for their own private purposes
"[6] I would also wish expressly to agree that where public authorities are fulfilling statutory duties or exercising statutory discretions, the public interest in their activities and the effect on members of the public who are not parties to the particular process which the authority is conducting requires the law to differentiate clearly between such activities and those in which interests only of those directly involved must be considered. I therefore respectfully agree with Lord Hoffmann that the time has come for public law in this area to stand upon its own two feet. If it does so, I believe greater clarity will result than if it is treated as standing upon some less discrete base." (R (oao Reprotech (Pebsham) Limited v. East Sussex CC [2002] UKHL 8, Lord Mackay)
- Estoppels bind the person whose conscious is affected, but estoppel against a public authority would bind everyone
"[33] In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] 578, 616, estoppels bind individuals on the ground that it would unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into "the public law of planning control, which binds everyone." (See also Dyson J in R v Leicester City Council. ex p. Powergen UK Ltd [2000] JPL 629, 637.)" (R (oao Reprotech (Pebsham) Limited v. East Sussex CC [2002] UKHL 8, Lord Hoffmann - query whether there are situations in which the public body is the 'agent' for 'everyone')
- Remedies against public authorities have to take into account the interests of the general public
"[34] There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power: see R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual's right to a home is accorded a high degree of protection (see Coughlan's case at pp 254-255) while ordinary property rights are in general far more limited by considerations of public interest: see Alconbury." (R (oao Reprotech (Pebsham) Limited v. East Sussex CC [2002] UKHL 8, Lord Hoffmann)
Groups of persons (estoppels that would affect)
- Pension trusts cannot be altered by estoppel insofar as that would bind future beneficiaries
"[50] There are a number of difficulties about applying this principle to pension schemes so as to create estoppels binding on members of the scheme, the trustees and the sponsoring company alike. They were outlined by Morritt V-C in Redrow plc v Pedley [2002] Pens LR 339, para 60 and following.
i) The pension scheme embodies not only the terms of a contract between individual members and the trustees but also a trust applicable to the fund comprising the contributions of members and surpluses derived from the past in which present and future members may be interested. Such trusts cannot be altered by estoppel because there can be no such estoppel binding future members..." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
- Estoppel re pension rules requires proof each and every member has by his course of dealings adopted a particular interpretation/accepted a given state of facts
"[50] There are a number of difficulties about applying this principle to pension schemes so as to create estoppels binding on members of the scheme, the trustees and the sponsoring company alike. They were outlined by Morritt V-C in Redrow plc v Pedley [2002] Pens LR 339, para 60 and following.
...
ii) It is necessary to show that the principle is applicable to all existing members. It is not necessary for that purpose to call evidence relating to each and every member's intention. But that will not absolve a claimant from adducing evidence to show that the principle must be applicable to the general body of members as such.
iii) What must be proved is that each and every member has by his "course of dealing put a particular interpretation on the terms of" the Rules or "acted upon the agreed assumption that a given state of facts is to be accepted between them as true". This involves more than merely passive acceptance. The administration of a pension scheme on a particular assumption as to the yardstick by which contributions or benefits are to be calculated may well give rise to a relevant assumption on the part of the trustees. It requires clear evidence of intention or positive conduct to bind the general body of members to such an assumption. Receipt of the benefit or payment of the contribution, without more, is unlikely to be enough." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
EFFECT OF ESTOPPEL
- A means of establishing a material fact other than by evidence, such that evidence relating to that fact is irrelevant
"[13]...It is true that estoppel is sometimes called a rule of evidence, but this is not the case. It is a rule of substantive law, by which the facts which a party is estopped from proving, which would otherwise be material to the issue of liability, are assumed to be otherwise. Evidence to the contrary is inadmissible not on account of some technical exclusionary rule like hearsay, but because the substantive law makes it irrelevant. The effect of section C10 is that if no statutory statement is furnished, the grounds which it could have contained are irrelevant to the question of whether the employee was wrongfully dismissed. Section 9(1) has no application to such a rule." (Berridge v. Benjies Business Centre [1996] UKPC 38, Lord Hoffmann)
- A means of establishing the legal effect of an agreement otherwise than by reference to ordinary principles of interpretation (estoppel by convention)
Parties acted on the basis that a guarantee between Parent + Bank covered loans from Bank Subsidiary to Parent Subsidiary
"[31]...It should be noted that, despite that passage referring only to a common assumption as to the facts, the doctrine was being applied in that case to a common assumption as to the law ie as to the legal effect of the guarantee." (HMRC v. Tinkler [2021] UKSC 39)
"Nevertheless, a way of escape was left open by Viscount Dilhorne in that very case when he said, at p. 611D - E: "… subsequent conduct by one party may give rise to an estoppel."
