THE LAW OF WAIVER, VARIATION, AND

ESTOPPEL
THE LAW OF WAIVER, VARIATION, AND
ESTOPPEL
SEAN WILKEN QC
BA (Oxon); Dip Law; Barrister of the Middle Temple
KARIM GHALY
BA (Oxon); Barrister of the Inner Temple
 Great Clarendon Street, Oxford ox2 6DP
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 FOREWORD TO THE FIRST EDITION
One of the greatest strengths of the common law lies in its versatility, its responsiveness to new
problems. This permits a freshness of approach, an ability to tackle a novelty without the need to
force it into a codified doctrinal mould. When the responses to individual needs have been numerous
enough it may be possible to detect a pattern, from which there can be deduced a general principle
capable of direct application in subsequent cases.
This oft-celebrated virtue of the common law is, however, fallible in two respects. First, where an
attempt to generalise imposes on the instances a unity which does not exist, representing them as
examples of an underlying principle which they do not truly represent. Second, at the other extreme,
where a common thread which really does link the individual examples goes unrecognised, perhaps
because the instances are too widely scattered to fit into any but the widest perspective, or perhaps
because the adversarial system of law-making cannot succeed unless all the necessary materials are
before the court.
These strengths and weaknesses are a particular feature of the area (or, it may be, the areas) of law
discussed in the present work. Somewhere behind all the doctrines variously identified as estoppel,
waiver, and so on lies a human instinct, implicit in all developed legal systems, which finds it
distasteful that the law should enable someone to have it both ways, to blow hot and cold, to change a
settled course of conduct, or an expressed intention, to the unfair detriment of another. This concept is
universal, but it cannot be given full rein without creating more problems than it solves. The question
is to map the boundaries, and the instances have been so widely dispersed, the examples from one
field so inadequately deployed in another, the language of the judgments so various, that the
translation of the instinct into accurate rules of law has yet to be achieved.
This is why the topics discussed in this book are so hard to manage. All those who have handled them
in practice will know that doctrines such as estoppel can be powerful and yet dangerous weapons. The
challenge is to set the boundaries for their proper use, and this task requires a disciplined study of
materials drawn from a wide range of sources.
The fruits of just such a study are evident in this book. It does not attempt the impossible in the shape
of a fully worked-out theory, capable of reconciling all the reported cases. What it does achieve is a
methodical survey of the law—and particularly of commercial law, where the doctrines are of special
practical importance—from which practitioners of all kinds in many different fields may find
instance and commentary ready at hand for the tasks before them.
The book will be a boon, and I am glad to commend it.
M. I. MUSTILL
 PREFACE
This is the Third Edition of this book. In writing it I have had the considerable and essential
assistance of Karim Ghaly who is primarily responsible for Chapters 9, 11, 12, 14, 17, 19, and 22 and
sets out his own thanks below.
The transition to the Third Edition was always going to be a difficult task—much of that difficulty
being self-inflicted as a result of the almost exactly 10-year gap between the Second Edition and this.
The result has been a complete rethink and substantial rewrite of much of the book.
I am therefore very grateful to my Chambers in allowing me the time to carry out that task and to the
staff at Oxford University Press for their assistance.
In carrying out the research, I have also had the invaluable assistance of Rebecca Drake and Rachael
O’Hagan from my Chambers.
As usual, however, all errors are my own.
As before, the line is drawn in the shifting legal sands as at 28 July 2011.
SW
16 August 2011
London
As a new addition to the spine of this book, I owe a substantial debt to Sean for the text I have
inherited and for his help in making sense of the developments in this field over the past decade.
I am grateful to Oxford University Press for their assistance during the writing process and to
Chambers for allowing me the time to work on my sections of this edition (in particular, our clerks,
David Barnes and Owen Lawrence, for not holding me to my original time estimate).
In carrying out the research, I too have had the invaluable assistance of my colleagues, Rachael
O’Hagan and Rebecca Drake. All errors are, however, my own.
KG
28 July 2011
London
 CONTENTS—SUMMARY
Tables of Cases
Tables of Legislation
1. Introduction
2. Variation
3. Waiver (I)—Terminology
4. Waiver (II)—Types of Waiver and Their Elements
5. Waiver (III)—Complexities
6. Election, Affirmation, and Acquiescence
7. Estoppels—A General Introduction
8. Equitable Forbearance
9. Estoppel by Representation
10. Estoppel by Convention
11. Proprietary Estoppel
12. Estoppel by Deed
13. The Anomalies—The Panchaud Frères ‘Doctrine’ and Contractual ‘Estoppel’
14. Procedural Doctrines—Res Judicata, Issue Estoppel, and Abuse of Process
15. Commercial Law
16. Agency
17. Banking Law
18. Company Law
19. Construction Law
20. Insurance Law
21. International Trade, Sale of Goods, and Shipping
22. Landlord and Tenant
Bibliography
Index
 CONTENTS
Tables of Cases
Tables of Legislation
1. Introduction
A. Complete Doctrines?
(1) Links to other doctrines?
(2) A unified theory?
(3) A series of interlocking doctrines?
B. The Scheme of the Text
2. Variation
A. Introduction
B. Terminological versus Actual Distinctions
C. Requirements for a Variation
(1) A valid and subsisting contract
(2) Consensus as to the obligations which are altered
(3) Action to benefit or detriment
D. Difficulties Associated with the Doctrine
(1) The effect of a variation
(2) The effect of a unilateral variation
(3) The moderation of commercial difficulties of variation
3. Waiver (I)—Terminology
A. Historic Difficulties in Defining the Term
B. Definition
(1) The process of exclusion
(2) The process of inclusion
C. Provisos to a Definition
(1) Historical origins
(2) Current usage
4. Waiver (II)—Types of Waiver and Their Elements
A. Waiver by Election
(1) Elements of waiver by election
(2) Examples of waiver by election
B. Pure Waiver
C. Total Waiver
D. Unilateral Waiver
E. Equitable Forbearance
F. Elements Common to All Forms of Waiver
G. Practical Effect
5. Waiver (III)—Complexities
A. The Effect of Waiver
B. Is Waiver Case Specific?
C. The Evidence Required to Support a Waiver
D. Waiver by X’s Agent
E. Effect on Third Party Rights
(1) Title
(2) Other rights
6. Election, Affirmation, and Acquiescence
A. Introduction
B. Election
(1) Elements of the doctrine
(2) Limits of the doctrine
C. Acquiescence
7. Estoppels—A General Introduction
A. Introduction
B. The Unified Theory
(1) Formulations of the unified theory
(2) Theoretical bases for the unified theory
(3) Authority in support of a unified theory
C. The Failure of the Unified Theory
(1) The impossibility of a completely unified theory
(2) Difficulties with a unified theory limited to estoppel
(3) Rejection of the unified theory—authorities
D. The Various Estoppels—A Summary
(1) Outline
(2) General nature of the doctrines
(3) Elements
8. Equitable Forbearance
A. Introduction
(1) Background
(2) Summary of elements
(3) Terminology and approach
(4) Interface with contract
B. Elements of Equitable Forbearance
(1) Pre-existing legal relationship
(2) Promise or representation
(3) The promise must have been intended to affect the legal relationship between the
parties
(4) The promisor must have intended the promise to be acted upon or have known that it
was acted upon
(5) The promisor’s knowledge
(6) Reliance
(7) Detriment and inequity
(8) Relief
C. Scope of Equitable Forbearance
D. Effect of Equitable Forbearance on Third Parties
(1) Assignment of the contract
(2) Transfer of land
E. Formality
9. Estoppel by Representation
A. Introduction
(1) Summary of elements
(2) A rule of evidence or substantive law: may estoppel by representation give rise to a
cause of action?
 (3) Estoppel by representation and contractual estoppel
(4) Mutuality
B. Elements of Estoppel by Representation
(1) Representation
(2) Knowledge and intention
(3) Reliance
(4) Detriment
C. Relief
(1) Can estoppel by representation operate pro tanto?
D. Defences
(1) The representation was improperly induced
(2) Undermining the effect of a statute
E. Effect of Estoppel by Representation on Third Parties
(1) Passing title
(2) Transferring the benefit of the estoppel
(3) Transferring the burden of the estoppel
F. Estoppel by Negligence
(1) Elements
(2) Points of difficulty
(3) An alternative explanation of the so-called ‘estoppel by negligence’ cases
10. Estoppel by Convention
A. Introduction
B. A Broader Analysis of the Doctrine
C. Application of the Doctrine
(1) Shared assumption
(2) Unjust or unconscionable
D. Estoppel by Convention as a Sword
11. Proprietary Estoppel
A. Introduction
(1) Summary of elements
(2) Terminology
B. Categories of Cases
(1) The ‘imperfect gift’ cases
(2) The ‘common expectation’ cases
(3) The ‘unilateral mistake’ cases
C. Elements
(1) Assurance
(2) Reliance
(3) Detriment
D. Remedies
(1) The aim of the discretion
(2) Exercising the discretion: relevant factors
(3) Exercising the discretion: quantum
(4) Examples of remedies granted
E. Effect of Proprietary Estoppel on Third Parties
(1) The burden
(2) The benefit
 F. The Scope of Proprietary Estoppel
(1) Land and other types of property
(2) Present and future rights in property
(3) After-acquired property
(4) Specific property
G. Comparison with the Law of Constructive Trust
(1) Common expectation and common intention
(2) The commercial context
(3) The domestic context
(4) Remedies
H. Comparison with the Law of Contract
12. Estoppel by Deed
A. Introduction
(1) Terminology
(2) Categorising estoppel by deed
B. Elements of Estoppel by Deed
(1) Summary of elements
(2) A statement of fact contained in a deed
(3) Estoppel by deed only operates in actions on the deed and does not cover collateral
issues between the parties
(4) Detrimental reliance
C. Relief
D. Defences
(1) The statement was not intended to be attributable to the party that W seeks to estop
(2) The deed is void, voidable, or rectifiable
(3) The estoppel would contravene or undermine a statute
(4) The estoppel would contravene public policy
E. Parties Affected by Estoppel by Deed
(1) The original parties
(2) The privies of those who executed the deed
(3) Other parties
(4) Passing title
F. Estoppel Arising in Property Transactions
(1) Estates or interests created by estoppel
(2) Feeding the estoppel
(3) Distinctions between the operation of the two estoppel doctrines
(4) Feeding title to registered land
(5) Practical limitations on the feeding title principle
13. The Anomalies—The Panchand Frères ‘Doctrine’and Contractual ‘Estoppel’
A. Introduction
B. Panchaud Frères
(1) The doctrine
(2) Subsequent consideration of the doctrine application
(3) Resolving the contradiction
(4) Effect of the decision
C. Contractual Estoppel
(1) Peekay
 (2) Subsequent consideration
(3) True nature of the doctrine
14. Procedural Doctrines—Res Judicata, Issue Estoppel, and Abuse of Process
A. Introduction
B. Root Distinctions
C. Constituent Differences
(1) Elements of the procedural doctrines
15. Commercial Law
16. Agency
A. Waiver
(1) Agent’s authority to make unequivocal representations
(2) Imputation of agent’s knowledge to the principal
B. Estoppel
(1) Estoppel and ostensible authority
(2) Estoppel and the relationship between principal, agent, and third party
(3) Estoppel and third parties
17. Banking Law
A. Variation
(1) Variation of the guarantee
(2) Variation of the facility
B. Waiver
(1) The operation of loan facilities
(2) The maintenance of security
(3) Syndication
(4) Bills of exchange
(5) Documentary credits
C. Estoppel
(1) The mandate
(2) Guarantees
(3) Syndication
(4) Bills of exchange and securities
(5) Documentary credits
(6) Restitutionary claims
18. Company Law
A. Waiver
(1) Voluntarily relinquishing a right
(2) Bypassing statutory requirements
B. Estoppel
(1) Estoppel and company agents
(2) The issue of shares and securities
19. Construction Law
A. Introduction
B. Variation
(1) The meaning of variation
(2) The requirements for variation
(3) Mechanisms for variation
C. Waiver
 (1) Waiver of defects
(2) Continuing breaches
D. Estoppel
20. Insurance Law
A. Introduction
B. Waiver
(1) The meaning of waiver
(2) When will there be a waiver by election?
(3) Particular difficulties which arise from the application of waiver to insurance law
(4) The effect of a waiver
C. Election
(1) Modification by the policy
(2) Means by which the election can be made
(3) The effect of the election
D. Estoppel
(1) The role of equitable forbearance
(2) Greater flexibility of estoppel
(3) Representations triggering an estoppel
(4) Reliance/detriment necessary
(5) Rights lost as a result of an estoppel
E. Practical Responses to the Issues Raised by these Doctrines in Insurance Law
(1) Prior to litigation
(2) After the commencement of litigation
21. International Trade, Sale of Goods, and Shipping
A. Introduction
(1) Terminological difficulties associated with waiver
B. Sale of Goods
(1) Waiver
(2) Estoppel
C. Shipping
(1) Waiver
(2) Election
(3) Estoppel
22. Landlord and Tenant
A. Waiver
(1) Waiver by election
B. Equitable Forbearance
(1) Rent
(2) Notice to repair
C. Estoppel
(1) Estoppel by convention
(2) Estoppel by representation
Bibliography
Index
 TABLES OF CASES
11.75, 11.120, 11.130, 12.73,
Abbey National Building Society v Cann [1991] AC 56
12.78, 12.79
Abbott v Abbott [2007] UKPC 53 11.153
Abigail v Lapin [1934] AC 481 PC (NSW) 9.161
Abrey v Crux (1869) LR 5 CP 37 17.31
Accident Insurance Co v Young (1891) 20 SCR 280 20.18
Ace Insurance SA-NV v Seechurn [2002] EWCA Civ 67 9.36, 20.76
Ace Insurance SA-NV v Trenwick International Ltd [2005] EWCA
8.20
Civ 399
Acey v Fernie (1840) 7 M & W 151, 151 ER 717 16.09, 20.38, 20.41
Acme Investments v York Structural Steel (1974) 9 NBR (2d) 699 19.21
Actionstrength Ltd (t/a Vital Resources) v International Glass
9.131
Engineering [2003] 2 AC 541
Adam Opel GmbH & Anor v Mitras Automotive (UK) Ltd [2007]
2.15, 2.24, 2.38
EWHC 3205; [2008] Bus LR D55
Aegean Dolphin, The [1992] 2 Lloyd’s Rep 178 21.33
Aetna Casualty and Surety Co v Richmond, 143 Cal Rptr 75 (1977) 20.49
4.34, 6.09, 6.10, 6.25, 20.59,
Afovos Shipping Co v Pagnan [1983] 1 WLR 195
21.40
African Gold Concessions and Market Development Co, Markham
18.10
and Darter’s Case [1899] 1 Ch 414
Agapitos Laiki Bank (Hellas) SA v Agnew (no 2) [2002] EWHC 1558
2.08, 20.17
(Comm); [2003] Lloyd’s Rep IR 54
Agricultores Federados Argentinos v Ampro SA [1965] 2 Lloyd’s
20.59
Rep 157
Ahmed v Estate & Trust Agencies [1938] AC 624 6.15, 6.20
Aiken v Stewart Wrightson Members’ Agency Ltd [1995] 3 All ER
20.70
449
8.14, 8.39, 8.49, 8.67, 8.69,
Ajayi v RT Briscoe (Nigeria) Ltd [1964] 1 WLR 1326, PC
8.74
Akiens v Salomon [1993] 1 EGLR 101, CA 22.56
Air-a-Plane Corp v US 408 F (2d) 1030 (1969) 19.10
AJU Remicon Co Ltd v Alida Shipping Co Ltd [2007] EWHC 2246 16.17
Albert J Schiff Associates Inc v Flack Ct App 435 NYS 2d 972 20.49
Aldous v Cornwall (1868) LR 3 QB 573 17.03
Ali v Khan [2002] EWCA Civ 974 12.37
Allen v Robles [1969] 1 WLR 1193 17.12, 20.18
Ankhan Pty Ltd v National Westminster Bank Finance (1987) 162
17.05
CLR 549
Albazero, The [1977] AC 774 21.25
Alexander v Gardner (1835) 1 Bing NC 671, 131 ER 1276 5.05
Alexander v Standard Accident Insurance Co Detroit Michigan 122 F
20.05, 20.26
2d 995 (1941)
Alfred C Toepfer v Peter Cremer [1975] 2 Lloyd’s Rep 118 13.07
9.11, 9.18, 9.20, 9.28, 9.29,
Algar v Middlesex County Council [1945] 2 All ER 243, DC 9.32, 9.65, 9.70, 9.82, 9.86,
9.108
Alghussein Establishment v Eton College [1988] 1 WLR 587 13.24
Alicia Hosiery Ltd v Brown Shipley & Co Ltd [1970] 1 QB 195 21.23
Allcard v Skinner (1887) 36 CHD 145 1.15
4.10, 5.10, 8.21, 17.43, 20.07,
Allen v Robles [1969] 1 WLR 1193
20.15, 20.34, 21.35
Allen v Rochdale BC [2000] Ch 221, CA 22.43
Allesina v London & L & G Insurance Co 78 P 392 (1904) 20.65
Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA (The
8.15, 8.21, 8.39, 8.42, 8.43
Leonidas D) [1985] 1 WLR 925, CA
Allstate Insurance Co v Flaumenbaum 308 NYS 2d 447 20.18
Allwright v Queensland Ins Co Ltd (1966) 84 WN (Pt 1) (NSW) 378 20.57
Alma Shipping Corporation v Union of India (‘The Astraea’) [1971]
8.45, 8.65, 13.07, 13.09
2 Lloyd’s Rep 494
Alphapoint Shipping Ltd v Totem Amfert Negev Ltd [2004] EWHC
5.07
2232
Aluminium Ltd v Northern & Western Insurance Company Ltd
4.02, 6.05, 8.10
[2011] EWHC 1352
2.05, 6.30, 7.10, 7.26, 8.40,
Amalgamated Investment & Property Co Ltd (in liq) v Texas 8.76, 8.80, 9.84, 10.02, 10.04,
Commerce International Bank Ltd [1982] 1 QB 84 10.06, 10.15, 10.18, 11.05,
11.06, 11.54
Amaya v Everest Property Holdings Ltd [2010] NSWCA 315 4.10, 5.10
American Insurance Union v Benson 291 SW 1007 (1927) 20.05
American Life Association v Vaden 261 SW 320 (1924) 20.05
AMF International Ltd v Magnet Bowling [1968] 1 WLR 1028 19.15, 19.19
Amherst v James Walker Goldsmith & Silversmith Ltd [1983] Ch
8.21, 8.39, 8.45, 8.61, 22.39
305, CA
Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy
2.24
Industries Co Ltd (No 2) [1990] 2 Lloyd’s Rep 526
Anderson v Commercial Union Assurance Corp (1885) 55 LJQB 146 20.58
Anderson v Minnesota Insurance Guarantee Association 520 NW 2d
20.49
155 (1994)
Andre & Cie SA v Tradax Export SA [1983] 1 Lloyd’s Rep 254 2.45
Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd
6.02
[1998] 1 Lloyd’s Rep 565
Angina Iron Mining Co (1853) 1 Eq Rep 269 18.02
Ankhan Pty Ltd v National Westminster Bank Finance (1987) 162
CLR 549 17.02

Antaios Naviera SA v Salen Rederierna AB [1983] 1 WLR 1362 4.13, 17.14, 21.19
Antaios, The [1985] AC 191 20.20
Appell v Liberty Mutual Insurance Co 255 NYS 2d 545 20.32
Appleby v Cowley, The Times 14 April 1982, LEXIS 11.38, 11.79, 11.80, 11.83
Aquis Estates Ltd v Minton [1975] 1 WLR 1452 4.17
Arab Banking Corp v Sand Trading and Financial Services [2010]
17.23, 17.24
EWHC 509 (Comm)
Arbuthnott v Fagan (1993) CA, unrep transcript 1024 20.20
20.14, 20.15, 20.18, 20.32,
Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 1111
20.33, 20.34
Argy Trading Co Ltd v Lapid Developments Ltd [1977] 1 WLR 444 8.05, 8.29, 8.76, 9.20
Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717 16.13, 16.15
Armstrong v Sheppard and Short [1959] 2 QB 384 11.36, 11.72
Armstrong v Turquand (1858) 9 Ir CL Rep 32 20.22
Arnold v National Westminster Bank [1991] 2 AC 93 14.08
Arrow Transfer Co Ltd v Royal Bank of Canada (1972) 27 DLR (3d)
17.57, 17.59
81
Arterial Caravans Ltd v Yorkshire Insurance Co Ltd [1973] 1 Lloyd’s
20.66
Rep 169
Artworld Financial Corporation v Safaryan [2009] 23 EG 94 22.43
Asfar & Co v Blundell [1896] 1 QB 123 20.70
8.85, 9.158, 11.113, 11.114,
Ashburn Anstaldt v Arnold [1988] 2 WLR 706
11.164
Ashmore v British Coal Corp [1990] 2 QB 358 14.01, 14.11
Associated Deliveries v Harrison [1985] 50 P & CR 91 22.10
Association of British Civilian Internees Far East Region v Secretary
9.136
of State for Defence [2002] EWHC 2119 (Admin)
Astraea, The see Alma Shipping Corporation v Union of India (‘The
Astraea’) Astro Exito Navegacion SA v Chase Manhattan Bank 17.50
NA, the Messiniaki Tolmi [1986] 1 Lloyd’s Rep 455
Astro Vendecor v Mabanaft [1971] 2 QB 588 21.33
Ata Ul Haq v City Council of Nairobi (1985) 28 BLR 29 19.19
Athos, The [1981] 2 Lloyd’s Rep 74 4.06
Atlantic Bay Shipping v Binham Group of Establishments & Ors (Co
16.01
Ct, unrep, 10 Oct 1996)
Atlantic Shipping and Trading Co Ltd v Louis Dreyfus & Co [1922] 2
4.01
AC 250
Atlantic Star, The [1988] 1 Lloyd’s Rep 122 6.22
Atlas Assurance Co v Brownell (1899) 29 SCR 537 20.39
Atlas Express Ltd v Kafco (Importers and Distributors) Ltd [1989] 2.14
QB 833
Attica Sea Carriers Corp v Ferrostaal Poseidon Bulk Reederei GmbH
6.19, 6.20, 6.26, 6.28
[1976] 1 Lloyd’s Rep 250
Attorney-General v McLeod (1893) 14 NSWLR 246 19.07
Attorney-General for Hong Kong v Humphreys Estate (Queen’s
10.09, 11.33, 11.55
Gardens) Ltd [1987] 1 AC 114, PC (HK)
AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 1.04, 1.05
AG to Prince of Wales v Collom [1916] 2 KB 193 11.18, 11.41, 11.43, 11.86
Auckland Harbour Board v Kaihe [1962] NZLR 68 8.15, 8.34
Augier v Secretary of State for the Environment (1979) 38 P&CR
8.10, 8.53
219
4.07, 5.09, 8.28, 8.39, 13.07,
Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 13.11, 21.02, 21.05, 21.14,
21.16
1.10, 7.06, 7.08, 7.09, 9.04,
9.11, 9.18, 9.45, 9.82, 9.86,
9.90, 9.94, 9.100,
Avon CC v Howlett [1983] 1 WLR 605
9.109–9.114, 9.115, 9.116,
9.127, 9.128, 9.168, 9.170,
17.67, 17.71, 17.72
Axa Sun-Life Services Plc v Campbell Martin Ltd [2011] EWCA Civ
13.21, 19.13, 20.52
133
Ayery v British Legal and United Provident Assurance Co Ltd [1918]
16.09, 20.38, 20.41
1 KB 136
Azov Shipping Ltd v Baltic Shipping Ltd [1999] 2 Lloyd’s Rep 159 21.20
Babcock International Ltd v Mitsui Babcock Energy Ltd [2002]
8.13, 8.23
EWHC 2728
Bad Boy Appliances and Furniture Ltd v Toronto Dominion Bank
17.57, 17.59
(1972) 25 DLR (3d) 257
Bader Properties v Linley Property Investments [1968] 19 P & CR
22.09
620
Baghbadrani v Commercial Insurance Co Plc [2000] LRLR 94 20.04, 20.18, 20.60
Bahia and San Francisco Railway Co Ltd, Re (1868) LR 3 QB 584 9.94, 9.145, 18.09, 18.10
Bailey v Robert V Neuhoff Ltd Partnership 665 So 2d 16 (1995) 20.36, 20.49
7.09, 7.16, 7.19, 7.26, 7.27,
7.31, 8.02, 8.05, 8.15, 8.80,
Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] EWCA 9.09, 9.32, 10.05, 10.06,
Civ 274; [2002] 1 All ER (Comm) 737; [2001] CLC 999 10.07, 10.08, 10.13, 10.16,
10.18, 13.11, 13.13, 19.22,
21.50
11.64, 11.80, 11.87, 11.91,
Baker v Baker [1993] 25 HLR 408, CA
11.98, 11.101, 11.111, 11.126
Balder
Balent vLondon, The
National [1980] 2Co
Insurance Lloyd’s
of NewRep 489 Ltd (1959) SR
Zealand 21.35
(NSW) 275 20.75

Balfour Maclaine International Ltd, In re 873 F Supp (1995) 20.18, 20.35

Balian v Joly, Victoria (1890) 6 TLR 345 21.39
Balkis Consolidated Co Ltd v Tomlinson [1893] AC 396 18.10
Balkis Consolidated Co Ltd, Re (1888) 58 LT 300 12.15
Banco Exterior Internacional v Mann [1995] 1 All ER 936 3.04
Bank Leumi (UK) Plc v Wachner [2011] EWHC 656 7.29, 13.19
Bank Melli Iran v Barclays Bank (Dominion, Colonial and Overseas) 16.01, 17.39, 17.43, 17.45,
[1951] 2 Lloyd’s Rep 367, [1951] 2 TLR 1057 17.50
8.12, 8.14, 8.35, 8.54, 8.67,
Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3, PC
8.75
Bank of Baroda v Patel [1996] 1 Lloyds Rep 391 17.23
Bank of England v Vagliano Bros [1891] AC 107 9.45, 9.163, 17.57, 17.58
Bank of Ireland v Cogry Spinning Co [1900] 1 IR 219 16.09, 17.17
Bank of New Zealand v Logan (1899) 18 NZLR 117 18.02
Bank of Scotland v Henry Butcher & Co [2003] EWCA Civ 67;
17.03
[2003] 2 All ER (Comm) 557
Bank of Scotland v Wright [1991] BCLC 244 10.01, 17.60
Bank of South Africa v Salisbury Gold Mining Co Ltd [1892] AC 281 20.10
Bank of Taiwan v Union National Bank 1 F 2d 65 (3rd Cir 1924) 17.50
Bank of Toronto v Bennett (1925) 57 OLR 326 17.37
Bankers Trust Co Ltd v State Bank of India [1991] 2 Lloyd’s Rep 443 17.39, 17.43
9.20, 9.30, 9.74, 9.75, 9.82,
Bankruptcy Notice, Re [1924] 2 Ch 76
9.84, 9.86, 9.131
Banner Homes Group Plc v Luff Developments Ltd [2000] 2 All ER
11.130, 11.141, 11.142
117
Banner Industrial and Chemical Properties Ltd v Clark Patterson Ltd
8.48, 8.51, 8.62
[1990] 2 EGLR 139
3.01, 4.28, 4.29, 4.34, 6.25,
Banning v Wright [1972] 1 WLR 972
20.59
Bannister v Bannister [1948] 2 All ER 133 11.109
Banque de l’Indochine et de Suez SA v JH Rayner (Mincing Lane)
17.40
Ltd [1983] QB 711
Barbados Trust Company Ltd v Bank of Zambia [2006] EWHC 222 9.54
Barber v Imperio Reinsurance Co (UK) Ltd (CA, 15 Jul 1996) 20.83
Barclay v Messenger (1874) 43 LJ Ch 449 21.11, 21.13
Barclays Bank v Bank of England [1985] 1 All ER 385 17.62
Barclays Bank v Caldwell (25 Jul 1986, unrep) 17.02
Barclays Bank v Zavoorabli [1997] 2 All ER 19 11.38
Barclays Bank DCO v Mercantile National Bank [1973] 2 Lloyd’s 17.50
Rep 541
Barrett Bros (Taxis) Ltd v Davies [1966] 1 WLR 1334, [1966] 2
4.38, 20.04, 20.05, 20.53
Lloyd’s Rep 1
Barrow v Bankside Agency [1996] 1 WLR 257 14.11
9.85, 11.12, 11.20, 11.25,
11.44, 11.55, 11.56, 11.59,
11.61, 11.71, 11.73, 11.76,
Basham dec’d, Re [1986] 1 WLR 1498
11.81, 11.85, 11.110, 11.114,
11.115, 11.127, 11.128,
11.130, 11.131, 11.132
Bawden v London Edinburgh & Glasgow Ass Co [1892] 2 QB 534 20.39
Baxendale v Bennett (1878) 3 QBD 578 1.01, 7.04
Bay of Plenty Electricity Ltd v Natural Gas Corp Energy [2002] 1
5.17, 5.18, 7.55, 8.83, 9.156
NZLR 173
BDW Trading v JM Rowe (Investments) Ltd [2010] EWHC 1987,
3.03, 3.14, 4.17
aff’d [2011] EWCA Civ 548
Beasant v Northern Life Insurance Co [1923] 2 DLR 1086 16.06, 16.09, 17.17, 20.42
Beaton v McDivett (1985) 13 NSWLR 134 11.96
Beattie v US Fidelity & Guarantee Co [1933] 2 DLR 133 20.51
Beatty v Mutual Reserve Fund Life Association 75 F 65 (1896) 20.05, 20.22, 20.55
Becker v Marshall (1922) 11 LlLR 117 20.66
Becker v Sunnypine Park Pty 1982 (1) SA 958 4.10
Beckingham v Hodgens [2003] EWCA Civ 143; [2003] EMLR 18 11.127
Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 8.31, 8.39, 8.45, 8.76, 8.82
Behn v Burness (1863) 32 LJQB 204 21.34
Behringer v State Farm Mutual Insurance Co 82 NW 2d 915 (1957) 20.48
Belfields Ltd v Sefton Metropolitan Borough Council [2008] EWHC
9.135, 9.138
1975
Bell v General Accident, Fire & Life Assurance Corpn Ltd [1998] 1
22.35
EGLR 69, CA
9.04, 9.39, 9.49, 9.75, 9.82,
Bell v Marsh [1903] 1 Ch 528, CA
9.86, 9.155, 9.159, 9.160
Bellcourt Estates v Adesina [2005] EWCA Civ 208 22.43
Bello v Ideal View [2009] EWHC 2808, QB; [2010] 4 EG 118 22.39
Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250 16.07, 16.09, 17.17, 20.43
Bensley v Burdon (1830) 8 LJOS Ch 85 12.22, 12.34
Bentsen v Taylor Sons & Co [1893] 2 QB 274 21.08, 21.13
Berger v Boyles [1971] VR 321 5.07
Berry v Berry [1929] 2 KB 316 2.05
Berry v Hodsdon [1989] 1 Qd R 361 4.07
Berry v Wong [2000] NSWSC 1002 12.01, 12.54
Besseler Waecheter Glover & Co v South Derwent Coal Co Ltd 3.18, 5.06, 17.02, 21.13
[1938] 1 KB 408
Bibby v Stirling [1998] EWCA Civ 994 11.21
Bible v John Hancock Mutual Life Insurance Co 176 NE 838 (1931) 20.39
BICC v Burndy [1985] Ch 232 3.12
Biddle v Bond (1865) 6 B&S 225 12.68, 21.25
Billington v Provincial Insurance (1877) 2 OAR 1558 20.39
Billson v Residential Apartments [1990] 60 P & CR 392, CA; aff’d
22.10
[1992] 1 AC 494
Bird v Defonville [1846] 2 Car & Kir 415 22.46, 22.47
Birmingham v Renfrew (1937) 57 CLR 666 11.132
Birmingham & District Land Co v London & North Western Rail Co 8.10, 8.14, 8.39, 8.45, 8.49,
(1888) 40 ChD 268, CA 8.67, 8.85
Bishop v Balkis Consolidated Co (1890) 25 QBD 77 9.39, 9.70
Bishop of Crediton v Bishop of Exeter [1905] 2 Ch 445 17.03
Black v Aetna Insurance Co 909 SW 2d 1 (1995) 20.49
Blackburn Lowe & Co v Vigors (1887) 12 App Cas 531 16.08, 20.40
Blackley v National Mutual Life Assn of Australia [1972] NZLR
16.06
1038
Blair v Curran [1939] 62 CLR 464 14.10
Blair v National Reserve Insurance Co 199 NE 337 (1936) 20.39
Blesard v Hirst (1770) 5 Burr 2670, 98 ER 402 17.36
Bliss v South East Thames Regional Health Authority [1987] ICR
4.22, 6.02
700
Bloomenthal v Ford [1897] AC 156 9.147, 18.05, 18.09, 18.10
Blou v Georgiades (1959) (1) SA 219 17.33
Blue Circle Industries Plc v Holland Dredging Co (1987) 37 BLR 40 19.08
Boardman v Sill (1808) 1 Camp 410(n), 170 ER 1003 20.10
Boliden Ore and Metals Co v Dawn Maritime Corporation [2000] 1
21.46
Lloyd’s Rep 237
Bolkiah v State of Brunei Darussalem [2007] UKPC 63 8.55, 8.59
Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd
9.23, 9.32
[1956] 1 QB 529, CA
Bolton Metropolitan Borough Council v Municipal Mutual Insurance
Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492; [2007] Lloyd’s 3.05, 20.32
Rep IR 173
Boma Manufacturing Ltd v Canadian Imperial Bank of Commerce
9.162
[1996] 140 DLR (4th) 463 (SCC)
Bonang Gold Mining Co Ltd, Re (1897) 18 LR (NSW) Eq 141 18.09
Bonita, The: The Charlotte (1861) 1 Lush 252, 167 ER 111 16.20
Bonus Garment Company v Karl Rieker GmbH & Co KG [1995] 3
6.02, 16.22
 HKC 721
Borrell v Dann (1843) 2 Hare 440; 67 ER 181 1.15
Bostock v Bryant and Anor (1991) 61 P&CR 23 (CA) 11.62
Boston Old Colony Insurance v Lumbermans Mutual Casualty Co
20.18, 20.48
889 F 2d 1245 (2nd Cir 1989)
Bottiglieri di Navigazione SpA v Cosco Qingdao Ocean Shipping Co
3.05, 3.14, 4.35, 21.08, 21.31
[2005] EWHC 244; [2005] 2 Lloyd’s Rep 1
Bottin International Investments v Venson [2006] EWHC 3112 (Ch) 9.15
Bowes v Chaleyer (1923) 32 CLR 159 4.27, 5.04
Bowes v National Fire & Marine Insurance Co of New Zealand
20.57
(1888) 7 NZLR 27
Bowles v Mutual Benefit Health and Accident Assn 99 F 2d 44
20.73
(1938)
12.03, 12.20, 12.22, 12.25,
Bowman v Taylor (1834) 2 AD&E 279, 111 ER 108
12.31, 12.32, 12.68
Boxbusher Properties v Graham (1976) 240 EG 463 11.33
Boyajian v US 423 F (2d) 1231 (1970) 19.06
Boyer v American Casualty Company 332 F 2d 708 (1964) 4.26, 20.26, 20.37
Boynton-Wood v Trueman [1961] 177 EG 191 22.48
BP Plc v AON Ltd [2006] EWHC 424 7.26, 8.75, 8.79, 8.80, 10.18
BP Exploration Co v Hunt (No 2) [1979] 1 WLR 783, aff’d on other 8.10, 8.14, 8.45, 8.62, 13.08,
grounds [1983] AC 352 13.09, 13.11, 13.15
Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482 14.01
Bradmount Investments Ltd v Williams de Broe Plc [2005] EWHC
9.62
2449
Bragg v Oceanus Mutual Underwriting Assn (Bermuda) Ltd [1982] 2
14.11
Lloyd’s Rep 132
Braithwaite v Foreign Hardwood Co [1905] 2 KB 543 13.15
Braithwaite v Winwood [1960] 3 All ER 642 8.10, 8.14, 8.20, 8.29
Brandt v Liverpool [1924] 1 KB 575 21.43
Bremer Handelsgesellschaft mbH v Bunge Corporation [1983] 1
4.39, 4.43, 21.18
Lloyd’s Rep 476
2.47, 4.07, 4.13, 4.42, 4.43,
Bremer Handelsgessellschaft mbH v C Macprang Jr (No. 1) [1979] 1
8.07, 8.17, 8.26, 8.28, 8.33,
Lloyd’s Rep 221, CA
8.37, 9.35, 13.06, 21.03
Bremer Handelsgessellschaft mbH v Continental Grain [1983] 1
2.47
Lloyd’s Rep 269
Bremer Handelsgesellschaft mbH v Deutsche Conti-
5.10, 21.14, 21.16, 21.18,
Handelsgesellschaft mbH [1983] 1 Lloyds Rep 339; [1983] 2
21.19
Lloyd’s Rep 45
2.47, 2.49, 4.16, 4.17, 4.27,
4.41, 5.09, 5.12, 8.07, 8.17,
Bremer Handelsgessellschaft mbH v Vanden Avenne-Izegem PVBA
 [1978] 2 Lloyd’s Rep 109, HL 8.27, 8.33, 8.45, 8.58, 9.35,
21.02, 21.03, 21.04, 21.06,
21.18
Bremer Handelsgesellschaft mbH v Westzucker GmbH [1981] 1
4.07
Lloyd’s Rep 201
Bremer Vulkan Schiffbau und Maschinenfabrik v South India
4.34, 6.25, 20.59
Shipping Corp Ltd [1981] AC 909
Brent LBC v Sharma [1992] 25 HLR 257, CA 22.44, 22.46
Bret v J S (1600) Croke, Eliz 756, 78 ER 987 2.04
Brewer v Westminster Bank [1952] 2 All ER 650 17.59
Brewery Assets Corpn, Truman’s Case, Re [1894] 3 Ch 272 16.06, 17.17
Bridge v Campbell Discount Co Ltd [1962] AC 600 6.22
Bridgestart Properties Ltd v London Underground Ltd [2004] EWCA
8.20, 9.04
Civ 793
Brightlingsea Haven Ltd v Morris [2009] 1 EGLR 117; [2008]
11.51, 11.92, 11.144
EWHC 1928, QB; [2009] 2 P & CR 11
2.07, 2.10, 2.12, 5.14, 5.16,
8.10, 8.12, 8.19, 8.29, 8.31,
Brikom Investments v Carr [1979] 1 QB 467, CA
8.40, 8.41, 8.45, 8.68, 8.69,
8.75, 8.86, 8.87, 22.41
Brikom Investments v Seaford [1981] 1 WLR 863, CA 8.54, 8.76, 9.24, 9.122
Brinnand v Ewens [1987] 2 EGLR 67, CA 11.64
Bristol and West Building Society v Mothew [1996] 4 All ER 698,
4.17
[1985] 1 WLR 778
Bristol Cars Ltd v RKH Hotels Ltd (in liq) [1979] 38 P & CR 411,
22.22
CA
Bristol Corporation v Sinnott [1918] 1 Ch 62 9.51
British and Beningtons Ltd v N W Cachar Tea Co Ltd [1923] AC 48 2.28, 2.29, 2.39
British Bank of the Middle East v Sun Life Assurance of Canada
16.15, 18.08
[1983] 2 Lloyd’s Rep 9
British Farmers Pure Linseed Cake Co, Re (1878) 7 ChD 533 9.147, 18.05, 18.09, 18.11
British Motor Trust v Hyams (1934) 50 TLR 230 17.05
British Movietone News Ltd v London and District Cinemas [1952]
2.50
AC 166
British National Trust (in liq) (1937) 57 CLR 89 5.17, 8.83
Brocklesby v Temperance Permanent Building Society [1895] AC
17.64
173
Brook v Trafalgar Insurance Co Ltd (1947) 79 Ll LR 265 20.01, 20.85
Brooker v Fisher [2008] Bus LR 1123; [2008] FSR 26; [2008] EMLR
9.51
13; [2008] EWCA Civ 287
Brostoff v Clark Kenneth Leventhal (unrep, 11 Mar 1996) 6.06
Brown v Lord Rollo (1831) 10 S 667 19.09
Brown v Royal Insurance Co (1859) 1 El&El 853, 120 ER 1131 20.59
Brown v State Farm Automobile Insurance Co SW 2d 384 (MoBanc
1989) 20.04, 20.06

