‘9it5i24, 1951 AM Estoppel-common aw and equkable—overvew - Lexis@PSL., practical quia Lexis®PSL _ pispute Resolution Get access to Lexis®PSL with a seven day FREE trial. { Sign up now | not now Estoppel—common law and equitable—overview The Practice Notes in this subtopic are concemed with pleading an estoppel as a defence (and, on limited occasion, as a basis for a cause of action) but do not include pleading defences of cause of action estoppel or issue estoppel {sometimes known as collateral estoppel or judicial estoppel or estoppel by record) which are dealt with in: The doctrine of res judicata—overview. The doctrine of estoppel The basic concept of an estoppel is that where a person (A) has caused another (B) to act on the basis of a particular stale of affairs, A is prevented from going back on the words or conduct which led B to act on that basis, if certain conditions are satisfied. In such cases A is estopped (le stopped’) from resiling from, or denying, the existence of that particular state of affairs. ‘The following dicta of Sir Anthony Mann in Jones v Lydon, citing in turn Lord Burrows in Tinkler v HMRC, and with particular reference to the representation estoppels, is of assistance: ‘66. [...] The essence of an estoppel is that a party is forced to accept a legal factual position which is not necessarily the actual position. It gives effect to the erroneous belief of the person with the benefit of the estoppel because the other person has either given rise to it (usually by a representation) or has shared it (estoppel by convention where there is a shared assumption) or has himseltiherself gone along with that belief without actually sharing it (estoppel by convention where one side acquiesces in the erroneous belief of the other). Estoppel by convention based on acquiescence fills a gap where a person is responsible for the belief of another without actually creating it in the first place by a representation In Tinkler Lord Burrows described certain principles of estoppel by convention as follows: "51. It may be helpful if| explain in my own words the important ideas that lie behind the first three principles of Benchdollar. Those ideas are as follows. The person raising the estoppel (who | shall refer to as °C’) must know that the person against whom the estoppel is raised (who I shall refer to as "D") shares the common assumption and must be strengthened, or influenced, in its reliance on that common assumption by that knowledge; and D must (objectively) intend, or expect, that that will be the effect on C of its conduct crossing the line so that one can say that D has assumed some element of responsibility for C's reliance on the common assumption.” ‘The emphasis is mine. The acquiescence of the other party is what provides that element of responsibility. [...] 67. So far as the representation versions of estoppel are concerned, itis true that representations can be by word or conduct, but if a representation is to be by conduct then there must be facts which clearly demonstrate that the representation was being made. That will usually mean that there is some context in which the subject matter of the representation is somehow clearly in the background to the conduct in question. It is not sufficient if the conduct would be consistent with the representation if it were made ‘expressly. It must go further and actually contain the representation in an implied way. [... For further guidance on the basics of the doctrine of estoppel, its most common forms (both at common law and in equity), its role in litigation and the limited circumstances in which it can give rise to a cause of action, its relationship with claims for negligent misstatement and its relationship with the doctrine of waiver by estoppel, see Practice Note: Estoppel—what, when and how to plead. hitpsshwodexisnexis.com/ukllexisplicisputeresolation/dacumenti992747/SMED-VSK1-F188-TOEN-00000-00/Eslappel common law_and_equiale... 1/4‘9it5i24, 1951 AM Estoppel-common aw and equkable—overvew - Lexis@PSL., practical quia ithas been suggested that seeking to separate different types’ of estoppel into categories is not always helpful. Thus, in Amalgamated Investment v Texas Commerce, Lord Denning MR said (page (584)): "The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why | have not gone through them all in this judgment. It has ‘evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time ithas been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel ‘cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth, All these can now be seen to merge into one general principle shorn of limitations, When the parties to a transaction proceed on the basis of an underlying assumption—either of fact or of law— whether due to misrepresentation or mistake makes no difference—on which they have conducted the dealings between them—neither of them will be allowed fo go back on that assumption when it would be Unfair or unjust to allow him to do so. if one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. This is not surprising, since at the heart of all pleas of estoppel (except for contractual estoppel, which for some is not a ‘true’ form of estoppel) is the central question of whether it would be unjust for a party to resile from a position previously agreed with, or represented to, another party, However, itis clear that, notwithstanding the various similarities between the different types of estoppel, each has key differences which require separate analysis. As Lord Steyn put itn the India Steamship (page [392]) case "The question was debated whether estoppel by convention and estoppel by acquiescence are but aspects of one overarching principle. | do not underestimate the importance in the continuing development of the law of the search for simplicity. |, also, accept that at a high level of abstraction such an overarching principle could be formulated. But...fo restate the law in terms of an overarching principle might tend to blur the necessarily separate requirements, and distinct terrain of application, of the two kinds of estoppel. ‘Accordingly, for the purposes of this subtopic, we have focused on four main types of estoppel: + estoppel by representation (and convention) + contractual estoppel + promissory estoppel + proprietary