So here we have available to us - in point of practice if not in law - evidence of subsequent conduct to come to our aid. It is available - not so as to construe the contract - but to see how they themselves acted on it. Under the guise of estoppel we can prevent either party from going back on the interpretation they themselves gave to it." (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 120, Lord Denning (CoA))
"Then in their reply the bank would have pleaded that, by reason of an estoppel arising from the matters discussed above, the plaintiffs were precluded from questioning the interpretation of the guarantee which both parties had, for the purpose of the transactions between them, assumed to be true." (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 131, Brandon LJ (CoA))
- A means of replacing the original terms of a contract with the conventional basis on which they conducted their affairs (estoppel by convention)
"So I come to this conclusion: When the parties to a contract are both under a common mistake as to the meaning or effect of it - and thereafter embark on a course of dealing on the footing of that mistake - thereby replacing the original terms of the contract by a conventional basis on which they both conduct their affairs, then the original contract is replaced by the conventional basis. The parties are bound by the conventional basis. Either party can sue or be sued upon it just as if it had been expressly agreed between them." (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 120, Lord Denning (CoA))
- A substantive limit on the extent to which a person can assert a proprietary right (proprietary estoppel)
xx
- A substantive limit on a person's ability to enforce a legal right (promissory estoppel)
xx
INTERACTION OF STATUTE AND ESTOPPEL
- Generally an estoppel will not be upheld where it conflicts with statute
"[51] To these difficulties may be added the following:
...
ii) Estoppels against (or in favour of) individual members which relate to retirement ages may, if upheld in relation to some but not all members, result in unequal treatment of some members as compared with others. This may, potentially, put the trustees in conflict with the equal treatment rule enshrined in section 62 of the Pensions Act 1995. In general the court will not uphold an estoppel in conflict with statute or public policy." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
- Estoppel cannot confer a jurisdiction on the Court/Tribunal that it does not have under the statute
"To treat the tenant here as estopped from denying that the tenancy is unfurnished when it is in fact unfurnished is to confer on the courts by the act of one of the parties a jurisdiction (namely, an untrammelled power to make orders for possession of premises in fact unfurnished) which Parliament has said that the court should not have…Just as in general parties are not competent to contract out of the protection of the Acts… where the true facts attract that protection, so here the tenant cannot, in my view, be estopped from proving the true facts, where those facts attract that protection." (Welch v. Nagy [1951] QB 455 at 464, Asquith LJ)
- If an express contract to achieve the relevant effect would not be upheld, nor can an estoppel be effective
"[19]...In Keen v Holland and Welch v Nagy the parties had sought by agreement to oust the provisions of the relevant statutes. Plainly that was something they could not do and the court held that it could no more readily be achieved by seeking to rely on estoppel. There is therefore strong reason to suppose that the underlying thread of reasoning in this learning very much turns on the purpose and policy of the statute in question..." (Newport CC v. Charles [2008] EWCA Civ 1541, Laws, Longmore, Richards LJJ)
"Once there is in fact an actual tenancy to which the Act applies, the protection of the Act follows and we do not see how, consistently with Johnson v Moreton 1980 A.C. 37, the parties can effectively oust the protective provisions of the Act by agreeing that they shall be treated as inapplicable. If an express agreement to this effect would be avoided, as it plainly would, then it seems to us to follow that the statutory inability to contract out cannot be avoided by appealing to an estoppel. The terms of section 2(1) are mandatory once the factual situation therein described exists, as it does here, and it cannot, as we think, be overridden by an estoppel even assuming that otherwise the conditions for an estoppel exist: see, for instance, the somewhat similar though not wholly analogous position under the Rent Acts: Welch v. Nagy [1951] KB 455. We agree with the judge that having regard to the purpose of the Act of 1948, it cannot be said to be unconscionable for the tenant who is protected by it to rely upon the protection the statute specifically confers upon him. Once the protection attaches, the jurisdiction to grant possession is exercisable only subject to the statutory provisions and it is a little difficult to see how the parties can, by estoppel, confer on the court a jurisdiction which they could not confer by express agreement." (Keen v. Holland [1984] 1 WLR 251 at 261D, Oliver LJ)