Brown v Westminster Bank Ltd [1964] 2 Lloyd’s Rep 187 17.55, 17.57, 17.59
Brown Jackson v Percy Dalton [1957] 2 QB 621 21.46
Brownsville Holdings Ltd v Adamjee Insurance Co Ltd (The
20.17
Milasan) [2000] 2 Lloyd’s Rep 458
Browne v La Trinidad (1887) 37 ChD 1 18.04
Bruner v Moore [1904] 1 Ch 305 8.54
Bruton v London and Quadrant Housing Trust [2000] 1 AC 406, HL 22.35, 22.37
BSkyb Ltd & Anor v HP Enterprise Services UK Ltd & Anor (Rev 1)
[2010] EWHC 86 (TCC); 26 Const LJ 289; [2010] BLR 267; 7.29, 13.19
[2010] CILL 2841; 129 Con LR 147
Buchanan v Switzerland General Insurance Co 455 P 2d 344(1969) 20.04
Buckinghamshire County Council v Secretary of State for the
Environment, Transport and The Regions and J Brown [2000] 9.141
EWHC 386
Buckland v Farmer & Moody [1979] 1 WLR 221 5.10, 21.11
Bucon Inc v Pennsylvania Manufacturing Association Insurance Co
20.48
547 NYS 2d 925 (AD 3 Dept 1989)
Budget Rent-a-Car Systems Inc v Shelby Insurance Group 541 NW
20.49
2d 178 (1995)
Building Estates Brickfield Co, Parbury’s Case [1896] 1 Ch 100 18.11
Bulmer, ex p Johnson, Re (1853) 3 De GM&G 218, 43 ER 86 17.26
Bunge AG v Fuga AG [1980] 2 Lloyd’s Rep 513 13.07
Bunge GmbH v Alfred Toepfer [1978] 1 Lloyd’s Rep 506 4.27, 4.43, 5.07, 5.09, 13.07
Burdett-Coutts v Hartfordshire County Council [1984] IRLR 91 2.41
Burgh v Legge (1839) 5 M&W 418, 151 ER 177 17.34
Burkinshaw v Nicholls (1878) 3 App Cas 1004 9.40, 9.42, 9.147, 18.09, 18.11
Burns v Burns [1984] 1 Ch 317 (CA) 11.76
Burridge and Son v Haines and Sons (1918) 118 LT 681 20.35
Burrows v Brent LBC [1996] 1 WLR 1448, HL 22.19
11.75, 11.82, 11.87, 11.96,
Burrows v Sharpe [1991] Fam Law 67 [1989] 23 HLR 82, CA
11.99, 11.105, 11.111, 11.128
Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2007]
22.41
EWCA Civ 622
Busteed v West of England Fire and Life Insurance Co (1957) 5 Ir Ch
20.85
R 553
Bute (Marquess) v Barclays Bank Ltd [1955] 1 QB 202 9.32, 17.62
C v Hackney LBC [1996] 1 WLR 789 14.11
C Czarnikow Ltd v Koufos [1966] 2 QB 695 4.34, 6.25, 20.59
C Inc Plc v L & Ors [2001] 2 Lloyd’s Rep 459 6.07
Cadbury Schweppes Plc v Halifax Share Dealing Ltd [2006] EWHC
9.40, 9.86, 9.88, 9.176
118, Ch
Cackett v Keswick [1902] 2 Ch 456 18.02
Caine v Coulton (1863) 1 H&C 764, 154 ER 1092 21.17
Calabar Properties v Seagull Autos [1969] 1 Ch 451 22.10
Calder v Batavia Sea and Fire Insurance Co Ltd [1932] SASR 46 20.73
Calgary Milling Co Ltd v American Surety Co of New York [1919] 3
10.15
WWR 98
Calm Shipping Co SA v Chantiers Navals de L’Esterel SA (The
4.39
Uhenhels) [1986] 2 Lloyd’s Rep 294
Calocerinos & Spina Consulting Engineers PC v Prudential
20.48
Reinsurance Co 856 F Supp 775 (1994)
Campbell v Christie (1817) 2 Stark 64, 171 ER 573 2.14
11.12, 11.54, 11.55, 11.59,
Campbell v Griffin [2001] EWCA Civ 990 11.71, 11.75, 11.76, 11.100,
11.111, 11.128
Campbell Discount Co v Gall [1961] 1 QB 431 9.132, 9.160
1.01, 7.04, 7.05, 9.05, 9.10,
Canada & Dominion Sugar Company Ltd v Canadian National (West
9.18, 9.32, 9.41, 9.75, 9.76,
Indies) Steamships Ltd [1947] AC 46, PC
9.82, 9.86
Canada Landed Credit v Canada Agricultural (1870) 17 Grant 418 20.26
Canadian Imperial Bank of Commerce v Bello [1992] 64 P&CR 48,
8.84
CA
Canadian Pacific Hotels v Bank of Montreal (1981) 122 DLR (3d)
17.59
519
Cannan v Hartley [1850] 9 CB 634 22.48
Cannon v Hartley [1949] Ch 213 12.19
Canterbury Pipelines v Christ Church Drainage [1979] NZLR 347 2.49
Cantiere Meccanico Brindisino v Janson [1912] 3 KB 452 20.70
Cape Asbestos v Lloyd’s Bank [1921] WN 274 4.27, 5.03, 5.11, 17.43, 17.47
Capital & Counties Bank Ltd v Warriner (1896) 12 TLR 216 21.23
Capron v Government of Turks & Caicos Islands [2010] UKPC 2 11.23, 11.33, 11.34
Cardigan Properties v Consolidated Property Investments [1991] 1
22.10
EGLR 64
Carew’s Estate Act (No 2), Re (1862) 31 Beav 39, 54 ER 1051 16.09, 17.17
Carl Zeiss Stiftung v Rayner (No 2) [1967] AC 853 1.01, 7.04, 14.09
Carlyle v Elite Ins Co (1984) 56 BCLR 331 20.59
Carolan v Brabazon (1846) 3 Jo & Lat 200 5.08
Carpenter v Buller (1841) 8 M&W 209, 151 ER 1013 12.03, 12.37
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 4.27, 5.04, 5.07
9.11, 9.20, 9.32, 9.47, 9.70,
Carr v London and North Western Rly Co (1875) LR 10 CP 307
9.74, 9.82, 9.86, 9.108, 9.160
Carr and the Sun Life Fire Assurance Co, in re an arbitration (1897) 20.54
13 TLR 186
Carr and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 6.05, 6.06
Carter v Boehm (1766) 3 Burr 1905 20.70
Carter v Flower (1847) 16 M&W 743, 153 ER 1390 17.36
Carter v Green [1950] 2 KB 76 4.13, 17.14, 21.19
Cassa di Risparmio della Republica di San Marino SpA v Barclays
7.29, 13.19
Bank [2011] EWHC 484
Catchpole v Trustees of the Alitalia Airlines Pension Scheme [2010] 8.50, 8.62, 8.64, 9.91, 9.94,
EWHC 1809 (Ch); [2010] Pens LR 387 10.01, 10.12
CDV Software Entertainment AG v Gamecock Media Europe Ltd
6.10
[2009] EWHC 2965
Celluloid Co, Re (1888) 39 ChD 190 18.11, 18.12
Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 4.26, 22.02, 22.04, 22.06,
1048 22.14
Central Klondike Gold Mining and Trading Co, Re (1898) 5 Mans
9.146
336
4.42, 8.02, 8.19, 8.29, 8.31,
Central London Property Trust Ltd v High Trees House Ltd [1947]
8.61, 8.65, 8.71, 8.87, 11.25,
KB 130
22.28, 22.30
Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QB
16.18
371
Central Street Properties Ltd v Mansbrook Rudd & Co Ltd (1986)
11.20
276 EG 414
Centrica Plc v Premier Power Ltd [2006] EWHC 3068 10.02, 10.09
CEP Holdings Ltd v CEP Cladding Ltd [2009] EWHC 2447 9.55
Cerealmangimi SpA v Toepfer (‘The Eurometal’) [1981] 3 All ER
4.07, 5.09, 8.33, 8.34, 8.54
533; [1981] 1 Lloyd’s Rep 337
Chadwick v Manning [1896] AC 231 9.20, 9.54, 9.66
Challoner v Pennings 94 NW 2d 654 (1959) 20.48
Chalmers v Pardoe [1963] 1 WLR 677 11.83, 11.103
Champion v Short (1807) 1 Camp 53, 170 ER 874 20.13
Champtaloup v Thomas [1976] 2 NSWLR 264 4.26, 20.37
Chandris v Isbrandtson-Moller Co Inc [1951] 1 KB 240 4.27, 5.04, 21.33, 21.37
Channel Tunnel Group v Balfour Beatty [1992] 1 QB 655 2.49
Chapell & Co v Nestle Co Ltd [1960] AC 87 2.16
3.20, 4.27, 8.29, 8.31, 8.54,
Charles Rickards Ltd v Oppenheim [1950] 1 KB 616, CA
8.66, 8.67, 8.74, 21.08, 21.11
Charlesworth v Faber (1900) 55 Comm Cas 408 20.70
Charter Reinsurance v Fagan [1996] 2 WLR 76 20.20
Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38;
[2009] 27 EG 91; [2009] BLR 551; 125 Con LR 1; [2009] AC
 1101; [2009] 3 WLR 267; [1010] 1 P & CR 9; [2009] Bus LR 10.09, 10.18
1200; [2009] NPC 86; [2009]NPC 87; [2009] CILL 2729; [2009] 4
All ER 677
Chatterton v Maclean [1951] 1 All ER 761 6.06
Chatterton v Terrell [1923] AC 578 22.25
Cheesman v Exall (1851) 6 Exch 341; 155 ER 574 21.21, 21.25
Chelsea Building Society v R & A Millet (Shops) Ltd [1993] 1 EGLR
22.39
148
8.15, 8.17, 8.21, 8.26, 8.52,
Chemical Venture, The [1993] 1 Lloyd’s Rep 509
8.65, 8.67, 8.69, 9.35
Chesterfield and Midland Silkstone Colliery Co Ltd v Hawkins
12.39, 12.55
[1865] 3 H&C 677
China National Foreign Trade Transportation Corporation v Evlogia
4.01, 4.08, 6.05, 21.17, 21.33,
Shipping Co SA of Panama (The Mihalios Xilas) [1979] 1 WLR
21.35
1018
Chrisdell v Johnson and Tickner [1987] 54 P & CR 257, CA 22.12
Christian v Christian (1981) NLJ 43, CA 9.106, 11.65, 11.73, 12.43
Christiansen v Klepac [2001] NSWSC 385 (20 Apr 2001) 4.08
Church Commissioners for England v Nodjoumi [1986] 51 P & CR
22.08, 22.25
155
Church of England Building Society v Piscor [1954] Ch 533 (CA) 12.78, 12.79
Chvetsov v Matuzy [2011] EWHC 248 4.08, 5.08
Cia Tirrena di Assicurazioni SpA v Grand Union Insurance Co [1991]
4.06
2 Lloyds Rep 143
Ciaverella v Balmer (1983) 153 CLR 438 6.04, 6.06
CIBC v Hardy Bay Inns Ltd [1985] 1 WWR 405 17.03
Cie Francaise Importation et de Distribution SA v Deutsche
8.15, 8.21, 8.29, 8.39, 8.42
Continental Handelsgesellschaft [1985] Lloyd’s Rep 592
Citizen’s Bank of Louisiana v First National Bank of New Orleans
9.20, 9.68, 9.70, 9.82
(1873) LR 6 HL 352
City & Westminster Properties (1934) Ltd v Mudd [1959] Ch 129 22.24
Civil Aviation Authority v Internationale Nederlanden Aviation
Lease BV and the European Organisation for the Safety of Air 9.82, 9.90, 9.122
Navigation (Interveners) [1997] 1 Lloyd’s Rep 96
Civil Service Co-operative Society v McGrigor’s [1923] 2 Ch 347 22.01
Clark, In re Estate of 447 NW 2d 549 (1989) 4.36
Clark v Adie (1877) 2 App Cas 423 12.68
Clark v Clark [2006] 1 FCR 421; [2006] EWHC 275 (Ch) 11.21
Clark v Corless [2010] EWCA Civ 338; [2010] WTLR 751 11.141
Clark v Grant [1950] 1 KB 104, CA 22.19
Clark v West 193 NY 349 (1908) 3.14, 4.26
Clarke v Meadus [2010] EWHC 3117 (Ch) 11.55
Clayton v Wodman & Son Ltd [1962] 1 WLR 585 19.15
Clea Shipping Corp v Bulk Oil International Limited (No 2) (‘The 6.16, 6.18, 6.19, 6.20, 6.24,
Alaskan Trader’) [1984] 1 All ER 129 6.25, 6.26, 6.28

Cleaver v Trader’s Insurance 40 F 711 (1989) 20.32

Cleaver (dec’d), Re [1981] 1 WLR 939 11.132
Clement v Marathon Oil Co Lyd 724 F Supp 431 (ED La 1989) 20.50
Cleveland Mfg Co Ltd v Muslim Commercial Bank Ltd [1981] 2
16.12
Lloyd’s Rep 646
Co-operative Wholesale Society v Chester le Street District Council,
8.10, 8.20, 8.35, 8.54, 8.76
Lands Tribunal (1997) 73 P&CR 111
Coastal Estates Pty Ltd v Melevende [1965] VR 433 4.20, 4.22, 4.23
10.09, 11.08, 11.32, 11.51,
Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 11.92, 11.140, 11.141, 11.142,
WLR 1752 11.143, 11.144, 11.145,
11.157
Cobec Brazilian Warehousing Corpn v Toepfer [1983] 2 Lloyd’s Rep
20.13
386
Cocks v Masterman (1829) 9 B&C 902 9.107
Coflexip SA v Stolt Offshore Ms Ltd [2004] FSR 34; [2004] EWCA
14.01
Civ 213
Cohen v Roche [1927] 1 KB 169 17.08, 17.31, 21.17
Colchester Borough Council v Smith [1991] Ch 448, aff’d [1992] Ch
4217.28, 13.17, 13.18, 13.23
Coleman v S & W Baldwin [1977] IRLR 342 2.41
Colley v Overseas Exporters [1921] 3 KB 302 1.01, 21.20, 21.23
Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329;
8.09, 8.60
[2007] NPC 136; [2008] 1 WLR 643; [2007] BPIR 1452
Collin v Duke of Westminster [1985] 2 QB 581 8.20, 8.43
Colonial Bank v Cady and Williams (1890) 15 App Cas 267 17.64, 17.65, 18.13
Colonial Bank of Australia v Marshall [1906] AC 559 17.59
Combe v Combe [1951] 2 KB 215, CA 1.30, 8.75, 8.76, 8.79, 8.82
1.01, 1.15, 3.01, 3.02, 3.12,
3.19, 4.01, 4.06, 4.28, 7.10,
7.16, 7.20, 7.24, 8.45, 8.49,
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
8.69, 8.82, 9.03, 9.20, 10.06,
11.05, 11.64, 11.85, 11.86,
11.89, 11.114, 13.13
Commonwealth Trading Bank of Australia v Sydney Wide Stores Pty
17.57
Ltd (1981) 35 ALR 513
Commonwealth Trust v Akotey [1926] AC 72 21.21
Community Convalescent Center of Naperville Inc v First Interstate
Mortgage Co of Illinois 537 NE 2d 1162, app denied 545 NE 2d 4.26, 20.37
 106 (1989)
Compagnie de Renflouement de Recuperation et de Travaux Sous
Marins VS Baroukh et Cie v W Seymour Plant Sales & Hire Ltd 4.27, 4.35, 5.04
[1981] 2 Lloyd’s Rep 466

Compagnie Noga D’importation et D’exportation SA v Abacha &

2.36
Ors [2003] EWCA Civ 1100
Compagnia Tirrena Di Assicurazioni v Grand Union Fire Insurance
20.53
Co Ltd [1991] 2 Lloyd’s Rep 143
Compania Vascongada v Churchill & Sim [1906] 1 KB 237 9.45, 21.43, 21.44
Compagnie Portorafti Commerciale SA v Ultramar Panama Inc (‘The
10.09
Captain Gregos’) (No 2) [1990] 2 Lloyd’s Rep 395
Compagnie Primera de Navagaziona v Compania Arrendataria de
21.33
Monopolio de Petroleos SA [1940] 1 KB 362
Competition Commission v BAA Ltd [2010] EWCA Civ 1097 4.16
Connecticut Fire Insurance Co v Fox 361 F 2d 1 (1961) 20.39, 20.50, 20.51
Conner v Union Automobile Insurance Co 9 P 2d 863 (1932) 20.46
Consolidated Electrical Cooperative v Employers Mutual Liability
20.18, 20.32, 20.48
Insurance Co 106 F Supp 322 (1952)
Container Transport International Ltd v Oceanus Mutual
Underwriting Association (Bermuda) Ltd [1984] 1 Lloyd’s Rep 20.72
476
Continental Grain Export Corpn v STM Grain Ltd [1979] 2 Lloyd’s
2.47
Rep 378
Continental National Bank v National City Bank 69 F 2d 312 (9th Cir
17.50
1934)
3.07, 4.11, 5.12, 8.07, 8.15,
Cook Industries v Meunerie Legois SA [1981] 1 Lloyd’s Rep 359
8.26, 8.39
Cook Industries v Tradax Export SA [1985] 2 Lloyd’s Rep 454 21.02, 21.05, 21.16
Cooke & Sons v Eshelby (1887) 12 App Cas 271 16.25
11.02, 11.20, 11.25, 11.38,
11.55, 11.61, 11.65, 11.67,
Coombes v Smith [1986] 1 WLR 808
11.74, 11.75, 11.76, 11.77,
11.78, 11.80, 11.81
Cooper v Henderson [1982] 2 EGLR 42, CA 22.11, 22.24
Cooper v Jenkins (1863) 32 Beav 337, 55 ER 132 17.26
Cooper v Uttoxeter Burial Board (1864) 11 LT 565 19.17
Cooperative Bank v Tipper [1996] 4 All ER 366 10.03, 10.07
Cordery v Colville (1863) 32 LJCP 210 17.34
Cornillie v Saha [1996] 72 P & CR 147, CA 22.12
Corumo Holdings v Itoh (1991) 5 ACSR 720 17.02, 17.05
Costagliola v English (1969) 210 EG 1425 11.38, 11.62
Coulcher v Toppin (1866) 2 TLR 657 17.35, 17.37
Council of Civil Service Unions v Minister for the Civil Service 1.04, 1.05
[1985] AC 374
Court v Martineau (1782) 3 Dougl 161, 99 ER 591 20.67, 20.68, 20.69
Cousens v Grayridge Pty Ltd; Hillside Way Pty Ltd v Grayridge Pty 12.05, 12.24
Ltd [2000] VSCA 96
9.20, 9.23, 9.28, 9.51, 9.70,
Covell v Sweetland [1968] 1 WLR 1466
9.82, 9.86, 9.97
Coventry v Great Eastern Railway Co (1883) 11 QBD 776, CA 9.160, 9.176, 21.23
Cowey v Liberian Operations Ltd [1966] 2 Lloyd’s Rep 45 2.02
Cowper v Smith (1838) 4 M&W 519, 150 ER 1534 17.05
Cox, Patterson & Co v Bruce & Co (1886) 18 QBD 147 21.44
CP Holdings Ltd v Dugdale [1998] NPC 97 12.31
7.10, 8.70, 11.02, 11.04,
11.05, 11.11, 11.12, 11.13,
11.20, 11.22, 11.33, 11.34,
Crabb v Arun DC [1976] Ch 179, CA 11.38, 11.40, 11.71, 11.72,
11.83, 11.87, 11.96, 11.110,
11.117, 11.124, 11.126,
11.128, 11.141
Crabb v Gleeson [1920] VLR 189 4.10
Crabtree Vickers Pty Ltd v Australian Direct Mail Advertising and
16.13
Addressing Co Pty Ltd (1975) 133 CLR 72
3.11, 3.13, 3.19, 4.01, 4.06,
Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305
4.13, 4.17, 6.04, 20.06
Crawford & Law v Allan Line SS Co [1912] AC 130 21.43
Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315, affd on other 8.14, 8.15, 8.20, 8.40, 9.84,
grounds [1996] 2 Lloyd’s Rep 241 11.54, 17.03, 17.04
Credit Suisse v Beegas Nominees [1994] 4 All ER 803 10.01, 22.33
Creery v Summersell [1949] Ch 751 22.04
Cremer v General Carriers SA [1974] 1 WLR 341 21.46
Croft v Lumley (1856) 5 E & B 648 4.13, 17.14, 21.19
Crossco No 4 v Jolan [2011] EWHC 803 (Ch) 11.142, 11.145
Crosstown Music Company 1, LLC v Rive Droite Music Ltd & Ors
3.05
[2010] EWCA Civ 1222
Cubitt v Gamble (1919) 35 TLR 223 17.08
Cuff v Penn (1813) 1 M & S 21, 105 ER 8 3.18
Cumbria County Council v Dow & Ors (No 2) [2008] IRLR 109 2.30
Curtis v Perth & Freemantle Bottle Exchange Co (1914) 18 CLR 17 16.18
Customs & Excise Commissioners v Hebson Ltd [1953] 2 Lloyd’s
9.70, 9.134
Rep 382
12.03, 12.66, 12.67, 12.70,
Cuthbertson v Irving (1859) 4 H&N 742, 157 ER 1034
12.72, 12.74
D & C Builders v Rees [1966] 2 QB 617, CA 8.63, 8.66
Daejan Properties Ltd v Mahoney [1995] 2 EGLR 75, CA 9.132
Daily Telegraph Newspaper Co v Cohen (1905) 5 SR (NSW) 520 18.09
Dal v Orr [1980] IRLR 413 2.43
Dale (dec’d), Re [1993] 4 All ER 129 11.114
Dalkia Utilities Services Plc v Celtech International Ltd [2006]
EWHC 63; [2006] 1 LLR 599; [2006] 1 Lloyds Rep 599; [2006] 2 6.12, 6.13, 21.40
P & CR 9
Dalton v Fitzgerald [1897] 2 Ch 86, CA 12.56, 12.57
Dalzell v Northwestern Mutual Insurance Co 32 Cal Rptr 125 (1963) 20.36
Daniell v Paradiso (1991) 55 SASR 359 16.12
Dann v Spurrier (1802) 7 Ves Jun 232, 32 ER 94 11.110
Davenport v R (1877) 3 App Cas 115 4.08, 4.13, 17.14, 21.19
4.07, 22.04, 22.11, 22.13,
David Blackstone v Burnetts (West End) Ltd [1973] 1 WLR 1487
22.15
Davies v Bristow [1920] 3 KB 428 22.18
Davis v Stone [1992] 2 EGLR 222 12.22
De Bruyne v De Bruyne [2010] EWCA Civ 519; [2010] 2 FCR 251;
11.135, 11.148
[2010] Fam Law 805
De Bussche v Alt (1877) 8 ChD 286 6.29, 6.30
De Lasalle v Guildford [1901] 2 KB 215 2.13
De Maurier v Bastion Insurance [1967] 2 Lloyd’s Rep 550 20.85
De Rosa v John Barrie Ltd [1974] 1 WLR 946 2.07
9.18, 9.23, 9.28, 9.48, 9.70,
De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 9.82, 9.87, 9.88, 9.96, 9.155,
10.15
Deakin v Faulding [200] EWHC Ch 7 11.96
Deaves v CML Fire and General Insurance Co Ltd [1979] 53 AJLR
20.36
382
Debtor, In re A (No 517 of 1991) TLR 25 Nov 1991 2.05, 17.02
Debs v Sibec Developments Ltd [1990] RTR 91 9.129, 9.160, 21.27
Decro-Wall International SA v Practitioners in Marketing [1971] 1
6.16, 6.25, 6.26, 6.28
WLR 361
Deepak Fertilisers and Petrochemical Corporation v ICI Chemicals
and Polymers
Ltd [1999] 1 Lloyd’s Rep 387 13.16, 19.13, 20.52
Democritos, The [1975] 1 Lloyd’s Rep 368 4.33, 21.08
Dependable Janitorial Services Inc v Transcontinental Insurance Co
20.18, 20.48
622 NYS 632 (1995)
Deutsche Bank (London Agency) v Beriro & Co (1895) 73 LT 669,
9.100, 9.167, 9.167, 17.68
CA
Deutsche Genossenschaftsbank v Burnhope & Ors [1995] 1 WLR
2.14
 1580Bank v Bank of Jamaica (PC, 26 Nov 2001)
Dextra 17.70
Dickinson v Lucas (1909) 101 LT 27 17.31
Dimech v Corlett (1858) 12 Moo PC 199, 14 ER 887 21.34
Dillon v Parker (1818) 1 Swans 539, 36 ER 422 6.04
11.09, 11.21, 11.23, 11.75,
Dillwyn v Llewellyn (1862) De GF & J 517, 45 ER 1285 11.92, 11.110, 11.114, 11.124,
11.163
Dimskal Shipping Co SA v International Transport Workers
1.14
Federation [1992] 2 AC 152
Dionissis v R ‘the Laura’ (1865) 3 Moo PCCNS 181, 16 ER 68 9.48
12.01, 12.19, 12.25, 12.29,
Distributors and Warehousing Ltd, Re [1986] BCLC 129 12.31, 12.32, 12.33, 12.34,
12.46, 12.51
District Bank v Webb [1958] 1 WLR 148 12.23, 12.29, 12.36
9.11, 9.20, 9.32, 9.40, 9.47,
9.70, 9.71, 9.73, 9.74, 9.82,
Dixon v Kennaway & Co [1990] 1 Ch 833
9.84, 9.86, 9.97, 9.105, 9.108,
9.130, 9.160, 18.10
Dobson v Espie (1857) 26 LJ Ex 240 17.29
Dod v Edwards (1827) 1 C&P 602 17.31
Doddington’s Case, Hall and Doddington v Peart (1594) 2 Co Rep
12.31
32b, 76 ER 684
11.30, 11.91, 11.99, 11.107,
Dodsworth v Dodsworth (1973) 228 EG 115, CA 11.109, 11.111, 11.114,
11.162
Doe d Baker v Jones [1850] 5 Exch 498 22.24
Doe d Chandler v Ford (1835) 3 A&E 649 12.53
Doe d Preece v Howells (1831) 2 B&Ad 744, 109 ER 1320 12.50
Doe d Rankin v Brindley [1832] 4 B & Ad 84 22.06
Doe d Williams v Lloyd (1839) 5 Bing 299 12.59
Doe de Gaisford v Stone (1846) 3 CB 176, 136 ER 71 12.22, 12.34, 12.57, 12.69
Doe de Marchant v Errington (1839) 6 Bing (NC) 79, 133 ER 31 12.55, 12.56, 12.60
Doe d Muston v Gladwin [1845] 6 QB 953 22.24
Doe d Nash v Birch [1836] 1 M & W 402 22.13
Doe d Rankin v Brindley [1832] 4 B & Ad 84 22.06
Doe de Shelton v Shelton (1853) 3 AD&E 265, 111 ER 413 12.56
Doe de Sheppard v Allen [1810] 3 Taunt 78 22.03
Doheny v New India Assurance [2004] EWCA Civ 1705; [2005]
20.68, 20.69
Lloyd’s Rep IR 251
Donegal International Ltd v Zambia [2007] 1 Lloyd’s Rep 397 9.15
Donnison v Employer’s Accident and Life Stock Insurance (1897) 24
20.26
 R 681
Dowling v Roe (1927) 39 CLR 363 5.06
Downderry Construction Ltd v Secretary of State for Transport,
Local Government and the Regions [2002] EWHC Admin 2; ILR 9.78, 9.79, 9.80
11 Mar 2002
Downie v Turner [1951] 2 KB 112 22.27
Dr Kong Bok Gan v Graeme Wood [1998] EWCA Civ 784 11.79
Drake v Whipp [1996] 1 FLR 826 11.147
Drake Insurance Plc v Provident Insurance Plc [2003] EWCA Civ
6.14, 21.40
1834; [2004] QB 601
Draper v Oswego County Fire Relief Assn 82 NE 755 (1907) 20.49
Drexel Burnham Lambert International v el Nasr [1986] 1 Lloyd’s
4.17, 8.10, 8.15, 8.18, 8.20
Rep 357
DRL Ltd v Wincanton Group Ltd [2010] EWHC 2896 3.05
DS Ashe Trucking Ltd v Dominion Insurance Corpn (1966) 56 DLR
20.05
(2d) 730
DSND Subsea Ltd v Petroleum Geo-Services ASA [2000] BLR 530 1.14, 2.38, 8.64
Dubai Islamic Bank PJSC v PSI Energy Holding Co BSC & Ors
4.07
[2011] EWHC 1019
Duke of Beaufort v Patrick (1853) 17 Beav 59, 51 ER 954 11.75, 11.114, 11.119
Duke of Leeds v Earl Amherst 2 Ph 117 6.29
Dun & Bradstreet Software Services (England) Ltd v Provident
7.09, 7.31, 8.02, 8.05, 8.15,
Mutual Life Assurance Association [1997] EWCA Civ1816;
9.23
[1997] EGCS 89, CA
Dunbeth, The [1897] P 133 21.39
Duncan v Missouri State Life Insurance Co (1908) 160 F 646 20.22
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd
6.22
[1915] AC 79
11.12, 11.55, 11.75, 11.80,
Durant v Heritage [1994] EGCS 134 (LEXIS) 11.81, 11.85, 11.98, 11.110,
11.124, 11.125, 11.128
Duren v Northwestern National Life Insurance Co 5581 So 2d 810
20.74
(Ala 1991)
Durham v BAI (Run Off) Ltd [2008] EWHC 2692 (QB); [2009] 2 All
10.02, 10.09
ER 26; [2009] 1 All ER (Comm) 805; [2009] Lloyd’s Rep IR 295
Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd
8.10
[1968] 2 QB 839
Dyke v McLeish Estates Ltd (1927) 27 SR (NSW) 74 6.15
EA Grimstead & Son Ltd v McGarrigan [1999] EWCA Civ 3029 9.15, 13.17
11.62, 11.75, 11.80, 11.81,
E & L Berg Homes Ltd v Grey (1979) 253 EG 473
11.114
Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82 1.15
Earl of Darnley v Proprietors of London, Chatham and Dover
 Railway (1867) LR 2 HL 43 4.17, 4.26
Ealing LBC v SSE [1993] PLR 12 9.138
Ease Faith Ltd v Leonis Marine Management Ltd [2006] EWHC 232 10.12
East Ham BC v Bernard Sunley Ltd [1966] AC 406 4.35, 19.15
East India Company v Vincent (1740) 2 Atk 83, 26 ER 451 11.163
Eastbourne Borough Council v James Foster [2001] LGR 529 9.137
9.141, 9.142, 9.144, 9.150,
Eastern Distributors v Goldring [1957] 2 QB 600, CA
9.153, 9.161, 16.18, 21.21
Easton v London Joint Stock Bank (1886) 34 ChD 95 17.64
Eaves, In re [1940] Ch 109 11.21
Ebeed v Soplex Wholesale Supplies Ltd and PS Refson & Co Ltd
16.15, 18.08
[1985] BCLC 404
Ebrahimi v EF Hutton & Co Inc 794 P 2d 1015 (1989) 4.26, 20.37
Economic Fire Office Ltd, Re (1896) 12 TLR 142 20.38
Eddystone Marine Insurance Co (No 2), Re [1894] WN 30 18.10
Eden v Smith (1800) 5 Ves 341 9.25
EDF Energy Networks (EPN) Plc v BOH Ltd [2009] 49 EG 71;
4.17, 9.131
[2010] L & TR 14; [2010] 2 P & CR 3; [2009] EWHC 3193
Edge v Duke (1848) 18 LJ Ch 183 20.22
Edgington v Fitzmaurice (1885) 29 ChD 459 9.27
EDM Mertens & Co PVBA v Veevoeder Import Export Vimex BV
4.43, 8.07, 8.39
[1979] 2 Lloyd’s Rep 372
Edwin Hill & Partners v First National Plc [1989] 1 WLR 225 2.32
Egbert v National Crown Bank [1918] AC 903 17.04
Egyptian International Foreign Trade Co v Wholesale Supplies Ltd
16.13
(The Raffaella) [1985] 2 Lloyd’s Rep. 36
12.66, 12.68, 12.70, 12.71,
EH Lewis & Son Ltd v Morelli [1948] 2 All ER 1021, CA
22.35
EIC Services Ltd & Anor v Phipps & Ors [2003] EWHC 1507 3.14, 4.17
El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685 16.04, 16.06
Elder’s Trustee and Executor Co Ltd v Commonwealth Homes and
4.23, 4.25, 5.07
Investment Co Ltd (1941) 65 CLR 603
Electronic Holdings Ltd v United Parcels Service Ltd [2005] EWHC
8.15, 20.52
221 [2005] 1 Lloyd’s Rep 470
Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288 5.04
Elitestone v Morris (1997) 73 P&CR 259, CA; rev’d on other
11.29, 11.70
grounds [1997] 1 WLR 687, HL
Ellesmere Brewery v Cooper [1896] 1 QB 75 17.03
Ellingwood v NN Investors Life Insurance Co Inc 805 P 2d 70 (NM
20.74
1991)
Elsden v Pick [1980] 1 WLR 899, CA 22.17
Elsey v JG Collins Insurance Agencies Ltd (1978) 83 DLR (3d) 1 6.22
Emanuel, Re [1988] 2 Qd R 514 5.07
Emscor Manufacturing Inc v Alliance Insurance Group 879 SW 2d
20.48
894 (1994)
English v English [2010] EWHC 2058 9.54
Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd’s Rep 340 2.03, 3.07, 4.01, 17.43, 17.47
Enron (Thrace) Exploration and Production BV v Clapp [2004]
3.12, 4.07, 4.10, 5.10
EWHC 1612
Equitable Life Assurance Society v McElroy 83 F 631 (1897) 20.05
Equitable Trust Co of New York v Dawson Partners Ltd (1927) 27
17.40
LlLR 49
11.13, 11.75, 11.87, 11.114,
ER Ives Investment Ltd v High [1967] 2 QB 379, CA
11.119, 12.71
Errington v Errington [1952] 1 QB 290, CA 11.114, 11.164
Esmail v J Rosenthal & Sons Ltd [1964] 2 Lloyd’s Rep 447 13.15
ETS Soules & Cie Internationale Trade Development Co Ltd [1980] 4.32, 4.34, 5.07, 8.34, 8.39,
1 Lloyd’s Rep 129, CA 8.43
European Asian Bank AG v Punjab and Sind Bank [1983] 1 WLR 642 17.66
European Bank, ex p Oriental Commercial Bank, Re (1870) 5 Ch App
17.17
358
Evans v Bartlam [1937] AC 473 4.20, 9.04, 9.11, 9.20, 9.108
Evans v Employers’ Mutual Insurance Association Ltd [1936] 1 KB 5.13, 16.06, 16.08, 16.09,
505 16.09, 17.17, 20.42
Evans v Webster (1928) 34 Com Cas 172 21.46
Evenden v Guildford City Football Club Ltd [1975] QB 917 3.12, 8.10, 8.29, 8.31
Eves v Eves [1975] 1 WLR 1338 11.75
Excel Footwear Co, ex p Nova Scotia Trust Co [1923] 3 DLR 212 18.04
Excel Polymers Ltd v Achillesmark Ltd [2005] EWHC 1927 10.01
5.18, 7.04, 9.04, 9.11, 9.18,
9.70, 9.74, 9.82, 9.84, 9.86,
Exchange Securities & Commodities Ltd, Re [1988] Ch 46 9.94, 9.108, 9.115, 9.131,
9.143, 9.147, 9.148, 9.150,
18.05, 18.09, 18.13
Expert Clothing Service & Sales Ltd v Hillgate House Pty Ltd [1986]
4.08, 22.04, 22.07, 22.09
Ch 340
Express Newspapers v News (UK) Ltd [1990] 1 WLR 1320 6.06
Eyestorm Ltd v Hoptonacre Homes Ltd [2007] EWCA Civ 1366 8.74
Ezell v Hayes Oilfield Construction Co Ltd 693 F 2d 489 (1982) 20.50
Fairlie v Christie (1817) 4 Taunt 416, 129 ER 166 2.14
Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234, CA 11.127
FAME Insurance Co v Spence [1958] NZLR 735 5.13
Farimani v Gates [1984] 2 EGLR 66 22.26
Farm Bureau Mutual Automobile Insurance Co v Houle 118 Vt 1545, 20.04
102 A 2d 326 (1954)
Farmers Elevator Co of Reserve v Anderson 552 P 2d 63 (1976) 3.18
Farquharson v Pearl Assurance Co Ltd [1937] 3 All ER 124 16.09, 20.42

9.20, 9.86, 16.12, 17.57,

Farquharson Bros and Co v King and Co [1902] AC 325
17.64, 21.27
8.80, 9.06, 9.11, 9.50, 9.68,
Farrow v Orttewell [1943] Ch 480, CA 9.70, 9.75, 9.82, 9.84, 9.94,
9.108
FDIC v Duffy 47 F 3d 146 (1995) 20.18
Federal Insurance Co v Matthews (1956) 3 DLR (2d) 322 20.51
Federated Service Insurance Co v Granados 889 P 2d 1312 (1995) 20.04
Feinstein v Niggli & Anor 1981 (2) SA 684 5.08
Felthouse v Brindley (1862) 11 CBNS 869, 142 ER 1037 2.14
Fenner v Blake [1900] 1 QB 426 2.02, 8.08, 8.75
Fenwick Stobart & Co, Re [1902] 1 Ch 507 16.09, 17.17
Fercomatal v Mediterranean Shipping Co [1989] AC 788 6.20
Ficom SA v Sociedad Cadex Limitada [1980] 2 Lloyd’s Rep 118 4.06, 4.27, 5.03
Film Investors Overseas SA v Home Video Channel (t/a Adult
7.36, 11.38, 11.75, 11.127
Channel) The Times, 2 Dec 1996
4.07, 4.11, 4.13, 4.35, 4.43,
Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508,
5.07, 8.07, 8.15, 8.26, 8.39,
CA
8.42
Finelli v Dee (1968) 67 DLR (2d) 393 6.16
First Energy (UK) v Hungarian International Ltd [1993] BCC 533 16.15
First National Bank v Ashkok Krishna [1998] EWCA 682 11.79
7.09, 7.31, 11.58, 12.01,
12.03, 12.06, 12.27, 12.34,
First National Bank Plc v Thompson [1996] 1 All ER 140; [1996] Ch 12.40, 12.57, 12.62, 12.67,
231, CA 12.69, 12.72, 12.73, 12.74,
12.75, 12.76, 12.77, 22.35,
22.37
First National Securities v Jones [1978] Ch 109 12.17
Fish v Kempton (1849) 7 CB 687, 137 ER 272 16.25
Fisher v Brooker [2006] EWHC 3239 (Ch); [2009] IP & T 195;
[2008] EWCA Civ 287; [2008] Bus LR 1123; [2008] EMLR 13; 11.17, 11.21, 11.70, 11.75,
[2008] FSR 26; [2009] UKHL 41; [2009] 1 WLR 1764; [2009] 4 11.124, 11.127
All ER 789
Fitchpatrick v Hawkeye Insurance Co 53 Iowa 335 (1880) 16.09, 20.42
Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068,
2.02, 2.03, 3.14, 3.20, 4.01,
[2002] 2 All ER (Comm) 896; [2002] 2 LLR 487; [2002] 2 Lloyd’s
4.07, 4.36, 5.13, 20.04, 21.41
Rep 487
Flanagan v South Bucks DC [2002] EWCA Civ 690; [2002] 1 WLR 9.135, 9.138
2601
Flattery and Japanese Parts Centre Ltd v Secretary of State for
9.136
Communities and Local Government [2011] EWHC 305 (Admin)
Fletcher v Frogatt (1827) 2 C&P 569, 172 ER 259 17.35

Floating Dock Ltd v Hong Kong and Shanghai Banking Corpn [1986]
17.50
1 Lloyd’s Rep 65
Foakes v Beer (1884) 9 App Cas 605 2.24, 8.09, 8.66, 17.19
Foley v Classique Coaches [1934] 2 KB 1 2.13
7.36, 8.10, 8.15, 8.39, 8.43,
Fontana NV v Mautner (1980) 254 EG 199
8.46, 8.48
Food Corpn of India v Antclizo Shipping Corporation (‘The
Antclizo’) [1986] 1 Lloyd’s Rep 181, [1987] 2 Lloyd’s Rep 130, 5.08, 8.18, 8.21
CA; aff’d [1988] 1 WLR 603, HL
Foodco UK Llp (t/a Muffin Break) v Henry Boot Developments Ltd
7.29, 9.15, 13.18, 13.19
[2010] EWHC 358, Ch
Foot Clinics (1943) Ltd v Coopers Gowns Ltd [1947] KB 506 8.14, 8.19
Foran v Wright (1989) 168 CLR 385 1.19, 5.07, 7.10
Force India Formula One Team Ltd v Etihad Airways PJSC [2010]
3.05
EWCA Civ 1051
Forman & Co Pty Ltd v The Ship Liddesdale [1900] AC 190 4.08
Forsikringsaktieselskapet Vesta v Butcher (No 1) [1989] 1 All ER
20.25
402
Fortisbank SA v Trenwick International Ltd & Ors [2005] EWHC 3.05, 4.08, 4.11, 4.46, 8.03,
399 8.20, 8.37, 10.09, 20.27
Foster v Colby (1858) 3 H&N 705, 157 ER 651 21.30
Foster v Dawber (1851) 6 Ex 839, 155 ER 785 17.29
Foster v Mentor Life Assurance Co (1854) 3 El & Bl 48, 118 ER
12.20, 12.40, 12.56
1058
Foster v Robinson [1951] 1 KB 149 22.43, 22.51
Foster, Hudson v Foster (No 2), Re [1938] 3 All ER 610 11.75, 11.86, 11.111, 11.127
Foster Wheeler Ltd v Hanley [2008] EWHC 2926; [2009] 1 CMLR
8.50, 8.62, 8.64, 10.12
47; [2009] Pens LR 39
Fowlie v Ocean Accident and Guarantee Corpn Ltd (1902) 4 OAR
20.32
146
France v Clark (1884) 26 ChD 257 17.64
Fraser Valley Credit Union v Siba et al [2001] BCSC 744 9.20
Freeland v Glover (1806) 7 East 457, 103 ER 177 20.74
9.20, 9.38, 9.68, 9.70, 9.76,
Freeman v Cooke (1848) 2 Ex 654, ER 652
9.84, 9.159
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd 16.03, 16.11, 16.12, 16.13,
[1964] 2 QB 480 16.15, 16.17, 18.05, 18.08
Friends Provident Life Office v British Railways Board [1996] 1 All
22.50
ER 336
Fryer v Brook, The Times, 4 Aug 1984; [1998] BPIR 687 11.122
Fugaccia v St Martins’ Securities Ltd [1997] EWCA Civ 1488 10.09
Fuller v Glynn Mills & Co [1914] 2 KB 168 17.64, 18.13
Fuller’s Theatre v Musgrove (1923) 31 CLR 524 4.08, 4.17, 4.27, 6.15
9.63, 9.86, 9.95, 9.104, 9.176,
Fung Kai Sun v Chan Fui Hing [1951] AC 489, PC
17.59
Furness Withy (Australia) Pty Ltd v Metal Distributors (UK) Ltd
10.11
(‘The Amazonia’) [1990] 1 Lloyd’s Rep 236
Furnivall v Grove [1860] 8 CBNS 496 22.46
Galaxy Energy International v Novorossiys Shipping Co (‘The Petr
 Schmidt’) (Com Ct, 11 Nov 1996) 21.41
Gandy v Gandy (1885) 30 ChD 57 12.39, 12.55
Gange v Sullivan (1966) CLR 418 4.27, 5.04
Garnet Trading & Shipping (Singapore) Pte Ltd v Baominh
20.04, 20.05, 20.64
Insurance Corpn [2010] EWHC 2578
Garside v Black Horse Ltd & Ors [2010] EWHC 190 3.03, 4.01, 4.07, 4.39
Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfield’) 6.05, 6.06, 6.16, 6.19, 6.20,
[1978] 2 Lloyd’s Rep 357 6.26, 6.28
Gaunt v Wainman (1836) 3 Bing (NC) 69, 132 ER 335 12.55, 12.56
General Accident v Campbell (1925) 25 LlLR 151 20.22
General Finance, Mortgage and Discount Co v Liberator Permanent 12.03, 12.23, 12.27, 12.29,
Benefit Building Society (1878) 10 ChD 15 12.34, 12.35, 12.75
George Barker (Transport) Ltd v Eynon [1974] 1 WLR 462 6.20
George Francis v Bruce, In re (1890) 44 ChD 627 17.31
9.18, 9.20, 9.37, 9.86, 9.129,
George Whitechurch Ltd v Cavanagh [1902] AC 117
9.130, 16.12, 17.57
Gesell v Reeves 429 NW 2d 363 (1988) 4.36
Gillespie Investments Ltd v Gillespie [2010] ScotCS CSOH 113 4.23
Gillett v Abbott (1838) Ad&El 783, 112 ER 665 12.30
10.01, 11.03, 11.14, 11.21,
11.35, 11.35, 11.53, 11.70,
Gillett v Holt [2001] Ch 210
11.71, 11.74, 11.75, 11.94,
11.99, 11.102, 11.128
Gillies v Keogh [1989] 2 NZLR 327 (CA NZ) 11.76
Gillis v Bourgard (1983) 145 DLR (3d) 570 20.82
Gissing v Gissing [1971] 1 AC 886; [1970] 3 WLR 255; [1970]
11.133, 11.147, 11.153
UKHL 3
Giumelli v Giumelli [1999] HCA 10 11.111
Glass v Pioneer Rubber Works of Australia [1906] VLR 754 18.02
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 14.11
Glencore Grain Ltd v Flacker Shipping Ltd (MV Happy Day) [2002]
1.17, 21.29
EWCA Civ 1068; [2002] 2 Lloyd’s Rep 487
Glencore Grain Rotterdam BV v Lebanese Organisation for
International Commerce [1997] 4 All ER 514; [1997] EWCA Civ 1.33, 13.08, 13.09, 13.15
1958
Glencore International AG v Bank of China [1996] 1 Lloyd’s Rep
17.40
135
Glencore International AG v Ryan (‘The Buergracht’) [2001] EWCA
20.14, 20.62
Civ 2051
Glicksman v Lancashire & General Assurance Co Ltd [1927] AC 139 20.66
Globe Savings Co v Employers Liability Assurance Co (1900) 13 20.26
Man R 531
Gloucestershire CC v Farrow [1983] 2 All ER 1031 11.02, 11.20, 11.60
Gloyne v Richardson [2001] EWCA Civ 716 10.11, 10.12
Go West Ltd v Spigarolo & Anor [2003] EWCA Civ 17 3.05, 3.20
Godden v Merthyr Tydfil Housing Association [1997] EWCA Civ
10.13
780
Godfrey v John Lees [1995] EMLR 307 11.70, 11.75, 11.127
5.15, 9.104, 9.142, 9.143,
Goldcorp Exchange Ltd, Re [1995] 1 AC 74; [1994] 2 All ER 806, 9.157, 11.131, 16.18, 17.65,
PC (NZ) 18.05, 18.12, 21.21, 21.23,
21.24
8.03, 8.10, 8.15, 8.17, 8.31,
Goldsworthy v Brickell [1987] Ch 378, CA
8.35, 8.48, 9.35
Gonthier v Orange Contract Scaffolding Ltd [2003] EWCA Civ 873 10.09
Good Luck, The [1992] 1 AC 233 20.14
Goodtitle d Edwards v Bailey (1777) 2 Cowp 597 12.66
Goodwin v Robarts (1876) 1 App Cas 476 17.64
Gordon v Strange (1847) 1 Exch 477, 154 ER 203 21.17
Goss v Lord Nugent (1883) 5 B & Ad 58, 110 ER 713 2.01, 2.04, 2.07, 3.18
GPS Contractors Ltd v Ringway Infrastructure Services Ltd [2010]
4.08, 4.11, 4.46
EWHC 283; [2010] BLR 377
Grace v Peter Harrison Designs & Signs Pty Ltd [1998] QSC 27 9.146
Graham v Secretary of State for the Environment and Anor [1993]
8.10, 9.134, 9.138
JPL 353
11.02, 11.38, 11.55, 11.56,
Grant v Edwards [1986] Ch 638, CA 11.57, 11.62, 11.71, 11.76,
11.133
Grant v Norway (1851) 10 CB 665 21.44
Gray v Owen [1910] 1 KB 622 22.17
Grayridge Pty Ltd v Cousens & Anor [1999] VSC 199 12.50
9.85, 11.55, 11.56, 11.59,
Greasley v Cook [1980] 1 WLR 1306, CA 11.61, 11.65, 11.71, 11.76,
11.77, 11.78, 11.114
Green v Somerville (1979) 141 CLR 595 6.10
Greenhill v Federal Insurance Co Ltd [1927] 1 KB 65 20.66, 20.70, 20.71
Greenwich LBC v Discreet Selling Estates [1990] 2 EGLR 65 22.06, 22.10
Greenwood v Leather Shod Wheels Co [1900] Ch 421 18.02
9.04, 9.54, 9.68, 9.70, 9.82,
Greenwood v Martins Bank Ltd [1932] 1 KB 371, CA; [1933] AC 51 9.84, 9.86, 9.95, 9.110, 9.111,
 9.159, 16.24, 17.55, 17.57
Greenwood Reversions Ltd v World Environment Foundation Ltd
22.04
[2008] EWCA Civ 47
12.01, 12.03, 12.18, 12.19,
12.20, 12.22, 12.41, 12.46,
Greer v Kettle [1938] AC 156
12.47, 12.48, 12.50, 12.51,
12.56, 12.60, 12.68, 13.22
Gregory v Mighell (1811) 18 Ves 238, 34 ER 341 11.110
Gresham Life Assurance Society v Crowther [1914] 2 Ch 219, aff’d 9.18, 9.20, 9.28, 9.29, 9.39,
on other grounds [1915] Ch 214, CA 9.70, 9.75, 9.76, 9.82, 9.151
Gribbon v Lutton [2001] EWCA Civ 1956 14.03
Grievson v Grievson [2011] EWHC 1367 8.03, 8.45
11.20, 11.61, 11.62, 11.79,
Griffiths v Williams (1977) 248 EG 947, CA
11.83, 11.85, 11.109, 11.114
Grisley v Lother (1614) Hobart 10, 80 ER 161 2.16
Grogan v Robert Meredith & Co TLR 20 February 1996 2.14
Gross v French (1976) 238 EG 39, CA 11.38
6.04, 7.10, 7.11, 7.12, 9.86,
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
9.87, 11.63, 11.64, 12.20
Guaranty Trust of New York v Van Den Berghs Ltd (1925) 22 LlLR
17.41
447
Guardians of Halifax Union v Wheelwright (1875) LR 10 Exch 183 17.57
Guise v Drew [2001] EWHC Ch 410 11.17
Gunson v Metz (1823) 1 B&C 193, 107 ER 72 17.32
Gyles v Hall (1726) 2 P Wms 378, 24 ER 774 17.08, 21.17
H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 9.31, 9.45, 9.82, 9.86
Habib Bank Ltd v Habib Bank AG [1981] 1 WLR 1265, CA 6.30, 11.55, 11.71, 11.75
Hackney LBC v Snowden [2001] 33 HLR 49, CA 22.17
7.27, 8.79, 8.80, 9.04, 9.09,
Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008] EWHC
10.17, 13.07, 13.09, 13.12,
1016 (TCC)
19.21, 19.22
Hain Steamship Co Ltd v Tate and Lyle Ltd [1936] 2 All ER 597;
4.27, 5.04, 21.08, 21.39
(1936) 41 Comm Cas 350
Hair v Prudential Assurance Co Ltd [1983] 2 Lloyd’s Rep 667 20.68, 20.69
Hall v Wright (1858) EB & E 746, 120 ER 688 2.49
Halsall v Brizell [1957] 1 All ER 90 11.114, 12.71
Hamar & Lockville Trustees Ltd v French [1997] EWCA 1121 3.01, 4.07
Hamel-Smith v Pycroft and Jervase Ltd (QBD, unrep, 5 Feb 1987) 10.01, 13.20
Hamilton v Geraghty (1901) 1 SRNSW Eq 81 11.18, 11.114, 11.120
9.38, 9.39, 9.81, 9.82, 9.85,
Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 9.95, 9.103, 9.107, 9.158,
237 11.55, 11.69, 11.71, 11.72,
11.75