estoppel Historically, the first type (estoppel by representation) has been referred to as ‘common law estoppel’, and the latter two (promissory estoppel and proprietary estoppel) as ‘equitable estoppel’. Those terms can be misleading, since ‘estoppel by representation has its own roots in equity (and some commentators consider estoppel by representation to have since morphed into an equitable doctrine), and distinctions between common law and equity are no longer procedurally significant since the fusion of the courts of common law and equity. Nonetheless, an overview of the traditional classifications of the estoppels is presented below. Common law estoppel ‘The most often encountered common law estoppels are that of estoppel by representation and contractual estoppel. ‘See Practice Note: Estoppel by representation and estoppel by convention for guidance on what a common law ‘estoppel by representation (and convention) is, its requirements and practical examples of when such a plea may be relied upon. However, some argue that contractual estoppel is not, on a proper analysis, a true form of estoppel at all, since the force of the proposition that the party is said to be estopped from denying comes from contract, rather than through detrimental reliance/unconscionabilily. For guidance on when a ‘contractual estoppel’ may arise, ils relationship with entire agreement and ‘non-reliance' clauses and with ‘evidential estoppel, as well as examples of when contractual hitpssiwodexisnexis.com/ukllexisplidisputeresolution/dacumenti992747/SMFD-VSK1-F188-TOEN-00000-00/Eslappel common law_and_equitable.... 214‘9it5i24, 1951 AM Estoppel-common aw and equkable—overvew - Lexis@PSL., practical quia estoppel has been successfully argued and its limits (or otherwise) of its continued development, see Practice Note: Contractual estoppel. For a summary of the key decisions on contractual estoppel since the Court of Appeal's decision in Peekay v Australia and New Zealand Banking Group, see Practice Note: Contractual estoppel—the authorities. For guidance on the doctrine of estoppel in the context of construction industry disputes, see Practice Note: Estoppel in construction Equitable estoppel There are usually said to be two main types of equitable estoppel, termed such because they are, in origin, equitable doctrines: + promissory estoppel (sometimes referred to as equitable forbearance)—where A has made to B a clear and unequivocal promise or assurance in relation to their legal relations, which was intended to be acted on accordingly, then, once 8 has taken A at their word and acted on it to their detriment, A cannot afterwards revert to their previous legal relations as if no promise or assurance had been made by them. For further guidance, see Practice Note: Promissory estoppel + proprietary estoppel—this doctrine can be used where the claimant (B) wishes to assert a proprietary right or interest in property on the basis that they have been lead to believe, by a representation or assurance from the owner of the property (A), that they have or can expect a right or interest in that property, and they have relied upon that belief to their detriment in circumstances where it would be unconscionable for the owner of the property subsequently to resile from their representation or assurance. For further guidance, see Practice Note: Proprietary estoppel Use of estoppel in certain specific practice sectors The following Practice Notes provide guidance as to application of the doctrine in certain specific industry and practice areas: + for Construction law practitioners: Estoppel in construction + for Pensions law practitioners: * Estoppel and pensions » Estoppel—the key cases for pension lawyers + for Property law practitioners: ° Estoppel and property law + Mortgages by estoppel + for Family law practitioners: Bars to relief and estoppel in nullity + for Private Client and Wills and Probate law practitioners: Probate actions—Will contracts Pleading an estoppel—precedents We provide a selection of precedents containing estoppel pleading from those contained within various volumes of Atkin’s Court Forms (which will require a Lexis®Library subscription): + Particulars of claim precedents: * Defence not admitting or denying forgery of signature of drawer of cheque and pleading estoppel ACF Vol 6(1) Banking and Bills of Exchange [365] hitpssiwwdexisnexis.com/ukllexispliisputeresolation/dacument{992747/SMFD-VSK1-F188-TOEN-00000-00/Estappel common law_and_equitable... 314‘9it5i24, 1951 AM Estoppel-common aw and equkable—overvew - Lexis@PSL., practical quia » Particulars of claim for interest in property based on proprietary estoppel ACF Vol 18(1) Equitable Remedies [451] » Particulars of claim asserting express oral agreement, estoppel and mutual benefit and burden ACF Vol 17(1) Easements and Profits a Prendre [103] » Reply pleading estoppel by notice of charges ACF Vol 8(1) Carriers [222] + Replies and defences precedents: * Defence: pleas of estoppel ACF Vol 13(3) Court System and Claims Procedure [536] * Defence of estoppel by convention ACF Vol 18(1) Equitable Remedies [454] * Defence of promissory estoppel ACF Vol 12(2) Contract [195] » Defence pleading promissory estoppel ACF Vol 18(1) Equitable Remedies [453] + Reply to defence pleading promissory estoppel ACF Vol 18(1) Equitable Remedies [455] * Defence to claim for ownership of property based on proprietary estoppel ACF Vol 18(1) Equitable Remedies [452] * Defence of estoppel by deed ACF Vol 12(2) Contract [196] * Reply alleging estoppel ACF Vol 6(1) Banking and Bills of Exchange [419] * Defence of estoppel on the ground that the claimant stated in his bankruptey that the defendant was. a secured creditor ACF Vol 8(1) Bills of Sale [94] * Reply: estoppel ACF Vol 23(1) Insurance [214] * Defence: general form—change of position or estoppel ACF Vol 27(2) Money [819] * Defence by warehouseman that he gave delivery on receipt of valid delivery note, alternatively setting up estoppel ACF Vol 39 Trespass to Goods and Conversion [388] Overviews Maintained Found in: Dispute Resolution To view the full document, sign-in or register for a free trial (excludes LexisPSL Practice Compliance, Practice Management and Risk and Compliance). 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