- Or: If the purpose of the statute would be frustrated by the unilateral act of one party, court can vindicate the statute by holding that the relevant act is negated by estoppel
"[21]...It is clear that parties may not contract out of a statute whose application is compulsory, but if a party by his unilateral act would frustrate the operation of the statute, I do not see why the court should not vindicate the statute by holding, if the facts justify it, that the relevant act is negated by the operation of an estoppel. I do not consider that would give rise to any unacceptable want of clarity. In those circumstances I would uphold the judge on the application of the estoppel found by him unless we are prevented from doing so by the nature of the estoppel in question." (Newport CC v. Charles [2008] EWCA Civ 1541, Laws, Longmore, Richards LJJ - albeit, CoA went on to hold that estoppel could not found a cause of action for possession)
- Policy of statutory time limit not frustrated by estoppel arising as a result of dishonest conduct preventing public authority being aware time limit commenced
"[21] The appellant's actions in my judgment, if they prevent the local authority from seeking an order for possession, would wholly frustrate this policy. Their effect is that the appellant can never be evicted from the property which is larger than he needs and might be occupied by a family who indeed need it, never at least unless another ground under Schedule 2 were adventitiously to arise. The notion that the time limits set an overriding policy aim which on the facts of this case the local authority's claim for possession would frustrate is entirely unreal, yet that must be the burden of Mr Barnes' submission. The statutory policy is in fact as I see it frustrated and flagrantly so if Mr Barnes is right, and, because of the appellant's dishonesty, the respondent cannot rely on ground 16..." (Newport CC v. Charles [2008] EWCA Civ 1541, Laws, Longmore, Richards LJJ)
Statutory jurisdiction
- Estoppel cannot extend statutory jurisdiction
I need not consider whether this amounted to a consent to widening the reference to the tribunal, because, in my judgment, it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction. If the High Court, having general jurisdiction, proceeds in an unauthorised manner by consent there may well be estoppel. And an arbitrator, or other tribunal deriving its jurisdiction from the consent of parties, may well have his jurisdiction extended by consent of parties. But there is no analogy between such cases and the present case. The tribunal in the present case had no power to state a case except with regard to some matter arising out of the exercise of its limited statutory jurisdiction, and this stated case does not deal with any such matter. I am, therefore, of opinion that the stated case was not properly before the Court of Appeal and is not properly before your Lordships. Accordingly this House ought to refuse to answer the question set out in the case stated." (Essex CC v. Essex Incorporated Congregational Church Union [1963] AC 808 at 821)
- "Procedural only" requirements can give rise to estoppel (but requirement to serve counter-notice within 2 months not procedural only)
Had the question been procedural only no difficulty would have arisen, for the parties had consented to the course taken before the Lands Tribunal, but, in my opinion, the jurisdiction of the tribunal is circumscribed by the terms of the Act so that it has no power in this matter to do other than deal with objections put forward within the statutory time limit of two months." (Essex CC v. Essex Incorporated Congregational Church Union [1963] AC 808 at 828)
- Distinction between statute giving a defence to proceedings (e.g. limitation - estoppel can apply) and excluding jurisdiction
"However it is important to observe that section 34 does not expressly apply the doctrine of merger in judgment to foreign judgments. It simply provides that "No proceedings may be brought" on a cause of action in respect of which a foreign judgment of the relevant kind has been given. Founding themselves upon these words, the plaintiffs submitted that the intention of Parliament was to do no more than create a defence, which was capable of being defeated by estoppel or waiver. A similar view was expressed in a note on the present case in (1992) 108 L.Q.R. 393 by Mr. Lawrence Collins, the general editor of Dicey & Morris, The Conflict of Laws.