Hammond v Mitchell [1992] 4 All ER 109 11.75, 11.110, 11.126

Hamp v Bygrave (1983) 266 EG 720 11.55
Hamzeh Malas & Sons v British Imex Industries Ltd [1958] 2 QB
17.39
127
Hannaford v Selby (1976) 239 EG 811 11.62
Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14, CA 11.53
Hansen v Marco Engineering (Aust) Pty Ltd [1948] VLR 198 20.77
Hansen v Yuncken v Chadmix Plastics [1985] BCLR 52 19.10
Haq v Island Homes Housing Assn [2011] EWCA Civ 805 11.34
Hargett v Gulf Ins Co 55 P 2d 1258 20.77
Harnam v Anderson (1809) 2 Camp 243 9.146
Harnam Singh v Jamal Pirbhai [1951] AC 688 8.80, 9.29, 9.132
Harris v Hooper [1847] 10 LTOS 137 12.31
Harris v Truman (1882) 9 QBD 264 9.148
Harrison v Douglas (1835) 3 Ad& E 394, 111 ER 463 20.33
Harrison v Liberty Mutual Insurance Co 290 F 2d 900 (1961) 20.46
Harrison v Shepherd Homes [2011] EWHC 1811 4.07
Harrower v Hutchinson (1870) LR 5 QB 584 20.72
Hartley v Hyams [1920] 3 KB 475 20.08
Haslemere Estates Ltd v Baker [1982] 1 WLR 1109 11.119
Hawksley v Outram [1892] 3 Ch 359 4.36, 4.37, 4.38
Hawler Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22
4.07
NSWLR 298
Haydenfayre v British National Insurance Society Ltd [1984] 2
16.06, 20.24, 20.42
Lloyd’s Rep 393
Haynes v Hirst (1927) 27 SR (NSW) 480 4.13, 17.14, 21.19
Hazel v Akhtar [2001] EWCA Civ 1883; [2002] 1 EGLR 45, CA 22.29
HB Property Development Ltd v SSE [1998] EWCA Civ 260 4.17
Heane v Rogers (1820) 9 B & C 577, 109 ER 215 16.18
Heilbut Symons & Co v Buckleton [1913] AC 30 2.13
Hely-Hutchinson v Brayhead [1968] 1 QB 549 16.14
Hemmings v Sceptre Life Assn Ltd [1905] 1 Ch 365 20.22, 20.76
Henderson v Bank of Australasia (1890) 45 ChD 330 18.04
Henderson v Henderson [1843] 3 Hare 100; 67 ER 313 1.08, 14.01, 14.04, 14.11
Henderson v Stobart (1850) 5 Exch 99 17.19
Henderson v Williams [1895] 1 QB 521 21.21

11.35, 11.80, 11.81, 11.87,

Henry v Henry (St Lucia) [2010] UKPC 3
11.93, 11.120, 11.129
Henthorn v Fraser [1892] 2 Ch 27, CA 20.11, 20.48
11.133, 11.144, 11.145,
Herbert v Doyle [2010] EWCA Civ 1095
11.159
Heron Garage v Moss [1974] 1 WLR 148 4.37
Heyman v Darwins Ltd [1942] AC 356 6.05, 6.06
3.18, 5.06, 17.02, 20.59,
Hickman v Hayes (1875) LR 10 CP 598
21.13
Highland and Universal Properties Ltd v Safeway Properties Ltd
6.19
[2000] ScotCS 28
HIH Casualty and General Insurance Ltd v AXA Corporate Solutions 3.05, 4.25, 8.03, 8.15, 8.28,
[2002] EWCA Civ 1253; [2002] 2 All ER (Comm) 1053 8.34, 8.37, 10.09, 20.14
HIH Casualty and General Insurance Ltd & Ors v Chase Manhattan
Bank & Ors [2003] UKHL 6; [2003] 1 All ER (Comm) 349;
5.07
[2003] 2 LLR 61; [2003] 1 CLC 358; [2003] Lloyd’s Rep IR 230;
[2003] 2 Lloyd’s Rep 61; [2003] Lloyd’s Rep IR 230
Hill v Citadel Insurance Co Ltd [1995] LRLR 218 17.13, 20.83, 20.84, 20.88
Hill v Harris [1965] QB 601 2.13
Hill v Patten (1873) 8 East 373, 103 ER 386 2.14
Hillas & Co Ltd v Arcos (1932) 43 Ll L Rep 359 2.13
Hillingdon London Borough Council v ARC Ltd (No 2) [2000] 3
8.20
EGLR 97
Hip Hing Hip Fat Co Ltd v Daiwa Bank [1991] 2 HKLR 35 17.50
Hirachand Punamchand v Temple [1911] 2 KB 330 17.19
Hirdes GmbH v Edmond [1991] 2 Lloyd’s Rep 546 2.09
Hirju Mulji v Cheong Yue SS Co [1926] AC 497 21.39
8.18, 8.79, 10.02, 10.04,
Hiscox v Outhwaite [1991] 2 Lloyd’s Rep 524; [1992] 1 AC 562
10.11, 10.15, 20.75
HM Revenue & Customs v Benchdollar Ltd [2009] EWHC 1310;
[2009] STC 2342; 79 TC 668; [209] STI 2058; [2010] 1 All ER 10.01
174
Hodge v Fillis (1813) 3 Camp 462, 170 ER 1447 17.34
Hodgson v Armstrong [1967] 2 QB 299, CA 22.54
Hodgson & Anor v Lipson [2009] EWHC 3111 8.09, 8.15, 8.18
Hoggett v Hoggett [1980] 39 P & CR 121 22.43
Holder v Holder [1968] Ch 353 8.35, 11.17
Holdsworth v Lancashire and Yorkshire Fire Insurance Co (1907) 23
20.39, 20.40, 20.77
 TLR 521
11.20, 11.30, 11.33, 11.38,
Holiday Inns Inc v Broadhead (1974) 232 EG 951 11.111, 11.114, 11.141,
11.162
Holland v Manchester and Liverpool District Banking Co Ltd (1909)
17.54
25 TLR 386
Holland v Wiltshire (1954) 90 CLR 409 4.08
Holland Commercial Mortgage Co v Hutchings [1936] SCR 165 17.02, 17.05
Holme v Brunshill (1878) 3 QBD 495 17.04
9.18, 9.51, 9.65, 9.90, 9.100,
Holt v Markham [1923] 1 KB 504, CA 9.101, 9.112, 9.167, 17.67,
17.68
Home Assurance Association (No 2), Re (1871) LR 2 Eq 112 18.02
7.44, 9.04, 9.11, 9.18, 9.47,
9.48, 9.54, 9.70, 9.82, 9.84,
Hopgood v Brown [1955] 1 WLR 213
9.86, 9.141, 9.151, 9.153,
9.154, 11.114, 12.11, 12.61
Hopley v Dufresne (1812) 15 East 275, 104 ER 848 17.34
Hopper v Hopper [2008] EWHC 228, Ch 11.91, 11.93, 11.105, 11.111
Horrocks v Foray [1976] 1 WLR 231 11.74
Horsfall v Fauntelroy (1830) 10 B&C 755, 109 ER 630 16.26
Horwood & Ord v Land of Leather Ltd [2010] EWHC 546; [2010]
2.24
Lloyd’s Rep IR 453, [2010] 1 CLC 423
Hough v Guardian Fire & Life Ass Co (1902) 18 TLR 273 20.39
Houghton & Co v Nothard Lowe & Wills [1927] 1 KB 246, [1928]
16.09, 18.07, 20.42
AC 1
Houndslow London Borough Council v Twickenham Garden
6.16
Developments Ltd [1971] 1 Ch 233
Houndslow LBC v Pilling [1993] 1 WLR 1242, CA 22.17
House of Spring Gardens v Waite [1991] 1 QB 241 14.01, 14.11
Howell v Knightley (1856) 21 Beav 331, 152 ER 887 20.55
Hoxie v Howe Insurance Co 32 Conn 21 (1864) 3.14, 4.26
Hudson Bay Apparel Brands Llc v Umbro International Ltd [2010]
3.03, 3.07, 4.17
EWCA Civ 949
2.13, 8.01, 8.10, 8.14, 8.17,
Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 8.19, 8.39, 8.44, 8.47, 8.52,
8.67, 8.69, 22.30
Huguenin v Baseley (1807) 14 Ves 273; 33 ER 526 1.15
Hully v Aluminium Co of America 143 F Supp 508 (1956) 20.75
Huning v Ferrars (1711) Gilb 85, 25 ER 59 11.75, 11.86, 11.110
Hunt v South Eastern Railway Co (1875) 45 LJ QB 87 17.02
Hunter v Chief Constable of West Midlands Police [1982] AC 529 14.11
Hunter v Senate Support Services Ltd [2004] EWHC 1085 9.70, 9.76
Huntington v Imagine Group Holdings Ltd [2007] EWHC 1603
9.44
(Comm)
Hurstfell v Leicester Square Property Co Ltd [1988] 2 EGLR 105 22.29
Hussey v Palmer [1972] 1 WLR 1286 (CA) 11.105
Hutchinson v Steria Ltd [2006] EWCA Civ 1551; [2006] All ER (D)
11.67
349 (Nov)
Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1 WLR
6.09
1129
I-Way Ltd v World Online Telecom UK Ltd [2002] EWCA 413 2.43, 6.09, 20.52
Ian Stach v Baker Bosley Ltd [1958] 2 QB 130 17.39, 17.51
IFE Fund SA v Goldman Sachs International [2007] EWCA Civ 811;
3.14, 4.17
[2007] 2 Lloyd’s Rep 449
IGN Re (UK) Lyd v R & V Versichung [2007] 1 BCLC 108 16.15, 18.08
Immer (No 145) Pty Ltd v Uniting Church in Australia Property
4.08
Trust (NSW) (1993) 182 CLR 26
Impala Distributors v Taunus Chemical Manufacturing Co (Pty) Ltd
3.07
(1973) (3) SA 273
Imperator Realty v Tull 228 NY 447 (1990) 3.18
Imperial Bank of Canada v Bank of Hamilton [1903] AC 49 17.58
IMG Pension Plan HR Trustees Ltd v German [2009] EWHC 2785;
8.50, 8.62, 8.64, 10.12
[2010] Pens LR 23
IMT Shipping & Chartering GmbH v Chansung Shipping Co Ltd,
Owners of the Zenovia [2009] EWHC 739 (Comm); [2009] 2 All 4.08, 8.15
ER (Comm) 177; [2009] 2 Lloyd’s Rep 139; [2009] 1 CLC 582
Indian Endurance, The see Republic of India v India Steamship Co
(‘The Indian Endurance’)
Industrial Properties (Barton Hill) Ltd v Associated Electrical
12.66, 22.35
Industries Ltd [1977] 1 QB 580
Inframatrix Investments Ltd v Dean Construction [2011] EWHC
4.08, 20.27
1947
8.23, 8.24, 9.10, 9.57, 9.58,
ING Bank NV v Ros Roca SA [2011] EWCA Civ 353
10.01, 10.02, 10.06, 10.09
ING Lease (UK) Ltd v Harwood [2007] EWHC 2292 (QB) 9.20
Insurance Company of North America v Atlantic National Insurance
20.46, 20.48
Co 329 F 2d 769 (1964)
Insurance Corporation of the Channel Islands v The Royal Hotel Ltd 3.14, 4.23, 4.26, 6.05, 6.06,
[1998] LRLR 151 20.04, 20.18
Intel Corpn v Hartford Accident and Indemnity Co 692 F Supp 1171
20.04
 (ND Cal 1988) Ltd v Development Ventures Ltd [2006] EWHC
Intense Investments
9.10
1586 (TCC)
Intertradex SA v Lesieur-Torteaux SARL [1978] 2 Lloyd’s Rep 509 2.47
7.27, 8.79, 8.80, 13.07, 13.09,
Investments Ltd v Development Ventures Ltd [2006] EWHC 1586
13.12
Investors Compensation Scheme Ltd v West Bromwich Building
2.35
Society [1998] 1 WLR 896
11.14, 11.15, 11.26, 11.75,
Inwards v Baker [1965] 2 QB 29, CA 11.81, 11.83, 11.85, 11.87,
11.92, 11.108, 11.114
Iperion Investments Corporation v Broadwalk House Residents
22.25
[1992] 2 EGLR 235
IRC v Ufitec Group Ltd [1977] 3 All ER 924 16.15, 18.08
Iron Trades Mutual Insurance Co Ltd v Companhia de Seguros
6.11
Imperio [1991] 1 Re LR 213
Isaacs v Royal Insurance Co (1870) LR 5 Exch 296 2.09
Island Records Ltd v Tring International Ltd [1995] 3 All ER 444 6.02, 16.22
Islington Vestry v Hornsey UDC [1900] 1 Ch 695, CA 9.134
9.07, 9.18, 9.24, 9.45, 9.90,
Ismail v Polish Ocean Lines [1976] QB 893, CA
9.96
ITN v Ward [1997] PLR 131 9.46
11.71, 11.73, 11.110, 11.124,
Ives v High [1967] 2 QB 379
11.126, 11.164
J Kirkaldy & Sons Ltd v Walker [1999] LRLR 410 20.05, 20.17
JF Perrott v Cohen [1951] 1 KB 705, CA 8.54, 8.80
J Murphy & Sons Ltd v Daimler Benz Transportation (Signal) Ltd
10.04
[1998] EWHC 278
JP Morgan Chase Bank v Springwell Navigation Corpn [2008]
9.15, 13.18
EWHC 1186 (Comm)
11.38, 11.40, 11.110, 11.124,
JT Developments v Quinn [1991] 62 P&CR 33, CA
11.125, 11.126
J Willis & Son v Willis [1986] 1 EGLR 62 11.96, 11.97
Jackson v Goldsmith [1950] 81 CLR 446 14.09
Jackson v National Flood Insurers Assn 398 F Supp 1383 (1974) 20.39
Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal [2005]
8.07
UKPC 16
James v CGU Insurance Plc [2002] LRLR 206 20.65, 20.66
8.10, 8.14, 8.15, 8.20, 8.26,
James v Heim Galleries [1980] 41 P & CR 269, (1980) 256 EG 819,
8.29, 8.31, 8.43, 8.62, 8.76,
CA
22.40
James v Royal Insurance Co (1907) 10 NZ Gaz LR 244 20.26

James v Thomas [2007] EWCA Civ 1212 11.61, 11.153, 11.154

Janred Properties Ltd v ENIT [1989] 2 All ER 444 4.06, 8.45, 8.78
Javad v Aqil [1991] 1 WLR 1007 12.70
Jennings v Great Northern Railway Co (1865) LR 1 QB 7 9.50
11.88, 11.89, 11.90, 11.91,
Jennings v Rice [2003] 1 P & CR 8 11.92, 11.93, 11.95, 11.96,
11.100, 11.105
Jerome v Bentley & Co [1952] 2 All ER 114 21.21, 21.27
8.15, 10.09, 13.16, 19.13,
Jet2.Com Ltd v Blackpool Airport Ltd [2010] EWHC 3166
20.52
Joachimson v Swiss Bank Corpn [1921] 3 KB 110 17.58
Joel v Law Union and Crown Insurance Co [1908] 2 KB 863 20.68
10.01, 10.04, 10.09, 10.12,
John v George and Walton (1996) 71 P&CR 375, CA
11.72, 11.110, 11.114
John Hancock Mutual Life Insurance Co v Luzio 176 NE 446 (1931) 20.43
2.33, 2.37, 4.08, 6.04, 6.24,
Johnson v Agnew [1980] AC 367
20.59
Johnson v Credit Lyonnaise Co (1877) 3 CPD 32 9.160
8.80, 8.81, 10.04, 10.05,
Johnson v Gore Wood & Co [2001] 2 WLR 72 10.06, 13.06, 13.11, 13.13,
14.01, 14.04, 14.11, 14.12
Joint Stock Discount Co, Shipman’s Case (1868) LR 5 Eq 219 18.02
Jones v Bangor Mutual Shipping Ins Sy Ltd (1889) 61 LT 727 20.76
11.71, 11.74, 11.75, 11.77,
Jones v Jones [1977] 1 WLR 438, CA
11.110, 11.128
Jones v Lavington [1903] 1 KB 253 22.37
Jones v Stones [1999] 1 WLR 1739, CA 1.17
Jones v Tarleton (1842) 9 M&W 675, 152 ER 285 20.10
Jones v Waring & Gillow [1926] AC 670 9.86, 9.127, 9.167
Jones & Co v Whitaker (1887) 3 TLR 723 17.31
Jones Bros v Holloway Ltd [1923] 2 KB 117 9.39, 9.54, 9.55, 9.86
Jones Engineering Services Ltd v Balfour Beatty Building Ltd [1992]
19.21
42 Con LR 1
7.17, 8.05, 9.01, 9.11, 9.20,
Jordan v Money (1854) 5 HLC 185 9.21–9.26, 9.39, 9.68, 9.70,
9.71, 9.75, 9.82, 9.108
K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (The
10.09, 10.12
August Leonhardt) [1985] 2 Lloyd’s Rep 28
Kai Nam v Ma Kam Cham [1956] AC 358 9.29
Kaliszewska v John Clage and Partners (1984) 5 Con LR 9.23

Kaminer v Franklin Life Insurance Co 472 F 2d 1073 (1973) 20.49

3.08, 4.01, 4.06, 4.16, 4.17,
Kammins Ballroom Co v Zenith Investments [1971] AC 850
4.20, 4.29, 9.52, 22.54, 22.55
Kanchenjunga, The see Motor Oil Hellas (Corinth) Refineries SA v
Shipping Corporation of India (‘The Kanchenjunga’)
Keen v Holland [1984] 1 WLR 251 10.01, 10.04
Keehn v Express Insurance Co of America 129 F 2d 503 (1942) 20.36, 20.50
Keeling v Pearl Assurance Co (1923) 129 LT 573 20.76
Keepers and Governors of the Possessions, Revenues and Goods of
the Free Grammar School of John Lyon v Mayhew [1997] 1 EGLR 22.58
88, CA
Keene v Biscoe (1878) 8 Ch D 201 17.11
Keith v R Gancia and Co Ltd [1904] 1 Ch 774, CA 9.82, 9.107, 9.158, 12.44
Keller Ltd (t/a Keller Concrete) v Morrison Construction Ltd [1998]
3.14, 4.07, 4.08
EWCA 161
Kelly v Solari (1841) 9 M&W 54, 152 ER 24 20.36
Kelsen v Imperial Tobacco Co of Great Britain & Ireland [1957] 2
9.20
All ER 343
Kelsey v Dodd [1881] 52 LJ Ch 34 22.03
Kemp v Watt (1846) 15 M&W 672, 153 ER 1020 19.19
Kendall v Hamilton (1879) 4 App Cas 504 4.23, 6.06, 6.07, 14.10
Keptigalla Rubber Estates v National Bank of India [1909] 2 KB
17.59
1010
Kernott v Jones [2010] EWCA Civ 578; [2010] Fam Law 806; [2010] 11.151, 11.154, 11.155,
1 WLR 2401; [2010] 3 All ER 423 11.156
Khoury v Government Insurance Office of NSW (1984) 165 CLR
4.07, 4.22
622
Kiamie v Equitable Life Insurance Co 44 NYS 2d 510 (1943) 20.26
Kilcarne Holdings v Targetfollow [2004] EWHC 2547 (Ch); [2004]
11.142
NPC 167; [2005] 2 P & CR 8
Kinane v Mackie-Conteh [2005] EWCA Civ 45 11.51, 11.92, 11.157
King v Commercial Union Insurance Co of New York 306 F Supp 9
20.26, 20.51
(1969)
Kings Settlement, Re [1931] 2 Ch 294 12.40, 12.57, 12.59, 12.63
Knickerbocker Life Insurance Co v Norton 96 US 234 (1878) 20.51
7.39, 9.11, 9.39, 9.45, 9.71,
9.82, 9.95, 9.103, 9.105,
Knights v Wiffen (1870) LR 5 QB 660, CA
9.108, 9.111, 9.143, 17.58,
 21.23
Kok Hoong v Leong Cheang Kweng [1964] AC 993 11.46, 17.03, 17.60
3.03, 3.05, 3.09, 3.10, 3.12,
3.14, 3.16, 4.06, 4.17, 4.38,
Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] 4.39, 6.01, 6.04, 8.06, 8.07,
EWCA Civ 147; [2008] Bus LR 931 20.02, 20.04, 20.07, 20.14,
20.15, 20.17, 20.27, 20.29,
20.31
Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459 4.33, 21.08, 21.14, 21.15
Kydon Compania Naviera SA v National Westminster Bank [1981] 1
17.40, 17.50, 17.66
Lloyd’s Rep 68
Lacy v Anderson (1581–2) Choyce Cases in Chancery 155 6.04
Laine v Cadwallader [2001] 33 HLR 36, CA 22.17
Laing v Commercial Union Assurance Co Ltd (1922) Ll LR 54 20.55
Laing v Union Marine Insurance Co (1865) 1 Comm Cas 11 20.68
Lake v Brutton (1856) 8 De GM&G 440, 44 ER 460 17.26
Lakschmijit v Sherani [1974] AC 605 6.05
Lalani v Crump Holdings Ltd [2007] EWHC 47, Ch; [2007] All ER
11.79
(D) 127 (Jan)
Lamer v LCC [1949] 2 KB 1; All ER 964, CA 9.100
Lamprell v Billericay Union (1849) 18 LJ EX 282 19.08
Langston Group Corpn v Cardiff City Football Club [2008] EWHC
2.30
535
Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 8.14, 8.18, 8.40, 8.76, 9.84
Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221 5.07
Larner v LCC [1949] 2 KB 683 17.68
Larratt v Bankers & Traders Insurance Co (1941) 41 SR (NSW) 215 2.01, 5.04, 5.08, 5.12
Laskar v Laskar [2008] Fam Law 638; [2008] 1 WLR 2695; [2008]
11.149
EWCA Civ 347; [2008] 2 FLR 589
Laurie and Morewood v Dudin & Sons [1926] 1 KB 223 21.23
Lawrence v Twentiman 1 Rolle’s Abridgement Conditions G 2.49
Laws v Rutherford 1924 AD 261 5.08
11.25, 11.30, 11.54, 11.61,
Layton v Martin [1986] 2 FLR 227
11.125, 11.131, 11.162
Lebon v Aqua Salt Co Ltd [2009] UKPC 2; [2009] BCC 425 16.04, 16.07, 18.03
Ledingham v Bermejo Estancia Co Ltd [1947] 1 All ER 749 4.33, 8.31, 8.54, 8.65
Leduc v Ward (1888) 20 QBD 475 21.39
Lee v Casualty Corpn of America 90 Conn 202 (1916) 20.27
Legione v Hatley (1983) 152 CLR 406 6.22, 7.33
Lenn Mayhew-Lewis v Westminster Scaffolding Plc LTL 16 Mar 9.164
1999 SA v Lonsdale Sports Ltd [2008] EWCA Civ 640; [2008]
Leofelis 3.05, 3.14, 4.17, 6.14, 21.40
ETMR 63
Lester v Foxcroft (1701) Colles PC 108 11.46
8.44, 11.17, 11.20, 11.21,
Lester v Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR DG 14
11.68, 11.71, 11.126
Lever Finance Ltd v Westminster (City) London Borough Council
9.138
[1971] 1 QB 222
Levey & Co v Goldberg [1922] 1 KB 688 3.07, 5.06, 17.02, 21.13
Levy v Scottish Employers Insurance (1901) 17 TLR 229 20.43
Lewes Sanitary Steam Laundry Co v Barclay & Co Ltd (1906) 95 LT
17.57, 17.59
444
Lexington Insurance Co v Multinacional de Seguros SA [2008]
3.05, 3.09, 3.12, 4.01, 5.05,
EWHC 1170; [2009] 1 All ER (Comm) 35; [2009] Lloyd’s Rep IR
6.01, 6.04, 6.05, 20.14
1
Liberian Insurance Agency Inc v Mosse [1977] 2 Lloyd’s Rep 560 20.07
Liebe v Molloy (1906) 4 CLR 347 19.08
Life Association of Scotland v Siddal (1861) 3 De GF & J 58, 45 ER
6.30
800
Lilly v Farrar (1908) 17 QRBR 554 17.64
11.30, 11.70, 11.107, 11.110,
Lim v Ang [1992] 1 WLR 113, PC (Brunei)
11.162
Lineberger v Security Life & Trust Co 95 SE 2d 501 (1956) 2.09
Linford v The Provincial Horse and Cattle Insurance Co (1894) 34
16.09, 20.41
Beav 291, 55 ER 647
1.10, 2.16, 8.61, 9.18, 9.89,
9.99, 9.113, 9.115, 9.171,
Lipkin Gorman v Karpnale [1991] 2 AC 548
9.172, 9.173, 9.174, 17.67,
17.68, 17.69, 17.70
Lissenden v CAV Bosch [1940] AC 412 6.04
Lissimore v Downing [2003] 2 FLR 308 11.25, 11.81
8.15, 10.09, 13.16, 19.13,
Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153
20.52
Lloyd v Nowell [1895] 2 Ch 744 4.37, 4.38
Lloyds Bank v Carrick [1996] 4 All ER 630, CA 11.20, 11.114, 11.119
Lloyds Bank v Cooke [1907] 1 KB 794 17.64
Lloyds Bank v Hon Cecily K Brooks (1950) 6 Legal Decisions
17.67, 17.69
Affecting Bankers, 169
11.62, 11.65, 11.68, 11.126,
Lloyds Bank v Rosset [1991] 1 AC 107 11.136, 11.142, 11.147,
 11.152, 11.154
Lloyds TSB v Hayward [2005] EWCA Civ 466 17.04
Locker & Woolf v W Australian Insurance Co [1936] 1 KB 408 20.85

Lombard Banking v Central Garage and Engineering Co [1963] 1 QB

17.36
220
Lombard Finance v Brookplain Trading Ltd [1991] 1 WLR 271 17.03
Lombok Pty Ltd v Supetina Pty Ltd (1987) 71 ALR 333 5.07
London and Clydebank Properties v HM Investment Co [1993]
8.15, 8.20
EGCS 63
London & County (A & D) v Wilfred Sportsman [1971] Ch 764, CA 22.16, 22.25
London & Lancs Life Assurance v Fleming [1897] AC 499 20.22
London and Lancashire Insurance Co Ltd v Honey (1876) 2 VLR (L)
20.73
7
London & Regional Investments Ltd v TBI Plc [2002] EWCA Civ
10.09, 11.33
355; [2002] All ER (D) 360 (Mar)
London & River Plate Bank v Bank of Liverpool [1896] 1 QB 7 9.101
London Borough of Bexley v Maison Maurice Ltd [2006] EWHC
9.135, 9.138
3192
London Borough of Hillingdon v ARC Ltd [2000] EWCA Civ 191 10.04
London Borough of Waltham Forest v Oakmesh Ltd [2009] EWHC
9.23, 9.132
1688 (Ch); [2010] JPL 249
London Celluloid Co (1888) 39 ChD 190 9.147, 9.148, 18.05, 18.09
London County Territorial and Auxilliary Forces Association v
9.29, 9.45
Nicholls [1949] 1 KB 35
London Hospital Board of Governors v Jacobs [1956] 2 All ER 603 22.32
7.04, 9.04, 9.160, 16.24,
London Joint Stock Bank Ltd v Macmillan [1918] AC 777
17.55, 17.56, 17.59
Lone Mountain Production Co v Natural Gas Pipeline Co of America
4.26, 20.37
710 F Supp 305 (1989)
Longman v Bath Electric Tramways Ltd [1905] 1 Ch 646, CA 9.176
Longrigg, Burrough & Trounson v Smith [1972] 2 EGLR 42, CA 22.19
Lordsvale Finance Plc v Bank of Zambia [1996] 3 All ER 156 6.02
Lorna Bibby v Marguerite Stirling [1998] EWCA Civ 994 11.14
Loughridge v Lavery [1969] VR 912 5.07
Love v Herrity [1990] 23 HLR 217, CA 22.45
Love & Stewart v Rowtor [1916] 2 AC 527 21.49
10.01, 10.12, 11.80, 11.81,
Lovett v Fairclough (1991) 61 P&CR 385
11.126
Lovett v Lovett [1898] 1 Ch 82 12.21
Low v Bouverie [1891] 3 Ch 82, CA 9.03, 9.04, 9.05, 9.18, 9.32,
9.34, 9.35, 9.66, 9.68, 9.70,
9.75, 9.76, 9.82, 12.29
9.15, 9.32, 9.70, 9.75, 9.82,
Lowe v Lombank [1960] 1 WLR 196, CA 9.84, 9.85, 17.61

Lower v Sorrell [1962] 3 All ER 1074 22.18

Lugo v AIG Life Insurance Co 852 F Supp 187 (1994) 20.32
Lumbermans Mutual Casualty Insurance Co v Aggesen 618 NYS 2d
20.48
441 (1994)
Lusograin Comercio Internacional de Cereas Ltd v Bunge AG [1986]
6.28
2 Lloyd’s Rep 654
7.04, 7.10, 8.31, 8.71, 8.76,
Lyle-Meller v A Lewis & Co [1956] 1 WLR 29, CA 8.80, 9.04, 9.05, 9.16, 9.20,
9.24, 9.28, 9.29, 9.31
Lyon v Reed [1844] 13 M & W 285 22.43, 22.49, 22.52
McAlpine Humberoak Ltd v McDermott International (1992) 58
19.06
BLR1
McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38 2.05
McCormick v National Motor Accident Insurance Union Ltd (1934)
20.18, 20.30, 20.66, 21.34
49 LlLR 361, (1934) 40 Comm Cas 76
McCormick v The Royal 163 Pa 184 (1894) 20.32
McCraith v Fraser (1991) 104 FLR (Aus) 227 1.19, 7.16, 7.24, 10.06
McDaniels v Carlson 738 P 2d 2554 (1987) 20.04
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 2.33, 2.37
McDonald v Frost [2009] EWHC 2276 (Ch) 11.25, 11.132
McDonald Sons & Co, Re [1894] 1 Ch 89 18.12
McDougalls v BSE Trading [1997] 2 EGLR 65 22.47
McEvoy v Belfast Banking Co Ltd [1935] AC 24 16.20
MacFisheries Ltd v Harrison (1924) 132 LT 22, 40 LTR 709 9.75, 16.12
McGrath v Shah (1989) 53 P & CR 452 19.13, 20.52
McGuane v Welch [2008] EWCA Civ 785 11.93, 11.111
9.86, 9.95, 9.103, 17.55,
M’Kensie v British Linen Co (1881) 6 App Cas 82, HL
17.57, 17.58
9.148, 12.57, 12.59, 12.70,
Macklay v Nutting [1949] 1 All ER 413, CA
12.72
Maclaine v Gatty [1921] 1 AC 376, HL 9.11, 9.32, 9.76, 9.108
Mcmanus v Cooke (1887) 35 ChD 631 11.163
M’Millan v Accident Ins Co 1907 SC 484 (PA) 20.77
Maconochie Bros Ltd v Brand [1946] 2 All ER 778 22.18
Maddison v Alderson (1883) 8 App Cas 467 9.20, 11.46
Maddy’s Estate, Re [1901] 2 Ch 820 12.21
Maersk v Mobil [2001] 2 Lloyd’s Rep 127 6.12
Magrath v Parkside Hotels Ltd [2011] EWHC 143 (Ch) 11.53
8.10, 8.82, 11.55, 11.74,
Maharaj v Chand [1986] AC 898, PC
11.103
16.06, 16.08, 16.09, 17.17,
Mahli v Abbey Life Insurance [1995] 4 Re LR 305
20.39, 20.42
Maker v Lumbermens Mutual Casualty Co (1932) 2 DLR 593 20.59
Mammoth Greetings Cards Ltd v Agra Ltd [1990] 2 EGLR 124, CA 22.39
Mander v Commercial Union Assurance Co Plc [1999] Lloyd’s Rep
10.10
IR 93
Mangles v Dixon (1882) 3 HLC 702 5.17, 8.83
Manila, The [1988] 3 All ER 843 13.08
Mann, Macneal and Steeves v Capital and Counties Insurance Co
20.70
[1921] 2 KB 300
Manson v Vooght [1999] BPIR 376 14.11
Manulife Bank of Canada v Corbin 120 DLR (4th) 234 (1994) 17.02, 17.05
Maple Leaf Milling Co v Colonial Assurance Co (1917) 36 DLR 202 20.54
Marc Rich & Co AG v Portman [1996] 1 Lloyd’s Rep 430; [1997] 1
8.15, 20.70, 20.72
Lloyd’s Rep 225
March Cabaret Club & Casino Ltd v The London Assurance [1975] 1
20.66
Lloyd’s Rep 169
Marche v Christodoulakis [1948] 64 TLR 466 22.08
Marcovitch v The Liverpool Victoria Friendly Society (1912) 28
20.73, 20.86
TLR 188
Marcroft Wagons Ltd v Smith [1951] 2 KB 496, CA 22.19
Mardorf Peach & Co Ltd v Attica Sea Carriers Corporation of 3.01, 3.19, 4.07, 5.09, 5.13,
Liberia (‘The Laconia’) [1977] AC 850 17.17, 21.34, 21.35, 21.37
Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (‘The
3.04, 6.09
Mihalis Angelos’) [1971] 1 QB 164
Margo v Seegers 1980 (3) SA 708 4.38
Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610, PC 9.134, 12.53
Marseille Fret SA v D Oltman Schiffahrts GmbH & Co (‘The
8.10, 8.45, 8.62
Trado’) [1982] Lloyd’s Rep 157
Marsh v Joseph [1897] 1 Ch 213 16.20
11.02, 11.20, 11.28, 11.65,
Matharu v Matharu (1994) 68 P&CR 93, CA
11.99, 11.107, 11.109
Matia v Carpet Transport Inc 888 F 2d 118 (11th Cir 1989) 20.49
Matthews v Smallwood [1910] 1 Ch 777 4.17, 4.27, 5.07, 22.02, 22.15
Mattey Securities v Ervin [1998] 2 EGLR 66 22.52
May & Butcher v R [1934] 2 KB 17n 2.13
Maynard v Moesley (1676) 3 Swanst 651; 36 ER 1009 1.15
Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 21.23
Mayor and Burgesses of the London Borough of Southwark v Logan
8.49, 8.63
[1996] 29 HLR 40
Mayor and Commonality and Citizens of the City of London v (1)
Reeve & Co Ltd (2) G Lawrence Wholesale Meat Co Ltd (3) 4.08, 20.54
Citigen (London) Ltd [2000] BLR 211
8.15, 8.21, 8.22, 8.39, 8.42,
Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234
8.45
Melbourne Brewery & Distillery, Re [1901] 1 Ch 453 18.02
Melik & Co v Norwich Union [1980] 1 Lloyd’s Rep 523 20.18
Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd
6.04, 6.06, 8.45
[1985] AC 511
Mercantile Bank of India v Central Bank of India [1938] AC 287,
18.07, 21.21, 21.23
[1937] 1 All ER 231
Mercantile Credit Co v Hamblin [1965] 2 QB 242 21.26
Meridian Global Funds Management Asia Ltd [1995] 2 AC 500;
16.04, 16.09, 18.03, 20.40
[1995] 3 WLR 413
Metall & Rohstoff v Donaldson Inc [1990] 1 QB 391 11.148
Metcalfe v Boyce [1927] 1 KB 758 22.52
Metcalfe v Britannia Ironworks Co (1877) 2 QBD 423 4.08
Metropolitan Asylums Board v Kingham & Sons (1890) 6 TLR 217 16.01
Metropolitan Health Service Board v Australian Nursing Federation
9.03
[2000] FCA 784
Metropolitan Properties v Cordery [1979] 39 P & CR 10 22.13
Meyer v Barnardo 1984 (2) SA 580 4.38
Meyer v Gilman (1899) 18 NZLR 129 19.13
Michand v City of Montreal (1923) 129 LT 417, PC (Canada) 11.86
Middleton v Brown (1878) 47 LJ Ch 411 1.15
Midland Bank v Green [1981] AC 513 9.152, 12.60
Midland Bank v Harris [1963] 1 WLR 1021 17.31
Midland Bank v Seymour [1955] 2 Lloyd’s Rep 147 17.44, 17.51
Midland Expressway Ltd v Carillon Construction [2005] EWHC
9.20, 9.26
2810
Mihalis Angelos, The see Maredelanto Compania Naviera SA v
Bergbau-Handel GmbH (‘The Mihalis Angelos’)
Millbrook v McIntosh [1981] IRLR 309 2.43
Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547 5.07
Minister of Agriculture, Fisheries and Food v Matthews [1950] 1 KB
9.134, 22.37
148
Mint Security Ltd v Blair [1982] 1 Lloyd’s Rep 188 6.11, 20.62, 20.81
Mirvac Homes Pty Ltd v Parramatta City Council [1999] NSWLEC
9.03
239
Mississippi-Fox Drainage District v Plenge 735 SW 2d 748 (Mo App
20.04
1987)
Mitchel v Renolds (1711) 1 P Wms 181, 24 ER 347 12.50
Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 7.26, 10.12, 10.15, 13.07,
Con LR 129 13.09, 13.12, 19.13, 19.22
Monigatti v Minchen [1937] NZLR 49 5.07
Moore Large & Co Ltd v Hermes Credit and Guarantee Plc [2003]
3.04
EWHC 26; [2003] 1 Lloyd’s Rep 163; [2003] Lloyd’s Rep IR 315
7.10, 8.25, 9.10, 9.18, 9.20,
Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225, [1977] 9.29, 9.32, 9.55, 9.56, 9.57,
AC 890 9.72, 9.160, 9.161, 10.10,
11.127, 21.26
Morell v Studd & Millington [1913] 2 Ch 648 4.36
Morgan v Pooley [2010] EWHC 2447 7.29, 13.19
Morison v London County and Westminster Bank Ltd (1983) 133
17.59
NLJ 719
2.28, 2.29, 2.30, 2.34, 2.35,
Morris v Baron & Co [1918] AC 1
2.37, 2.39, 17.02
Morris v CH Bailey [1969] 2 Lloyd’s Rep 215 2.14
Morris v Morris [2008] EWCA Civ 257 11.133, 11.152
Morris v Tarrant [1971] 2 QB 143 8.11
Morrison v Universal Marine Insurance Co (1872) LR 8 Ex 197 20.23, 20.24, 20.60
7.36, 8.29, 8.31, 8.39, 8.42,
Morrow v Carty [1957] NI 174
8.45, 8.63, 8.76
Morrow v Nadeem [1986] 1 WLR 1381, CA 22.58
Moschi v Lep Air Services [1973] AC 331 4.34, 6.25, 17.05, 20.59
Motor Credits (Hire Finance) v Pacific Motor Auctions Pty Ltd
16.18
(1963) 109 CLR 87
3.08, 4.02, 4.03, 4.08, 4.22,
Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of
5.03, 8.14, 8.15, 8.19, 8.34,
India (‘The Kanchenjunga’) [1990] 1 Lloyd’s Rep 391
8.39, 8.45, 8.65, 20.06
MR Hornibrook v Eric Newham (1971) 45 AJLR 523 19.13
MSC Mediterranean Shipping Co SA v BRE Metro Ltd [1985] 2
6.05, 6.06
Lloyd’s Rep 239
MSC Mediterranean Shipping Co SA v Owners of the Ship ‘TYCHY’
10.01
 [2001] EWCA Civ 1198; [2001] 2 Lloyd’s Rep 403
Mulcahy v Hoyne (1925) 36 CLR 41 3.01, 4.08, 4.28, 4.31
Mulliner v Florence (1878) 3 QBD 484 20.10
Multitank Holsatia, The [1988] 2 Lloyd’s Rep 486 8.39, 8.45, 8.54

