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Analyse critically the decision and evaluate the potential significance, if any, of the judgement below in relation to the jurisdiction of Northern Ireland. Thorner v Major [2009] UKHL 18

Analyse critically the decision and evaluate the potential significance, if any, of the judgement below in relation to the jurisdiction of Northern Ireland. Thorner v Major [2009] UKHL 18

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An essay for the 2011 Undergraduate Awards Competition by WILLIAM MCCLEERY. Originally submitted for Equity and Trusts at University of Ulster, with lecturer Mrs. Alice Diver in the category of Law
An essay for the 2011 Undergraduate Awards Competition by WILLIAM MCCLEERY. Originally submitted for Equity and Trusts at University of Ulster, with lecturer Mrs. Alice Diver in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
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10/27/2013

 
Analyse critically the decision and evaluate the potential significance, if any, of the judgement below in relation to the jurisdiction of Northern Ireland.Thorner v Major [2009] UKHL 18
Throughout this analysis, I will evaluate the decision the House of Lords made inThorner v Major 
1
and whether it has any significance to Northern Ireland. I will firstoutline the facts of the case in order for one to understand why the decision of the trial judge Mr John Randall Q.C. was subsequently appealed, and his judgement overruled,only for the House of Lords to restore the deputy judges’ decision. Furthermore, I willanalyse the judgements given by their Lordships and describe the two issues that weredealt with by the House, one being proprietary estoppel and the other beingconstructive trusts, and, along with academic commentary, I will conclude as towhether it was the correct decision, followed by the relevance to Northern Ireland.The main facts in this case are, Mr Peter Thorner was a farmer from Somerset, who in1997 made a will which left pecuniary legacies a total of £225,000, and the residuaryestate to his nephew, Mr David Thorner, including ‘Steart’ Farm. Peter unfortunatelyfell out with one of the legatees and in view of this, revoked his will. He never made anew will, and on 13
th
November 2005 he died intestate. Under intestacy rules hisestate was made available to his sisters, Ena Major, Winifred Curtis and LesleyHeusen. However, David brought an action against the sisters, who were the personalrepresentatives of Peter, on the ground of proprietary estoppel. David’s case involvedan assurance that Peter had given him that he would inherit Steart Farm on his death,and David seemingly relied on this promise which is illustrated by working 18 hours per day, 7 days per week for 28 years on the farm with no remuneration, hencesuffering a detriment. At the original trial, the deputy judge held in favour of David,explaining that if he allowed the intestacy rules to stand, it would be “grosslyunconscionable”
2
. On allowing the appeal, Lloyd LJ held, “It seems to me that it isdifficult to lay down a rule other than that which already exists [in Gillett v Holt
3
],namely that the representation must be clear and unequivocal, and that it must beintended to be relied on, or at least reasonably taken to be so intended”
4
. A further 
1
Thorner v Major [2009] UKHL 18
2
David Thorner v Winifred Curtis, Ena Joyce Major, Lesley Heusen [2007] EWHC 2422 (Ch) at para134
3
Gillett v Holt [2001] Ch. 210
4
Thorner v Major [2008] EWCA Civ 732 at para 71
1
 
appeal was allowed before the House of Lords which reversed the decision of theCourt of Appeal, with Lord Scott stating that “the representation or assurance wouldneed to have been sufficiently clear and unequivocal; the reliance by the claimantwould need to have been reasonable in all the circumstances; and the detriment wouldneed to have been sufficiently substantial to justify the intervention of equity. On thefactual findings made by the judge each of the three elements had been present in the period 1990 until Peter's death in 2005”
5
.Their Lordships highlighted some different legal principles in order to allow theappeal. The main principle involved in Thorner v Major 
6
 is that of proprietaryestoppel. The doctrine of proprietary estoppel “is applicable where one partyknowingly encourages another to act, or acquiesces in the other’s actions, to hisdetriment in the belief that he has or will have some property right against the first party”
7
. In Taylor Fashions v Liverpool Victoria
8
Oliver J stated the following about proprietary estoppel; “If A, under an expectation created or encouraged by B that Ashall have a certain interest in land thereafter, on the faith of such expectation andwith the knowledge of B and without objection from him, acts to his detriment inconnection with such land, a Court of Equity will compel B to give effect to suchexpectation”. Oliver J went on the say that “[proprietary estoppel] requires a much broader approach which is directed to ascertaining whether, in particular individualcircumstances, it would be unconscionable for a party to be permitted to deny thatwhich, knowingly or unknowingly, he has allowed or encouraged another to assumeto his detriment rather than to inquiring whether the circumstances can be fittedwithin the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour”
9
. However, as this is seen as an issue bymany commentators, the House of Lords profoundly disagreed that it is an essential part of proprietary estoppel, with Lord Scott stating, “proprietary estoppel requires…clarity as to what it is that the object of the estoppel is to be estopped from denying or asserting, and clarity as to the interest in the property in question that that denial
5
Thorner v Major [2009] UKHL 18 at para 15
6
Ibid
7
Jill Martin, “Modern Equity” (18th ed Sweet and Maxwell 2009) pg 929
8
Taylor Fashions Ltd v Liverpool Victoria Trustee Co Ltd [1982] 1 QB 133
9
Ibid per Oliver J
2
 
would otherwise defeat
. Hoffmann LJ memorably said in Walton v Walton
that“equitable estoppel...does not look forward into the future, [it] looks backwards fromthe moment when the promise falls due to be performed and asks whether…it would be unconscionable for the promise not to be kept”. Accordingly, the notion that,where the promise relates to “the farm”, which is a readily recognisable entity at anyone time, there is no reason why it should not apply to that entity as it exists at thedate “the promise falls due to be performed”, i.e. as at Peter's death.As I have suggested, in order for a claim in proprietary estoppel to succeed, arepresentation or assurance must be made to the claimant, reliance must be made on it by the claimant and he must suffer a detriment for the consequences of his reasonablereliance. A detriment, as held by Robert Walker LJ is, “not a narrow or technicalconcept. The detriment need not consist of the expenditure of money or othequantifiable financial detriment; so long as it is something substantial…theoverwhelming weight of authority shows that detriment is required”
. The Court of Appeal
, although having been reversed by the House of Lords in this case, correctlystated that whether Peter had intended David to inherit the farm was irrelevant.Scarman LJ in Crabb v Arun District Council
stated “[he] would analyse theminimum equity to do justice to the plaintiff”; in other words the courts will look tothe minimum to allow for fairness.In the case before me, in applying the law to the facts of the case, it seems evident thatPeter made a representation to David in 1990 by handing him an insurance policyBonus Notice and stating the words “that’s for my death duties”.
 
Although it mayseem that it is of minor significance, as Mr John Randall Q.C. stated at the originaltrial, “he came to the view that, by what he said and did in 1990, Peter was indicatingto David, in his own oblique way, that David would inherit the farm on his death. Herelies on it having been ‘the first direct reference made by Peter to David with regardto matters concerning his estate and passing’, and on Peter ‘as a man of few words,who generally maintained his privacy about his personal financial affairs…, and who
10
Yeoman’s Row Management Ltd v Cobbe [2008] UKHL 55 at para 28
11
Walton v Walton (unreported, 14th April 1994)
12
Gillett v Holt [2001] Ch. 210
13
Thorner v Major [2008] EWCA Civ 732
14
Crabb v Arun District Council [1976] Ch. 179
3

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