Taking the section in isolation, the words of the statute are certainly amenable to this approach. Indeed, similar provisions in statutes of limitation (for example, sections 2 and 5 of the Limitation Act 1980 - "An action shall not be brought after …") have been held to be capable of waiver. Furthermore, in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850, which was concerned with section 29(3) of the Landlord and Tenant Act 1954 in which it was provided that "No application under section 24(1) of this Act shall be entertained" unless made within a certain period, not only did this House hold that the words in question did not have the effect of ousting the jurisdiction of the court, but Lord Reid, at p. 860B, relied upon the "well established principle that any provision ousting the jurisdiction of the court must be construed strictly." On this approach, the words of section 34 can appropriately be read as providing no more than a bar against proceedings by the plaintiff rather than excluding the jurisdiction of the court.
I then ask myself: does the fact that the function of section 34 is to overcome the difficulty created by the old rule that the doctrine of merger in judgment does not apply to foreign judgments require any different conclusion? For my part, I do not think so. To achieve the requisite result of giving effect to the policy underlying the principle to res judicata in the circumstances specified in section 34, there was no need for Parliament to invoke the highly technical doctrine of merger in judgment; the same practical result could be achieved by the simple words chosen in the section. And if the effect is that the statutory bar created by the section may be the subject of waiver or estoppel or contrary agreement, the result is only that in a case such as this the general rule of public policy enshrined in the principle of res judicata is subject to a particular exception which enables practical justice to be done in rare cases, without any harm being done to the rule of public policy.
For these reasons, I am of the opinion that it is open to the plaintiffs to raise the plea of waiver or estoppel in the present case." (Republic of India v. India Steamship Co Ltd [1993] AC 410 at 423 - 424)
Examples
- 12 month time limit for serving notice after previous tenant death: estoppel that previous tenant not dead
"[4] In this case paragraph (a) of ground 16 was satisfied but no section 83 notice was given, nor were the possession proceedings commenced within 12 months of the death...
...
[13] Mr Barnes' submission that the matters in question did not amount to a representation capable of giving rise to an estoppel was put forward with great economy and elegance, but for my part I would reject it. The appellant continued, as I have said, to live in the property, paying rent in his mother's name for all the world as if she were still alive. That would inevitably lead any person or party having to do with the matter to assume that the pretended position was in fact the truth. I am driven to say that in my view the district judge's findings based on the express evidence of the appellant himself disclose a pattern of deliberate dishonesty persisted in to the detriment of the local authority over a considerable period, a pattern of behaviour which amply justifies as a matter of fact the circuit judge's conclusion that an estoppel arose." (Newport CC v. Charles [2008] EWCA Civ 1541, Laws, Longmore, Richards LJJ)
SHARED ASSUMPTION
- Assumption may be as to the legal effect
"[31]...It should be noted that, despite that passage referring only to a common assumption as to the facts, the doctrine was being applied in that case to a common assumption as to the law ie as to the legal effect of the guarantee." (HMRC v. Tinkler [2021] UKSC 39)
- Persons who ceased to be involved before the events said to have created erroneous assumption cannot have shared it
"[51] To these difficulties may be added the following:
i) In the present case the estoppel is said to have bound former employees who had left the Scheme before any of the events which are said to have created the erroneous assumption. Such a person cannot realistically be said to have shared the assumption..." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
Shared
- Must be the actual assumption held (rather than some modification of it)
"[51] To these difficulties may be added the following:
...
iii) Since none of the documents relied on informed male members about their entitlement to pension accrued during a Barber window period of pensionable service, there is a possible conflict between the assumption relied on as constituting the convention, and European law; unless the assumption is modified to take account of the effects of the Barber judgment. But if it is so modified, how can it be said that the members (or, for that matter, the trustees) had that modified assumption?