Murphy v Rayner [2011] EWHC (Ch) 1; [2011] All ER (D) 125 (Jan) 11.25, 11.77, 11.127
Muschinski v Dodds (1985) 160 CLR 583, HCA 11.01, 11.02
Muse v Borough of Brent [2008] EWCA Civ 1447; [2009] PTSR 680 3.12
Mutual Reserve Fund Life Assn v Farmer 47 SW 850 (1898) 20.73
Napiers v Dexters Ltd (1926) 26 Ll LR 62, 184 4.36, 21.09
National Bank v Awolesi [1964] 1 WLR 1311 17.04
National Home Loans Corpn Plc v Collins [1997] EWCA Civ 374 4.26
National Insurance and Guarantee Corpn Plc v Imperio Reinsurance
20.04, 20.18, 20.21
Co (UK) Ltd [1999] LRLR 249
National Jazz Centre, Re [1988] 2 EGLR 57 22.09
National Provincial Bank v Ainsworth [1965] AC 1175, HL 9.152, 11.117, 12.60
National Trust v Sterling Accident (1916) QR 551 SC 481 20.82
National Westminster Bank Ltd v Barclays Bank International Ltd 9.50, 9.51, 9.99, 9.129, 9.130,
[1975] 1 QB 654 17.54, 17.57, 17.67
1.11, 7.02, 7.08, 7.09, 7.12,
7.13, 8.80, 8.81, 9.03, 9.10,
National Westminster Bank Plc v Somer International Ltd [2002] 1
9.91, 9.118, 9.121, 9.125,
All ER 198; [2001] EWCA Civ 970
9.165, 9.173, 10.05, 13.11,
13.13, 17.70, 17.72, 17.73
Nationwide Building Society v Lewis (ChD, unrep. 23 May 1997) 10.12
Nea Tyhi, The [1982] 1 Lloyd’s Rep 606 21.44
Neal v Gray 52 SE 622 (1905) 20.22
Neilson v Betts LR 5 HL 1 6.02, 16.22
Nesbitt Burns Inc v Canada Trustco Mortgage (22 Mar 2000, ONCA
9.162
C32077)
Netlon Ltd v Pacnet Pty Ltd 1977 (3) SA 840 5.08
New Brunswick Rly Co Ltd v British and French Trust Corp Ltd
14.09
[1939] AC 1
New Hampshire Insurance Co v Oil Refineries Ltd (Comm Ct, 10
20.74
Apr 2002)
New Hart Business v Brindley [1975] Ch 342 2.05
New Zealand Netherlands Society ‘Oranje’ Inc v Kuys [1973] 1
18.02
WLR 1126
Newbold v Leicester CC [1999] ICR 1182; [1999] EWCA 3115 2.43
Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR
4.07, 9.85, 20.60
723
Newbury DC v SSE [1981] AC 578 1.07
Newbury International v Reliance National Insurance Co [1994] 1
Lloyd’s Rep 83 20.71, 20.72

Newitt re Garrud, ex p (1881) 16 ChD 522 19.17

Newlon Housing Trust v Alsulamein [1999] 1 AC 313, HL 22.18
Newman v Browne [1925] 1 DLR 676 17.34
Newport City Council v Charles [2009] HLR 18; [2008] EWCA Civ
9.04
1541
Newsholme Bros v Road Transport & General Ins Co Ltd [1929] 2
20.39
KB 356
Nichimen Corporation v Gatoil Overseas Inc [1987] 2 Lloyd’s Rep
4.11, 4.27, 21.19
46
3.07, 9.04, 9.05, 9.18, 9.20,
Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Company
9.26, 9.32, 9.70, 9.82, 9.85,
Ltd) v Dawsons Bank Ltd (1935) 51 Lloyd’s Rep 147, PC
16.03
Nippon Yusen Kaisha v Pacifica Navegacion SA (‘The Ion’) [1980] 2 4.43, 8.10, 8.14, 8.45, 8.62,
Lloyd’s Rep 245, CA 8.67
Noble v Ward (1867) LR 2 Ex 135 2.28
Noble Resources Ltd v Cavalier Shipping Corpn (‘The Atlas’) [1996]
21.45
1 Lloyd’s Rep 642
Norfolk CC v Secretary of State for the Environment [1973] 3 All
9.86, 9.88, 16.12
ER 673, [1973] 1 WLR 1400
Norfolk’s Case (1667) Hard 464, 145 ER 549 12.50
Norrington v Wright 115 US 188 (1885) 20.35
North v Loomes [1919] 1 Ch 378 4.36
North British Fishing Boat Insurance Co Ltd v Starr (1922) 13 LlLR
20.70
206
North Cronulla Precinct Committee Inc v Sutherland Shire Council
9.03
[1998] NSWLEC 40
North Hertfordshire DC v Hitchin Industrial Estate [1992] 2 EGLR
22.39
121
North of England Banking Co, Hutchinson’s Case, Re (1849) 1
18.02
DeG&Sm 563, 63 ER 1196
Northern Assurance Co Ltd v Wolk (1944) 49 NYS 2d 754 20.77
Northern Crown Bank v Great West Lumber Co (1914) 6 WWR 528 18.02
Northwestern Fire & Marine Insurance Co v Pollard 238 P 594
3.14, 4.26
(1925)
Norwegian American Cruises A/S v Paul Mundy Ltd (The
10.01, 10.11, 10.12
Vistafjord) [1988] 2 Lloyd’s Rep 343
Northside Developments Pty v Registrar General (1990) 170 CLR
 146 16.13
Norwich and Peterborough Building Society v Steed [1993] 1 All ER
12.50, 12.59
330, CA
Nova Scotia v Sutherland (1899) 5 Com Cas 106 21.36
O’Brien v Prescott Insurance Co 134 NYS 28 (1892) 20.43
O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 4.08, 4.23
O’Sullivan v Management Agency & Music Ltd [1985] QB 428 2.15
Oak Property Co v Chapman [1947] KB 886 22.06
Oastler v Henderson [1877] 2 QBD 575 22.45, 22.48
Oates v Stimson [2006] EWCA Civ 548; [2006] All ER (D) 219
11.75
(May), CA
Ocean Marine Navigation Ltd v Koch Carbon Inc, The Dynamic
6.19, 6.26, 6.28
[2003] EWHC 1936; [2003] 2 Lloyd’s Rep 693
Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Co [2007] 4.27, 5.13, 16.06, 16.09,
EWHC 2796 21.33, 21.34, 21.37, 21.41
Oceanic Freighters Corporation v MV Libyaville Reederei und
4.13, 17.11
Schiffahrts GmbH [1975] 1 Lloyd’s Rep 537
Official Custodian for Charities v Parkway Estates Developments
22.11
Ltd [1985] Ch 151
Ogilvie v West Australian Mortgage & Agency Corporation [1896] 9.110, 9.111, 17.55, 17.57,
AC 257, PC (WA) 17.58, 17.59
Ogilvy v Hope Davis [1976] 1 All ER 683 8.45, 8.63, 8.67, 8.87
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 4.08, 5.07
Ogle v Earl Vane (1868) LR 3 QB 272 5.06, 17.02, 21.13
Olanda, The [1919] 2 KB 728 19.09
Oliver v Bank of England [1902] 1 Ch 610, CA 9.03, 9.82
Oliver Ashworth (Holdings) Ltd v Ballard [2000] Ch 12; [1999] 3.01, 3.03, 3.14, 4.08, 4.17,
EWCA Civ 1027 4.26, 8.03
Oloniluyi v SSHD [1989] Immig AR 135 1.05
On v Ford (1989) 167 CLR 316 4.31
Ontario Woodsworth Memorial Foundation v Grozbord (1969) 4
17.58
DLR (3d) 194
12.03, 12.19, 12.22, 12.29,
Onward Building Society v Smithson [1893] 1 Ch 1 12.31, 12.32, 12.33, 12.34,
12.46
Orbit Mining and Trading Co v Westminster Bank Ltd [1963] 1 QB
17.62
794
Orgee v Orgee [1997] EWCA Civ 2650 11.27
Orion Finance Ltd v JD Williams and Company Ltd [1997] EWCA
9.58
Civ 1
Oro Fino Mines, Re (1900) 7 BCR 388 18.02
Osibanjo v Seahive Investments Ltd [2009] 9 EG 194; [2009] 1
22.06
EGLR 32; [2008] EWCA Civ 1282
Ottey v Grundy [2003] WTLR 1253 11.75
7.39, 9.04, 9.16, 9.40, 9.73,
Ottos Kopje Diamond Mines, In re [1893] 1 Ch 1892, CA
9.94, 18.09
Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1 WLR
17.52
1335
Owendale Pty Ltd v Anthony (1967) 117 CLR 539 4.10, 4.27
11.133, 11.140, 11.147,
Oxley v Hiscock [2004] 3 All ER 703; [2004] EWCA Civ 546
11.149, 11.151
Oxted Motor Co, Re [1921] 3 KB 23 18.04
P Samuel v Dumas [1924] AC 431 20.17, 20.18, 20.35
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 1.15, 1.18, 3.20, 4.34, 6.25,
AC 854 7.11, 7.12, 13.12, 20.59
Pacific Brands Sport & Leisure Pty v Underworks Pty [2006] FCAFC
3.14
40
Pacific Queen Fisheries et al v L Symes (‘The Pacific Queen’)
20.70
[1963] 2 Lloyd’s Rep 201
3.12, 8.11, 8.13, 8.23, 8.24,
Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik Sif’)
8.25, 8.78, 8.79, 9.52, 9.57,
[1982] 1 Lloyd’s Rep 456
9.58, 9.59, 10.10, 16.10
Page v Liverpool Victoria Friendly Society (1927) 43 TLR 712 2.43
Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 2.13
Pallant v Morgan [1952] 2 All ER 951 11.141
Palmer v Poulter 1983 (4) SA 11 4.26
Pan Atlantic Insurance Co v Pine Top Ins Co [1995] AC 501 20.63
Pancommerce v Veecheema [1983] 2 Lloyd’s Rep 304 2.47
Panchaud Frères v Etablissements General Grain Co [1970] 1 1.33, 13.01–13.24, 15.02,
Lloyd’s Rep 53 19.22
Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB
4.27, 4.36, 5.09, 17.47
473
Paragon Finance Plc v D B Thakerar [1999] 1 All ER 400; [1998]
11.154
EWCA Civ 1249
Parker v Parker [2003] EWHC 1846 (Ch) 11.27, 11.28
Parry v Edwards Geldard [2001] EWHC Ch 427 12.13
Parsons v New Zealand Shipping Co [1901] 1 KB 548 9.45, 21.43
Parties Named in Schedule A v Dresdner Kleinwort Ltd [2010]
2.24, 7.10, 9.03, 9.91
EWHC 1249, QB
11.10, 11.21, 11.44, 11.62,
Pascoe v Turner [1979] 1 WLR 43, CA 11.65, 11.75, 11.79, 11.83,
11.87, 11.88, 11.98, 11.99,
11.110, 11.114, 11.124,
11.126, 11.158
Paterson Steamships v Robin Hood Mills (1937) 58 LlLR 33 21.39
Paul v Vancouver International Airport Authority [2000] BCSC 341 9.03
Paulings Settlement Trust, In re [1964] 1 Ch 303 6.30
PCW Syndicates v PCW Reinsurers [1996] 1 Lloyd’s Rep 241 16.07, 16.09, 17.17, 20.43
Pearks, Gunston & Tee Ltd v Richardson [1902] 1 KB 91 18.02
Pearl Carriers Inc v Japan Line Ltd (‘The Chemical Venture’) [1993]
5.10
1 Lloyd’s Rep 508
Pearl Mill Co v Ivy Tannery Co [1919] 1 KB 78 9.51
Pearse v Morrice (1834) 2 AD&E 84, 111 ER 32 12.28
Pearson v Lehman Brothers Finance SA [2010] EWHC 2914 10.01
Pedersen v Camden LBC [1981] ICR 674 2.41
Peekay Intermark Ltd v Australia and New Zealand Banking Group 7.28, 9.13, 12.03, 13.16,
Ltd [2006] EWCA Civ 386; [2006] 1 CLC 582; [2006] 2 Lloyd’s 13.17–13.18, 13.19, 13.22,
Rep 511 13.23, 13.24
Pegge v Neath & District Tramways Co Ltd [1898] 1 Ch 183 18.02
Pennine Raceway v Kirklees MBC [1983] QB 382 11.75, 11.114, 11.117
Pensky v Aetna Life & Gas Co 375 NYS 2d 780 20.32
Penton v Barnett [1898] 1 QB 276 22.06
Pepper v Burland (1792) 1 Peake NP 139 19.11, 19.12
Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239 3.05, 3.09, 4.14, 21.16
Perry v National Provincial Bank of England [1910] 1 Ch 464 17.05
Persimmon Homes (South Coast) Ltd v Hall Aggregates (South 3.03, 3.05, 3.09, 3.10, 3.13,
Coast) Ltd [2009] EWCA Civ 1108; [2009] NPC 118 4.07, 4.39, 8.06
Personal Bar 4.23
Peruvian Railways Co v Thames and Mersey Marine Insurance Co
16.09, 17.17
(1867) 2 Ch App 617
Peter v Beblow (1993) 101 DLR (4th) 621 (CSC) 11.75
4.39, 4.43, 8.26, 8.39, 8.40,
Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep 583
8.42, 21.19
Pettit v Pettit [1970] AC 777; [1969] 2 All ER 385; [1969] UKHL 5 11.01, 11.32, 11.147
4.18, 4.19, 4.21, 4.22, 4.23,
Peyman v Lanjani [1985] 1 Ch 457 4.24, 4.26, 9.35, 9.86, 16.02,
20.85, 22.55
Phene v Popplewell [1862] 12 CBNS 334 22.48
Philip Lowe (Chinese Restaurant) Ltd v San Man Lee [1989] CA,
11.25, 11.62, 11.128
LEXIS
Philips Hong Kong Ltd v Attorney General of Hong Kong (1993) 61 6.22
BLR 49
Phillip-Stephan Photo, Litho and Typographic Process Co Ltd, Re
(1891) 12 LR (NSW) Eq 4 18.09

Phillips v Grand River Farmers’ Mutual Fire Insurance Co (1881) 46

20.85
UCR 334
Phillips v Phillips (1861) 4 DeGF and J 208, 45 ER 1164 11.119
Phillips v Townsend 1983 (3) SA 403 4.38
Phips v Lovegrove (1873) LR 16 Eq 80 5.17, 8.83
Phipson v Kneller (1815) 4 Camp 285, 171 ER 91 17.34
Phoenix Insurance Co Ltd v Berechee (1906) 3 CLR 946 16.12
Phoenix Insurance Co v Grovel 74 NE 141 (1905) 20.51
Phoenix Mutual Life Insurance Co v Raddin 120 US 183 (1886) 20.22
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 4.28, 4.34, 6.25, 20.59
9.11, 9.47, 9.49, 9.53, 9.60,
Pickard v Sears (1837) 6 A & E 469, 112 ER 179
9.75, 9.84, 9.108
Pickin v Graham (1833) 1 Cr & M 725, 149 ER 591 17.35, 17.36
Pierson v Altrincham UDC (1917) 86 LJ KB 969 9.69
Piggot v Stratton (1859) 1 De GF&J 33, 45 ER 271 9.20, 9.24, 9.38, 9.94, 9.106
Pigot’s Case (1614) 11 Co Rep 26b 17.03
Pink v Lawrence (1978) 36 P&CR 98, CA 12.51
Pinnel’s Case (1602) 5 Coke Rep 117a, 77 ER 237 2.04, 17.19
Pitts v American Society Life Insurance Co 931 F 2d 351 (5th Cir
20.04
1991)
Plasticmoda Societa per Azioni v Davidsons (Manchester) Ltd
4.39, 13.06
[1952] 1 Lloyd’s Rep 527
Platt v Parker (1886) 2 TLR 786 19.17
Pleming v Hampton [2004] EWCA Civ 446; [2004] All ER (D) 255
11.28
(Mar), CA
Plevins v Downing Co (1876) 1 CPD 220 3.18
11.14, 11.21, 11.27, 11.83,
Plimmer v Wellington Corporation (1884) 9 App Cas 699, PC (NZ) 11.114, 11.117, 11.120,
11.124, 11.163
Polak v Everett (1876) 1 QBD 669 17.04
Pole v Ford (1816) 2 Chit Rep 125 17.38
Pole v Leask (1863) 33 LJ Ch 155 16.17
Polish SS Co v A J Williams (Overseas Sales) Ltd (‘The Suwalki’)
16.12, 16.13
[1989] 1 Lloyd’s Rep 511
Polly Peck International Plc (No 2), Re [1998] 3 All ER 812 11.148
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 6.04, 6.06, 14.11
Potter v Rayworth (1811) 13 East 417, 104 ER 432 17.32
12.23, 12.25, 12.29, 12.35,
Poulton v Moore [1915] 1 KB 400
12.75
Powell v Benney [2007] EWCA Civ 1283 11.80, 11.111
Powles v Page (1846) 3 CB 16 16.09, 17.17
Presbyterian Hospital of New York v Empire Insurance Co 633 NYS
20.48
2d 339 (1995)
Press v Mathers [1927] VLR 326 16.12
Preston and Henderson v St Helens Metropolitan Borough Council,
11.75, 11.114
Lands Tribunal (1989) 58 P&CR 500
Preston BC v Fairclough [1982] 8 HLR 70, CA 22.45
Price v Hartwell [1996] EGCS 98 11.11, 11.75
Price v Worwood [1859] 4 H & N 512 22.06
Price Meats v Barclays Bank Plc [2000] 2 All ER (Comm) 17.59
Prideaux v Collier (1817) 2 Stark NPC 57, 171 ER 571 17.35
Primary Healthcare Centres (Bradfoot) Ltd v Humphrey [2010] Scots
4.23
CS CSOH 129
Prinz Heinrich, The (1888) 13 PD 31 21.48
Proactive Sports Management Ltd v Rooney (Rev 1) [2010] EWHC 3.12, 4.17, 4.39, 7.29, 8.06,
1807, QB 9.13, 13.19
Proctor and Gamble Philippine Manufacturing Corpn v Peter Cremer
8.34
GmbH & Co (‘The Manila’) [1988] 3 All ER 843
Proctor and Gamble Philippine Manufacturing Corpn v Kurt A
21.14
Becher [1988] 2 Lloyd’s Rep 21
Proper v Oswego County Fire Relief Assn 190 NY 12 (1907) 20.46
Prudential Assurance Co Ltd v Exel UK Ltd & Anor [2009] EWHC
8.15
1350 (Ch); [2010] L & TR 7; [2010] 1 P & CR 7
Prudential Insurance Co v Saxe 134 F 2d 16 (1943) 20.74
Prudential Staff Pensions Ltd v Prudential Assurance Company Ltd
9.46
[2011] EWHC 960 (Ch)
PT Pabrik Kertas Tjiwi Kimia Tok v Minister for Justice and
9.138
Customs [2000] FCA 18
Purmasing v National Transport Corpn (Mauritius) [1988] UKPC 50 3.14, 4.17, 4.26
PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994;
10.02, 10.09, 10.11, 10.12,
[2004] 2 WLR 443; [2004] Ch 142; [2004] 3 EGLR 103; [2004] L
12.31, 12.33, 12.35, 12.40
& TR 8
QFS Scaffolding Ltd v Sable [2010] NPC 70; [2010] EWCA Civ 682 22.43, 22.44, 22.52
Queen’s Moat Houses Plc v Capita IRG Trustees Ltd [2004] EWHC
10.09
868
Queensland Electricity Generating Board v New Hope Collieries Ltd
 [1989] 1 Lloyd’s Rep 205 2.13
Quigley v University of St Andrews [2006] UKEAT 0025_05_0908 4.22
R v Brent LBC, ex p Gunning (1985) 84 LGR 168 1.05
R v British Coal Corpn, ex p Vardy [1993] ICR 720 1.05
R v Charles [1977] AC 177 16.13, 16.17
R v Croydon LBC, ex p Toth [1988] 20 HLR 576, CA 22.43, 22.45
1.07, 1.09, 1.20, 9.135, 9.136,
R v East Sussex CC, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8
9.138
R v Hebdon (1738) Andrews 388, 95 ER 447 12.57
R v IRC, ex p Matrix Securities Ltd [1994] 1 WLR 334 1.06
R v IRC, ex p MFK Underwriting Agencies [1990] 1 WLR 1545 1.06, 9.52, 9.136
R v IRC, ex p Unilever Plc [1996] STC 681, CA 1.08, 9.136
R v Leicester CC, ex p Powergen UK Ltd [2000] JPL 629 1.07
R v Liverpool Corpn, ex p London Taxi Fleet Operators’ Assn [1972]
1.04
2 QB 299
R v North and East Devon Health Authority, ex p Coughlan [2001]
1.06, 1.08, 9.136
QB 213
R v MAFF, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER
1.07, 1.20
714
4.08, 4.13, 5.07, 17.14, 17.20,
R v Paulson [1921] 1 AC 271
20.52, 21.19
R v Restormel BC, ex p Parkyn [2000] EGCS 105 9.20
R v (1) Secretary of State for Environment, Transport and the
Regions (2) Midland Expressway Ltd, ex p Alliance against the 10.11
BNRR [1998] EWHC Admin 979
R v Secretary of State for National Heritage, ex p J Paul Getty Trust,
1.06
The Independent, 7 Nov 1994
R v Somerset Council, ex p Morris & Perry [2000] Env LR 582;
9.132
[1999] EWCH Admin 766
R v SSE, ex p Nottinghamshire CC [1986] AC 240 1.04
R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337 1.05
R v SSHD, ex p Jjaramillo-Silva [1995] 7 Admin LR 445 1.07, 1.20
R v SSHD, ex p Ruddock [1988] 1 WLR 1482 1.05
R & E Developments Ltd v Axa Insurance UK Plc [2009] EWHC
20.68
2429
R & H Electric and Anor v Haden Bill Electrical Ltd [1995] 2 BCLC
8.18
280
RV Ward Ltd v Bignall [1967] 1 QB 534 4.34, 6.25, 20.59
RW Tasker & Sons Ltd and Hoare v W Tasker & Sons Ltd [1905] 2
9.157
 Ch 587, CA
R (Bloggs 61) v Secretary of State for the Home Department [2003]
9.136
1 WLR 2724; [2003] EWCA Civ 686
R (Bottomley) v General Commissioner of Income Tax Pontefract
Division [2009] EWHC 1708; [2009] STI 2195; [2009] BTC 358; 3.03, 4.07, 4.16
[2009] STC 2532

R (Coke-Wallis) v Institute of Chartered Accountants in England and

14.03
|Wales [2011] UKSC 1; [2011] 2 WLR 103; [2011] 2 All ER 1
R (Green) v Secretary of State for Communities and Local
9.136
Government [2011] EWHC 305 (Admin)
R (Medical Protection Society) v HM Revenue & Customs [2009]
9.52
EWHC 2780 (Admin)
R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002]
8.10, 8.53, 9.135, 9.136,
UKHL 8; [2003] 1 P & CR 5; [2003] 1 WLR 348; [2002] NPC 32;
9.137, 9.139, 9.140
[2002] EGCS 158; [2002] 4 All ER 58; [2002] JPL 821
R (Wandsworth) v Secretary of State for Transportation, Local
9.136, 9.138, 9.139
Government and the Regions [2003] EWHC 622 (Admin)
Raggow v Scougall & Co (1915) 31 TLR 564 17.02
Raiffeisen Hauptgenossenschaft v Louis Dreyfus & Co [1981] 1
8.42
Lloyd’s Rep 345
Raiffeisen Zentralbank Osterreich v Crosseas Shipping Ltd [2000]
17.03
Lloyd’s Rep Bank 108
Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland Plc
9.15, 17.61
[2010] EWHC 1392 (Comm); [2011] 1 Lloyd’s Rep 123
Railway Timetables Publishing Co, Re (1889) 42 ChD 98 18.12
Rama Corpn Ltd v Proved Tin and General Investments Ltd [1952] 2
16.13, 16.17
QB 147
Ramazotti v Bowring (1859) 7 CB (NS) 851, 141 ER 1050 16.25
11.11, 11.18, 11.20, 11.27,
Ramsden v Dyson (1866) LR 1 HL 129, HL 11.28, 11.29, 11.86, 11.110,
11.117, 11.125, 11.163
RANSA Sydney Squadron Ltd v Rusbcutters May Maritime Reserve
9.23, 9.32
Trust & Anor [1999] NSWSC 569
Rawson v Hobbs (1961) 107 CLR 466 6.09
Real Honest Investment Ltd v Attorney General [1997] UKPC 34 6.06
Reardon Smith Line v Hansen Tangen [1976] 1 WLR 989 20.20
Record v Bell [1991] 1 WLR 853 2.13
Redmond v Canadian Mutual Aid Association (1891) 18 OAR 335 20.22
Redrow Plc v Pedley [2002] EWHC 983; [2003] OPLR 29; [2002] 8.50, 8.62, 8.64, 9.46, 9.91,
Pens LR 339; [2002] PLR 339 10.12
Reeve v Bird [1834] 1 CM & R 31 22.44
Reeves v Bryner (1801) 6 Ves 516 9.25
Reichman v Beveridge [2006] EWCA Civ 1659 6.26
Reid v Campbell Wallis Moule & Co Pty [1990] VR 859 20.83

Reinwood Ltd v L Brown & Sons [2008] EWCA Civ 1090; [2009]
BLR 37; [2008] 49 EG 78; [2008] 3 EGLR 21; [2008] 42 EG 167; 3.14, 4.28, 5.03
121 Con LR 1; [2008] 2 CLC 422
Reliance Insurance Co v The Escapade 280 F 2d 482 (1960) 20.49
Relvok Properties v Dixon [1973] 25 P & CR 1 22.47, 22.48
Republic of India & Anor v India Steamship Co Ltd (‘The Indian
14.10
Grace’ and ‘Indian Endurance’) [1993] AC 410
Republic of India & Anor v India Steamship Co Ltd (‘The Indian
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380, HL
7.31, 8.80, 8.81, 10.04, 10.05,
Republic of India & Anor v India Steamship Co Ltd (No 2) [1998]
10.06, 10.09, 10.10, 13.11,
AC 878
13.13
Rhineback Bicycle Shop v Sterling Insurance 546 NYS 2d 499 (AD 3
20.49
Dept 1989)
Rhodian River Shipping v Halla Maritime [1984] 1 Lloyd’s Rep 373 16.15, 18.08
Richards v Johnston (1859) 4 H&N 660, 157 ER 1000 16.18
Richmond v Grabowski 781 PP 2d 192 (1989) 4.26, 20.37
12.03, 12.18, 12.19, 12.29,
Right de Jefferys v Bucknell (1831) 2 B&Ad 278, 109 ER 1146 12.30, 12.31, 12.35, 12.66,
12.75
Rimalt v Cartwright (1925) 132 LT 40 17.31
Rimmer v Webster [1902] 2 Ch 163 17.64
Risch v McFee [1991] FLR 105 11.62, 11.75
Riyad Bank v Ali United Bank (UK) Plc [2005] EWHC 279 3.14, 4.34, 4.35
Robbins v Springfield Fire & Marine Insurance Co 44 NE 159 (1896) 20.48
Robert H Dahl v Nelson Donkin (1881) 6 App Cas 38 2.43
Roberts v Avon Insurance Co Ltd [1956] 2 Lloyd’s Rep 240 20.72
Roberts v Plaisted [1989] 2 Lloyd’s Rep 341 20.71
Roberts v Security Co Ltd [1897] 1 QB 111 20.24
Roberts & Co Ltd v Leicestershire CC [1961] Ch 555 9.68
Robertson v Minister of Pensions [1949] 1 KB 227 8.10, 8.80
Robinson v Page (1826) 3 Russ 114, 38 ER 519 2.03, 2.28, 5.08
Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 4.34, 6.25, 20.59
Rochdale Canal Co v King (No 2) (1853) 16 Beav 630, 51 ER 924 11.17, 11.26, 11.71, 11.75
Rockingham County v Luten Bridge Co 35 F 2d 301 (CA, 4th Cir
 1929) 6.26
Rockland Industries Inc v Amerada Minerals Corpn of Canada
16.12
(1978) 95 DLR (3d) 64
Roger Sons & Co v Lambert & Co [1891] 1 QB 318 21.25
Roebuck v Mongovin [1994] 1 All ER 568, HL 7.33, 8.70, 9.20
Rolled Steel Products (Holdings) Ltd v British Steel Corpn [1985] 3
16.12, 18.13
All ER 52
Rose and Frank Co v JR Crompton & Bros Ltd [1925] AC 445 17.02
Ross v Edwards & Co (1895) 73 LT 100 21.25
Ross T Smyth & Co v Bailey Son & Co (1940) 164 LT 102 3.01, 4.39
Rover International v Cannon Film Sales Ltd [1987] BCLC 540 18.05
Rowland v Environment Agency [2003] EWCA Civ 1885 9.134, 9.136
Roxburgh v Rothmans of Pall Mall Australia (2002) 76 ALJR 203 1.19, 7.10
Roxburghe v Cox (1881) 17 Ch D 520 5.17, 8.83
Royal British Bank, Mixer’s Case (1859) 4 DeG&J 575, 45 ER 223 17.11
Royal Exchange Assurance v Hope [1928] Ch 179 2.08, 2.09
RPPC v Bank Leumi [1992] Lloyd’s Rep 515 8.24, 9.59
Ruben v Great Fingall Consolidated [1906] AC 439 18.05
Russell v Viscount SA da Bandiera (1862) 13 CBNS 149, 143 ER 59 19.07
Rust Consulting Ltd v PB Ltd [2011] EWHC 1622 7.04
RWE NPower Plc v Kent County Council [2005] EWLands ACQ 109
9.135, 9.138
2004
Rudd v Bowles [1912] 2 Ch 60 12.01, 12.28
Ryan v Moore 2005 SCC 38, [2005] 2 SCR 53 10.01, 10.12
Sabmiller Africa BV v Tanzania Breweries Ltd [2009] EWHC 2140;
3.05
[2010] 1 Lloyd’s Rep 392
Safety Explosives Ltd (1904) 1 Ch 226 9.60
Saffron v Federal Commissioner for Taxation [1991] 102 ALR 19 14.11
Sainsbury Ltd v Street [1972] 1 WLR 834 2.49
Salerno v Western Casualty & Surety Co 336 F 2d 14 (1964) 20.18, 20.48
Saloman v Akiens [1993] 1 EGLR 101, CA 7.36
Salter v Kidley (1688) 1 Show Rep 58, 89 ER 447 12.19, 12.31
Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan 11.02, 11.20, 11.41, 11.75,
County Council (1981) P&CR 179 11.112
Samuel v Wadlow [2007] EWCA Civ 155 2.27, 2.30
Sarat Chunder Dey v Ghopal Chunder Laha (1892) LR 19 Ind App
9.49, 9.68, 9.82, 10.15, 11.21
203, PC
4.07, 4.08, 4.22, 4.23, 4.25,
Sargent v ASL Developments Ltd (1974) 131 CLR 634
4.26, 20.37
Saudi Crown, The [1986] 1 Lloyd’s Rep 261 21.44
Saunders v Anglia Building Society [1971] AC 1004 12.50
Saunders v Lloyds of London 779 P 2d 249 (Wash 1989) 20.04, 20.22

Saunders v Merryweather (1865) 3 H&C 902, 159 ER 790 12.30

Saunders v Queensland Insurance Co Ltd (1931) 45 CLR 557 20.73
Savile Settled Estate, Re [1931] 2 Ch 210 22.50
Savva v Hussein [1996] 2 EGLR 65 22.25
Scala House and District Property Co v Forbes [1974] QB 575 22.25
Scali McCabe Sloves Inc v North River Insurance Co 532 F Supp
20.18
203 (1981)
Scandanavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana
3.04, 4.06, 6.24, 8.15, 8.26,
(‘The Scaptrade’) [1981] 2 Lloyd’s Rep 425; [1983] QB 529;
21.11
[1983] 2 AC 694, [1983] 2 All ER 763, [1983] 3 WLR 203
Scarf v Jardine (1882) 7 App Cas 345 4.01, 6.03, 9.17, 9.64
Scholfield v Earl of Londesborough [1986] AC 514 17.55
Schoolman v Hall [1951] 1 Lloyds Rep 139 20.66
Schumann, ex p (1877) 19 LR Ir 240 5.08
Schuppan (A Bankrupt) (No 2), Re [1997] 1 BCLC 256 11.25
Scottish & Newcastle Plc v Lancashire Mortgage Corpn Ltd [2007]
10.02
EWCA Civ 684
Scottish Amicable Heritable Securities Assn Ltd v Northern
20.58
Assurance Co 1883 11 R 287
1.10, 1.11, 1.13, 7.02, 7.06,
7.08, 7.09, 7.12, 7.13, 7.53,
Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA 8.80, 8.81, 9.03, 9.11, 9.12,
Civ 369 9.117, 9.121, 9.165, 9.172,
9.173, 10.05, 13.11, 13.13,
17.70, 17.72
Sea Calm Co SA v Chantiers Navals de l’Esterel SA (‘The
4.07
Uhenbels’) [1986] 2 Lloyd’s Rep 294
Seal v Gimson (1914) 110 LT 583 17.11
Secretary of State for Employment v Globe Elastic Thread Co Ltd
9.132
[1980] AC 506
Secretary of State for Employment v Wellworthy Ltd (No 2) [1976]
17.57
ICR 13
Seechurn v ACE Insurance SA [2002] 2 Lloyd’s LR 390 8.20
Segal Securities Ltd v Thoseby [1963] 1 QB 887 22.04, 22.06, 22.24
Selectmove, Re [1995] 1 WLR 474 2.24, 8.09, 8.63
Selwyn v Garfit (1888) 38 ChD 273 4.10, 5.10
Sen v Headley [1991] Ch 425 11.073, 11.114
Sentinel International Ltd v Cordes (‘The Bahamas’) [2008] UKPC
13.16
60
8.15, 10.02, 10.09, 13.16,
Sere Holdings Ltd v Volkswagon Group UK Ltd [2004] EWHC 1551 19.13, 20.52
9.04, 9.40, 9.76, 9.84, 9.94,
Seton, Laing v Lefone (1887) 19 QBD 68, CA
9.160, 9.176
Shackleford, The [1978] 2 Lloyd’s Rep 155, CA 8.15, 8.18, 13.07
Shadwell v Shadwell (1860) 9 CBNS 159, 142 ER 62 2.16
Shaftsbury House (Developments) Ltd v Lee [2010] EWHC 1484
9.15
(Ch)
Shah v Shah [2001] 4 All ER 138; [2001] EWCA Civ 572 2.28, 9.131, 12.53, 18.05
Shamsher Jute Mills Ltd v Sethia (London) Ltd [1987] 2 Lloyd’s Rep
2.15
388
Shane v WCAU-TV, CBS Televisions, Div. of CBS Inc 719 F Supp
4.26, 20.37
353 (1989)
Shapiro v Shapiro 701 SW 2d 205 (Mo App 1985) 20.04
11.114, 11.116, 11.117,
Sharp, Re [1980] All ER 198
11.125, 11.164
Sharpe v San Paulo Railway (1873) LR 8 Ch App 597 19.05
6.30, 11.02, 11.20, 11.108,
Shaw v Applegate [1977] 1 WLR 970
11.124, 11.126
Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 8.11, 8.48, 8.54, 10.01, 10.10,
Lloyd’s Rep 570 10.11
Sheffield Corpn v Barclay [1905] AC 392 9.40, 18.10
Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010]
3.05, 6.10, 6.14, 21.40
EWHC 465
Shell Oil UK Ltd v Enterprise Oil Plc [1999] 2 Lloyd’s Rep 456 3.10, 21.20
Shell UK v Revenue & Customs [2007] UKSPC 0624 2.27, 2.30, 2.34
Shepherd v Berger [1891] 1 QB 597 22.05
Shiloh Spinners v Harding [1973] AC 691 11.119
Shipton Anderson & Co v John Weston & Co (1922) 10 LlLR 762 20.14
Shore Ventures Ltd v Anstead Holdings Inc & Ors [2010] EWHC
2.15
1485, Ch
Sibbles v Highfern Pty Ltd (1987) 164 CLR 214 5.07
Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) 9.70, 9.74, 9.77, 9.78, 9.79,
Ltd [1956] 1 QB 529 11.30
Siew Soon Wah v Yong Tong Hong [1973] AC 836 11.110
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 7.38
Silver v Ocean SS Co [1930] 1 KB 416 21.43, 21.46
Simm v Anglo American Telegraph (1879) 5 QBD 188, CA 7.04, 9.39, 9.40, 9.86, 9.95,
9.104, 9.105, 9.129, 9.130,
9.142, 12.20, 18.05, 21.23
Simner v New England Assurance Co [1995] LRLR 240 4.23, 20.36, 20.82
Simon Container Machinery Ltd v Emba Machinery AB [1998] 2
Lloyd’s Rep 429 2.24, 2.25

Simon Haynes Barlas & Ireland v Beer (1946) 78 Ll LR 337 20.83

Simpson v Accidental Death Co (1857) 2 CB (NS) 257 20.22
Skandinaviska Akt v Barclays Bank [1925] 22 LlLR 523 17.40, 17.50, 17.51
Skarp, The [1935] P 134 9.45, 21.43
9.100, 9.101, 9.112, 9.146,
Skyring v Greenwood (1825) 4 B&C 281
9.167, 17.67
7.43, 11.12, 11.70, 11.80,
Sledmore v Dalby [1996] P&CR 196, CA 11.83, 11.85, 11.89, 11.91,
11.94, 11.98, 11.109, 11.122
Sleebush v Gordon [2004] All ER (D) 148 (Sep) 11.110
Slingsbie v District Bank Ltd [1931] 2 KB 588 17.59
Smart v Saunders (1848) 5 CB 895 16.19
Smith v Lawson [1998] 75 P & CR 466, CA 22.28
Smith v Mullett (1809) 2 Camp 208, 170 ER 1131 17.37
Smith v Prosser [1907] 2 KB 735 17.64, 17.65
SmithKline Beecham Plc v Apotex Europe Ltd [2006] EWCA Civ
9.04, 9.08, 19.22
658; [2006] 4 All ER 1078, CA
Smyth v Anderson (1849) 7 CB 21, 137 ER 9 16.26
SN Kurkjian (Commodity Brokers) Ltd v Marketing Exchange for
3.07
Africa Ltd [1986] 2 Lloyd’s Rep 614
Societé Generale de Paris v Tramways Union Co (1884) 14 QBD 424 16.09, 17.17
Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post 8.15, 8.17, 8.19, 8.27, 8.48,
Chaser [1982] 1 All ER 19 8.51, 8.58, 8.65, 9.35
Society of Lloyds v Leighs & Ors, Comm Ct, unrep, 21 Feb 1997 16.19
Sofial SA v Ove Skou Rederi (‘The Helle Skou’) [1976] 2 Lloyd’s
21.41
Rep 205
Softlanding Systems Inc v KDP Software Ltd & Anor [2010] EWHC
3.03, 4.07
326
Sookraj v Samaroo [2004] UKPC 50; [2005] 1 P & CR DG 11 2.30
Soole v Royal Insurance Co Ltd [1971] 2 Lloyd’s Rep 332 20.29, 20.30, 20.76, 20.81
Soteriou v Ultrachem Ltd & Ors [2004] EWHC 983(QB); [2004]
8.15
IRLR 870
South Caribbean Trading Ltd v Trafigura Beheer BV [2004] EWHC
2.24
2676 (Comm)
South Eastern Rly Co v Warton (1861) 6 H & N 520, 158 ER 214 12.37
South Tyneside MBC v Venska International Plc [1995] 1 All ER
17.68
545
Southend-on-Sea Corpn v Hodgson (Wickford) Ltd [1961] 2 WLR
806 9.134

Southern Counties Deposit Bank Ltd v Rider & Kirkwood (1895) 73

18.04
LT 374
Southland Corpn v Mir 748 F Supp 969 (1990) 20.26
Southland Frozen Meat & Produce Export v Nelson Bros (1895) 13
18.02
NZLR 704
Spafax v Harrison [1980] IRLR 413 2.43
Special Effects Ltd v L’Oreal SA [2007] EWCA Civ 1; [2007] Bus
14.11
LR 759
Specialist Group International v Deakin [2001] EWCA Civ 777 14.03
Spelson v George (1992) 22 NSWLR 666 4.07
Spence v Shell (1980) 256 EG 55, CA 8.14, 8.15, 8.45
9.54, 9.58, 9.60, 9.61, 9.63,
Spiro v Lintern [1973] 1 WLR 1002, CA
9.68, 9.86, 9.94, 9.99, 9.106
Splents v Lefevre (1864) 11 LT 114 20.39
Spoeri v Massachusetts Mutual Life Insurance Co 39 F 752 (1889) 20.05, 20.55
Spriggs v Wessington Court School Ltd [2004] EWHC 1432; [2005]
3.05
Lloyd’s Rep IR 474
Spring Finance Ltd v HS Real Company LLC [2011] EWHC 57
2.43, 10.09, 19.07
(Comm)
7.29, 9.14, 12.03, 12.40,
Springwell Navigation Corpn v J P Morgan Chase Bank [2010]
13.19, 13.20, 13.21, 17.61,
EWCA Civ 1221
19.13, 20.52
Sproul v National Fire Insurance Co [1925] 1 DLR 1152 20.26
SQ v RQ [2009] Fam Law 17; [2008] EWHC 1874 (Fam) 11.146, 11.159
SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 KB
21.36
55
St Paul Fire & Marine Insurance Co v McDonnell Dowell
20-.71
Constructors Ltd [1993] 2 Lloyd’s Rep 503
11.01, 11.02, 11.48, 11.133,
11.140, 11.146, 11.147,
Stack v Dowden [2007] 2 AC 432; [2007] 2 WLR 831 11.149, 11.150, 11.151,
11.152, 11.156, 11.158,
11.159
Stallion v Albert Stallion Holdings [2009] EWHC 1950 (Ch); [2009]
11.99, 11.109
WTLR 1437 [2009] 2 P & CR DG 25
Stancliffe Stone Company Ltd v Peak District National Park
9.135, 9.138
 Authority [2004] EWHC 1475
Standage v Creighton (1832) 5 C&P 406, 172 ER 1029 17.35, 17.36
Standard Chartered Bank v Ceylon Petroleum Corpn [2011] EWHC
1785 10.01, 13.19

Standard Fire Insurance Co v Marine Contracting and Towing Co

20.49
392 SE 2d 460 (SC 1990)
Stapleford Colliery Co, Re (Barrow’s Case) (1880) 14 ChD 432 9.43, 9.145, 18.12
Starkey v Bank of England [1903] AC 114 9.04, 9.82
State Farm Mutual Automobile Insurance Co v Elgot 369 NYS 2d
20.18
719 (1975)
State Trading Co of India v Compagnie Francaise D’Importation et
3.13, 21.11
de Distribution [1983] 2 Lloyd’s Rep 679
State Trading Corpn of India v M Golodetz Ltd [1989] 2 Lloyd’s Rep 4.28, 4.34, 5.10, 6.05, 6.06,
277 6.25, 20.15, 20.59
Stead v Dawber (1839) 10 Ad & E 58, 113 ER 22 2.02, 2.28, 3.18
Steedman v Drinkle [1916] 1 AC 275 6.09
Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd
10.01
[2010] EWHC 1805
Stent Foundations Ltd v Carillion Construction 78 Con LR 188 19.22
Stephens v Junior Army and Navy Stores Ltd [1914] 2 Ch 516 22.26
Steptore v Masco Construction Co Inc 643 So 2d 1213 (1994) 20.48, 20.74
7.10, 8.03, 8.45, 8.48, 8.49,
Steria Ltd v Ronald Hutchison [2005] EWHC 2993; [2006] EWCA 8.50, 8.62, 8.64, 9.03, 9.84,
Civ 1551; [2007] ICR 445 9.85, 9.86, 9.88, 9.91, 10.02,
10.12
Steven v Bromley & Son [1919] 2 KB 722 21.37
Stevens v Lynch (1810) 12 East 38, 104 ER 16 17.36
11.65, 11.72, 11.74, 11.75,
Stevens v Stevens [1989] CA, LEXIS Stevens & Cutting Ltd v
11.79, 11.82, 11.99, 11.108,
Anderson [1990] 1 EGLR 95, CA
11.109, 22.55
Stewart v M’Kean (1855) 10 Exch 675, 156 ER 610 17.05
Stiles v Cowper (1748) 3 Ark 382, 26 ER 1198 11.75, 11.110
Stilk v Myrick (1809) 2 Camp 317, 170 ER 851 2.17, 8.09
Stilwell v Simpson (1983) 133 NLJ 894 11.02, 11.20, 11.62
Stocznia Gdanska SA v Latvian Shipping Co [2002] 2 Lloyd’s Rep
6.10, 6.13
436
Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75;
[2009] CILL 2708; [2009] BLR 196; [2009] 1 Lloyd’s Rep 461; 6.13, 21.40
[2009] 1 CLC 134; [2009] QB 27
8.13, 8.24, 8.25, 9.38, 9.57,
Stolt Loyalty, The [1993] 2 Lloyd’s Rep 281 9.58, 9.59, 10.09, 10.10,
10.12
Stone v Stringer (1880) 61 LT 470 4.13, 17.14, 21.19
Stone & Rolls Ltd v Moore Stephens Ltd [2009] UKHL 39; [2009] 1
AC 1391 16.07

11.62, 11.83, 11.95, 11.99,

Stratulatos v Stratulatos [1988] 2 NZLR 424
11.105
Stroughill v Buck (1850) 14 QB 781m 117 ER 301 12.47
Strover v Strover [2005] EWHC 860 (Ch) 11.127
Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 4.34, 6.25, 20.59
Suffell v Bank of England (1882) 9 QBD 555 17.03
Suisse Atlantique Société d’Armement Maritime SA v NV
4.27, 5.04
Rotterdamsche Kolen Centrale [1967] 1 AC 361
Sullivan v Constable (1932) 48 TLR 369 4.34
Sulphite Pulp Co Ltd v Faber & Anor (1895) 1 Comm Cas 143 20.24
Sumitomo Marine & Fire Insurance Co Ltd v Cologne Reinsurance
20.70
Co of America 552 NYS 2d 891 (Ct App 1990)
Sumner v Schofield (1880) 43 LT 763 12.57
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 13.13
Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2
16.20
Lloyd’s Rep 225
Sunflower Services Ltd v Unisys New Zealand Ltd (New Zealand)
5.07
[1997] UKPC 7
Super Chem Products Ltd v American Life and General Insurance Co
Ltd (Trinidad and Tobago) [2004] UKPC 2; [2004] 1 All ER
3.05, 3.10, 8.20
(Comm) 713; [2004] 1 CLC 1041; [2004] 2 All ER 358; [2004]
Lloyd’s Rep IR 446
Superhulls Cover Case, The (No 2) see Youell & Ors v Bland Welch
& Co Ltd & Ors (Superhulls Cover Case)(No 2)
Surrey Shipping Co Ltd v Compagnie Continentale (France) SA (The
13.07, 21.40
Shackleford) [1978] 1 Lloyd’s Rep 191
Susan V Luckenbach, The [1951] P 197 20.89
Sussen, ex p 1941 TPD 15 4.01
Sutherland v Sun Fire Office (1852) 14 D 775 20.58
Suzuki & Co v Burgett and Newsam (1921) 8 LlLR 495 20.15
Svenska Handelsbanken v Sun Alliance and London Insurance Plc 20.20, 20.24, 20.27, 20.34,
[1996] 1 Lloyd’s Rep 519 20.82, 20.88
11.02, 11.20, 11.41, 11.43,
Swallow Securities Ltd v Isenberg [1985] EGLR 132, CA
11.54
Swan v North Bristol Australasian Co (1863) 2 H&C 175, 159 ER 73 16.24, 17.55, 17.57
Swift Canadian Co v Duff (1916) 38 OLR 163 17.36
Sydenhams Ltd v CHG Holdings Ltd [2007] EWHC 1129 (TCC); 112
12.29, 12.37, 12.40
Con LR 49
Sykes v R [1939] 3 DLR 585 3.04
Symons v Williams (1875) 1 VLR (Eq) 199 1.15
Synergy Health (UK) Ltd v CGU Insurance Plc [2010] EWHC 2583 20.68
Syros Shipping Co SA v Elaghill Trading Co (‘The Proodos C’)
8.75, 8.76, 8.82
[1980] 2 Lloyd’s Rep 390
T & N Ltd v Royal & Sun Alliance Plc [2003] EWHC 1016 10.09
Tai Hing Cotton Mill v Liu Chong Hing Bank Ltd [1986] AC 80 17.58, 17.59
Talbot v Berkshire CC [1994] QB 290 14.11
Tamvaco v Simpson (1866) LR 1 CP 363 21.30
Tang Man Sit v Capacious Investments Ltd [1996] 2 WLR 192 4.08, 6.02
Tankexpress A/S v Compagnie Financiere Belge des Petroles SA
5.09, 6.10
(‘The Petrofina’) [1949] AC 76
Tanner v Tanner [1975] 1 WLR 1346 11.71, 11.74, 11.111, 11.164
Tarjomani v Panther Securities Ltd [1983] 46 P & CR 32 22.42, 22.43
Tarling v O’Riordan (1878) 2 Lr Ir 82 20.13
Tarmac Construction Ltd v Esso Petroleum Ltd 51 Con LR 187 9.86, 10.06
Taylor v Allon [1966] 1 QB 305 20.12
Taylor v Eagle Star Insurance Co Ltd (1940) 67 LlLR 136 20.66, 20.79
Taylor v Jones (1809) 2 Camp 105, 170 ER 1096 17.36
Taylor v McCalmont (1855) 4 WR 59 12.28
Taylor v Needham (1810) Taunt 278 9.141, 9.152, 12.57, 12.60
Taylor v Yorkshire Insurance Co [1913] 2 IrR 1 16.04
6.30, 11.02, 11.05, 11.17,
11.20, 11.21, 11.25, 11.27,
11.36, 11.54, 11.62, 11.70,
Taylor Fashions Ltd v Liverpool Trustees Co [1982] 1 QB 133;
11.110, 11.125, 11.126,
[1981] 2 WLR 576; [1981] 1 All ER 897
12.18, 12.19, 12.20, 12.22,
12.25, 12.26, 12.29, 12.32,
12.33
7.39, 9.06, 9.10, 9.20, 9.30,
TCB Ltd v Gray [1986] Ch 621
9.70, 9.86, 9.94, 12.15, 12.64
Telegraph Properties (Securities) v Courtaulds [1981] 1 EGLR 104 22.39
Tele2 International Card Company SA v Post Office Ltd [2009]
3.05
EWCA Civ 9
Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos’)[1981] 3.13, 4.27, 8.15, 8.27, 8.34,
2 Lloyd’s Rep 74; [1983] 1 Lloyd’s Rep 127, CA 8.39, 8.42, 8.45
Tenax Steamship Co Ltd v Owners of the Brimnes (‘The Brimnes’)
5.09, 5.14, 5.16, 16.01, 21.34
 [1973] 1 WLR 386; [1975] 1 QB 929
Tennant v London CC [1957] LGR 421, CA 22.58
Tennant v Travellers Insurance Co (1887) 31 F 322 20.22
Tennants (Lancashire) Limited v C S Wilson & Co [1917] AC 495 2.49
Terkol Rederierne v Petroleo Brasiliero SA (‘The Badagry’) [1985] 1
2.49
Lloyd’s Rep 395
Territory Insurance Office v Adlington (1992) 2 NTLR 55 20.77
7.27, 8.79, 8.80, 10.17, 13.07,
Tesco Stores Ltd v Costain Construction Ltd [2003] EWHC 1487
13.09, 13.12
Thames Trains Ltd v Adams [2006] EWHC 3291 8.13, 8.23, 9.59
Thameside MBC v Barlow Securities Group Services Ltd [2001]
8.15
EWCA Civ 1
Tharsis Sulphur & Copper Co v McElroy & Sons (1878) 3 App Cas
19.05
1040
Thoday v Thoday [1964] P 181 14.03, 14.08
Thomas v Fuller-Brown [1988] 1 FLR 237 11.60, 11.96
Thomas v Henry 1985 (3) SA 889 4.17, 4.26
Thomas v Ken Thomas [2007] Bus LR 429; [2006] EWCA Civ 1504 22.14
Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac
16.18
Finance Australia Ltd (1985) 2 NSWLR 452
Thompson v Foy [2009] EWHC 1076 (Ch) 11.120
Thompson v Hudson (1869) LR 4 HL 1 6.22
Thompson v Knickerbocker Life Insurance Co (1881) 104 US 252 20.55
Thompson & Ors v Arnold [2007] EWHC 1875 8.13, 8.23
Thor Navigation Inc v Ingosstrakh Insurance Co Ltd [2005] EWHC
9.32
19 (Comm)
4.39, 7.02, 7.10, 8.03, 8.10,
8.15, 11.01, 11.02, 11.06,
11.25, 11.26, 11.27, 11.30,
11.31, 11.32, 11.33, 11.34,
Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, [2009] 13 EG
11.35, 11.39, 11.53, 11.70,
142; [2009] WTLR 713; [2009] Fam LR 583; [2009] 2 FLR 405
11.75, 11.88, 11.94, 11.116,
11.127, 11.128, 11.132,
11.141, 11.145, 11.148,
11.149, 11.159, 12.29
Thornhill v Neats (1860) 8 CB NS 831 19.13
Thornton Hall & Partners v Wembly Electrical Appliances Ltd
16.01
[1947] 2 All ER 629
Thresh v Rake (1793) 1 Esp 53, 170 ER 277 3.18
Tidebrook Maritime Corpn v Vitol SA of Geneva (Front
4.27, 21.33, 21.34, 21.41
Commander) [2006] EWCA Civ 944
Time Group Ltd v Computer 2000 Distribution Ltd [2002] EWHC 14.11
126 (TCC)
Timothy Ellis v London Borough of Lambeth (1999) EGCS 101 7.48
Tina Motors Pty Ltd v Australia and New Zealand Banking Group 16.24, 17.55, 17.58
Ltd [1977] VR 205
Tiplady v Gold Coast Carlton Pty Ltd (1984) 8 FCR 438 5.08
Titan Steel Wheels Ltd v Royal Bank of Scotland Plc [2010] EWHC
7.29, 13.19, 17.61
211; [2010] 2 Lloyd’s Rep 92
Tobin v Broadbent (1947) 75 CLR 378 16.12
Toogood v Farrell [1988] EGLR 233, CA 11.110
8.14, 8.19, 8.29, 8.39, 8.41,
Tool Metal Manufacturing Co v Tungsten Electric Co [1955] 1 WLR
8.45, 8.49, 8.61, 8.66, 8.71,
761, HL
8.72, 8.74
Toronto Railway Co & Ors v National British & Irish Millers Co
20.35
(1914) 111 LT 555
Tracomin SA v Sudan Oil Seeds Co Ltd [1983] 1 All ER 404 13.09
Tradax Export SA v Cook Industries Inc [1982] 1 Lloyd’s Rep 385 2.45
Tradax Export SA v Dorada Compania Naviera SA (‘The Lutetian’)
6.09, 9.58
[1982] 2 Lloyd’s Rep 140
Trade Star Lines Corpn v Mitsui Ltd (CA, 4 Jul 1996) 21.43
Tradex Srl & Intertrade Srl v Visage Imports Ltd [1999] EWCA
2.03
2223
Trading Ltd (t/a Barratt North London) v JM Rowe (Investments)
6.09
Ltd [2011] EWCA Civ 548
Tramways Advertising Pty Ltd v Luna Park NSW Ltd (1938) SR
4.27, 5.04, 5.07, 6.15
(NSW) 632
9.18, 9.24, 9.45, 9.70, 9.76,
Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 9.77, 9.78, 9.79, 9.85, 9.86,
9.97
Transamerica Premier Insurance Co v Miller 41 F 3d 438 (1994) 20.73
Transgrain Shipping BV v Global Transporte Oceanico SA (The
1.01, 21.41
Mexico I) [1990] 1 Lloyd’s Rep 507
Trefethen v New Hampshire Insurance Group 645 A 2d 72 (1994) 20.49
Tregenna, The (Farr v Hain SS Co) 121 Fed Rep (2d) 940 (1941) 21.39
Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd [2008]
EWHC 1686; [2008] 2 Lloyd’s Rep 581; [2009] 1 All ER (Comm) 7.27, 9.14, 13.19
16
Triodos Bank NV v Dobbs [2005] EWCA Civ 630; [2005] Lloyd’s
10.01, 17.04
Rep 588
Tromp, The [1912] P 337 9.45, 21.43
4.07, 4.08, 4.26, 6.02, 6.05,
Tropical Traders Ltd v Goonan (1964) 111 CLR 41 20.37
Trustee Solutions Ltd v Dubery [2006] EWHC 1426; [2007] 1 All ER
8.50, 8.62, 8.64, 9.91, 10.12
308; [2006] Pens LR 177; [2007] ICR 412
Trustees of Henry Smith’s Charity v AWADA Trading & Promotion 22.39
Services Ltd [1984] 47 P & CR 607, CA
Trustees of Henry Smith’s Charity v Wilson [1983] QB 316 4.08
TSB Bank of Scotland Plc v Welwyn Hatfield District Council
17.52
[1993] 2 Bank LR 267
Tucker v Angus Healthcare (Glenesk) Ltd [2001] ScotCS 6 (Ct Sess,
4.01
12 Jan 2001)
Tufton Associates Ltd v Dilmun Shipping [1992] 1 Lloyd’s Rep 71 4.28, 4.29
Turner v Labafox International Pty Ltd (1974) 131 CLR 660 4.10
Turner v Leech (1821) 4 B&Ald 451, 106 ER 1002 17.37
Tv Shopping Network Ltd v Scutt & Anor 4389/98 [1998] NSWSC
12.60
705
Tyers v Rosedale (1873) LR 8 Exch 305 3.04
Tyrer & Co v Hessler & Co (1902) 7 Com Cas 166 5.10, 21.36, 21.40
UCB Leasing Ltd v Holtum (1987) 137New LJ 614 5.07
Ungurian v Lessnoff [1990] Ch 206 11.75, 11.109
Underwood Ltd v Bank of Liverpool & Martins [1924] 1 KB 775 21.46
Union Life Insurance Co v Brewer 309 SW 2d 740 (1958) 20.05
United Australia Ltd v Barclays Bank [1941] AC 1 4.08, 6.04, 6.06
United City Merchants (Investments) Ltd v Royal Bank of Canada
17.39
[1983] 1 AC 168
2.27, 2.28, 2.31, 2.39, 2.41,
United Dominions Corpn (Jamaica) Ltd v Shoucair [1969] 1 AC 340
17.02
United Dominions Trust (Commercial) Ltd v Ennis [1968] 1 QB 54 6.12
United Overseas Bank v Jiwani [1976] 1 WLR 964; [1977] 1 All ER
17.54, 17.67, 17.69
733
United Scientific Holdings Ltd v Burnley BC [1978] AC 904, HL 22.39, 22.40
United States Fidelity & Guarantee Co v Bimco Iron & Metal Corpn
20.27, 20.39
464 SW 2d 353 (Tex, 1971)
United States Shipping Board v JJ Masters & Co (1922) 10 llLR 573 21.36
Unity Joint Stock Mutual Banking Association v King (A Bankrupt) 11.75, 11.86, 11.111, 11.114,
(1858) 25 Beav 72, 53 ER 563 11.122
Universal Permanent Building Society v Cooke [1951] 1 Ch 95 12.70, 12.74, 22.37
Universe Tankships Inc of Monrovia v International Transport
Workers Federation (‘The Universe Sentinel’) [1981] ICR 129, 1.14, 2.14, 2.38, 8.64
rev’d on a different point [1983] 1 AC 366
Update Construction Ltd v Rozelle Child Care Centre (1990) 9
 ACLR 66 19.21
US Shipping Board v Bunge y Born (1924) 41 TLR 73 21.34
V Berg & Son Ltd v Vanden Avenenne-Izegem PVBA [1977] 1 8.26, 8.63, 13.07, 13.09,
Lloyd’s Rep 499 21.16

V/O Rasnoimport v Guthrie [1966] 1 Lloyd’s Rep 1 21.46

Vale of Neath and South Wales Brewery Co, In re (1853) 3 De GM&
18.02
G 272, 43 ER 107
Van As v du Preez 1981 (3) SA 760 3.07
Van Haarlam v Kasner Charitable Trust [1992] 64 P & CR 214 22.11
Van Laethem v Brooker and Caradoc Estates Ltd [2005] EWHC 1478
11.111
(Ch); [2006] 2 FLR 495
Van Schalkwyk v Griesel 1948 (1) SA 460 4.01
Vanbergen v St Edmunds Properties Ltd [1933] 2 KB 223 17.19
Vandervelle (No 2), Re [1974] 1 Ch 269 11.127
Vantol v Fairclough Dodd & Jones Ltd [1955] 1 Lloyd’s Rep 20.59
Varker v Commercial Banking Co of Sydney Ltd [1972] 2 NSWLR
17.57
967
Vaughan v Byron Shire Council [1999] NSWCA 235 9.03, 9.79
Vaughan v Fuller (1746) 2 Stra 1246, 93 ER 1159 17.34
Vaughan v Vaughan [1953] 1 QB 762, CA 8.29
9.20, 9.27, 11.02, 11.20,
Veitch v Caldicott (1945) 173 LT 30
11.62, 11.75, 11.87
Verschures Creameries Ltd v Hull and Netherlands Steamship Co
6.04
Ltd [1921] 2 KB 608
Victoria Silicate Brick Co ex p Martin, Re [1912] VLR 442 18.05, 18.09
Vistafjord, The [1988] 2 Lloyd’s Rep 343 11.69, 11.73, 13.20
Vitol SA v Esso Australia Ltd (‘The Wise’) [1989] 2 Lloyd’s Rep
20.33, 21.19
451, CA
Vitol SA v Norelf Ltd [1996] AC 800, [1996] 3 WLR 105 2.41, 4.07 6.05, 6.13, 6.14
Vladimir Illich, The [1975] 1 Lloyd’s Rep 322 13.07
11.10, 11.30, 11.75, 11.83,
Voyce v Voyce (1991) 62 P&CR 290, CA
11.110, 11.114, 11.162
Vsesojuznoje Objediheni Sovfracht of Moscow v Temple Steamship
21.36
Co Ltd (1945) 62 TLR 43
Vulcan Ironworks Co, Re [1885] WN 120 18.11
Vyvyan v Vyvyan (1861) 30 Beav 655, 54 ER 813 4.23
Wahhe Tamari & Sons and Jaffa Trading Co v Colprogeca-
Sociedade General de Fibras, Cafes e Produtos Colonias Lda 4.10
[1969] 2 Lloyd’s Rep 18
Waimiha Sawmilling
Waimor Holdings LtdCo Ltd v[1981]
v Dean Howe 2[1922]
NZLRNZLR
416 339 5.07
3.07
Walford v Miles [1992] 2 AC 128 2.13, 20.13
Walker v North Western Railway (1876) 1 CPD 518 19.17
Wallis v Semark [1951] 2 TLR 222, CA 8.31, 8.39, 8.53
Wallis Holiday Camp v Shell-Mex [1974] 3 All ER 575 8.11, 8.24, 9.65
Wallis Sons & Wells v Pratt & Haynes [1911] AC 394 4.27, 5.05
Walters v Morgan (1861) 3 De GF&J 718, 45 ER 1056 9.48
Walton v Walton, 14 Apr 1994, CA, unreported 11.30
Walton on the Naze UDC and Moran, Re [1905] 19.04
1.19, 3.12, 7.10, 7.16, 7.20,
7.24, 8.30, 8.40, 8.49, 8.69,
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 8.75, 8.82, 8.87, 9.20, 9.27,
9.86, 10.06, 11.63, 11.87,
11.94
Wandsworth BC v Da Silva [1998] IRLR 193 2.43
Ward v Gold (1969) 211 EG 155 11.38, 11.41
Ward v Kirkland [1966] 1 WLR 601 11.71, 11.72, 11.75, 11.108
Warren Import Gesellschaft Krohn & Co v Alfred Toepfer [1975] 1
13.07
Lloyd’s Rep 322
Washington v All State Insurance Co 901 F 2d 1281 (5th Cir 1990) 20.54
Watkins v Emslie (1981) 261 EG 1192, CA 11.56, 11.75, 11.110
11.25, 11.41, 11.91, 11.110,
Watson v Goldsborough [1986] 1 EGLR 265
11.130
Watson v Healy Lands Ltd [1965] NZLR 511 3.07, 4.26, 20.37
Watson v O’Beirne (1850) 7 Up Can QB 345 19.10
Watson Lumber Co v Guennewig 226 NE (2d) 270 (1967) Ap Ct IL 19.05
Watts v Bucknell [1903] 1 Ch 766 18.02
11.53, 11.67, 11.71, 11.74,
Watts v Story (1984) 134 NLJ 631, CA
11.80, 11.81
Waugh v H B Clifford & Sons [1982] Ch 374 16.15
11.11, 11.54, 11.55, 11.57,
11.59, 11.61, 11.70, 11.75,
Wayling v Jones (1993) P&CR 170, CA
11.111, 11.114, 11.124,
11.127, 11.128, 11.129
Wealden Woodlands (Kent) Ltd v National Westminster Bank Ltd
17.59
(1983) 133 NLJ 719
Webb v Austin (1844) 7 Man&G 701, 135 ER 282 12.03, 12.72
Webb v Herne Bay Cmrs (1870) LR 5 QB 642 18.13
Webb v Spicer (1849) 13 QB 886, 116 ER 1502 12.41, 12.56
Webster v General Accident Fire & Life Assurance Corpn Ltd [1953] 20.37
1 QB 520
Weeks v Goode (1859) 6 CBNS 367, 141 ER 499 20.10
Welch v Bank of England [1955] Ch 508 17.59
Welch v Birrane [1975] 29 P & CR 102 22.04
Welch v Royal Exchange Assurance [1939] 1 KB 294 20.32
9.32, 9.86, 9.95, 9.100, 9.104,
Weld Blundell v Synott [1940] 2 KB 107
9.167, 9.168
Well Barn Farming Ltd v Backhouse [2005] EWHC 1520 22.50
Wells v Minister for Housing and Local Government [1967] 2 All
9.138, 9.140
ER 1041
Welsbach Incandescent Gas Lighting Co v New Sunshine
16.09
Incandescent Co [1900] 2 Ch 1
Wendt v Bruce (1931) 45 CLR 245 4.08, 4.27, 5.04, 6.04
West Middlesex Golf Club Ltd v London Borough of Ealing (1994) 10.01, 10.02, 11.37, 11.110,
68 P&CR 461 11.125, 11.127
Westbrook Resources Ltd v Globe Metallurgical Inc [2009] EWCA
3.10, 4.06, 4.39
Civ 310; [2009] 2 All ER (Comm) 1060; [2009] 2 Lloyd’s Rep 224
Westdeutsche Landesbank Girozentrale v Islington Borough Council
[1994] 4 All ER 890; [1996] AC 669; [1996] UKHL 12; [1996] 2 3.04, 11.148, 17.69
All ER 961; [1996] 2 WLR 802
Western Assurance Co v Provincial Insurance Co (1880) 5 OAR 190 20.25, 20.39
Western Canada Accident & Guarantee Ins Co v Parrott (1921) 61
20.77
SCR 595
Western Fish Products v Penrith DC [1981] 2 All ER 204, CA 9.134, 9.138, 11.127
Westfalische Central Genossenschaft GmbH v Seabright Case see
Bremer Handelsgessellschaft mbH v Continental Grain
Westfall v Schmalz Agencies Ltd (1958) 12 DLR (2d) 86 18.02
Westminster Bank v Banca Nazionale di Credito (1928) 31 LlLR 306 16.01, 17.45, 17.50
Wheeler v Keeble (1914) Ltd [1920] 1 Ch 57 22.10
Wheeler v Waterton Fire 131 Mass 1 (1881) 20.39
White v Garnier (1824) 2 Bing 23, 130 ER 23 20.10
White & Anor v Riverside Housing Asscn Ltd [2005] EWCA Civ
7.26, 7.27, 8.79, 8.80, 10.13
1385
1.24, 1.27, 6.08, 6.15–6.18,
White & Carter (Councils) v McGregor [1962] AC 413
6.20, 6.21, 6.23, 6.24
Whitehorn v Canadian Guardian Life Insurance Co (1909) 10 OLR
20.55
535
Whitmore v Lambert [1955] 2 All ER 147 (CA) 9.146
Whitney v Great Northern Insurance Co [1917] 32 DLR 756 16.06, 16.09, 17.17, 20.42
Whittaker v Kinnear [2011] EWHC 1479, QB 11.34,
8.15, 8.29, 8.31, 8.39,11.52
8.53,
Wickam, Re (1917) 34 TLR 158 8.83

Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 20.20

Wiles v Woodward (1850) 1 Exch. 557, 155 ER 244 12.01, 12.22, 12.38
William Ewing & Co v Dominion Bank [1904] AC 806 17.55, 17.57
William Grant v Glen Carrine Bonded Warehouse [2001] Scot CS
9.51
116, TLR 11 May 1999
William Porter & Co, Re [1937] 2 All ER 361 2.15, 8.08, 8.10, 8.19, 8.54
Williams v Fitzmaurice (1858) 3 H&N 844 19.04
12.01, 12.23, 12.29, 12.35,
Williams v Pinckney (1897) 67 LJ Ch 34
12.35, 12.46
Williams v Roffey Bros & Nicholas (Contractors) [1991] 1 QB 1, 1.24, 2.18, 2.19–2.25, 8.09,
CA 8.57, 11.86, 19.05
Williams v Staite [1979] Ch 291, CA 11.96, 11.97
Williams v Stern (1879) 5 QBD 409, CA 8.63
Williams Bros v ET Agius Ltd [1914] AC 510 17.02
6.30, 11.02, 11.19, 11.20,
Willmott v Barber (1880) 15 ChD 96
11.29, 11.36, 11.75
Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713 3.17, 3.21
Wilson v Truelove [2003] EWJHC 750; [2003] 23 EG 136; [2003] 2
10.02, 10.09
EGLR 63; [2003] 10 EG 164; [2003] WTLR 609
Wilson v Wilson [1969] 1 WLR 1470 12.51
Wilson & Meeson v Pickering [1946] KB 422 16.12, 17.57
11.25, 11.73, 11.75, 11.127,
Windeler v Whitehall [1990] 2 FLR 505
11.130
Windmill Investments (London) v Milano Restaurants [1962] 2 QB
22.04
373
Wing v Harvey (1845) 5 DeG&M 265, 43 ER 872 16.09, 20.22, 20.41, 20.77
8.05, 8.14, 8.15, 8.18, 8.20,
Winson, The [1980] Lloyd’s Rep 213, CA; [1982] AC 939
21.25
Winstanley v Winstanley [1999] EWCA Civ 1935 11.12
Wise (Underwriting Agency) Ltd v Grupo Nacional Provincial SA 6.11, 20.15, 20.16, 20.64,
[2004] EWCA Civ 962 21.34
2.02, 2.15, 8.39, 8.45, 8.53,
WJ Alan v El Nasr Export [1972] 2 QB 189, CA
8.66, 17.47, 21.15
Wollenberg v Casinos Austria International Holding GmbH [2011]
10.01, 10.11
EWHC 103
Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 5.07, 6.05
Wood Hall Ltd v Pipeline Authority & Anor [1979] 24 ALR 385 17.05
Woodard v Battersea BC [1911] 51 LT 51 12.55, 12.56
Woodcock v Oxford and Worcester Railway Co (1853) 1 Drew 521 17.05