iv) If the shared assumption is anything other than that which was expressly stated to members of the scheme (i.e. any retrospective element is stripped out of it), it is unrealistic to suggest that the members shared the altered assumption, unless they are to be endowed with unusual knowledge of pensions law and/or the detailed contents of the rules. Ex hypothesi they do not have the latter; since if they did there would be no estoppel at all." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
- Assumption not demonstrated by conduct which is consistent with holding and not holding the assumption
"[54] The female members who carried on working after the age of 60 may or may not have done so on the assumption that they had to work until the age of 65 in order to become entitled to a full pension. There is no evidence one way or another. It must not be forgotten that under the rules of the Scheme a member who reaches the Normal Retirement Date may elect to postpone receipt of a pension while he or she continues in service. That may have happened in these cases. To the extent that such female members continued to make contributions to the scheme (if they did, as to which there is again no evidence) then, as Morritt V-C said, that is not enough." (Trustee Solutions Limited v. Dubery [2006] EWHC 1426 (Ch), Lewison J)
Acquiescence
- Estoppel by convention might apply where the defendant acquiesces in the other party's assumption
"[148] There are authorities that suggest that an estoppel by convention may arise where an assumption is shared by one party and acquiesced in by the other – see Republic of India v India Steamship Company Co Ltd ("The Indian Endurance and the Indian Grace") [1998] AC 878 at 913-914. However, that is not how the present case as to estoppel by convention has been put in the present case." (Ashworth v. Philbin [2025] EWHC 494 (Ch), HHJ Cawson KC)
- Failure to protest can be sufficient only where failure to protest implies a manifestation of assent
"[47] The case on estoppel rested heavily on Mr Jones' failure to protest. A failure to react or protest can give rise to an estoppel but only where that failure implies a manifestation of assent: The August Leonhardt [1985] 2 Lloyd's Rep 28 at 34, cited with approval in Tinkler at [36]. Mr Jones' actions as revealed by the email traffic are consistent with his assertion of his interest in the property; and inconsistent with his assent to what Mr Proctor was proposing." (McCarthy v. Jones [2023] EWCA Civ 589, Lewison, Baker, Laing LJJ)
- If person asserts their rights, not bound to continue to assert rights every time they are infringed
"[48] I consider that there is considerable force in that answer. If someone asserts their rights, I do not consider that they are bound to continue to assert those rights every time they are infringed; still less where on the face of it Mr Jones was presented by Mr Proctor with what appeared to be a fait accompli." (McCarthy v. Jones [2023] EWCA Civ 589, Lewison, Baker, Laing LJJ)
RESPONSIBILITY
- Not contradicting a self-induced, mistaken belief because you share the mistaken belief
Parties acted on the basis that a guarantee between Parent + Bank covered loans from Bank Subsidiary to Parent Subsidiary
"The evidence is overwhelming to show that, from the very moment when the $3,250,000 was advanced to [the Subsidiary], all the parties thought that it was secured - not only by the mortgage of the Harrison Building - but also by the guarantee of the [the Parent]. In pursuance of that belief the bank embarked on a course of conduct - rearranging their portfolio of investments - releasing properties and moneys to the plaintiffs - which they would not have done except on the basis that the guarantee of the [Parent] covered the loan to [the Subsidiary]...
Now assuming that this belief was mistaken (and the judge thought it was but I do not) a question arises about the law of estoppel. The mistake by the bank was self-induced. They had overlooked the wording of the guarantee. They thought it applied to moneys owing to [the Bank's Subsidiary] as well as moneys owing to the bank. This was the bank's own mistake. It was not induced by the [Parent]. Nor did the [Parent] do anything to contribute to it, or to reinforce it - except this: that they did not contradict it. They did not tell the bank that it was mistaken. But then, it is said, how could the [Parent] be expected to contradict it, when they were under the same mistake? So runs the argument on behalf of the [Parent]. The bank made a mistake of its own - everything it did followed from its own mistake. So it should put up with the consequences.