Woodhouse v Consignia Plc [2002]2 All ER 737; [2002] EWCA Civ

14.11
275
Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing 2.14, 2.40, 5.08, 8.15, 8.17,
[1972] AC 741 8.18, 9.33, 9.34, 9.35, 12.29
Woods v Dean (1862) 32 LJQB 1 17.34
Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666,
2.41
[1982] ICR 693, CA
Woolf v Collis Removal Service [1948] KB 11 21.33
Woolls v Powling [1999] EWCAQ Civ 751 10.04
World Online Telecom Ltd v I-Way Ltd [2002] EWCA Civ 413 19.07
Wright v Hamilton Island Enterprises Ltd [1998] QSC 29 9.03
WWW Associates Inc v Giancontieri 548 NYS 2d 580, 559 NYS 2d
4.36
983, 565 NYS 2d 440
Wyatt v Hereford (1802) 3 East 147, 102 ER 553 16.26
Wyvern Developments, Re [1974] 1 WLR 1097 8.75
2.05, 2.28, 2.38, 7.13, 9.131,
Yaxley v Gotts [2000] Ch 162; [1999] 3 WLR 1217; [2000] 1 All ER
11.02, 11.34, 11.44, 11.46,
711; [1999] Fam Law 700; [2000] 32 HLR 547; [2000] 79 P & CR
11.47, 11.50, 11.52, 11.133,
91; [1999] 2 EGLR 181; [1999] 2 FLR 941; [1999] EWCA Civ
11.134, 11.139, 11.157,
3006
11.159, 11.162, 18.05
Yeo v Stewart [1947] 2 All ER 28 2.43
11.02, 11.23, 11.27, 11.31,
Yeomans Row Management Ltd v Cobbe [2008] UKHL 55; [2008] 1
11.32, 11.33, 11.34, 11.52,
WLR 1752
11.91, 11.127
Yeung v Hong King and Shanghai Bank [1981] AC 787 18.10
Yona International Ltd and Heftsiba Overseas Works Ltd v La
Reunion Francaise Société Anonyme d’Assurances et de 16.20
Reassurances [1996] 2 Lloyd’s Rep 84
York Corpn v Henry Lehal & Sons [1924] 1 Ch 557 9.134, 16.12, 18.13
Yorkshire Bank Plc v Hall [1999] 1 WLR 1713 14.11
Yorkshire Insurance Co v Craine [1922] 2 AC 541 9.20, 9.24, 9.47, 9.48
Yorkshire Metropolitan v Co-operative Retail [2001] 2 L & TR 298 22.05
4.07, 8.05, 8.14, 8.15, 8.19,
Youell & Ors v Bland Welch & Co Ltd & Ors (‘The “Superhulls
8.23, 8.34, 8.35, 8.36, 8.48,
Cover” Case’) (No 2) [1990] 2 Lloyd’s Rep 431
8.65, 9.54, 9.75
Young v Bristol Aeroplane Co Ltd [1946] AC 163 4.20
Young v Raincock 7 CB 310 12.19, 12.20
Yovich v Collyer [1972] WAR 143 20.60
Zappone v Home Insurance Co Ct App 447 NYS 2d 911 20.46
Zentralbank Osterreich AG v Royal Bank of Scotland Plc [2010] 7.29, 13.18, 13.19
EWHC 1392
Zhang v Shanghai Wool & Jute Textile Co Ltd [2006] VSCA 133 4.45
Zionmoor v Islington LBC [1997] 30 HLR 822, CA 22.45
Zucker v Straightlace Pty Ltd (1986) 11 NSWLR 87 4.07, 4.22
Zurich Insurance Company Plc v Hayward [2011] EWCA Civ 641 14.08, 14.11
 TABLES OF LEGISLATION
UNITED KINGDOM
Bills of Exchange Act 1882 17.29, 17.62
s 3(1) 17.28
s 16 17.32, 17.33
s 46(2)(e) 17.33
s 48 17.33
s 50(2)(b) 17.33
s 50(2)(c) 17.33
s 54(2) 17.63
s 55(2) 17.63
s 62 17.19, 17.30
s 66(1) 17.63
s 73 17.28
Carriage of Goods by Sea Act 1971
Sch (Hague-Visby Rules, art III,
r 7(b)) 21.47
Carriage of Goods by Sea Act 1992 21.44
s4 21.47
Common Law Procedure Act 1852
s 210 22.04
Companies Act 1985
s 35A 18.07
s 36A 12.17
s 349(1) 18.06
Companies Act 2006 18.04, 18.06
s 39(1) 18.07
ss 43–46 12.17
s 281(1) 18.04
s 307(1) 18.04
s 307(2) 18.04
ss 307(4)-(6) 18.04
s 307(6) 18.04
Contracts (Rights of Third Parties) Act 1999 2.44
s2 2.14
s 2(1)–(2) 2.44
s 2(3)(a) 2.14, 2.44
s 2(3)(b) 2.14
s 2(4) 2.14
Employment Rights Act 1996
 ss 1–2 2.05
s 11 2.05
Environment Act 1995 9.135
Hire Purchase Act 1938 9.15
Land Charges Act 1972 11.36
s 5(1) 11.119
s 5(3)(a) 11.119
s 5(7) 11.119
s 17(1) 11.119
Land Registration Act 1925
s 70(1)(g) 8.84
Land Registration Act 2002
s 28–29 11.120
s 29 11.120
ss 32–39 11.120
ss 40–47 11.120
s 116 11.120
Sch 3, s 2 11.120
Landlord and Tenant Act 1954 22.35, 22.53
s 25 22.20, 22.21, 22.58
s 25(1) 22.21
22.20, 22.21, 22.22, 22.54,
s 26
22.58
s 26(3) 22.21
s 29A 22.20
s 29B 22.56
s 30(1)(b) 22.29
Landlord and Tenant Act 1985
s 11 22.35
Law of Property Act 1925 11.119
s 40 2.05, 8.87, 11.46, 11.57
s 52(1) 22.35, 22.42
s 52(2)(c) 22.42
s 56(1) 12.39, 12.55
s 146 22.06, 22.08
s 148 22.24
Law of Property Act 1989
s2 2.05
Law of Property (Miscellaneous Provisions) Act 1989 11.44, 11.50
s 1(1) 12.17
 ss 1(2)–(3) 12.17
s 1(3)(b) 12.17
8.87, 11.44, 11.45, 11.46,
11.47, 11.48, 11.49, 11.50,
s2
11.52, 11.92, 11.94, 11.157,
11.162
s 2(1) 11.44, 11.50, 11.51, 11.157
s 2(5) 11.44, 11.48
Marine Insurance Act 1906
s 18(3)(b) 20.16
s 18(3)(c) 20.16, 20.64
Misrepresentation Act 1967
s3 9.15
Sale of Goods Act 1893 1.24
s4 2.29, 3.18
Sale of Goods Act 1979
s 11(2) 4.30, 4.34
s 35 13.08
s 41(1)(b) 21.10
s 43(1)(c) 21.10
Settled Land Act 1925 11.109
Statute of Frauds 1677 1.24, 17.60
s4 11.46, 17.02, 17.03, 17.22
Torts (Interference with Goods) Act 1977 16.23
Town and Country Planning Act 1990
s 106 9.23, 9.132
Trusts of Land, Appointment of Trustees Act 1996 11.109
Unfair Contract Terms Act 1977 2.38, 9.15
Statutory Instruments
Civil Procedure Rules
CPR 17.1 21.25
Pt 23 21.25
CPR 24 4.17
Deregulation (Bills of Exchange) Order 1996, SI 1996/2993 17.33
Regulatory Reform (Business Tenancies) (England and Wales) Order
22.56
2003, SI 2003/3096 art 10
Uncertificated Securities Regulations 2001 reg 35(8). 18.09
Unfair Contract Terms in Consumer Contracts Regulations, 1999 17.01, 17.05
reg 5(1) 17.05
Sch 2 17.05
Unfair Terms in Consumer Contracts Regulations 1994, SI 2.38, 2.43
1994/3159
Sch 3 2.43
UNITED STATES OF AMERICA
Restatement, Second, Contracts
s 90 11.161
s 90(1) 8.31, 8.66
Restatement, Third, ALI, 2007 16.03, 16.06
Statute of Frauds, s 87A-2–209(4) 3.18
UCC s 2–209(2) 2.43, 19.07, 20.50, 20.52
EUROPEAN UNION
European Convention on Human Rights 3.12
Unfair Terms in Consumer Contracts Directive (EC) 1993/13 2.38, 20.52
art 3 13.13
 1
INTRODUCTION
A. Complete Doctrines? 1.02
(1) Links to other doctrines? 1.04
(2) A unified theory? 1.17
(3) A series of interlocking doctrines? 1.20
B. The Scheme of the Text 1.22
1.01 The previous Editions of this work did not pretend to completeness. The First was, self-
avowedly, an ‘essay’ in the true sense of the word, an attempt to construct taxonomies of the
‘elusive’1 and ‘vague’2 concepts of waiver, variation and estoppel. As such it did not directly
address what could be meant by completeness in this context. The Second Edition saw the
addition of a general introduction to estoppel, a new chapter on res judicata and a new
practice area—landlord and tenant. The Third Edition, as should be the case, has expanded on
and consolidated the analysis of the second. This reflects not only the body of the case law
over the last 14 years but also the fact that in several areas—in particular the law of waiver—
much of the approach has been approved by the Courts. For some, however, the analysis will
remain incomplete. This is not due to any stark omission from the contents page or indeed
any theoretical failing. It flows more from the essence of these doctrines—their ‘complex’,3
‘imprecise’4 if not ‘odious’5 natures. It is this basic issue that this Introduction seeks to
address.
A. Complete Doctrines?
1.02 As will be seen from this work, these doctrines occur and recur throughout the law of
obligations. As will also be apparent, they have been often deployed as ‘doctrines of last
resort’ and sometimes without any thought as to whether that deployment is appropriate.
The result is that these doctrines can be viewed piecemeal, as a collection of doctrines, some
contractual, some not, some evidential, some not. In part, this view is historical, a by-product
of the doctrines’ evolution in differing jurisdictions at different times and in response to
particular issues. More interestingly for present purposes, it also flows from the tensions
inherent within these doctrines between the need for commercial certainty as against a desire
for remedial flexibility to reflect the merits of individual cases.
1.03 Those underlying issues of completeness and tension lead to a number of questions: what is the
relationship between these doctrines and other protective principles—legitimate expectation,
restitution, duress and undue influence? Are the doctrines capable of reduction to a unified
theory? If not, do these doctrines form an interlocking series of tools capable of specific
application to the facts of individual cases?
(1) Links to other doctrines?
Legitimate expectation
1.04 In Council for the Civil Service Unions v Minister for the Civil Service,6 Lord Diplock
enunciated that which, with some reservations,7 is the classic exposition of the founding
principles of judicial review. Lord Diplock stated:8
To qualify as a subject for judicial review the decision must have consequences
which affect some person (or body of persons)… by depriving him of some benefit or
advantage which either (i) he had in the past been permitted by the decision maker to
enjoy and which he can legitimately expect to be permitted to continue to do until
 there has been communicated to him some rational grounds for withdrawing it on
which he has been given opportunity to comment; or (ii) he has received assurance
from the decision maker will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should not be withdrawn. (I
prefer to continue to call the kind of expectation… a ‘legitimate expectation’ rather
than a ‘reasonable expectation’ in order thereby to indicate that it has consequences
to which effect will be given in public law, whereas an expectation or hope that some
benefit or advantage would continue to be enjoyed, although it might well be
entertained by a ‘reasonable man’, would not necessarily have such consequences.
‘Reasonable’ further bears different meanings according to whether the context in
which it is being used is that of private law or of public law. To eliminate confusion it
is best avoided in the latter.)
1.05 The resultant doctrine of legitimate expectation is now frequently deployed to prevent the
State from resiling from a former course of conduct. The doctrine will apply alike to
representations,9 promises,10 issued circulars11 and established practices12 whether made to
individuals13 or by circular to the public as a whole.14
1.06 In that formulation, legitimate expectation looks much like an estoppel,15 a similarity that is
more apparent once it is appreciated that the subject must be aware of the representation16
and in certain cases must have relied on it to his or her detriment.17 The doctrine begins to
resemble equitable forbearance once promises as to future conduct are given effect. The most
striking example of this is R v North and East Devon Health Authority, ex p Coughlan.18 In
Coughlan, a promise to the residents of a nursing home that the home would be one ‘for life’
was at issue. The Court of Appeal held that the residents could only be deprived of that home
where there were overriding policy reasons necessitating withdrawal of the promise.19 The
Court therefore entered into an analysis of the respective policy reasons before preventing the
authority from closing the home.
1.07 Despite that similarity, the Courts have persistently held that legitimate expectation is not an
estoppel. Thus, there has been judicial resistance to the introduction of detrimental reliance
into legitimate expectation as that would assimilate legitimate expectation with estoppel.20
Further, since Lord Hoffmann’s statement in R v East Sussex CC, ex p Reprotech (Pebsham)
Ltd21 that to introduce estoppel into planning law would be ‘unhelpful’22 and the comment
that 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 … But it is no more than an analogy
because remedies against public authorities have to take into account the interests of the
general public which the authority exists to promote’,23 estoppels (of whatever kind) have
had little or no role to play where public authorities are exercising public powers.
1.08 There are obvious reasons for this. At root, legitimate expectation can be explained as a
doctrine of ‘fairness’ and ‘public policy’.24 As such, the argument runs, estoppel, derived
from private law, must be an unrelated doctrine. A difficulty with that argument is that
certain ‘estoppels’ also derive from public policy.25 As pointed out by Lord Hoffman, a
further, remedial distinction can be drawn. Again, a difficulty with that is that the Courts
already recognise remedial flexibility in proprietary estoppel and equitable forbearance.26
Further, the impact that proprietary estoppel has on third party rights means that estoppel-
based remedial theory already takes account of the potential impact of the private law
estoppel on the wider community. Finally, the objection that public authorities should not be
estopped from performing their functions cannot be determinative. Public bodies are
 prevented from acting by a legitimate expectation (subject only to the parameters of vires).
There is no practical difference between that situation and their being so prevented by an
estoppel which is also subject to the parameters of vires. Further, there is no reason in
principle why an authority acting intra vires and in a wholly private capacity should not be
estopped like any other corporation or legal person. If an authority can contract, there is no
reason why it cannot forbear from exercising those rights.
1.09 Despite the above, Reprotech is good law. Estoppel has no place in public law and any function
that estoppel might serve is to be performed by legitimate expectation. It follows that the
common law still draws a distinction between public law and private law and between
legitimate expectation and estoppel/waiver. Two points flow. First, it is difficult to see the
precise basis on which two doctrines that have the same effect and the same parameters are to
be distinguished, yet they are. Second, by parity of reasoning, it becomes much more difficult
to see why differing concepts with differing parameters—waiver by election and proprietary
estoppel or estoppel by representation and proprietary estoppel—should be fused.
Restitution
1.10 The recognition of the defence of change of position in Lipkin Gorman v Karpnale27 was also a
recognition that ‘estoppel was not an appropriate concept to deal with the problem’28 of
restitutionary recovery of unjust enrichment. As discussed elsewhere,29 this is because of the
evidential nature of the relevant estoppel (estoppel by representation). On a traditional
interpretation, the doctrine sets up a state of facts from which the legal consequences flow.
Thus, once there is a representation, the recipient of the monies is entitled to retain all of
them, irrespective of the actual merits of the case.30 When compared with change of position,
which permits of remedial flexibility focusing on the respective overall merits of each
party,31 estoppel becomes a clumsy, indeed an inappropriate weapon. Thus it was said that
there would be little future role for estoppel in restitutionary theory.32
1.11 That is undoubtedly correct in the vast majority of cases. There are cases, however, when both
estoppel and restitutionary principles are directly raised on the facts. This happened in
Scottish Equitable Plc v Derby33 and National Westminster Bank Plc v Somer International
Ltd.34 The result was that the tension between estoppel and restitutionary recovery arose. The
possible resolutions of that tension in estoppel-based theory are discussed elsewhere;35 what
is pertinent for the current analysis are the restitutionary principles applied. It is clear that the
respective Courts of Appeal considered that although there was a tension between the
doctrines, there was no theoretical or practical overlap.36 Lord Justice Robert Walker made
the point explicit in Scottish Equitable37 when he accepted as ‘convincing’ the argument that
both estoppel and restitution reversed detriment.38 When, therefore, restitution had reversed
the detriment, there was nothing on which the estoppel could bite.39 That approach—of an
estoppel-based defence operating where change of position will not—has academic support.40
It also means that there is a plain distinction between estoppel and restitution.
1.12 This distinction founds not only in the elements of the doctrines but on a wider theoretical
footing. Although both reverse detriment, restitution does so in a purely subtractive manner.
The detriment constitutes a payment in error, or the spending of money both of which are
remedied by subtracting the benefit of the receipt. The scope of detriment in estoppel is much
broader. Although one type of detriment may be the payment or retention of money, so may
forgoing opportunities and losing rights to object. Such detriment cannot be reversed or
remedied merely by subtracting from the other party.41 The position is particularly stark
where what is being reversed is the representor’s refusal to abide by a previous representation
 as to future intent or performance.42 There subtractive remedies are irrelevant—the remedy
being to bar the refusal.
1.13 It flows from the above that links with restitution do little to resolve the underlying questions;
the only stimulus being that recognised in Scottish Equitable Plc v Derby—namely the
possibility of a unified theory.43
Duress/undue influence
1.14 Both duress and undue influence protect those whose ability to contract or to modify freely the
obligations assumed under a contract has been undermined. The obvious distinction is that
duress is a common law doctrine requiring illegitimate pressure44 and undue influence is an
equitable doctrine based on more nebulous forms of coercion.45 What is common to both,
however, is that the doctrine is the overbearing of one party’s will so that he, she or it does
not enter freely into the transaction.
1.15 Clear distinctions can therefore be drawn between undue influence/duress and these doctrines.
At a high level of abstraction, duress and undue influence examine the actions of one party to
see whether that party should be deprived of the benefit of the agreement.46 Thus it is not the
state of mind of the weaker party that is in issue but the malign actions of the other.47 If,
therefore, the abstract injurious reliance versus injurious action distinction is adopted,48
duress and undue influence fall into injurious action, waiver and estoppel into injurious
reliance. At a less abstract level, none of consideration, unconscionability or mistake are at
issue in duress or undue influence. As far as consideration is concerned, neither duress nor
undue influence violate the parameter of enforcing obligations without consideration. What
they do is relieve a party from an obligation supported by consideration, the nature or extent
is irrelevant.49 Unconscionability plays no role in duress—there the issue is illegitimate (that
is tortious, criminal and contract-breaching)50 action. As far as undue influence is concerned,
although it may derive its force from equity’s antipathy to fraud51 as does estoppel, none of
the remedial considerations brought into play by unconscionability in, at the least, proprietary
estoppel and equitable forbearance apply. Finally, mistake is irrelevant in undue influence
and duress—the weaker party is not mistaken, its will is overcome.
Conclusions
1.16 It follows from the above that little theoretical assistance can be derived in resolving the issues
underlying these doctrines from other areas of the law. What emerges is that these doctrines
remain specific doctrines seeking to address specific issues. Their tensions and difficulties
cannot therefore be resolved by external analogues.
(2) A unified theory?
1.17 As indicated above,52 one result of the interaction between restitution and estoppel has been
the resurrection of the possibility of a unified theory governing all the doctrines considered in
this work.53 This is discussed in detail later in the book.54 For present purposes, there are two
candidates.
1.18 The first is a unified theory covering all the doctrines at issue in this work. This is the
‘injurious reliance’ theory canvassed in Paal Wilson & Co A/S v Partenreederei Hannah
Blumenthal,55 which states that all forms of assurances as to rights from which one party
seeks to resile can be reduced into a concept of injurious reliance. Quite apart from the fact
that ‘injurious reliance’ cannot explain waiver which does not require reliance, the difficulty
with that theory is that it is either correct as a matter of pure abstract generality or it falls foul
of the distinctions between the various doctrines—not least consideration. If the former, the
theory is at such a level of generality that it tells us nothing of the factual circumstances
 within which the doctrines operate. The theory therefore tells us nothing of the various
natures of the various doctrines.56 If the latter, the theory must bridge those cases where there
is consideration and where there is not. The theory therefore must find some means of
mitigating or avoiding a fundamental premise of contractual theory.
1.19 The second is a theory that attempts to reconcile the estoppels. This avoids the difficulty of
consideration. The issue that it raises is whether all estoppels are to be subsumed or some. If
just some (as per the Australian model),57 the practical issues (as already canvassed by the
Australian Courts)58 are which and why?59 The theoretical issue is why have such a partially
complete theory—is a theory that engages some of the doctrines not others (i) possible; (ii)
complete or coherent; (iii) useful? If the theory seeks to embrace all estoppels, then it must
overcome the basic distinctions between the doctrines—not least the offensive nature of
proprietary estoppel and the limiting effect of the doctrine of consideration.
(3) A series of interlocking doctrines?
1.20 It will be apparent from the above that it is relatively clear that a unified theory neither exists
nor has a role to play in this area.60 For those for whom completeness connotes the resolution
of these doctrines into a single, coherent entity, this work therefore remains incomplete. It
does so not only because the common law61 has evolved these separate doctrines but also
because the common law continues to evolve obvious analogues to these doctrines62 whilst
refusing to accept that there is any overarching relationship between the analogues and these
doctrines.63
1.21 This work therefore takes a different route. The route taken is that these doctrines form a series
of interlocking solutions to one particular issue. The issue is the role of consideration and the
interplay between contractual theory and other areas of the law. Each of the doctrines has
adopted a particular means by which obligations may be informally and practically modified.
Those means place limits on the operation of the doctrines, for if they did not, consideration
would be undermined. The result is that each of the doctrines addresses a particular situation
—the voluntary relinquishing of rights, the action to detriment on a representation or a
promise—and offers a specific remedial response. Thus, where it is necessary to confer rights
against third parties—the area of real property—substantive rights are created. Where it is
not so necessary, no rights are created.
B. The Scheme of the Text
1.22 The scheme of the text reflects that view. The text falls into two sections: an examination of
the doctrines of waiver, variation and estoppel as means to establish their taxonomies; and an
application of those propositions to practical issues that arise in ‘commercial’64 law.
1.23 Further, as the analysis is of interlocking responses to the same issue—consideration—the text
moves from the doctrine in which consideration is most apparent and required—variation—to
the most powerful doctrine in which it is absent—proprietary estoppel. In so doing, a
taxonomy of the doctrines is created. The underlying thesis is twofold. First, the law is
reluctant to impose obligations on a party without that party’s specific consent supported by
consideration. However, that reluctance does not extend to the deprivation of rights or of the
benefit of obligations. A party may be deprived of those without consideration being present.
Second, the broad distinctions between each of the doctrines result from the different but
analogous limitations placed upon the circumstances in which modification occurs. Thus,
consideration must be present for the variation of contracts; the requirement of knowledge is
the analogous limitation in cases of waiver; and detriment performs that function in
‘estoppel’.65
1.24 The consideration of variation in the abstract66 is at Chapter 2. The consideration takes two
interrelated forms. First, the elements necessary for a variation are discussed—offer,
acceptance and consideration. Those elements have been consistently required since the early
nineteenth century and, subject to developments in the law of consideration,67 have remained
unchanged. Whilst these requirements provide certainty by determining the circumstances in
which obligations will be varied, these requirements are consistently undermined by the
practices they seek to regulate.68 The resultant tension manifests itself in the legal
uncertainty as to the effects of unilateral and bilateral variations. The former may
automatically determine the contract69 and the latter may operate as an implied discharge of
all extant obligations. Second, the results of this tension are discussed: namely that
uncertainty as to the effects of a variation and the means by which the requirements for
variation can be mitigated or avoided. In considering the means by which the requirements
for a variation can be mitigated, two points must be borne in mind. First, the Courts have no
difficulty in bypassing the requirements where the parties have agreed in advance that the
contract can be varied by particular means.70 That is consistent with the traditional view that
the parties’ bargain is to be upheld. Second, greater difficulty arises as to whether a contract
will be varied in the face of events which make performance of the contract extremely
difficult but do not frustrate it. The most logical resolution of this difficulty and the Courts’
reaction to it is to outline a nascent doctrine of variation by necessity.
1.25 Chapters 3 to 5 consider the doctrine of ‘waiver’. Chapter 3 is definitional. It was pointed out
in the First Edition that a definitional chapter was unusual. Given the way in which the case
law has developed, not least by adopting the definitions,71 it was and is necessary. Once that
approach is applied, three points emerge. First, ‘waiver’ in its true sense72 only applies to the
loss of contractual rights. Thus, waiver cannot create additional obligations of any kind. By
parity of reasoning, the elements required to establish the waiver must relate to the
contractual obligations assumed by the parties. There will be no waiver, therefore, where
there is no unequivocal representation as to whether or not particular contractual rights will
be relied on. Second, there are four types of waiver depending on the right which is lost.
Waiver can range from the loss of a contractual right unique to one party; to the loss of a
right or rights before breach; the loss of rights after breach and to the loss of all rights,
including that of claiming damages. Third, waiver in all these forms requires knowledge—
this knowledge providing the limitation on the circumstances in which a party may be alleged
to have lost its rights.
1.26 In Chapter 4, the types and elements of waiver are outlined. In each case, the basic definition is
derived from waiver by election. The right most frequently lost is the right to elect arising
from a repudiatory breach of the contract.73 That analysis is applied to other forms of waiver
because of the similarity between the rights being lost. A party which has a waiver in any
form being raised against it will usually be seeking to rely on rights analogous to the right to
elect. Further no distinction in principle can be constructed in this context between the right
to elect and the other purely contractual rights being lost. Chapter 5 sets out the
complications associated with waiver, in particular, whether waiver is suspensory or
irrevocable. Here distinctions can and should be drawn between the types of waiver;
distinctions which flow from the nature of the rights being lost.74
1.27 Chapter 6 is concerned with election and its relation both to waiver and to acquiescence. The
analysis of waiver as being based on, but not limited to, waiver by election leads to the
suggestion that election is a subset of waiver. As such, for an election to be present the
 elements required for a waiver—an unequivocal representation made with the requisite
knowledge—must also be present. Where those elements are not present, the party seeking to
establish that the right to elect has been lost has two choices: to argue that no right to elect
accrued or that the innocent party has been deprived of its right to elect by acquiescence or
estoppel. As to the former, it would appear that the right to elect can be excluded by the terms
of the contract or, potentially, by the rule in White and Carter (Councils) v McGregor.75 The
former is uncontroversial and consistent with the Courts’ desire to uphold the terms of the
bargain reached. The latter represents not a fetter on the right to elect but equity intervening
to curtail the innocent party’s remedies accruing on repudiatory breach.
1.28 Chapter 7 marks the transition from waiver (of whatever kind) and its cognates to estoppel.
Chapter 7 therefore concerns itself with points of general principle. The crucial issues are the
existence or otherwise of the unified theory and a summary of the various estoppels. The
latter is provided not only as an example of why there is no unified theory but also as a means
of summarising the various differences in one place without discussion.
1.29 Chapters 8 to 11 move on to estoppel. As suggested above, the distinction between waiver and
estoppel is that knowledge is required for the former, detriment for the latter. Further, within
the doctrine of estoppel distinctions are drawn between the various doctrines dependent on
whether representations, shared assumptions or property are at issue. Three points are
common to the analysis of all types of estoppel. First, the distinctions drawn are and will
remain necessary unless and until the English law adopts a unified theory of estoppel
eradicating the distinctions which have existed and at present exist. Second, the element of
detriment is common to all forms of estoppel and may well take the same form in each.
Detriment is the prejudice triggered by withdrawal of the representation/assumption/promise;
that prejudice itself arising from the change of position that has occurred. Third, this analysis
of detriment makes explicit the conceptual underpinning of all estoppels. Estoppels are
necessary because of the English law’s focus on consideration, filling the lacunae left by that
doctrine.
1.30 Following the trajectory set out above, Chapter 8 considers promissory estoppel or rather
equitable forbearance. The location of the chapter and the name of the doctrine reflect its
close relationship with waiver.76 The doctrine occupies the interstice between waiver and
estoppel by representation. As estoppel by representation cannot apply to promises and
waiver requires knowledge, there must be some intermediary based on concessions and
promises to forbear from enforcing existing rights. The distinction between waiver and
equitable forbearance is therefore that waiver requires knowledge whereas equitable
forbearance requires detrimental reliance. The distinction between equitable forbearance and
estoppel by representation is that it applies to representations of future intention and
promises. The elements of equitable forbearance are examined in turn, concluding that
detriment is a prerequisite for its operation. The principles which determine when the
doctrine will operate to suspend the rights forgone and when it will operate to extinguish
them are assessed, drawing the conclusion that the prime aim of the relief is to avert
detriment to the promisee. There is then an assessment of the status of the Combe v Combe
principle restricting the doctrine to forbearance of existing rights rather than the creation of
new obligations.
1.31 Chapter 9 considers estoppel by representation and Chapter 10 considers estoppel by
convention. There are obvious similarities, the main difference being the nature of the
triggering representation. In estoppel by representation, the requirement for a clear
representation remains. In estoppel by convention, the clear representation is unnecessary—
 being replaced by a shared assumption.
1.32 Chapter 11 addresses proprietary estoppel. As pointed out, proprietary estoppel is the most
muscular of these doctrines having substantive effect as against third parties. It is for this
reason that it is confined to property rights. The curiosity is the remedial flexibility it shares
with equitable forbearance and does not, at first glance, share with estoppel by representation
and estoppel by convention. The anomalous link with equitable forbearance may flow from
the fact that both relate to promises. Where the Court is remedying detriment flowing from a
promise, remedial flexibility is required. The alternative view may be to regard estoppel by
representation, at the very least, as not as remedially challenged as was once thought.
1.33 Chapters 12 to 14 consider a series of anomalous doctrines. Chapter 12 addresses estoppel by
deed, a doctrine that stands on its own for historical reasons. Chapters 13 and 14 consider two
doctrines that are titled as estoppels or waivers but are not. Chapter 13 considers the
Panchaud Frères doctrine and ‘contractual estoppel’. Although Panchaud Frères is often
cited as forming part of the doctrine of waiver, on analysis, the doctrine has few, if any, of the
necessary hallmarks. Further, as the doctrine can arguably be confined to the context of
shipping law77 or that of sale of goods,78 it is difficult to see how waiver in the true sense of
the word is in play. Panchaud is therefore treated as an anomaly confined, at best, to shipping
law. There are similar difficulties with ‘contractual’ estoppel. Although said to be an
estoppel, it is one which uniquely does not require detriment. Chapter 14 turns to various res
judicata and associated doctrines. As is apparent from the title—‘Procedural Doctrines’—and
the discussion, the only link that res judicata has with the modern law of estoppel is a
common semantic and historic root.
1.34 Chapters 15 and following form the second section of the work—the application of the
doctrines to various areas of the law. Although these chapters are designed to be free-
standing, some reference back will have to be made to the doctrines as defined. As Chapter 15
points out, the areas chosen are self-selecting; the frequency with which these doctrines are
considered suggesting that it is appropriate to include a particular area. Further, as the focus
of this book is the modification of commercial obligations, it seems appropriate to consider
the interaction of these doctrines with ‘commercial law’ in its loosest sense. The traditional
areas of commercial practice—banking, insurance and shipping—therefore appear as do
agency, company, construction and landlord and tenant.
 2 VARIATION
A. Introduction 2.01
B. Terminological versus Actual Distinctions 2.02
C. Requirements for a Variation 2.04
(1) A valid and subsisting contract 2.07
(2) Consensus as to the obligations which are altered 2.14
(3) Action to benefit or detriment 2.15
D. Difficulties Associated with the Doctrine 2.26
(1) The effect of a variation 2.27
(2) The effect of a unilateral variation 2.41
(3) The moderation of commercial difficulties of
2.42
variation
A. Introduction
2.01 Variation of a contract is the alteration of the obligations assumed under that contract.1 As a
result, variation has, superficially, much in common with waiver and estoppel. Variation of
contract is, however, a separate and distinct doctrine from waiver, election and estoppel and
must be pleaded and proved as such. The distinction is to be demonstrated by considering the
terminological versus the actual differences between waiver, estoppel and variation; the legal
requirements for there to be a variation; the difficulties associated with the doctrine; and the
results of its application in particular areas of law.2
B. Terminological versus Actual Distinctions
2.02 The three doctrines of waiver, variation and estoppel relieve a party from its pre-existing
contractual obligations or rights. Thus, all three doctrines may arise from the same facts and
practitioners often plead the doctrines in the alternative.3 This superficial similarity has
caused variation to be treated as synonymous both with waiver4 and estoppel.5 Indeed, at least
one commentator has attempted to rationalise difficult cases by suggesting that, in the name
of variation, the Court was in fact relying on ‘waiver in the sense of forbearance’.6
2.03 However, clear distinctions of form and substance can and should be drawn.7 Put at its
simplest, a variation of a contract can only affect obligations which are to be performed, there
can be no variation of an executed obligation.8 Waiver and estoppel do not alter the terms of
the contract,9 they restrict a party’s range of possible responses to non or deficient
performance.10 For this reason, waiver and estoppel may apply to both executory and
executed obligations and may result in there being:
a total dissolution of the contract placing the parties in the same situation in which
they stood before the agreement was entered into.11
Effective variation, by contrast, does not result in the dissolution of all12 contractual ties
between the parties.13
C. Requirements for a Variation
2.04 The Courts historically analysed variation of contract in the same fashion as the entry by the
parties into a new contract. The requirements of offer, acceptance and consideration were
therefore required.14 In Goss v Lord Nugent15 the Court stated:
By the general rules of the common law… it is competent to the parties at any time
before breach of it, by a new contract not in writing, either altogether to waive,
 dissolve, or annul the former agreements, or in any manner add to, or subtract
from, or vary or qualify the terms of it and thus to make a new contract…
2.05 Adopting that view, the requirements for a variation derive from the law governing contract
formation16 and the same formalities apply to the variation of the contract as apply to its
formation.17 Therefore, where a contract is required to be in writing18 or evidenced in writing
then the variation must usually be in writing to have effect19 or if it is to be given effect by
the Court.20 However, by the rules of equity, a deed is not required to vary a deed.21
2.06 Three requirements emerge: there is a valid and subsisting contract on foot between the
parties; there is some form of consensus between the parties as to the obligations which are to
be altered; and the parties have acted in some way to their benefit or detriment in either
agreeing the variation or as a result of the variation. Each is considered in turn.
(1) A valid and subsisting contract
2.07 Subject to one possible exception,22 it is fundamental to any variation of contract that there is
a subsisting contract to be varied. Therefore, there can be no variation once the contract has
terminated.23
2.08 In Royal Exchange Assurance v Hope,24 the Claimant executor of Mr Barker’s estate sued on a
life policy entered into by Mr Barker prior to his death. As originally drawn up, the life policy
was to expire on 31 July 1926. In August 1925, Mr Barker assigned the benefit of the policy
to the Defendant giving notice to the insurance company, Sun Life. However, shortly before
the expiry of the policy, Mr Barker extended the policy until 31 October 1926, failing at the
same time to enter into an assignment of the extended policy. Mr Barker then died on 1
October 1926 (within the extended policy period). Royal Exchange Assurance sought a
declaration against the Defendant that the Defendant was not entitled to the benefit of the
policy, there in fact being two policies, one assigned (to 31 July) and one unassigned (1
August to 31 October). The Court relied on the fact that the assigned policy was subsisting to
spell out both an intention to benefit the Defendant and a variation of the policy. In so doing,
the Court expressly acknowledged that the Defendant’s position would be ‘more difficult’ if
the policy had expired prior to Mr Barker’s instruction to continue cover until 31 October
1926.25
2.09 It follows from the above that executed obligations under a contract cannot be varied.
Analytically, once an obligation has been performed, there is nothing to alter. Practically,
there is little benefit in so doing.26 Therefore in Hope, it was Sun Life’s continuing and
therefore executory obligation to provide cover until the new expiry date of the policy27 or
death of the assured28 which was varied.29
A possible exception—pre-contractual variation and collateral contracts
2.10 It has been suggested (relying on Brikom Investments Ltd v Carr)30 that the terms of the
contract can be varied before that contract is concluded.31 In Carr, the Claimant, a firm of
managing agents of a block of flats in Harrow, entered into a number of long leases of the
flats. The leases expressly provided for a landlord’s repairing covenant backed by
contributions from the tenants. At the time of entry into the leases the roofs of the flats were
urgently in need of repair under that landlord’s covenant. Prior to entry, the Claimant’s agents
represented that the Claimant would repair the roofs at its own cost. However, after the
tenants had signed the leases, the Claimant sought to recover the costs of repairing the roofs
from the tenants.
2.11 The Court of Appeal held that the Claimants could not recover. Lord Denning MR did so on the
basis that the representations generated an estoppel which inured for the benefit of the
 successors in title to or assignees of the original tenants.32 Lord Justice Roskill, as he then
was, with whom Lord Justice Cumming-Bruce agreed, doubted whether the doctrine of
estoppel could extend that far,33 and found that the representations constituted a collateral
contract negating the express terms of the lease.34 As an alternative ground, Lord Justice
Roskill also found that the Claimant had waived its rights to recover from the Defendants.35
Lord Justice Cumming-Bruce found that the original tenants could rely on a collateral
contract and the assignees could rely on the doctrine of waiver.36
2.12 For present purposes,37 it is Lord Justice Roskill’s finding that there was a collateral contract
that is of interest. The collateral contract in Carr only came into being because of the
representations made prior to the entry into the contract. Further, in a sense, the collateral
contract varied the terms of the lease. Therefore, prima facie, it would appear that Treitel is
correct in saying that there was a variation prior to the entry into the main contract.
However, it is respectfully submitted that the better view is that, although the facts which led
to the collateral contract took place before the formation of the lease, the collateral contract
only came into existence after the lease was signed. Therefore, there was no variation prior to
the formation of the lease. The lease was entered into and then varied by the operation of the
collateral contract.
2.13 That suggestion is supported in five ways. First, the lease, as is usually the case with collateral
contracts, provided the consideration for the collateral contract.38 Therefore the collateral
contract had no effect unless and until the main contract was entered into and, potentially,
vice versa.39 Second, the collateral contract existed to vary the main contract.40 Absent the
main contract, an agreement not to enforce the terms of the main contract would either be an
agreement to agree,41 an incomplete agreement42 or void for uncertainty;43 and would
therefore be unenforceable.44 Third, Lord Justice Roskill reached his conclusion by reference
to Hughes v Metropolitan Railway Co45 which expressly limited any principle laid down to
actions taking place after entry into the contract. Put another way, there is nothing in Hughes
which supports a variation of contract before the contract comes into existence. Fourth, it is
perfectly possible to analyse the representations made by the Claimant as a form of offer
which was accepted by entry into the lease.46 Therefore, the collateral contract could only
come into being after the lease.47 Fifth, as a matter of logic, it is difficult to see how a
contract can be varied prior to inception without considerable inroads being made into the
English law on the formation of contracts.
(2) Consensus as to the obligations which are altered
2.14 Since Felthouse v Brindley48 unless there is a specific provision which permits it, a party
cannot unilaterally vary the terms of a contract; there has to be acceptance of the variation of
the contract, that acceptance being more than ‘mental acceptance or mere acquiescence’.
Therefore, in the same way as there must be offer and acceptance at the formation of the
contract, the parties49 to the contract must agree to the variation,50 must agree to all material
aspects of the variation51 and must intend52 to vary the contract.53 Where there are numerous
parties to the contract, all must agree to the proposed variation.54 Further, as with entry into a
contract, a party’s agreement must be freely given and when the consent is obtained as a
result of duress, it will be of no effect.55 Finally, the parties’ consensus must be sufficiently
certain and be in sufficiently clear terms such that the proposed alteration of their obligations
can be given effect.56
(3) Action to benefit or detriment57
 The traditional view
2.15 The proposed variation must, as a general rule, be supported by consideration.58 The rules
relating to the existence or absence of consideration in the context of contract formation
apply.59 Consideration will be provided by the mutual exchange of promises and by the
possible conferral of a benefit or detriment to one of the parties.60 Where, for example,
alterations are made to the currency in which payment may be made,61 or to the place where
payment is to be made,62 both parties may benefit. Provided that the alterations are capable
of benefitting both parties,63 the fact that, as matters turn out, only one party benefits from
the variation is irrelevant.
2.16 Two conclusions follow from this ‘traditional’ approach to consideration. First, as with the
formation of contracts, the Courts will not inquire into the adequacy of consideration64 and
will, on occasion, go out of their way to create consideration where it would appear to most
observers that there is no65 or at best minimal consideration.66
2.17 Second, past consideration cannot normally support a variation of contract. Therefore, where a
party has performed its obligations, it cannot utilise those performed obligations as any form
of consideration supporting a variation of another party’s obligations.67
A departure from the traditional view
2.18 It is submitted, however, that this traditional model has to be revised in light of two factors.
The first is the gradual movement from an analysis of contracts as an exchange of promises to
an analysis of contract in terms of the benefits conferred by them.68 On that approach, the
question is not so much one of consideration but of the accrual of a superadded benefit. The
second is the Court of Appeal’s decision in Williams v Roffey Bros & Nicholas (Contractors)
Ltd.69
2.19 The decision in Williams v Roffey In Williams, the Claimant was engaged as a subcontractor
by the Defendant to carry out the carpentry works on a block of flats. The Claimant was able
to complete some flats but, due to the underpricing of the subcontract and the inadequate
supervision of his works by the Defendant, the Claimant was in financial difficulty affecting
his ability to complete. The Defendant therefore offered to pay the Claimant an extra £575 as
an incentive for the Claimant to complete the works timeously. In other words, the Defendant
offered the Claimant extra money to persuade the Claimant to perform that which he had
already contracted to do. However, when the Claimant had substantially and timeously
completed the works under the contract, the Defendant refused to pay the Claimant. The
Claimant therefore sued the Defendant and succeeded at both first instance and on appeal.
2.20 The Court of Appeal rejected an argument based on estoppel70 and found that the variation was
supported by consideration since the Defendant was to receive a ‘practical benefit’ from the
variation.71 That practical benefit comprised: the assurance that the Claimant would continue
to work on site, the better organisation of the Claimant’s work so as to allow the Defendant to
make more efficient use of the labour on site, the avoidance of an obligation to pay a penalty
as a result of the failure to complete the flats timeously and the avoidance of the
inconvenience generated by having to find a substitute for the Claimant.
2.21 The Court of Appeal buttressed the reliance on practical benefit in several ways. Lord Justice
Glidewell analysed the position as follows:72
(i) if A has entered into a contract to do work for, or to supply goods or services to,
B in return for payment by B; and (ii) at some stage before A has completely
performed his obligations under the contract B has reason to doubt whether A will,
or will be able to, complete his side of the bargain; and (iii) B thereupon promises
 A an additional payment in return for A’s promise to perform his contractual
obligations on time; and (iv) as a result of giving his promise, B obtains in practice
a benefit, or obviates a disbenefit; (v) B’s promise is not given as a result of
economic duress or fraud on the part of A; then (vi) the benefit to B is capable of
being consideration for B’s promises, so that the promise will be legally binding.
2.22 Lord Justice Russell adopted a ‘pragmatic approach’73 deciding:
Consideration there still must be but, in my judgment, the courts nowadays should
be more ready to find its existence so as to reflect the intentions of the parties to
the contract where the bargaining powers are not unequal and where the finding of
consideration reflects the true intention of the parties…74
A gratuitous promise, pure and simple, remains unenforceable unless given under
seal. But where as in this case a party undertakes to make a payment because by so
doing it will give you an advantage arising out of the continuing relationship with
the promisee the new bargain will not fail for want of consideration.75
2.23 Lord Justice Purchas (albeit with some doubt) came to the conclusion that there would be
consideration where both parties had received some benefit even if neither party suffered a
detriment.76
2.24 Applying Williams v Roffey Although the decision has been subject to academic77 and judicial
criticism78 and has been held not to apply to straightforward debtor/creditor relationships,79
it has been applied to standard commercial relationships80 and the decision has several
benefits and should be considered to be good law.81 Williams recognises that, in commercial
dealings, there is an advantage to one party if it can increase the likelihood of the other party
completing the contract. Further, there can be no public policy objection82 to further
payments being made by the parties to ensure that benefit accrues. Williams also recognises,
as is the case, that the performance of a pre-existing contractual obligation may result in the
party receiving a benefit from that performance other than the mere fact of performance.83
The approach is therefore more flexible, less formalistic and closer to modern commercial
practice where there is a need for fluidity to take account of changing market conditions and
for the recognition that the contractual relationships between A and B can have effects on the
market as a whole or on A’s relationships with numerous other parties unconnected with the
contract. The decision opens the way for the Courts to reflect that fluidity84 and bypasses the
need for the fiction of ‘invented’ consideration. Further, to the extent that the doctrine of
consideration serves a ‘protective’ function (by ensuring that there is some benefit to the
party agreeing to the variation), that function can be more effectively served by economic
duress—which the Courts have found to be a ‘more refined mechanism’.85
2.25 It is therefore submitted that the Court should find that a variation is supported by
consideration86 in all cases where it is possible to find that the variation results in the accrual
of a benefit to the parties to the contract.87 Further, the Court should not find that a variation
of contract is invalid even if the practical benefit is merely the due performance of existing
obligations under the contract to be varied to the benefit of both parties.88
D. Difficulties Associated with the Doctrine
2.26 There are three. What is the effect of a variation? What is the effect of a unilateral variation?89
And how have the commercial difficulties created by the above been moderated or reduced?
It is submitted that the existence of those difficulties, and the mechanisms which the Courts
have adopted to resolve them, underlie and are the rationale for the limited nature of the
 doctrine of variation and its distinct nature, unrelated to both estoppel and waiver.
(1) The effect of a variation
2.27 There are two possible approaches to this question. A variation of the contract may operate as a
‘rescission’. This approach arises from the historical requirement of formalities and is
therefore supported by the older authorities. The alternative view is that a variation of the
contract may operate as an implied discharge by agreement of the previous contract and its
immediate replacement with a new contract containing the varied obligations. This approach,
it is submitted, is logical and consistent but may, it has been suggested,90 lead to practical
difficulties.
‘Rescission’
2.28 As has already been pointed out, the Courts will only find that a contract has been varied where
certain requirements, namely those akin to the formation of a contract, have been met. Thus,
certain formal requirements apply where the parties attempt to vary contracts that have to be
in writing.91 The formal requirement flows from the principled requirement that a variation
requires the same rigour as the entry into a contract. The historical rationale for these formal
requirements is that they prevent a statutory requirement from being bypassed or undermined
by the doctrine of variation.92
2.29 The application of these formal requirements is not, however, without difficulty—most aptly
demonstrated by the formal requirement that used to exist in relation to contracts for the sale
of goods. By section 4 of the Sale of Goods Act 1893, contracts for the sale of goods where
more than 10 l was at issue had to be in writing. Therefore, variations of those contracts had
to be in writing and, for example, if changes as to time or place of delivery were to be valid,
those changes, being variations, would also have to be in writing.93 The obvious effect of
section 4 was to place a restraint on commercial flexibility; it not being open to the parties
informally to vary their obligations. Unsurprisingly, however, the parties to commercial
contracts continued to enter into informal variations and then to seek to enforce those
obligations in the Courts. The Courts, by section 4, were unable so to enforce. That limitation
was contrary to preserving the bargain, encouraging trade and commercial flexibility and
reacting to the merits of the particular case. The Courts therefore attempted to mitigate the
effect of section 4 by resorting to the doctrine of rescission. On this approach, the parties to a
contract could so fundamentally alter the terms of that contract by variation that the original
contract was in fact ‘rescinded’.94 In such circumstances, neither party could rely on the
contract.
2.30 That approach still appears to be good law95 even though the category of contract subject to
such formalities has been considerably reduced over time.96 Thus, the use of ‘rescission’ in
this context remains even though the necessity for it has been considerably reduced. The
continued reliance on rescission may, however, now create more problems than it solves—the
issue of ascertaining the effect of a variation is made more difficult.97 The most obvious
point is that the ‘rescission’ does not occur in every case. Therefore, some variations will lead
to rescission, others will not. Unless it is possible to understand in which cases variation will
trigger rescission, obvious legal certainty issues arise. Further, as it is difficult to ascertain
when rescission will or will not occur as a result of a variation, it is also difficult to see what,
if any, legal principle is being deployed98 which in turn creates further legal uncertainty.
2.31 Circumstances in which rescission takes place—is there a principle? The basis of the
supposed principle has been formulated as:
… which comes nearer to their intention—to leave them with an unamended
 agreement or without any agreement at all… If the new agreement reveals an
intention to rescind the old, the old goes; and if it does not, the old remains in force
and unamended.99
This is the contractual concept of inferred objective intention. Inferred intention is a powerful
means of solving case-by-case issues, the paradigm example being the interpretation of
contractual provisions in a given context. What it is not, however, is a means of discovering
the principle in play (other than the principle that cases turn on their own facts). Put simply,
inferred intention does not tell us why, as a matter of principle, a variation equals a rescission.
2.32 The logical difficulty Further, this lack of a coherent principle cannot be cured by reference to
logic or basic legal reasoning. It is fundamental to the common law that the terms of a
contract are to be taken and read together to ascertain what the bargain between the parties
was.100 That rule applies to varied and unvaried contracts. Therefore, in the normal course of
events,101 it is not possible to separate out the various terms of the contract and, if one term is
altered, the entire bargain is altered. Thus, logically, variation of a contract should create a
new contract in all circumstances.102 Further, there is no reason why some variations should
have that result and others do not. The point can be tested another way. It is clear that a
unilateral variation of contract may constitute a repudiation of contract triggering the
innocent party’s election. It is difficult to see how a variation can be both a rescission
discharging obligations ab initio and a repudiation potentially terminating future performance
of the contract.103
2.33 Inherent difficulties Assuming that the above objections are not well founded, the inferred
intention approach has inherent difficulties. The Court is looking to see whether the parties
intended to resile from the contract or to abide by its terms. The Court does so because
rescission vitiates any contract ab initio.104 Focusing on the parties’ intentions is, however,
asking the wrong question. The parties did not intend to retain their original bargain or to
resile from it. The parties wanted and intended to have mutual and contractual rights and
obligations albeit not those which they had previously, that is why they purported to vary
their obligations. The question—did the parties intend to rescind or to vary—also generates a
double uncertainty. There is the primary uncertainty as to when the Courts will have recourse
to the parties’ intentions. There is then the secondary uncertainty as to what the Courts will
determine the parties’ intentions to have been.
2.34 A stark example of the difficulties created by relying on Morris v Baron and the parties’
inferred intentions is Shell UK Ltd v Revenue & Customs.105 In this case, Shell had entered
into a long-term supply contract for gas from the Brent Field in 1975. In 2002, Shell had
entered into another agreement for the further long-term supply of gas on new terms for 10
years. The previous contract was exempt from Petroleum Revenue Tax. The new contract, if it
was in fact a new contract, would not be exempt from Petroleum Revenue Tax. There was,
therefore, a significant tax advantage if the new contract was nothing more than the old
contract. Shell contended that Morris v Baron provided the answer. On that approach, Shell
contended, the issue was, what did the parties intend? If the parties intended to rescind the old
contract, then there was rescission. If the parties did not so intend, there was a variation, the
new contract was nothing more than the old contract, to be treated as having effect from 1975.
It was, of course, entirely unsurprising that the parties intended to arrange their affairs so as
to pay as little tax as possible.
2.35 Although the argument failed106 (in part as a result of the proper construction of the taxing
statute), Shell’s argument demonstrates why, in all probability, Morris v Baron has little—if
 any—relevance today and certainly not outwith its original and very limited context. Relying
on Morris v Baron not only led to artificiality—an agreement entered into in 2002 was to be
read as if it had been entered into in 1975107—but also what was, in essence, a circular
argument.
Implied discharge
2.36 A valid variation of a contract replaces the obligations previously assumed by the parties with
the new and varied obligations. As far as the future performance of the contract is
concerned,108 the previous contract becomes irrelevant as a result of a process of
agreement.109 The most accurate label for that process would be implied discharge. Further,
acknowledging that all variations operate as implied discharges of the previous agreement
avoids the practical and logic difficulties outlined above. No debate can arise as to the
circumstances in which the previous agreement ceases to have effect and no logical confusion
results. Put simply there is no difficulty over the question of ‘unenforceability’ of particular
allegations.
2.37 As a result, it is submitted, the English Courts no longer need to rely on the fiction of
rescission. This possibility was left explicitly open by Lord Devlin in Shoucar.110 He there
suggested that the English Courts would adopt the logical conclusion if it could be shown that
the difficulties it created either did not apply or were misconceived. In so doing, he clearly
viewed implied discharge as the better option and left the way open for its reappraisal.
Further, the use of rescission in this context is drawn from Morris v Baron111 and the
succeeding cases which should, at best, be confined to the particular statutes and contexts at
issue in those cases. Further, rescission, in the modern sense, vitiates the contract ab initio.112
In no sense does a variation vitiate the original contract ab initio. It follows that the use of the
term ‘rescission’ in this context is a misnomer and the equation of variation and rescission
inappropriate. The Courts need not, therefore, be driven down the rescission route by Morris v
Baron and its successors.
2.38 One policy point remains. The rationale for contractual formalities is, in part, protective. The
bargain must be in writing so that its terms are clearly set out and the opportunities for ‘sharp
practice’ reduced. That mischief must, however, not only be considered against the potential
injustice to a party of not permitting them to rely on the oral representations113 but also the
changes in the statutory landscape. The legislative framework governing unfair contract
terms,114 the greater recognition of a remedial equitable theory in commercial contexts115
and the developing law of economic duress116 are all significant protective steps.117 With
them, the focus has moved away from formalities to the question of whether the parties freely
and fairly contracted. Any policy argument for formalities should be answered by these legal
developments.
2.39 The difficulty, however, with implied discharge is that, whilst the operation of implied
discharge in all cases of variation has been acknowledged as being correct ‘as a matter of
formal logic’,118 the English Courts have avoided reaching that conclusion to date for two
reasons. First, a belief that implied discharge creates difficulties for the parties as ‘a minor
variation may destroy the effect of the whole transaction between the parties’.119 Second, the
Courts may have confused rescission and discharge giving rise to a conviction that the
existence of implied discharge erodes the distinction between rescission and variation.120
2.40 Whilst there is some force in those objections, on balance the better view is that a variation
that satisfies the criteria set out above121 operates to discharge the old contract by mutual
agreement and to replace it with the new contract.122 That approach has the benefit of
 certainty and simplicity. The difficulty relating to the limited categories of contracts which
are required to be in writing would therefore be resolved by the fact that the new contract in
its entirety would be unenforceable.123
(2) The effect of a unilateral variation
2.41 On one analysis,124 unilateral variation should have no effect whatsoever, the parties
continuing with the contract as before. However, if the proposed variation makes substantial
or fundamental changes to the contract, it is tantamount to a declaration by the proposing
party that it does not intend to continue to perform the contract in the unvaried form.
Therefore, the proposed variation may amount to anticipatory repudiatory breach of the
contract or, if insisted upon, will amount to a repudiation of the contract.125 It therefore
follows that the party choosing not to accept the proposed variation will be put to its election
to accept the repudiation or to call expressly for the performance of the contract in its
unaltered form.126 In a further analogy to offer and acceptance, the party accepting the
repudiation must clearly demonstrate by its conduct that it has accepted the repudiation.127
(3) The moderation of commercial difficulties of variation
2.42 A rigid formal adherence to the requirements of variation creates difficulties in practice. Such
difficulties have been mitigated by two mechanisms for variation of a contract without the
express consent of the parties to, or consideration for, that variation. The first mechanism is
clearly established and involves construing certain agreements as if the parties had agreed to
permit certain types of variation to those agreements. The second mechanism, it is submitted,
is of more doubtful origin and status and may involve the Court in finding that the obligations
assumed by the parties have varied in the face of force majeure or potentially frustrating
events. The former is referred to as ‘agreements permitting variation’ and the latter as
‘variation by necessity’.
Agreements permitting variation
2.43 The common law allows agreements permitting variation in two cases. First, when the parties
incorporate within the contract a set of rules themselves providing for their own variation or
amendment.128 In such circumstances, it would clearly be contrary to the commercial purpose
of the contract, evinced by the incorporation of the rules, to allow the rules outwith the
contractual context to alter and for the rules actually incorporated to remain the same. Thus,
in such circumstances, any amendment of the rules outwith the contract will automatically
amend the incorporated rules and vary the contract. Second, where the parties have either
expressly129 or impliedly130 agreed that one or both of them should have the power to vary
the agreement, subject to one caveat, that party will have that power.131 The caveat relates to
powers to vary unilaterally. Not only may such powers fall foul of the unfair contract terms
legislation132 but the Courts may also require the power to be expressed in clear and
unequivocal terms.133 Under this head, there are in fact two types of variation permitted—a
variation of the contract per se and a variation of the performance of the terms of the contract.
In most cases, the above distinction is one without a difference. However, the above
distinction is pertinent where building contracts are concerned.134
2.44 There is a statutory overlay to this topic. The Contracts (Rights of Third Parties) Act 1999
limits the parties’ power to vary a contract where third party rights are in play.135 Where the
contract grants rights to a third party and the promisor of those rights is aware that the third
party has accepted or relied on those rights, the parties cannot vary the terms giving rise to
those rights without third party consent.136 The limitation can be avoided by express
contractual provision granting the parties the power to vary the terms without consent.137 The
 relevant contractual provisions will be a further specific form of agreement permitting
variation.
Variation by necessity
2.45 In a series of extremely difficult cases,138 the Courts considered the issues arising from the
Mississippi floods in 1973 and the subsequent ban imposed by the US Government on exports
of American soya bean meal. At the time, the market in soya beans was extremely volatile.
As a result, trading in soya bean futures could be very profitable and a specific pattern of
trading emerged. The purchaser, B, would enter into a sales contract with the seller, A, for
delivery of a consignment of soya beans in, say, seven months’ time. At that date, B would
know that the cargo would be shipped cif under a GAFTA 100 form.139 However, B would
neither know to which port the soya would be shipped, nor the date of the bill of lading nor
the size of the cargo. Depending on market conditions, B would sell on the benefit and burden
of the contract to another purchaser, C, who would then sell on to another, D and so on. The
result was that a cargo could be the subject of a whole ‘string’ of futures sales before a final
sale and purchase took place. Further, the futures market was dominated by a limited number
of companies which would be involved in numerous such strings and could be involved on
more than one occasion in any one string.140 At some point during the process, the destination
port, the date of the bill of lading, the name of the vessel and the total size of the consignment
would be passed to B and then down the string by a Notice of Appropriation.141
2.46 In mid-1973, the Mississippi flooded destroying the US soya bean crop. The US Department of
Commerce therefore embargoed any shipment of soya bean from the US except for those
goods afloat or in the course of being loaded. The embargo was then followed by the
introduction of a licensing system. Soya bean exports were limited to a fraction of that which
they had been with little or no prospect of the restrictions being relaxed. The only readily
available source of soya bean comprised the soya bean cargoes afloat, known as the loophole
cargoes. The loophole cargoes represented a fraction of the total amount of soya bean cargoes
which had already been sold by forward delivery. Therefore, a seller in the string, D, was in
the difficult position of having to find soya bean from the loophole cargoes to meet its
obligation to the next purchaser in the string, E. Once D had found a loophole cargo, D had a
choice. D could probably satisfy one of its purchasers in one string from that cargo. However,
D could not satisfy the other purchasers in other strings as well. Therefore, D could only
perform its obligation to one party by deliberately not choosing to perform its obligations to
others. Further, with regard to those other purchasers, D could not, on traditional principles,
argue that the contract had been frustrated, as D had chosen not to perform the contract even
though the choice had arguably arisen from force majeure or a frustrating event.
2.47 In considering these difficulties, the Courts appeared to come to three differing conclusions. In
two cases142 the Courts held that D could properly perform his obligation to the buyer if he
delivered less than the contractual amount, if D had
contractual commitments to more than one buyer under contracts in identical terms
save as to price and quantity, and where without actionable fault on his part he has
insufficient goods available to supply all his buyers
and D distributed his goods pro rata among all the buyers.143 Mr Justice Goff rationalised the
ability to prorate as follows:
[I]n the absence of any term to the contrary, the buyer under a contract containing
such a clause must contemplate that the seller has other customers besides himself,
and must also contemplate that the seller will take reasonable steps to fulfil the
 needs of other customers.144
In Bremer Handelsgesellschaft mbH v Vanden Avenne Izegem PVBA,145 however, the House of
Lords appeared to suggest that prorating was one form of performance but it might also be
possible for the seller to perform in any reasonable way and still not be in breach.146 However,
the House of Lords formally left the question open by stating that, on the facts of that case,
prorating did not arise.147 A small shipment of 90 tonnes was at issue and to require prorating
would have left each buyer with a de minimis quantity of soya bean meal and was ‘destructive
of commercial reality’.148 By way of contrast, in Pancommerce v Veecheema149 Lord
Donaldson MR stated:
There is no English authority justifying the proposition that where a seller has a
legal commitment to A and a non-legal moral commitment to B and he can honour
his obligation to A or B but not to both, he is justified in law in potentially
honouring both obligations.150
2.48 From those conclusions, it is relatively strongly arguable that the parties’ obligations were
altered by reason of the circumstances. D, the seller, could supply fewer goods than it had
contracted to supply and the other parties to the contract were, it appears, obliged to accept
that lesser performance as proper performance. It would appear therefore that the contract had
been varied. That variation took place in order to preserve the contract in face of a potentially
frustrating event. Although it would appear that these cases are anomalous, with none of the
requirements for a variation being satisfied, the better view is that these cases do fall within
the law as it applies to variation. If one adopts Mr Justice Goff’s analysis that the parties are
deemed to have agreed to act as commercial men, commercial men in those particular
circumstances agreed to vary the agreements as and when commercially appropriate. These
cases are therefore akin to the agreement to vary cases referred to above. Thus, the Courts
spelt out from the particular trading conditions an agreement to prorated or reasonable
performance in the event of an embargo. Put another way, where commercial circumstance
dictated, the contracts were of necessity varied.
2.49 It follows that these cases can be treated as not being anomalous. What is unclear, however, is
whether these cases lay down any rule that can be generally applied. On the one hand, in
Bremer, the decision of Mr Justice Mustill, as he then was, was clearly premised on there
being a series of identical contracts. If that is right, then the doctrine of variation by necessity
would be of limited application. On the other hand, however, the doctrine may not be so
limited. Thus, for example, the obligation to perform a ‘standard’ bipartite supply contract
will be altered if there is a shortage of the relevant goods even where there is no string of
identical contracts.151 Further, it may be possible in certain circumstances for a party to
suspend the performance of its obligations. Thus, in Lawrence v Twentiman,152 a builder
contracted to build a house within a certain period. However, before that period had started
and throughout the period, the area in which the house was to be built was badly affected by
plague. The Court held that the obligation to build the house was suspended whilst the plague
affected the area. Whilst it is doubtful that there is an established doctrine of suspension in
English law,153 Lawrence does suggest that the doctrine of variation by necessity is not to be
confined to multi-party international trade contracts.
2.50 English law may therefore allow for a nascent doctrine of variation by necessity. The existence
of such a doctrine would make practical and commercial sense for two reasons. First, in the
face of unforeseen events, parties are often faced with a stark difficulty of either performing a
contract which has materially changed from the bargain originally entered into or alleging
that the contract has been frustrated.154 Where the parties to the contract are two experienced
commercial entities, it seems unnecessary to put the parties to that election if some
mechanism can be created for preserving their contract. Second, there is little logical reason
for drawing a distinction between the Mississippi Flood cases and other, albeit less factually
complex, commercial transactions.
 3
WAIVER (I)—TERMINOLOGY
A. Historic Difficulties in Defining the Term 3.01
B. Definition 3.05
(1) The process of exclusion 3.07
(2) The process of inclusion 3.13
C. Provisos to a Definition 3.16
(1) Historical origins 3.17
(2) Current usage 3.20
A. Historic Difficulties in Defining the Term
3.01 Although ‘[w]aivers appear in almost every area of law and in connection with almost every
type of legal right’,1 historically, commentators and the Courts found giving a precise
meaning to the term difficult concluding that it was ‘vague’,2 ‘imprecise’,3 ‘not a term of
art’,4 ‘flexible’5 and covers ‘a variety of situations’6 or ‘a multitude of sins’.7
3.02 Previously, the obvious answer to such pessimism would have been to jettison waiver in favour
of a general concept of ‘injurious reliance’8 accompanied by a suggestion that any attempt to
define waiver was merely an exercise in semantics9—an argument that was expressly
considered and rejected in the Second Edition of this work.
3.03 Since the Second Edition, however, it is apparent that the Courts have had little difficulty in
ascribing a meaning to waiver and applying it utilising the approach and definitions set out in
the previous editions of this work.10 This has been the case even where the Court has wished
to retain some flexibility in the definitions being used. Thus, in Oliver Ashworth (Holdings)
Ltd v Ballard (Kent) Ltd,11 the Court reiterated the premise that ‘waiver is not a term of art’12
before carrying out a precise analysis of the requisite elements13 including a consideration as
to whether a further analytical distinction should be drawn between the waiver of rights and
the waiver of remedies.14
3.04 Three points flow. First, any reticence by the Courts in providing clear guidance in this area
must be regarded, at present, as historic. Second, the Courts’ reliance on precise definitions of
waiver (as opposed to estoppel or equitable forbearance) is a clear indication that, whatever
the position historically may have been, the common law is, at present, moving away from
undefined or overarching concepts such as ‘injurious reliance’ in this area. Third, as the
Courts frequently rely on a waiver as a mechanism for altering commercial obligations15 in
all types of contractual relations,16 this greater degree of definitional rigour is to be
welcomed increasing certainty in the law governing such obligations,17 and establishing ‘a
firm and definite rule for [this]… particular class of legal relationship’.18
B. Definition
3.05 Given that the recent approach of the Courts has been as set out above,19 it could be said that
the process by which the definition of waiver can be arrived at is now academic. The
difficulty with such a robust approach is, however, that the Courts’ approach is very much a
recent one—postdating the previous editions of this text. As such: (a) it cannot be assumed
that the recent approach will remain good and (b) it falls to reconsider the means by which
waiver can be defined.
3.06 Waiver may be defined by using two interdependent methods—a process of exclusion,
 identifying the circumstances in which the Courts have drawn a distinction between waiver
and some other doctrine; and a process of inclusion, identifying the circumstances in which
the Courts have found that there was a waiver.
(1) The process of exclusion
3.07 Waiver can simply be distinguished from variation. It is a distinction that in principle20 the
Courts have consistently drawn:
Waiver does not vary the terms of the contract… Waiver is conduct on the part of a
party to a contract which affects his remedies for a breach of contract by the other
party21
further holding that variation is ‘wholly distinct from the doctrine of forbearance’.22 The
maintenance of that distinction would accord with the facts that a waiver is unsupported by
consideration23 whereas a variation requires consideration in some form or another;24
variation requires there to be offer and acceptance,25 whereas waiver may not; the parties by
varying the contract can restrict their ability to waive requirements of that contract26 and
variation will affect the substantive performance by both parties under the contract as opposed
to merely affecting the remedies27 which one party can seek in relation to a current or future
breach of the contract.28 Thus, although a party may be forced to accept different performance
under the contract by virtue of a waiver, the obligations under the contract have not in fact
changed. As Mr Justice Mustill, as he then was, pointed out in Cook Industries Inc v Meunerie
Legois SA:29
It may seem a paradox to assert that even if, by virtue of a waiver, the sellers could
properly tender July bills of lading in fulfilment of a June instalment, it does not
follow that the contract became one under which the obligation to ship in June was
replaced by one which required the sellers to ship or procure shipment in June or
July. I am not convinced however that this is a paradox, nor to my mind is it clear
that the question of waiver (which is relevant to the liability of the buyers for a
refusal to accept an appropriation) is the same as the question of variation (which
is relevant to the liability of the sellers for failing to effect or procure a timely
shipment).30
3.08 Drawing the distinction between waiver and ‘estoppel’ appears to cause more difficulty. In
Kammins Ballroom Co v Zenith Investments31 Lord Diplock stated:
‘Waiver’ is a word which is sometimes used loosely to describe a number of
different legal grounds on which a person may be debarred from asserting a
substantive right which he once possessed or from raising a particular defence to a
claim against him which would otherwise be available to him. We are not
concerned in the instant appeal with the first type of waiver. This arises in a
situation where a person is entitled to alternative rights inconsistent with one
another. If he has knowledge of the facts which give rise in law to these alternative
rights and acts in a manner which is consistent only with his having chosen to rely
on one of them, the law holds him to his choice even though he was unaware that
this would be the legal consequence of what he did. He is sometimes said to have
‘waived’ the alternative rights… but this is better categorised as ‘election’ rather
than as ‘waiver’… The second type of waiver which debars a person from raising a
particular defence to a claim against him arises when he either agrees with the
claimant not to raise that defence or so conducts himself as to be estopped from
raising it… The ordinary principles of estoppel apply to it.32
 Kammins was applied in Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of
India (‘The Kanchenjunga’).33 There, Lord Goff relied on Kammins in discussing the
principles underlying the doctrine of ‘election’34 and stated:
Election is to be contrasted with equitable estoppel… There is an important
similarity between the two principles, election and equitable estoppel, in that each
requires an unequivocal representation, perhaps because each may involve a loss,
permanent or temporary, of the relevant party’s rights. But there are important
differences as well. In the context of a contract, the principle of election applies
when a state of affairs comes into existence in which one party becomes entitled to
exercise a right, and has to choose whether to exercise the right or not. His election
has generally to be an informed choice, made with the knowledge of the facts
giving rise to the right. His election once made is final; it is not dependent upon
reliance on it by the other party. On the other hand, equitable estoppel requires an
unequivocal representation by one party that he will not insist upon his legal rights
against the other party, and such reliance by the representee as will render it
inequitable for the representor to go back upon his representation. No question
arises of any particular knowledge on the part of the representor, and the estoppel
may be suspensory only. Furthermore, the representation itself is different in
character in the two cases. The party making his election is communicating his
choice whether or not to exercise a right which has become available to him. The
party to an equitable estoppel is representing that he will not in future enforce his
legal rights. His representation is therefore in the nature of a promise which,
though unsupported by consideration, can have legal consequences; hence it is
sometimes referred to as promissory estoppel.35
3.09 This distinction has been followed in two recent Court of Appeal authorities36—Kosmar Villa
Holidays Plc v Trustees of Syndicate 124337 and Persimmon Homes (South Coast) Ltd v Hall
Aggregates (South Coast) Ltd.38 In both, the Court of Appeal drew the distinction between
election—the choice between two courses of action (which sound in different remedies)39—
and the other doctrines whereby a party may be precluded from relying on its strict
contractual rights.
3.10 It follows that there is powerful authority supporting an approach that starts by identifying
waiver by election and then proceeds to outline the other doctrines. In so doing, it could be
possible to create a simple twofold classification—waiver (as in election) and everything else
‘estoppel’.40 However, on balance, that would be too simplistic. In Persimmon, the Court
drew a distinction between waiver by election and two other doctrines: ‘waiver by estoppel’
and ‘equitable estoppel’.41 Further, although there are links between ‘waiver by estoppel’ (or
equitable forbearance) and estoppel, this type of waiver is not merely an estoppel.42 This is
not least because ‘estoppel’ proper can be distinguished from all types of waiver by reference
to the basic principles underlying the doctrine of waiver, key to which is the question of
knowledge43 and/or the nature of that which is being forgone (rights or remedies in response
to the other party’s contractual non-performance).44
3.11 The authorities on estoppel also support this approach of definition by distinction. Thus, in
relation to estoppel:
When its true foundations are stated, it will be seen that estoppel is separated from
waiver in point of principle by a very broad line of demarcation. First of all, the
law of estoppel looks chiefly at the situation of the person relying on the estoppel;
 next, as a consequence of the first, the knowledge of the person sought to be
estopped is immaterial; thirdly as a further consequence, it is not essential that the
person sought to be estopped should have acted with any intention to deceive;
fourthly conduct short of positive acts is sufficient.45
3.12 Other distinctions can be drawn. An estoppel may operate where the parties are not in a
contractual relationship.46 As set out below, it is clear that waiver in all senses involves the
abnegation of contractual rights and therefore can only come into play where there is a
contract between the parties.47 Further, an estoppel will apply where a waiver simply may
not;48 and estoppel is a far more flexible doctrine.49 Similarly, it is possible for a party to
claim that the other is estopped by silence or inaction where the other was under a duty to
inform that party of certain facts and did not.50 As set out below,51 waiver in any form
requires a clear unequivocal representation by words or conduct, silence or inaction do not
suffice.52 Finally, a claim in estoppel may permit equity to intervene on other grounds to
assist the party raising the estoppel.53 A claim in waiver will succeed or fall on its own terms
and does not lead to the general intervention of equity. Waiver is certainly to be distinguished
from variation and, albeit with more difficulty, from estoppel.
(2) The process of inclusion
3.13 The Courts have utilised two broad categories of ‘waiver’.54 The first is waiver in the proper
sense of the word. The second is a doctrine which is a hybrid having elements in common
with waiver and estoppel proper but capable of distinction from both. Given the concept’s
hybrid nature, this second category is to be termed equitable forbearance.55 Rights are
forgone generating the forbearance. Equity intervenes because the other party has relied on
that forbearance.56
3.14 Waiver in the true sense of the word can be crudely described as ‘a voluntary or intentional57
relinquishment of a known right,58 claim or privilege’.59 Put bluntly, waiver is an informed
choice60 manifested in unequivocal conduct.61 On a more complex level, there are four types
of waiver.62 The first and main type is waiver by election. There are three additional types of
waiver which can be best described by the situations in which the Courts have found that
there has been a waiver:63 where X has not been put to its election but nevertheless decides to
accept different future performance by Y under the contract (‘pure waiver’);64 where Y has
failed to perform its obligations under the contract and X accepts that non-performance as
proper performance under the contract forgoing X’s right to repudiate and to sue for damages
(‘total waiver’);65 and X’s forgoing of a right under the contract which inured solely for X’s
benefit (‘unilateral waiver’).66
3.15 Adopting this categorisation has four main benefits. First, it enables distinctions to be drawn
between the types of defective performance being excused.67 Second, it allows for analysis of
the extent to which the waivor’s remedies are lost.68 Third, outlining four related categories
of waiver and one of equitable forbearance draws a broad distinction between those cases
where there is reliance by one party on the other’s actions and those where there is not. The
latter, cases in which the courts have examined the conduct and knowledge of one party alone,
are examples of the four related categories of waiver and not examples of equitable
forbearance. Fourth, whilst it might be said that the practical results of the application of any
of the doctrines will be the same—that is, a party loses its rights—the position is clarified so
that a party wishing to avoid losing its rights may be able to moderate its actions to achieve
that end.69
 C. Provisos to a Definition
3.16 The search for definitional clarity must, however, take into account the historical development
of the doctrine and the uses to which it is put. If waiver originated and is used as a flexible ad
hoc doctrine,70 any definition must be subject to provisos to that effect.
(1) Historical origins
3.17 In Wilson v Kingsgate Mining Industries Pty Ltd,71 Wootten J outlined the historical function
of the doctrine:
A number of doctrines have been formulated separately to mitigate the unjust
consequences of a rigorous application of the basic position of English law that a
man is bound only by a promise given for consideration or under seal. There are
peripheral matters such as the refusal of discretionary remedies on the grounds of
laches and acquiescence. The most important doctrines, however, are forbearance,
estoppel in pais, promissory estoppel, waiver, election and some cases of
approbation and reprobation.72
The common law, having invented the doctrine of consideration, required a means of by
passing it. That means was the doctrine of waiver.
3.18 A related function was the avoidance of contractual formalities. Under section 4 of the Sale of
Goods Act 1893, by way of example, sales of goods contracts worth more than 10 l and
variations to such contracts had to be in writing to be enforceable.73 However, parties would
frequently alter the terms of the contract orally. Therefore, to prevent one party taking
advantage of the formalities rule and suing the other party under the terms of the original
contract, the Courts tacitly74 developed the doctrine of waiver.75 A party could rely on the
waiver to defeat the claim made against it, but could not sue on the waiver unless it was in
writing.76 A similar mechanism was adopted in relation to the Statute of Frauds.77
3.19 The common result of both devices was that waiver was deployed more as a means to an end
than as a free-standing doctrine,78 a deployment that had two results. One is that ‘waiver’
may come to be used as a means of describing the end that is achieved rather than the process
by which that end is achieved.79 The other is the formulation of a much broader concept of
waiver, the term being ‘indiscriminately used by the Courts as means of relieving parties
from bargains or the consequences of bargains which are thought to be harsh or deserving of
relief’80 or ‘to prevent a man in certain circumstances from taking up two inconsistent
positions’.81
(2) Current usage
3.20 That historical dimension is reflected in current usage. Once it is accepted that the underlying
rationale of the doctrine is flexibility, the obvious temptation is to base decisions not on
analysis but on a view of the merits of the case. The Courts have undoubtedly succumbed to
that temptation.82 The other obvious temptation is to avoid any too close formulation of the
doctrine. Hence, the Courts have on occasion relied on broad formulations of all-inclusive
principles:
If the defendant, as he did, led the [Claimants]… to believe that he would not insist
on the stipulation as to time, and that, if they carried out the work, he would accept
it, and they did it, he could not afterwards set up the stipulation as to the time
against them. Whether it be called waiver or forbearance on his part or an agreed
variation or substituted performance does not matter. It is a kind of estoppel. By
his conduct he evinced an intention to affect their legal relations. He made, in
effect, a promise not to insist on his strict legal rights. That promise was intended
 to be acted upon and was in fact acted upon. He cannot afterwards go back on it.83
Similarly, reference has been made to a ‘general principle’ loosely based on the doctrine of
estoppel84 and the idea that:
The rule that neither parry can rely on his own failure to communicate accurately
to the other party his own real intention by what he wrote or said or did, as
negativing consensus ad idem, is an example of a general principle of English law
that injurious reliance on what another person did may be a source of legal rights
against him. I use the broader expression ‘injurious reliance’ in preference to
‘estoppel’ so as to embrace all circumstances in which A can say to B: ‘You led me
reasonably to believe that you were assuming particular legally enforceable rights
to me…’85
3.21 There is therefore an obvious tension. On the one hand, the Courts recognise that there is no
overarching doctrine of injurious reliance. On the other, there is the desire to maintain a
merits-based, flexible doctrine. The result is, it is submitted, to generate further confusion in
this difficult area; the Courts still recognising that there are differences between doctrines but
on occasion applying them as if they were one and the same doctrine.86 Notwithstanding that
criticism any definition of waiver must acknowledge the existence and effect of both
approaches on this area of the law.
 4
WAIVER (II)—TYPES OF WAIVER AND THEIR ELEMENTS
A. Waiver by Election 4.01
(1) Elements of waiver by election 4.02
(2) Examples of waiver by election 4.27
B. Pure Waiver 4.28
C. Total Waiver 4.30
D. Unilateral Waiver 4.36
E. Equitable Forbearance 4.39
F. Elements Common to All Forms of Waiver 4.45
G. Practical Effect 4.46
A. Waiver by Election
4.01 In Kammins Ballroom Co v Zenith Investments,1 Lord Diplock stated that the fundamental
requirement of waiver by election is that X, the party alleged to have waived a right,2 has
made an election in the sense that:
where a party in his own mind has thought that he would choose one of two
remedies, even though he has written it down in a memorandum or has indicated it
in some other way, that alone will not bind him; but so soon as he has not only
determined to follow one of his remedies but has communicated it to the other side
in such a way as to lead the opposite party to believe that he has made that choice,
he has completed his election and can go no further; and whether he intended it or
not, if he has done an unequivocal act—I mean an act which would be justifiable if
he had elected one way and would not be justifiable if he had elected another way
—the fact of his having done that unequivocal act to the knowledge of the persons
concerned is an election.3
Thus, there is an immediate and intimate link between election4 and waiver5 so that the
‘consequence of the election, if established, is the abandonment, ie the waiver, of a right’.6 As
with election,7 the primary function of waiver by election is to prevent there being
inconsistency in the manner in which a party to a contract asserts its rights and thereby ensure
that X does not ‘approbate and reprobate’ the contract.8 Similarly, waiver by election is a
reaction on the part of X to non-contractual performance by Y; that is, to previously defective
performance by Y under the contract.9 As a result of the waiver by election, X’s choice of
future remedies arising from the default will be curtailed; X will not be allowed to repudiate
the contract10 or, in the sale of goods context, to reject the goods.11 Therefore, this type of
waiver:
applies to an election as to something in futuro; it is not a term to describe an
answer to a right which is complete in praesenti.12
It follows that waiver by election cannot affect X’s complete and accrued right to damages.13
(1) Elements of waiver by election14
4.02 The leading analysis of waiver by election is that of Lord Goff in Motor Oil Hellas (Corinth)
Refineries SA v Shipping Corporation of India (‘The Kanchenjunga’).15 In The Kanchenjunga,
the owners chartered the vessel The Kanchenjunga for four consecutive voyages under a
charter party dated 8 August 1978. The charter was subject to a warranty given by the
 charterers as to the safety of any port which the vessel might visit. The charterers then sub-
chartered the vessel to Varnima Chartering Compania Naviera SA. The sub-charterers on 19
November 1980 sub-sub-chartered the vessel for one voyage from one of two safe ports to
Refineria de Petroleos del Norte SA (Petronor). One of the nominated safe ports was Kharg
Island in the Gulf. On 20 November, the charterers ordered the vessel to Kharg, the order
being repeated on 21 November. At the time, however, due to the Iran – Iraq war, Kharg
Island had been bombed on more than one occasion by Iraq. Therefore Kharg Island was
arguably not a safe port. On 21 November, the owners instructed the vessel to proceed to
Kharg Island and it arrived on 23 November giving notice of readiness to load on that date.
On 25 November, the owners ordered the vessel away from Kharg Island on the basis that
Kharg Island was not a safe port. This was the first indication by the owners that they did not
consider the nominated port to be safe and that the safe port warranty in the main charter
party had not been complied with. However, the vessel remained where it was. By 1
December, the vessel still had not reached its berth at Kharg Island and Kharg Island was
bombed. The master of the vessel then took the vessel away from Kharg Island. The owners
then called on the charterers to nominate another safe port but the charterers insisted on
Kharg Island. The owners instructed the vessel to return to Kharg Island and the master
refused. As a result there was a failure to load the vessel and the charterers suffered loss and
damage.
4.03 The dispute proceeded to arbitration where the arbitrators found that Kharg Island could not at
any time be said to have been a safe port. Therefore the charterers, in theory, had acted in
breach of contract in nominating Kharg Island and insisting that The Kanchenjunga berth at
Kharg Island. That finding of the arbitrators therefore inevitably led to a consideration of
whether the owners’ conduct constituted an election or estoppel. The arbitrators rejected the
charterers’ argument that there had been an election or estoppel and the charterers appealed,
the case eventually reaching the House of Lords.
4.04 Lord Goff found that there had been an election on the part of the owners by their instruction to
the vessel to proceed to Kharg Island. He analysed the position as follows:
‘[W]aiver’… may refer to a forbearance from exercising a right or to an
abandonment of a right. Here we are concerned with waiver in the sense of
abandonment of a right which arises by virtue of the party making the election.
Election itself is a concept which may be relevant in more than one context. In the
present case, we are concerned with an election which may arise in the context of a
binding contract, when a state of affairs comes into existence in which one party
becomes entitled, either under the terms of the contract or by the general law, to
exercise a right, and he has to decide whether or not to do so. His decision, being a
matter of choice for him, is called in law an election… Characteristically, the
effect of the new situation is that a party becomes entitled to determine or to
rescind the contract, or to reject an uncontractual tender of performance; but, in
theory at least, a less drastic course of action might become available to him, under
the terms of the contract. In all cases, he has in the end to make his election, not as
a matter of obligation, but in the sense that, if he does not do so, the time may
come when the law takes the decision out of his hands, either by holding him to
have elected not to exercise the right which has become available to him, or
sometimes by holding him to have elected to exercise it… In particular, where with
knowledge of the relevant facts a party has acted in a manner which is consistent
only with his having chosen one of the two alternative and inconsistent courses of
 action then open to him—for example, to determine a contract or alternatively to
affirm it—he is held to have made his election accordingly… It can be
communicated to the other party by words or conduct; though, perhaps because a
party who elects not to exercise a right which has become available to him is
abandoning that right, he will only be held to have done so if he has so
communicated his election to the other party in clear and unequivocal terms…
Once an election is made, however, it is final and binding… Moreover, it does not
require consideration to support it, and so it is to be distinguished from an express
or implied agreement, such as a variation of the relevant contract, which
traditionally requires consideration to render it binding in English law.16
4.05 Lord Goff made one additional point; he stressed that a waiver by election could only properly
exist where X at least had knowledge of the facts giving rise to his choice.17 It follows that
two elements must be present for there to be a waiver by election: an unequivocal
representation by X in relation to the right allegedly being waived and at least knowledge by
X of the facts which show that it has to choose between two inconsistent courses of conduct.
4.06 It has been suggested18 that Lord Goff’s analysis differs from that of Lord Diplock in
Kammins. On one level Lord Diplock distinguishes between waiver and estoppel by pointing
out that waiver is the choice between rights whereas estoppel is the loss of a defence.19 Lord
Goff, on the other hand, may be said to distinguish between waiver and estoppel by reference
to the breaches which have led to the rights which X is allegedly losing. Waiver relates to
past breaches; estoppel to the excusing of future non-performance.20 The difficulty with this
analysis is that it reduces all forms of waiver to waiver by election; that is, to X’s reaction to
a past repudiatory breach. Further, complications in the relationship between waiver and
estoppel are created. If waiver only relates to past breaches and a waiver takes place, it
becomes impossible for there to be a waiver and an estoppel arising from the same facts; X’s
rights will be altered by the waiver and there will be nothing for an alleged estoppel to bite
on.21 However, it appears that a waiver can lead to an estoppel.22 One way of resolving this
difficulty is to distinguish between waiver and estoppel by reference to the fact that estoppel
is based on the actual or potential detriment suffered by Y.23 In this way the elements of the
relevant doctrines are examined and potentially difficult questions of the relationship
between the loss of rights and the loss of defences are avoided. Further, it is suggested that,
on this level, there is no inconsistency between Lord Diplock and Lord Goff.24
Unequivocal representation
4.07 An election must be communicated or conveyed25 to the other party,26 therefore X’s waiver by
election must also must be communicated to Y. Further, as election is an unequivocal act, the
communication must be unequivocal.27 However, X’s waiver does not have to be orally
communicated; provided that there has been an election,28 a waiver by election can be
implied from X’s conduct. Thus:
A party can represent that he will not enforce a specific legal right by words or
conduct. He can say so expressly—this of course he can only do if he is aware of
the right. Alternatively he can adopt a course of conduct which is inconsistent with
the exercise of that right. Such a course of conduct will only constitute a
representation that he will not exercise the right if the circumstances are such to
suggest either that he was aware of the right when he embarked on the course of
conduct inconsistent with it or that he was content to abandon any rights that he
might enjoy which were inconsistent with that course of conduct.29
4.08 It is important to note that even though a waiver may be spelt out from conduct, that conduct
must be unequivocal in the true sense of the word.30 The conduct must be capable of one
construction only, namely that X has chosen to forgo its rights.31 Thus, examples of
unequivocal conduct will include: agreeing in advance that X will not exercise specific rights
which might accrue on breach;32 an insistence after breach that Y continue to perform the
contract;33 X’s voluntary34 acceptance after breach of benefits arising from the contract;35
commencing an action for specific performance only;36 and obtaining an order for specific
performance.37 By parity of reasoning, claiming damages and specific performance in the
alternative38 or requesting that Y perform the contract pending X’s review of Y’s conduct39
or conduct subject to either a general reservation of rights40 or to a without prejudice
qualification41 are not sufficiently unequivocal.
4.09 Two difficulties arise: whether silence or delay can amount to a waiver and whether X’s
reservation of its rights will in all cases protect it from a finding that it has waived its rights.
4.10 Silence or delay There is authority to suggest that silence, delay or a failure to act can
constitute a sufficiently unequivocal representation so as to found waiver.42 However, in both
cases the Court stated that X had ‘waived’ its rights because Y had suffered prejudice as a
result.43 It is submitted that in fact both cases were therefore decided on estoppel principles,
namely Y’s detriment, rather than on a finding that X made unequivocal representation
forgoing its rights. It follows that the better view is that silence, delay or a failure to act
cannot, absent unusual facts,44 form an unequivocal representation such that X will be held to
have waived its rights.45
4.11 Reservation of rights By a reservation of rights,46 X seeks to preserve the rights it possesses.
That must be an unequivocal representation that it is not making its election. Therefore
common sense and logic would suggest that an express reservation of rights would defeat any
suggestion of waiver by X—at the lowest any subsequent representation would be rendered
equivocal.47 In the main, that is correct.48 However, there are two caveats to the above.
4.12 First, the fact that X has reserved its rights in one regard will not protect X in relation to other
rights that might be waived. Thus if X reserves its rights in relation to a lateness of delivery
of goods which were also defective, X may be taken to have waived its rights in relation to
the defects in the goods.
4.13 Second, the Courts have, in three categories of case, found that X has waived its rights despite
a prior reservation of rights.49 Most obviously, where X acts wholly inconsistently with the
reservation by, for example, calling for performance under the contract, the Courts have been
reluctant to allow X the benefit of that inconsistency.50 A similar reluctance has emerged
where X is seeking to evade the provisions of the contract where it would be unmeritorious51
or impracticable52 for it so to do. The third and most problematic category is where the
Courts have held that waiver is a ‘conclusion of law’ to be reached whenever the necessary
facts are established.53 On that approach, once the elements of a waiver are made out, the
Courts will override X’s protestations to the contrary and the reservation of rights.
4.14 All three approaches should be treated with caution. If an unequivocal representation is
required to found a waiver, the only way in which a reservation of rights cannot preserve X’s
position is if the Court were to conclude,54 on the particular facts of the case, that the
reservation of rights was irrelevant to the breaches at issue or was a sham, X intending it to
have little or no effect. This would explain the first two categories which are, after all, merely
conclusions drawn on the merits and the facts of individual cases. The third category is,
 however, difficult to justify. It is obviously correct that waiver is in part a conclusion of law.
As with all conclusions of law in an empirical system, however, it is a conclusion of law
based on particular facts. One of those requisite facts is an unequivocal representation and a
clear reservation of rights would make any other representation equivocal. The necessary
facts for the conclusion of law are missing. The alternative analysis would be to view these
cases as in fact cases on estoppel where it might be arguable that a reservation of rights would
not protect X.55
Knowledge
4.15 Whether or not knowledge is required to found a waiver by election can be broken down into
four related questions: is knowledge of the facts giving rise to the right to elect required? Is
knowledge of the right itself required? Can either of the above forms of knowledge be
imputed to X?56 Is an intention to waive one’s rights required?
4.16 Is knowledge of the facts required? Lord Diplock in Kammins clearly envisaged that there
could only be waiver by election where X has knowledge of the facts underlying the choice
which it is required to make.57 In Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem
PVBA,58 however, Lord Salmon in considering notices provided under clause 22 of the
GAFTA 10059 contract60 stated that the buyers by their conduct ‘necessarily waived any
defect… [the notice] might contain whether they were aware of it or not’,61 thereby
suggesting that knowledge was not a requirement for at least certain types of waiver.
4.17 It is submitted that the better view is that at least knowledge of the facts is required. The
Courts have repeatedly so held and this is now well established.62 Thus, in Matthews v
Smallwood,63 Mr Justice Parker stated that the law on the subject was ‘reasonably clear’
before going on to state that:
Waiver of a right of re-entry can only occur where the lessor, with knowledge of
the facts on which his right to re-enter arises, does some unequivocal act
recognising the continued existence of the lease. It is not enough that he should do
an act which recognises, or appears to recognise, the continued existence of the
lease, unless, at the time when the act is done, he has knowledge of the facts under
which, or from which, his right of entry arose. Therefore we get the principle that,
though an act of waiver operates with regard to all known breaches, it does not
operate with regard to breaches which were unknown to the lessor at the time when
the act took place.64
Matthews was expressly approved by the House of Lords65 and is of general application.66 The
requirement is also consistent with the fact that the discussion centres on waiver by election. If
waiver is the consequence of election,67 it would be anomalous if knowledge were required for
one and not the other. It is also consistent with waiver being a limited mechanism by which the
Courts have bypassed the need for consideration. Given the Courts’ reluctance to
‘emasculate’68 the doctrine of consideration, it would be natural for them to impose a
requirement that would act as a substitute for consideration and limit the application of
waiver. Knowledge, like consideration, would suggest that X intended the unequivocal
representation to have legal effect and thus knowledge is a suitable substitute for the doctrine
of consideration.69 By contrast, Lord Wilberforce stated in Bremer that he felt that the case
raised no points of principle.70 If Bremer was intended to cast doubt on the principle set out in
Matthews and Kammins, it would be reasonable to expect that the House of Lords would have
made that clear and not overturned the principle by a ‘side wind’. That view is strengthened by
the fact that Lord Salmon’s comments can be more readily construed as applying to equitable
 forbearance.
4.18 Is knowledge of the right required? What is less clear is whether X must also be aware of the
right to elect or indeed whether knowledge or an intention to waive can be imputed to X. This
point was considered at length in Peyman v Lanjani.71
4.19 The facts of Peyman are complex. In brief, the case concerned the entry into a lease of a
restaurant and flats by the First Defendant and the subsequent assignment of that lease to the
Claimant by the First Defendant. As the lessors were two of Imperial Tobacco plc’s pension
companies, the lease was subject to covenants restricting assignment. The First Defendant, an
Iranian who spoke no English and of ‘scruffy appearance’,72 doubted that the landlords would
assign title to the restaurant to a person like him. Therefore, to procure entry into the lease by
the lessors, the First Defendant arranged for his impersonation by a Mr Moustashari at all
meetings with the landlords. Further, that deception was repeated to persuade the lessors to
consent to the assignment to the Claimant. The Claimant was aware of the impersonation but
not of its effects, being advised by the Second Defendant, his solicitor, that the
impersonations need not give him cause for concern.73 However, the result of the
impersonation was that the First Defendant’s title to the lease was defective and therefore the
assignment from the First Defendant to the Claimant was null and void. When the Claimant,
via his new solicitors, discovered this fact, he rescinded the contract for the assignment and
left the property. In the subsequent litigation, the Defendants argued that the Claimant had
knowledge of the facts which would have entitled him to repudiate the contract at a very early
stage and therefore the Claimant had waived the defects in the assignment. The judge at first
instance agreed and the Claimant appealed on this point to the Court of Appeal.
4.20 On these facts, the Court of Appeal addressed two questions, the first of which was whether X
was required to have knowledge of the right to elect.74 This question in essence turned on
whether Lord Diplock’s statement in Kammins75 that:
[i]f he has knowledge of the facts which give rise in law to these alternative rights
and acts in a manner which is consistent only with his having chosen to rely on one
of them, the law holds him to his choice even though he was unaware that this
would be the legal consequence of what he did76
had the result that X was not required to have knowledge of the right to elect. Lord Justice
Stephenson considered that it did not. Relying on Coastal Estates Pty Ltd v Melevende77 and
authorities relating to the waiver of statutory rights,78 he concluded that Lord Diplock was in
fact merely stating that X does not need to know that the Court may treat the consequences of
his election as irrevocable.79 Further, relying on the analogy or link with election,80 Lord
Justice Stephenson went on to emphasise that common principles applied to waiver by election
notwithstanding the particular area in which the doctrine was operating81 before stating:
I therefore feel free… to hold that knowledge of the facts which give rise to the
right to rescind is not enough to prevent the [Claimant]… from exercising that
right, but he must know that the law gives him the right yet choose with that
knowledge not to exercise it.
The [Claimant]… can therefore rely on his own unchallenged ignorance of the law,
unless he is precluded from doing so either by what he has done or by his
solicitor’s knowledge of the law. Those decisions lay down what a person in his
position must know before he loses his right to rescind; they do not go far into
what he must not do if he is to keep the right, or what the effect on it of his having
legal advice may be.82
4.21 Lord Justice Stephenson’s conclusions were supported by Lord Justice May and Lord Justice
Slade. Both Lord Justices were concerned to emphasise that a distinction had to be drawn
between the principles which would apply in estoppel and those which would apply in
election. Further, it is clear that both Lord Justices were using the term ‘election’ to cover
‘waiver by election’ drawing a clear distinction between estoppel or ‘waiver by conduct’
which required there to be detriment and the type of ‘election’ at issue in Peyman.83 Further,
Lord Justice Slade suggested that if Y alleges in its pleadings that X is precluded from relying
on a right as a result of an election (and therefore a waiver by election), Y must plead that X
had knowledge of the right to rescind84 and if necessary particularise that allegation. It would
follow, prima facie, that Peyman is clear authority for the proposition that knowledge of the
right to elect is required.
4.22 However, the decision in Peyman is not without difficulty. Although the case has not been
expressly distinguished or overruled, the House of Lords in The Kanchenjunga85 left the
question open.86 Further, in Bliss v South East Thames Regional Health Authority87 Lord
Justice Dillon in response to a submission that, based on Peyman, a party had to have
knowledge of its rights before a waiver by election could be found stated:
This is a formidable argument, and the acceptance of it could have considerable
repercussions in employment law. But I do not find it necessary to express any
opinion on it in the present case…88
Additionally, the authority relied on in Peyman as supporting at least Lord Justice
Stephenson’s view of the requirements to found a waiver, Coastal Estates Pty Ltd v
Melevende,89 has been impliedly doubted in subsequent Australian cases.90 Either of those two
facts would suggest that Peyman goes too far in requiring there to be knowledge of the right to
elect. Further difficulties may arise from the practical effect of the decision in Peyman.
Outside commercial transactions, in a great many cases the parties will not be legally
advised91 and therefore it will be very difficult to say that X was aware of its rights. As Lord
Justice Dillon pointed out, that could have considerable ramifications considerably curtailing
the circumstances in which the Courts will find a waiver of rights.
4.23 Notwithstanding the above, the better view is that Peyman is correctly decided. Waiver is ‘an
informed choice’.92 As such, waiver requires X to have knowledge both of the facts and the
rights consequent on those facts.93 That this point has been left open in other, subsequent
cases does not affect the correctness of the decision. In any event, there is long-standing
authority to support the approach adopted in Peyman.94 Further, the proposition that Coastal
Estates v Melvende95 has been doubted in subsequent Australian cases is itself not without
difficulty. It has not stopped the English Courts from relying on Melvende in later cases.96 It
may well be that there is a long-standing rule in Australia that knowledge of the right is not
required;97 however, it is also clear that the Australian Courts will examine X’s knowledge of
its rights in certain contexts to ascertain whether X’s conduct was sufficiently unequivocal.98
That examination is only explicable if X’s knowledge of its rights is an element of waiver.
Finally, as a matter of principle, there is no reason why X should be prejudiced by having a
waiver found in the face of X’s ignorance of its rights. That would be contrary both to logic
(how else can X be said to have made a choice unless X is aware that there is a choice to be
made?) and to the relationship between waiver by election and election. As for Y, if Y has
neither relied on X’s conduct nor suffered any injustice thereby, there is no reason why Y
should be able to argue that X is precluded from exercising its rights. Put another way, if Y
has suffered by its reliance on X’s conduct which was suggestive of a waiver by election, Y
 could be protected by pleading and proving that there had been an equitable forbearance of
X’s rights.
4.24 Can knowledge be imputed so as to found a waiver? This was the second question
considered in Peyman. There the Court reformulated the issue into two further questions: did
X’s conduct ‘amount to an affirmation of his contract, an abandonment of his right to
rescind?’ and ‘is he precluded, or estopped, by his conduct from denying that he has
abandoned his contract?’99 The Court answered those questions by considering X’s intention