The judge put this telling point at p. 108B - C: Suppose that the [Parent] knew that the bank were under a mistake - and did not tell the bank - but took advantage of it for their own benefit. Could the [Parent] then take advantage of it? Clearly not. Then what difference does it make that the [Parent] were under the same mistake?" (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 120, Lord Denning (CoA))
COURSE OF DEALINGS
Relevance of a course of dealings
- If a course of dealings can be used to introduce terms to a contract, it must able to add to or very term or interpret
Although subsequent conduct cannot be used for the purpose of interpreting a contract retrospectively, yet it is often convincing evidence of a course of dealing after it. There are many cases to show that a course of dealing may give rise to legal obligations. It may be used to complete a contract which would otherwise be incomplete;... It may be used so as to introduce terms and conditions into a contract which would not otherwise be there... If it can be used to introduce terms which were not already there, it must also be available to add to, or vary, terms which are there already, or to interpret them. If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it - on the faith of which each of them - to the knowledge of the other - acts and conducts their mutual affairs - they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not - or whether they were mistaken or not - or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it." (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 121, Lord Denning (CoA))
- Parties are bound by the "conventional basis" on which they conduct their dealings
"To use the phrase of Latham C.J. and Dixon J. in the Australian High Court in Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937) 59 C.L.R. 641, 657, 677, the parties by their course of dealing adopted a "conventional basis" for the governance of the relations between them, and are bound by it. I care not whether this is put as an agreed variation of the contract or as a species of estoppel. They are bound by the "conventional basis" on which they conducted their affairs. The reason is because it would be altogether unjust to allow either party to insist on the strict interpretation of the original terms of the contract - when it would be inequitable to do so, having regard to dealings which have taken place between the parties. That is the principle upon which we acted in Crabb v. Arum District Council [1976] Ch. 179, 187." (Amalgamated Investment & Property Co Ltd [1982] QB 84 at 121, Lord Denning (CoA))
RELIANCE
- Must be reliance on the common assumption (i.e. the fact that the other party shared it) rather than one's own view
"[75] Second, even if the assumption is re-characterised as an assumption that the estate was to be managed as a single unit and not block by block, estoppel by convention cannot succeed because of the evidence of Mr Hodgkins, who was the director of the respondent at the material time, which the FTT accepted. He said that he did not rely upon any common assumption communicated to him by the appellants. He said (I quote from the transcript, set out in the grounds of appeal):
"... it was just never an issue. We never talked about it because we just thought it was the right thing to do. I didn't raise the subject with anyone about how the estate should be managed. You know, it's just how it was. It had always been managed that way. ... it never entered anyone's head to discuss how the estate should be managed. It just carried on as before and before I was involved."
[76] Mr Walsh for the respondent argued that the FTT's finding of reliance was correct, but did not say why this evidence did not make it clear that there was no reliance by the respondent on anything communicated by the appellants." (G&A Gorrara Ltd v. Kenilworth Court Block E RTM Co Ltd [2024] UKUT 81 (LC), Judge Cooke)
Proof of reliance
- May be possible to infer reliance in the absence of direct evidence in a strong case
"[49]...Likewise, Mr McCarthy did not say that he relied on anything said or done by Mr Jones. Mr Sims thus could not point to any direct evidence of reliance. It is no doubt possible, on strong facts, to infer reliance even in the absence of direct evidence. But in this case the judge made two findings of fact which point against reliance..." (McCarthy v. Jones [2023] EWCA Civ 589, Lewison, Baker, Laing LJJ)
INTENTION AS TO RELIANCE
- Must be intention that person alleging estoppel was to rely on communicated assumption
"[69] As we can see from the summary of the principles seen in Tinkler, estoppel by convention is a technical doctrine. It is useful in the contexts in which it was developed, namely commercial disputes where parties have adopted a conventional reading of, for example, a lease or a contract. Its requirements are demanding; the mere sharing of a common assumption is not enough, there has to be communication and there has to be an intention that the person alleging the estoppel was to rely upon the communicated assumption." (G&A Gorrara Ltd v. Kenilworth Court Block E RTM Co Ltd [2024] UKUT 81 (LC), Judge Cooke)