and whether or not X’s intention was to be objectively or subjectively ascertained100 then
deciding:
Waiver or election is always a question of intention to be decided on the evidence
as a question of fact… In fact and law men’s intentions must be judged by their
actions, and a man’s acts may convey to any reasonable person standing in the
shoes of the other party to a contract, as clearly as any words, an intention to
repudiate or affirm the contract. If the other party, relying on acts having the latter
effect, suffers detriment or prejudice, there is unequivocal, and irrevocable,
affirmation.101
The Court therefore appeared to fuse four separate issues: was there an affirmation, was there
an estoppel, what was the relevance of X’s intention and can intention be deduced from X’s
conduct?
4.25 This fusion could be said to preclude any clear analytical answer to the question. However, the
Court’s reformulation of the question and its subsequent analysis suggest that the real issue is
not the question itself but the process of reasoning that posing the question entailed. In asking
can knowledge be imputed, the Court is actually saying: given X’s previous conduct, was X
being deliberately obtuse as to it rights? And is X’s current position untenable? The
imputation of knowledge becomes relevant to deciding whether X’s conduct was sufficiently
unequivocal to found either a waiver by election or an equitable forbearance.102 Put another
way, the more unequivocal X’s conduct was, the more likely (in real terms) it would be that Y
relied on it and the more likely it is that X intended to elect in the manner suggested by the
conduct.103 The question of imputed knowledge therefore leads to an analysis of Y’s actions
and in so doing inevitably raises issues of equitable forbearance.104 Thus, the Court of Appeal
was not setting out the principles which would apply to waiver by election but to equitable
forbearance and in cases where Y has to rely on imputed knowledge Y should put its case on
that basis not waiver by election.105 The plain result is that imputed knowledge will not found
a waiver by election.
4.26 Is an intention to waive rights required? Peyman appears to suggest that an intention to
waive rights will always be required.106 Given the broad formulation of waiver as ‘a
voluntary or intentional107 relinquishment of a known right,108 claim or privilege’,109 that
suggestion is, it is submitted, correct. Intentionality is in any event implicit in the finding that
there was an unequivocal representation that X must be taken by its conduct to have waived
its rights. However, although waiver by election cannot occur by mistake,110 it does not
follow that X’s subjective intention is a necessary element of waiver. The test is whether
there has been ‘an objective manifestation of choice’.111 A subjective element would be
contrary to the established rule that a party’s intention is to be objectively deduced from its
conduct.112
(2) Examples of waiver by election
4.27 The examples of waiver by election are legion. Typical examples of waiver by election would
 include:113 where X waives the right to forfeit a lease114 or, in a sale of goods contract, Y
delivers late or makes it clear by its conduct that it will not deliver timeously and X does not
repudiate the contract,115 or X and Y have agreed that payment for the goods will be in a
particular form and Y tenders payment which is accepted in a different form,116 or Y fails to
serve appropriate notices under the contract and X accepts those notices as good
notwithstanding the defects in them.117
B. Pure Waiver
4.28 Pure waiver can be summed up as ‘the unilateral divesture of certain rights’118 or:
the abandonment of a right in such a way that the other party is entitled to plead the
abandonment by way of confession and avoidance if the right is thereafter
asserted.119
The only distinction between pure waiver and waiver by election is that X has not been put to
its election. Therefore, X can expressly or by its conduct suggest that Y need no longer
perform its future obligations under the contract. There is no need for Y to have acted in
breach of the contract.120 Put another way, waiver by election is retrospective and pure waiver
is prospective.121 Thus where X and Y had contracted for Y to arrange primary and mezzanine
financing for the purchase of ships by X and X, having obtained primary finance through Y,
intimated to Y that no further meetings between X and Y were necessary, the Court held that X
had waived the future performance by Y of its obligations under the contract. Y could
therefore claim all its fees under the contract notwithstanding the fact that mezzanine finance
had not been obtained.122 Put another way, the pure waiver will amount to a ‘dissolution pro
tanto of the [particular] contractual tie between the parties’123 with both parties retaining their
accrued obligations124 but being discharged from the future performance of particular
obligations under the contract.
4.29 The circumstances in which pure waiver will occur will be few. This is because in most cases
if X or Y’s conduct is sufficiently serious to merit the costs and risks associated with
litigation, there will either have been a breach by X or Y of the contract or Y will have
suffered significant detriment. The former case would fall under the rubric of waiver by
election and the latter under equitable forbearance. However, it is submitted that the
recognition of the doctrine is important for three reasons. First, the doctrine of election is
limited to those circumstances where there has been repudiatory breach of the contract. To
suggest that is the sum total of the situations in which waiver was made out would give too
narrow a scope for the application of the doctrine of waiver. Thus there are circumstances
where absent repudiation X accepts alternative performance by Y.125 Second, this analysis is
the only way to reconcile cases like Kammins,126 which are concerned with waiver by
election, and Banning v Wright,127 in which their Lordships spoke of waiver in wider terms
than the abandonment of a right to accept the repudiatory breach of the contract by Y.128
Third, acknowledging the two doctrines is consistent with the fact that in broad terms the
Courts will prevent a party acting inconsistently in respect of its rights under the contract;
each of the doctrines represents a different mechanism for achieving this end.
C. Total Waiver
4.30 It is trite law that where Y has acted in breach, X can sue for damages and/or, if the breach is
sufficiently serious, treat the breach as repudiatory and treat itself as discharged from further
performance under the contract and sue on any accrued right to damages. If a waiver by
election precludes X from subsequently treating itself as discharged, there is no reason in
 theory why X can be prevented by a different type of waiver from claiming damages and from
treating itself as discharged. This supposition is supported by section 11 (2) of the Sale of
Goods Act 1979 which states that where Y has breached a condition, X may ‘waive’ the
breach or elect to treat itself as discharged. In drawing the distinction it appears that
Parliament was at least accepting the possibility that X could forgo all its rights. This putative
loss of all rights is a total waiver.129
4.31 It can be seen from the above that total waiver has much in common with waiver by election,
being a reaction to a breach of contract. However, total waiver is identical to accord and
satisfaction where X’s rights arising as a result of breach are compromised by an agreement
between X and Y, that agreement being supported by consideration. If that is correct, total
waiver would not be a ‘waiver’ at all being supported by consideration.130 This has led to
some debate as to whether total waiver exists at all.
4.32 In ETS v Soules & Cie International Trade Development Co Ltd,131 the Court considered the
submission that the buyer under a cif contract had elected to accept defective documents, that
acceptance constituting a total waiver. The Court held that the submission was
wholly untenable. True the buyers could have rejected these documents on each
occasion when they were presented. But if they do not reject them, either because
(as was the case here) they did not know at the time of the matters which gave rise
to invalidity, or because, knowing that they could reject, they nevertheless decide
not to do so, there is no basis on which it can be said that merely by electing not to
reject the documents they have in any way given up their right to claim damages in
respect of whatever damage may have been caused to them by the breach of
contract involved in the tendering of wrong documents.132
It is noticeable that the Court did not reject the possibility of a total waiver in theory, it merely
held that it was not possible to create a total waiver from the acceptance of documents under
the contract. It would therefore follow that, in appropriate circumstances, Y might succeed in
showing that there had been a total waiver of X’s rights.
4.33 The difficulty with the above is that in Kwei Tek Chao & ors v British Traders and Shippers
LD133 the Court went further and held that for there to be a total waiver there would have to
be
a separate agreement binding on the buyer by which he had agreed to surrender the
right to damages which automatically vested in him at the time of breach.134
It would appear from the Court’s reference to a separate, binding agreement that the Court felt
that for Y to succeed in alleging that X had waived its right to damages, Y had to show that the
contract between X and Y had been varied or that a collateral contract had been entered
into.135 As total waiver cannot be a variation of a contract or a collateral contract (being
unsupported by consideration), Kwei Tek would be authority for the proposition that total
waiver is nothing more than accord and satisfaction.136
4.34 On balance, the better view is that set out in ETS.137 As a matter of principle there is no reason
why a total waiver requires a separate agreement supported by consideration whilst the
waiver which took place in Tufton did not.138 If consideration is not required where X waives
the future performance of Y’s primary obligations, there is no reason why consideration
should be required where there is a waiver of Y’s secondary obligation to pay damages.139
Further, section 11(2) of the Sale of Goods Act 1979 does not appear to be introducing any
unusual or new principle in English law by its reference to the possibility of total waiver.140
4.35 What should be borne in mind in this area, however, is that it will be extremely unlikely for a
 party to a contract to forgo its rights to claim any damages altogether.141 Therefore, it would
be reasonable to expect the Courts to view Y’s allegations of total waiver with some
scepticism and to require both knowledge of the right to waive Y’s secondary obligations and
the clearest unequivocal conduct or representation on the part of X. It also follows that cases
of total waiver will be very rare.142 The Courts may often follow the easier routes of finding
that there was a variation of the contract143 or an equitable forbearance.144 Only in
exceptional circumstances will Y be able to point to circumstances145 which are sufficiently
compelling to override the commercial unlikelihood of X forgoing a valuable right to claim
damages.146
D. Unilateral Waiver147
4.36 A unilateral waiver will arise where X alone has the benefit of particular clauses in the contract
and decides unilaterally to forgo the benefit of those clauses.148 As with the other types of
waiver, X must have knowledge of the relevant terms and be aware that it has the benefit of
those terms. Further, as with other types of waiver, the unilateral waiver must be
communicated to Y. Unilateral waiver, however, can be clearly distinguished from waiver by
election and total waiver in that it is not a reaction to breach of contract on the part of Y.
Further, unilateral waiver is different from pure waiver. The waiver of a term wholly for X’s
benefit cannot affect Y’s performance of the contract. A pure waiver releases Y from future
performance under the contract and does have such an effect.
4.37 Unilateral waiver can only arise in very limited circumstances. The term waived must be
purely for X’s benefit; there can be no such waiver where bilateral obligations or benefits
exist.149 The most obvious example of a term purely to X’s benefit is a power granted to X
under the contract to be exercised at X’s sole and unfettered discretion.150
4.38 There are, however, theoretical and jurisprudential difficulties with the doctrine. Theoretically,
given the English theory of contract as a mutual exchange of promises, it is difficult to see
how any term can be purely for the benefit of one party.151 Associated with this difficulty is
the fact that, practically speaking, it will be very rare for Y to agree a term which gives a
benefit solely to X. Jurisprudentially, Barrett Bros (Taxis) Ltd v Davies152 complicates
matters. There, Lord Denning MR153 appeared to find that there was a unilateral waiver by an
insurer of a condition precedent to liability under the policy. The condition was that the
insured was to notify the insurer of the results of any criminal proceedings against the
insured. The unilateral waiver was the insurer’s failure to request further documentation from
the insured given the insured’s statement that it had received a police information. The
decision is curious for a number of reasons. First, it is difficult to see how an omission,
without more, can constitute the unequivocal representation required to found a waiver.154
Second, the notification requirements of contracts of insurance can usually be expressed as ‘If
Y does a particular act, X will indemnify Y’ and therefore form part and parcel of the mutual
obligations owed by X and Y. Third, if Barrett is correctly decided, the doctrine is
considerably wider than as originally set out in Hawksley v Outram155 where X was held to
have waived powers under the contract which were exercisable only by X. Fourth, a condition
precedent by definition forms the basis of the bargain between X and Y and goes to the root
of the contract. There is, and was at the time that Barrett Bros was decided, established
authority that a term which goes to the root of the contract cannot be unilaterally waived.156
It is therefore respectfully submitted that Barrett was either wrongly decided or was, in fact, a
case turning on equitable forbearance.157 It therefore follows that unilateral waiver is
 properly to be confined to a limited range of circumstances equivalent to those which were
found to exist in Hawksley.
E. Equitable Forbearance158
4.39 For the purposes of this chapter,159 the elements of equitable forbearance and therefore the
distinction between equitable forbearance and waiver can be stated quite shortly:
It will therefore be seen that both species of waiver require proof by the party
alleging waiver of some kind of unequivocal statement or representation from the
opposite party. In relation to election it is crucial to show both knowledge of the
facts and knowledge of the right of choice, but once all those are shown there is no
need to establish reliance or detriment. In estoppel, however, the essential
ingredients are the unequivocal representation coupled with the reliance to the
opposite parties’ detriment.160
The contrast between the two doctrines is relatively clear.161 In practice, however, the
relationship between waiver and equitable forbearance has been blurred with both advocates
and judges using the terms interchangeably.162 Additional confusion has been created by the
use of the term ‘estoppel’ where the proper term should be equitable forbearance. Tritely, this
confusion leads to further terminological uncertainty, an uncertainty which, it is submitted, is
to be ‘deprecated’.163 A further result is that it becomes easier to identify a ‘broad principle’
of ‘fair dealing and justice’ to the effect that:
If one party, by his conduct, leads another to believe that the strict rights arising
under the contract will not be insisted upon, intending that the other should act on
that belief, and he does act on it, then the first party will not afterwards be allowed
to insist on the strict rights when it would be inequitable for him so to do.164
Whilst the existence of such an overarching doctrine may have the virtue of simplicity, it takes
no account of the complexity of this area of the law and does not accurately reflect the present
state of the case law in this area.165
4.40 It might also be said that these cases support an argument that the distinctions drawn in this
book are invalid.166 The difficulty with that argument is that, as pointed out elsewhere, the
common law has yet explicitly to accept that there is any overarching doctrine, there being a
considerable volume of authority seeking to distinguish between the various doctrines.167
Further, the blurring of the boundaries between waiver and equitable forbearance in fact
arises from the inability of one party to show that the alleged waivor possessed the requisite
knowledge to found a waiver by election not from an intention to fuse these doctrines.168
Again, as discussed above,169 that inability triggers an analysis of reliance or detriment—that
is, of the elements of equitable forbearance and not waiver.
4.41 The leading decision on this point is Bremer Handelsgesellschaft mbH v Vanden Avenne-
Izegem PVBA.170 Bremer was a Mississippi Flood case171 in which issue was taken as to
validity of force majeure notices served under clause 22 of the GAFTA 100 contract. Lord
Salmon held that the defects in the notices had been ‘waived’ by the buyers as:
[t]here was no suggestion of any kind either in that telex or any of the others that
there was anything else wrong with the notice, eg, that it was defective or served
out of time. I think that any reasonable sellers would have rightly inferred that the
buyers were accepting the notice as a valid and effective notice under cl. 22 save
that the reference to 500 tonnes should be altered to 280 tonnes. To put it another
way, the buyers made an unequivocal representation that they were treating the
notice as a valid and effective notice under cl. 22.172
 Lord Salmon then proceeded to consider whether or not the sellers had suffered any detriment
as a result of the representation and stated that whether or not the buyers had any knowledge of
their rights was irrelevant.173
4.42 Bremer was considered extensively in Bremer Handelsgesellschaft mbH v C Macprang Jr174
However, the Court in Bremer v Macprang differed as to their interpretation of what the
House of Lords had really meant in Bremer. Lord Salmon’s analysis was adopted by Lord
Denning MR and used as the basis of a contention175 that Bremer was the ‘final step’ in a line
of cases derived from Central London Property Trust Ltd v High Trees House Ltd,176 those
cases establishing the principle that:
If a buyer, who is entitled to reject goods or documents on the ground of a defect in
the notices or the timing of them, so conducts himself as to lead the seller
reasonably to believe that he is not going to rely on any such defect—whether he
knows it or not—then he cannot afterwards set up the defect as a ground for
rejecting the goods or documents when it would be unfair or unjust to allow him to
do so. It is unfair and unjust to allow it when the sellers all down the line have
acted on the belief that the notices were good and have presented shipping
documents accordingly. The sellers here allowed the buyers to have the goods at
the very low contract price instead of the higher market price which they might
otherwise have obtained.177
Lord Justice Stephenson, however, held:
[W]hat matters is the conduct of the ‘waiving’ or ‘estopped’ party, these buyers,
and its effect on a reasonable seller, or a reasonable person in the position of the
other party, these sellers. And if the buyer so acts as to lead a reasonable seller in
these sellers’ shoes to believe that he was waiving his rights or accepting a non-
contractual shipment as a fulfilment of their contract, and the seller does believe it,
the buyer cannot be heard to say ‘I did not notice the obvious breach of contract on
your part which gave me a right to complain or refuse’. But this has no application
to matters peculiarly within the seller’s knowledge or matters of which he can
more easily obtain knowledge than can the buyer.178
Further, Lord Justice Shaw stated:
If in the prevailing conditions affecting the position of the patties to a contract the
conduct of one of them affords a reasonable foundation for the inference that he is
prepared to forgo any right or rights he may have in a certain regard and the other
contracting party does draw the inference and persists in the residual contractual
relationship upon that basis, then whether it be regarded as waiver or estoppel the
forgoing of those rights cannot thereafter be gainsaid.179
4.43 It is noticeable that despite the disagreement between the three members of the Court of
Appeal, all referred to the objective effect of the buyer’s conduct on the sellers and all three
appeared to blur waiver and estoppel. Additionally, in both Bremer and Bremer v Macprang,
to found the alleged waiver, the Court relied heavily on the representations made, the
inferences drawn by the representee and the reasonableness of the representee’s reliance on
those representations or inferences. The Courts’ approach is more consistent with the
intervention of an equitable doctrine related to estoppel than with waiver in the true sense of
the word. Further, and as pointed out above,180 if Lord Salmon was considering any of the
forms of waiver set out above, then his decision is at odds with the established authorities.
Finally, it is submitted that this re-categorisation of these cases as being premised on
 equitable forbearance is the only way of rationalising the cases in which the Courts have used
the term waiver ‘in the sense of estoppel’181 or in which the Court having analysed the facts
found that Y was entitled to succeed under one head but not the other.182
4.44 It is therefore submitted that not only are the distinctions set out above correct but also that it
is appropriate to refer to a doctrine of equitable forbearance which is distinct from the
doctrine of waiver in its various forms.
F. Elements Common to All Forms of Waiver
4.45 Drawing on the above, it is submitted that the elements which are common to all form of
waiver in the true sense of the word183 are:
1. an unequivocal representation by X either by words or conduct that it will forgo
certain rights;
2. X makes that representation when it is aware of the facts that give rise to the rights
which are being forgone, of the right to forgo those rights and the connection
between the two.184
G. Practical Effect
4.46 The detailed practical effect of these doctrines is dealt with in the specific subject chapters. As
a matter of generality, X can protect itself against a finding of waiver as follows. X must be
astute to ascertain whether Y is complying with the terms of the contract and as to what
performance is to be expected of X and Y. As soon as X detects that there may be some
change in performance under the contract, X should decide whether it wishes to respond or
not. X will have three choices—to do nothing and risk forgoing its rights, to repudiate the
contract or to reserve its rights. Usually, and provided that the reservation is not a sham, the
best method would be for X to reserve its rights until such time as it is clear to X whether it
wishes to continue with the contract as being currently performed.185
 5
WAIVER (III)—COMPLEXITIES
A. The Effect of Waiver 5.02
B. Is Waiver Case Specific? 5.07
C. The Evidence Required to Support a Waiver 5.08
D. Waiver by X’s Agent 5.13
E. Effect on Third Party Rights 5.14
(1) Title 5.15
(2) Other rights 5.16
5.01 The previous two chapters set out a taxonomy of waiver. Taxonomy by itself does not,
however, solve all the issues arising out of the doctrine. Five remain to be considered. First,
the effect of a waiver—is it destructive of rights/remedies or suspensory? Second, the extent
to which all forms of waiver are ‘case specific’, or put another way, the extent to which a
waiver of one particular right may lead to other rights being waived. Third, the evidence
required to establish a waiver. Fourth, the extent to which X can be said to have waived its
rights as a result of the actions of its agent. Fifth, the effect of waiver on third party rights.
A. The Effect of Waiver
5.02 As will be apparent, waiver is a mechanism for bypassing the doctrine of consideration.1 Thus,
waiver is to be contrasted with variation which has to be supported by consideration.2
Variation permanently alters X and Y’s future obligations under the contract. Deductive/
comparative reasoning would mean that waiver cannot permanently alter X and Y’s future
obligations under the contract.
5.03 To the extent that the proposition is limited to X and Y’s future obligations, it is correct. Thus,
absent an estoppel, whilst pure waiver and unilateral waiver—which concern future
performance3—are only suspensory,4 waiver by election and total waiver—relating to past
performance—generally are not.5
5.04 There is authority to suggest that the proposition can be stated more widely—all waivers are
suspensory. Thus:
As a general rule, an existing legal right is not destroyed by mere waiver, in the
sense of an express or implied intimation that the person in whom the right is
vested does not intend to enforce it… Thus if a party to a contract becomes entitled
to avoid it by reason of a breach by the other party of an essential promise, the fact
that, with knowledge of the facts which give rise to the right to avoid, he says or
does something which recognises the continued existence of the contract does not
necessarily amount to a binding waiver of his right to avoid… The effect is,
however, produced if his act is of an unequivocal nature affecting the other party,
and one which he would not be entitled to do if the contract were not subsisting, or
one which leads the other party to do or abstain from doing something on the
footing that the contract is still subsisting… to be effectual, the conduct relied
upon as an effective waiver must comply with the general condition stated… as the
basis of all forms of estoppel in pais.6
5.05 It is submitted, however, that such a proposition is too widely drawn. As a matter of fact,
waiver by election7 and total waiver are choices8 which can only be made once and once
made there is no right which can be resurrected.9 As a matter of principle, waiver by election
 and total waiver relate to X’s accrued remedies where there is a pre-existing breach of the
primary obligations under the contract. Once X’s remedies have been forgone, they cannot be
resurrected.10 By contrast, pure waiver or unilateral waiver relate to the future performance
of future obligations under the contract. It is also possible for an alteration in the obligations
of future performance under the contract to be itself altered.11
5.06 Care must, therefore, be taken to analyse which rights are being waived. In Hickman v Hayes,12
for example, a waiver by election of the right to repudiate due to non-timeous performance
merely suspended the right to claim damages.13 Thus, on a further repudiation, the original
right to repudiate had been lost but damages became payable as from the original date for
performance under the contract.14
B. Is Waiver Case Specific?
5.07 Given the analysis of the knowledge required to found a waiver, it is unsurprising that a waiver
by X of one particular right does not mean that another albeit connected right has also been
waived.15 Thus, if in a cif contract X waives its rights in relation to the documents required
under the contract, that does not mean that X has waived its rights in relation to the time at
which the goods are to be delivered16 or if X has waived defects in the Notice of Readiness
that may not operate as a waiver of any rights in relation to the cleanliness of the holds17 or if
X is taken to have waived its rights in respect of defects in a notice served under one clause,
that does not mean that X has waived its rights in respect of the same notice under a different
clause of the contract18 or if X waives its right to reject the tender of documents under a cif
contract, that does not amount to a waiver of its right to sue for damages in respect of the
defective goods19 or a waiver of an insured’s duty to disclose is also a waiver of the broker’s
duty to disclose.20 The proposition can be extended to a waiver of particular obligations under
the contract provided that the terms imposing those obligations are severable.21 It follows
that a waiver will be confined to the precise terms of the representation made—that is,
precisely what rights or remedies have allegedly been waived.22
C. The Evidence Required to Support a Waiver
5.08 In variation23 and with estoppel,24 Y must be able to show that the proposed variation or
representation was clear, precise and sufficiently certain to found a contract. It is submitted
that the same rule applies to all types of waiver,25 it not being possible to draw a distinction
between waiver and variation or estoppel on the basis that a waiver may merely preserve the
status quo as opposed to altering the terms of the contract.26 Therefore, to establish a waiver,
as well as knowledge, Y must show that there was a clear and unequivocal representation
either by words or conduct which directly affected particular terms of the contract in a
specific way.27
5.09 Where a representation is made expressly little difficulty arises. Where the representation is
implied from X’s conduct, the position is less clear. There are four parameters. The first is a
link between the conduct relied on and the alleged defective performance. Where nothing is
done by either party to the contract after, for example, service of a defective notice, there will
be no waiver.28 This principle can be expanded so that whether X’s conduct amounts to a
waiver will depend on the obligation breached and its relationship to the future performance
of the contract. Therefore, where Y has acted in repudiatory breach of the contract by, for
example, tendering the wrong goods or the wrong documents or paying in the incorrect
manner, X will probably be taken to have waived if with the requisite knowledge it accepts
the goods, or accepts the monies,29 or requests Y to carry out further actions under the
 contract.30 If Y acts in a way that is patently at odds with the terms of the contract and X
responds to that behaviour otherwise than by stating that the behaviour is in breach of the
contract, a waiver will be made out. Thus if, in a cif contract, Y tenders documents which are
patently bad on their face and X does not on receipt point out that the documents are bad on
their face, X will be taken to have waived the defects.31 Similarly, if X rejects the goods or
the payment as soon as it is aware of the defect, there will be no waiver.32
5.10 The second is that it is unlikely that X’s silence,33 inaction, failure to act or the mere lapse of
time will amount to an unequivocal representation.34 Only in the extreme case in which the
silence, inaction, failure to act or lapse of time amounts to a clear and unequivocal
representation that X was aware of the facts and chose to do nothing about them will a waiver
be made out.35
5.11 The third is that the conduct must be sufficiently unequivocal in and of itself and not
necessarily by reference to the historical background. Put another way, the same principle of
specificity applies to conduct-based representations as to express oral representations36 and
the fact that X has waived a particular right in the past will not suffice to establish an
additional waiver now. Therefore, where X has allowed Y to present a revocable letter of
credit in payment for goods in the past and the contract provides for an irrevocable letter of
credit, X is perfectly entitled to reject the next revocable letter of credit presented by Y.37
5.12 Finally, it is submitted that the very uncertainty as to whether or not X has waived by its
conduct has led the Courts to rely more heavily on equitable forbearance or estoppel.38 This
tendency explains why in Larratt v Bankers & Traders Insurance Co39 the Court explained
the authorities by stating that a waiver based on a representation by conduct would only be
effective if an estoppel was present.
D. Waiver by X’s Agent
5.13 Where X engages an agent, that agent can waive X’s rights.40 Thus, a charterer’s agent
instructed to receive Notices of Readiness or to instruct discharge can waive defects in the
Notices of Readiness.41 However, as the waiver will be based on X’s actions, the agent must
have the appropriate authority.42 The circumstances in which an agent will possess authority
will vary and questions arising under this head are dealt with in the individual subject
chapters.43
E. Effect on Third Party Rights
5.14 The effect of a bilateral doctrine on tripartite relationships will always be difficult and
controversial. Such authority that there is is confined to the situation where Z takes an
assignment from X and the question arises as to whether Z is bound by X’s waiver. The
analysis therefore takes two forms—an analysis of whether title can be affected by a waiver
as against third parties and a consideration of whether other benefits and burdens can pass.
The former is drawn from analogies with estoppel; the latter from first principles and Brikom
Investments Ltd v Carr44 and Tenax Steamship Co Ltd v Owners of the Brimnes (‘The
Brimnes’).45
(1) Title
5.15 In the context of estoppel, a distinction must be drawn between proprietary estoppel and
estoppel by representation/equitable forbearance. As discussed elsewhere,46 a broad
demarcation can be drawn between the doctrines based on the extent to which substantive
rights, in particular, title, may pass. The former may pass title, the latter does not. As waiver,
in whatever form, is a further discrete category, and has little in common with proprietary
 estoppel, it is extremely difficult to apply proprietary estoppel principles to waiver. Further,
if title does not pass under an estoppel,47 there is no reason in principle why it should do so in
waiver, it being difficult to see how the voluntary relinquishment of a right by X can vest title
in Y.
(2) Other rights
The authorities
5.16 In Brikom Investments48 and The Brimnes,49 the English Courts considered whether an
assignee, Z, of X’s rights will be bound by any waiver of X’s rights. Both cases create
difficulty. As argued elsewhere, the principles to be derived from Brikom are uncertain50 and
contrary to established principles of landlord and tenant law.51 Further, there are considerable
doubts whether Brikom when properly analysed was a case of waiver at all, being in fact
concerned with equitable forbearance. The Brimnes is similarly difficult. Not only was the
question of assignment raised late so that at least one member of the Court of Appeal felt it
had been inadequately explored,52 but the majority of the Court appeared to accept that Z
took subject to X’s waiver on the assignment as a matter of course without argument.53 This
may well be because the point was conceded before the Court.54 It follows that neither
authority is to be accepted on its face unless supported by first principles reasoning.
5.17 In New Zealand, by comparison, the point has been taken directly and directly considered
(albeit in the context of estoppel). In Bay of Plenty Electricity Ltd v Natural Gas Corp
Energy,55 BOPE was the assignee of rights vested in its predecessor company. BOPE sought
to argue that it was not bound by any estoppel affecting the predecessor, it not having notice
that the predecessor’s rights had been curtailed. The Court, arguing by analogy,56 held that as
the assignment transferred rights to BOPE, it transferred the rights subject to the limitation.
Although Bay of Plenty is an equitable forbearance case, there are no grounds why the
reasoning should not apply in waiver, particularly as it accords with the first principles
analysis set out below.
First principles
5.18 There are two scenarios—where Z has the benefit of an assignment of X’s rights; and where Z
becomes X (either by novation or as trustee/liquidator). In both cases, if X’s rights have been
extinguished,57 it is difficult to see how that right can be resurrected by Z. The assignment
will not so operate—there being no claim or right to be assigned. In blunt terms, there is no
reason why Z who takes under the assignment should be in a better position than X.58 On the
alternate scenario, Z is now the manifestation of X. X does not possess a particular right,
therefore Z should not. The only limit to this proposition is if Z is X’s manifestation for some
ulterior statutory purpose. In those circumstances, as with estoppel,59 the waiver will not be
permitted to override the statutory purpose.
5.19 A different approach will arise where X’s rights are merely suspended.60 There, provided no
estoppel has arisen, X can change its position. Z should be similarly so capable. In real terms,
however, the issue may not arise. If Z is aware of the waiver, Z will be taking an assignment
of differing performance. Z’s taking of the assignment will therefore be an unequivocal
representation that it will be bound by the altered obligation. Z will presumably be content
with that position. If Z is unaware of the position, Z will demand unaltered performance and
Y (dealing with waiver and not estoppel) will be required to perform, there being no
detriment to it in so doing.
5.20 One final point should be noted. As waiver looks only at the position of X, the only relevant
third party can be Z who replaces X. If Y assigns, novates or otherwise has its rights
transferred, it will be inappropriate to speak of the transfer of the benefit of any right. X will
either have forgone rights for all time or will not. The language of benefit suggests some
form of change in Y’s position, a consideration more relevant to estoppel.
 6
ELECTION, AFFIRMATION, AND ACQUIESCENCE
A. Introduction 6.01
B. Election 6.03
(1) Elements of the doctrine 6.03
(2) Limits of the doctrine 6.08
C. Acquiescence 6.29
A. Introduction
6.01 There is a substantial overlap between waiver by election and election.1 It follows that the
central elements of election can be derived from waiver by election.2 There are, however, two
points of clarification. First, there is a practical distinction between waiver by election and
election. The former will only lead to rights being lost while the latter may lead to the
preservation or loss of remedies or rights dependent on circumstances.3 That practical
difference does not, however, equate to any analytical distinction between the doctrines.4
Second, the obverse—that the principles applicable to election can be seamlessly applied to
waiver—is not, however, true. As there is not a complete overlap between waiver by election
and election, and waiver by election is a sub-set of ‘waiver’, the principles which are
applicable to election can only be applied to ‘waiver’5 to a limited degree.
6.02 Election is also synonymous with one sense of affirmation:6 that of a decision of a party to be
bound by the contract notwithstanding a repudiatory breach by the other party.7 Further, these
three synonymous concepts8 are capable of distinction from the similar equitable doctrine of
acquiescence. This chapter is therefore concerned with establishing the links between the
three doctrines by setting out the elements of election, analysing the limits on the application
of the doctrine and considering the relationship between election and acquiescence.9
B. Election
(1) Elements of the doctrine
6.03 The doctrine can be outlined as:
where a party in his own mind has thought that he would choose one of two
remedies, even though he has written it down in a memorandum or has indicated it
in some other way, that alone will not bind him; but so soon as he has not only
determined to follow one of his remedies but has communicated it to the other side
in such a way as to lead the opposite party to believe that he has made that choice,
he has completed his election and can go no further; and whether he intended it or
not, if he has done an unequivocal act—I mean an act which would be justifiable if
he had elected one way and would not be justifiable if he had elected another way
—the fact of his having done that unequivocal act to the knowledge of the persons
concerned is an election.10
6.04 At root, the doctrine is based on simple combined considerations of common sense, equity11
and mutual fairness.12 That combination renders the former distinction between the
‘equitable’ doctrine of election (where a party is seeking to approbate and reprobate a will or
other legal document)13 and the common law doctrine (where a party decides ‘whether he
will affirm a contract induced by fraud or avoid it, whether he will in certain cases waive a
tort and claim as in contract’)14 no longer valid. Both the so-called common law and
 equitable doctrines are to be viewed as one.15 That doctrine is applicable to documents and
transactions16 and will be invoked when a party with knowledge of its rights chooses between
two inconsistent rights,17 this element of choice being essential.18 It follows that the doctrine
is based on considerations of equity only in the loosest sense; namely19 preventing a party
from adopting inconsistent positions20 and ensuring fairness.21 The doctrine will apply to a
purchaser’s attempt to revoke the purchase of land whilst taking the benefit of the harvests
from that land22 or a litigant’s attempt to pursue a different remedy when it has already
obtained judgment claiming a different and inconsistent remedy.23
Unequivocal representation24
6.05 A party will be taken to have elected where it has a choice25 between two or more courses of
action and has so acted that makes it plain that it has chosen one course of action as opposed
to another.26 The act of election does not have to be in any particular form27 and can be a
failure to perform in response to breach.28 As a minimum, however, the election must be
conveyed29 to the other party either by being communicated to it30 orally or in writing or by
conduct.31 Put simply, there must be an objective manifestation of choice.32 The requirement,
however, that the election be conveyed does not mean that any element of detrimental
reliance is required if the other party is to argue successfully that there was an election.33 The
requirement exists as a marker of the decision that the electing party has reached.34
6.06 It follows that, in the contractual context,35 whilst a prudent party36 will communicate its
election orally or in writing,37 a party may convey its election to accept a repudiatory breach
by entering into an alternative contract covering the same subject matter as the repudiated
contract;38 discussing settlement options arising from the repudiatory conduct;39 preventing
the other party40 or itself41 from performing the contract; or by issuing and serving a claim
form claiming one specific remedy42 to be taken to have elected43 to pursue that remedy
alone and be precluded from pursuing the alternate remedy.44
Knowledge
6.07 For there to be an election, the party alleged to have elected must have knowledge of the facts
giving rise to the right to elect and of its rights.45 As with the requirement that there be an
unequivocal representation, there is no distinction in this respect between waiver by
election46 and election.
(2) Limits of the doctrine
6.08 The common law doctrine outlined above may be limited in two main ways: by the terms of
the contract and, more doubtfully, by the effect of the rule outlined in White and Carter
(Councils) v McGregor.47
The effect of the terms of the contract
6.09 Contracts frequently contain terms that allow for termination on the occurrence of various
events48 including repudiatory breach.49 These terms take a number of forms. One
manifestation is a notification of breach and election to terminate50 or initial notification of
breach followed by further notification of a failure to cure that breach and subsequent
termination51 or, in shipping cases, withdrawal of the vessel.52 The purpose of such
mechanisms will be to allow a party in breach to cure that breach53 or to prevent a party from
electing to terminate the contract for purely ‘formal’ or ‘technical’ breaches of its terms.54
Whatever their form, the interaction between the terms of the contract, in particular, the
service of notices under the contract and the parties’ common law rights has been considered
 in a series of cases with differing outcomes.55
6.10 At one extreme, serving a termination notice may amount to repudiation of the contract. Thus,
where the contract provides for a complete code by which notice of breach must be at a
certain time or in a certain form that provision must be complied with.56 If it is not complied
with, the right to elect to terminate the contract for the particular breach the subject of the
notice will be lost.57 In those circumstances, if there is no other breach on which the innocent
party can rely, its election which does not comply with the contractual provisions will be
wrongful and can amount to repudiatory breach58—especially if the contract provides a
complete code governing termination59 and the service of the notice is to be construed as a
clear refusal to continue to be bound by the contract.60
6.11 At the other extreme, service of a termination notice may amount to an affirmation of the
contract provided that the party serving the notice is aware of the relevant rights. So if an
insurer or reinsurer serves a termination notice in circumstances in which the insurer/
reinsurer was aware of its right to avoid for non-disclosure, the insurer will be taken to have
affirmed the contract of insurance by the termination notice.61
6.12 Between the two extremes are those cases where the right to terminate at common law and the
right to terminate under the contract overlap. The position in such cases was considered in
Dalkia Utilities Services Plc v Celtech International Ltd.62 There the Court held (at [143–
144]):
The same conduct may be such as to give rise to a contractual right to terminate
and a common law entitlement to accept a repudiatory breach. This will typically
be so if (i) the guilty party has failed to make the payments stipulated by the
contract, (ii) that failure either amounts to a repudiation or is, by the terms of the
contract, to be treated as such, and (iii) there is a contractual right to terminate
which is applicable to the circumstances giving rise to the breach. In such a case
the innocent party can exercise either his contractual or his common law right of
termination. Prima facie he can rely on both. He is not disentitled to rely on the
latter on the ground that recourse to the former constitutes an affirmation of the
contract since in both cases he is electing to terminate the contract for the future
( i . e . to bring to an end the primary obligations of the parties remaining
unperformed) in accordance with rights that are either given to him expressly by
contract or arise in his favour by implication of law. If he can rely on both there is
no reason in principle why, if he terminates the contract without stating the basis
on which he does so, he cannot be treated as doing so under any clause which
entitles him to do so and in accordance with his rights at common law.
‘Termination’ is capable of meaning both a termination pursuant to a contractual
clause and the acceptance of a repudiation: Maersk v Mobil [2001] 2 Lloyd’s Rep
127. Even if he refers to a particular clause upon which he relies, that would not
inevitably mean that he was only relying on that clause. If that were so an innocent
party who, in the face of a repudiatory breach, terminated the contract by reference
to a clause which was in fact inapplicable, might, on that account, find himself
disentitled to terminate at all.
The fact that service of a contractual notice of termination is not inconsistent with
the acceptance of a repudiation does not, however, mean that in all cases such a
notice amounts to such an acceptance. If the notice makes explicit reference to a
particular contractual clause, and nothing else, that may, in context, show that the
 giver of the notice was not intending to accept the repudiation and was only relying
on the contractual clause; for instance if the claim made under the notice of
termination is inconsistent with, and not simply less than, that which arises on
acceptance of a repudiation: United Dominions Trust (Commercial) Ltd v Ennis
[1968] 1 QB 54, 65, 68.
6.13 Dalkia was considered in Stocznia Gdynia SA v Gearbulk Holdings Ltd63 where Lord Justice
Moore- Bick held:
It must be borne in mind that all that is required for acceptance of a repudiation at
common law is for the injured party to communicate clearly and unequivocally his
intention to treat the contract as discharged: see Vitol S.A. v Norelf Ltd [1996] A.C.
800, 810G–811B per Lord Steyn. If the contract and the general law provide the
injured party with alternative rights which have different consequences, as was
held to be the case in Dalkia Utilities v Celtech, he will necessarily have to elect
between them and the precise terms in which he informs the other party of his
decision will be significant, but where the contract provides a right to terminate
which corresponds to a right under the general law (because the breach goes to the
root of the contract or the parties have agreed that it should be treated as doing so)
no election is necessary. In such cases it is sufficient for the injured party simply to
make it clear that he is treating the contract as discharged: see Dalkia Utilities v
Celtech, paragraph 143 per Clarke J. If he gives a bad reason for doing so, his
action is nonetheless effective if the circumstances support it. That, as I understand
it, is what Rix L.J. was saying in paragraph 32 of his judgment in Stocznia Gdanska
SA v Latvian Shipping Co, with which I respectfully agree.64
6.14 Three points emerge from these cases. First, it is not uncommon for the parties to provide for a
contractual termination to carry with it specific rights and remedies which would not flow
under the common law. Thus, a contractual termination may require the return of property
and plant or the payment of additional monies but an accepted repudiation will simply
discharge the parties from all future performance. Dependent on the facts, therefore, it may
well be in one party’s then commercial interest to pursue one course and not another. Second,
the result of pursuing one course rather than the other will depend on the facts and the
individual contract terms at issue and how those relate to the stance later adopted by the
parties.65 This flows from the facts that (a) contracts obviously differ and (b) there is no
particular, requisite form for the acceptance of a repudiation.66 Third, absent unusual
contractual wording, there is, however, nothing to prevent a party serving both a common law
notice and a contractual notice—in the alternative—in an attempt to preserve its rights.67 If
that course is adopted it should be remembered, however, that any preservation of rights
might only be short-lived. At some point it is highly likely that the parties will have to act as
if one or other was valid—that is, proceed with the contractual termination or the repudiation.
At that point, as and when the parties proceeded down one path or the other,68 the benefit of
any reservation of rights would be lost.
The rule in White & Carter (Councils)
6.15 In White & Carter (Councils), the House of Lords stated that the innocent party, faced with a
repudiatory breach, could elect either to accept the repudiatory breach, or to remain bound by
the contract. If the party chose to remain bound by the contract, the contract would remain on
foot and the other party to that contract would remain obliged to perform.69 The principle
makes analytical sense: there is no reason in principle why the innocent party’s right to
 performance under the contract should be curtailed by the other’s breach. One result,
however, is that the contract could be indefinitely prolonged after one party had clearly stated
that it did not intend to perform. An indefinite prolongation of that nature gives rise to
practical difficulties.70 To resolve that problem, the House of Lords formulated two
exceptions to the general rule.
6.16 First, the House of Lords acknowledged that the innocent party would be forced to accept the
repudiation where the continued performance of the contract required the co-operation of the
party in breach.71 This rule covers all contracts where there are bilateral obligations or where
the innocent party’s rights are dependent on further performance or co-operation72 by the
party in breach. Thus, for example, a party may well be forced to accept the repudiation of a
sale of goods contract where the payment of the price will be dependent on the other party
accepting delivery.73 Whilst it might be said that this exception undermines the rule, the
exception has the benefit of being founded on common sense74 and of generating legal
certainty.
6.17 The second exception is more difficult. In White & Carter, Lord Reid formulated the exception
as follows:
It may well be that, if it can be shown that a person has no legitimate interest,
financial or otherwise, in performing the contract rather than claiming damages, he
ought not to be allowed to saddle the other party with an additional burden with no
benefit to himself. If a party has no interest to enforce a stipulation, he cannot in
general enforce it, so it might be said that, if a party has no interest to insist on a
particular remedy, he ought not to be allowed to penalise the other party by taking
one course when another is equally advantageous to him.75
Lord Reid then added to this statement by stating that the Court might exercise its ‘general
equitable discretion’ where the innocent party had no ‘substantial or legitimate interest’ in
continuing with the contract.76
6.18 Lord Reid’s tentative and technically obiter statement,77 it is submitted, left the existence of
the exception, its rationale, its current status, and the circumstances in which it would operate
unclear. This lack of clarity was not resolved in White & Carter, nor has it been resolved in
subsequent cases.
6.19 The existence of the exception The high water mark of the exception is Attica Sea Carriers
Corp v Ferrostaal Poseidon Bulk Reederei GmbH.78 There the then Master of the Rolls
examined whether the innocent party had a legitimate interest in not exercising the right to
termin ate; whether ‘in all reason’ the innocent party should have accepted the repudiation,
damages being an inadequate remedy.79 Lord Denning MR concluded that if the innocent
party did not have that legitimate interest, then the contract terminated. Similarly, in Clea
Shipping Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’),80 Mr Justice
Lloyd, as he then was, held that there must be some fetter ‘in extreme cases’ on the innocent
party’s rights.81 However, rather than curtail the innocent party’s right of election, Mr Justice
Lloyd stated that in extreme cases the Courts would exercise their equitable jurisdiction and
refuse to allow the innocent party a remedy.82
6.20 On the other side of the equation, the exception has not been applied where, by keeping the
contract on foot, the innocent party would possess a secured as opposed to an unsecured claim
in a liquidation83 or would avoid liability to a third party in damages.84 Further, in White &
Carter itself Lord Hodson stated:
There is no duty laid upon a party to a subsisting contract to vary it at the behest of
 the other party so as to deprive himself of the benefit given to him by the contract.
To hold otherwise would be to introduce a novel equitable doctrine that a party was
not to be held to his contract unless the court in a given instance thought it
reasonable so to do. In this case it would make an action for debt a claim for a
discretionary remedy. This would introduce uncertainty into the field of contract
which appears to be unsupported by authority.85
This dictum contradicts the foundation of Lord Reid’s formulation—the intervention of equity
—and provides a strong policy reason as to why the exception should not exist. It is not
possible to reconcile Lord Hodson with Lord Reid by suggesting that the statement ‘unless the
Court in a given instances thought it reasonable to do so’ means that equity could intervene
where the innocent party was acting unreasonably.86 That reading would be to contradict the
thrust of Lord Hodson’s speech, to take that particular phrase out of its grammatical context
and would be contrary to Lord Reid’s own rejection of a reasonableness test.87 As far as Attica
Sea Carriers is concerned, Lord Justice Orr decided the case primarily by application of the
principle that co-operation was necessary88 with Lord Justice Browne agreeing with both Lord
Justice Orr and Lord Denning.89 It follows that what Attica Sea Carriers actually decided is
unclear.90 Additional difficulties arise from Fercometal v Mediterranean Shipping Co,91 in
which Lord Ackner stated92 that a party facing repudiatory breach had two choices, to affirm
or terminate, there being ‘no via media’ of some rights remaining in force whilst others do
not.93 Those stark alternatives do not permit the operation of an exception to or fetter on the
right of election.
6.21 The rationale for the exception One response to contradictory lines of authority is to reason
from first principles and from the bases for the exception. In White & Carter there were two.
First, by analogy with the law on penalties, the Court could intervene to protect the party
being penalised. Second, there was a general equitable discretion vested in the Court to
prevent the innocent party from exercising its rights in such circumstances. Both, it is
submitted, are problematic.
6.22 The analogy with penalties A clause will be penal if it is not a genuine pre-estimate of loss on
breach.94 Therefore a clause will be penal if it does not accord with the party’s secondary
obligation to pay damages. The clause imposes ‘an additional or different liability on
breach’.95 A clause requiring accelerated payment of sums already due under the contract on
breach is not penal.96 Put another way, the doctrine only applies to additional obligations
requiring additional performance by the party in breach than would be required absent breach.
Further, the exercise of the power to strike down penalty clauses is a ‘blatant interference
with freedom of contract and is designed for the sole purpose of providing relief against
oppression… It has no place where there is no oppression.’97
6.23 By contrast, the exception in White & Carter relates to the ability of one party to expect
performance of the terms of the contract. There is no question of superadded obligations, just
of performing the bargain between the parties as if breach had not occurred. Similarly, there
is no need for oppression before it comes into play and (by its substitution of the secondary
obligation for the primary obligation) it is confined to the damages payable under the
contract. The analogy is therefore flawed.
6.24 A general equitable discretion Although election now comprises both equitable election and
election at common law,98 there must, it is submitted, be some doubt as to the extent to which
equitable principles can or should operate to mitigate the stark legal choice between
termination and continuation with the contract. Further, applying the exception has the
 practical effect99 of rewriting the bargain by substituting secondary for primary obligations.
Absent mistake or rectification, equity will not rewrite the parties’ bargain,100 therefore it is
conceptually difficult to see what role equity can play in this area. Finally, if election is based
on common sense,101 common sense usually implies some form of certainty. The implication
of a general, undefined equitable discretion assists, it is submitted, neither certainty nor
common sense.
6.25 The proper status of the exception It follows that the status of the exception is far from
clear.102 On balance, the better principled view would be that there should be no place for the
exception for four reasons.103 First, the party in breach should not be permitted, by the mere
fact of breach, to relieve itself of the obligations under the contract. Second, the obligations
assumed under a contract can be analysed into a primary obligation to perform and a
secondary obligation to pay damages on breach.104 The application of the exception destroys
the innocent party’s right to performance of the primary obligation requiring it to be satisfied
with compliance with the secondary obligation only. Put another way, the primary obligation
is to perform and the fact of breach should not allow the party in breach to replace that
primary obligation with the secondary. Third, the rights of the party in breach can be
adequately protected either by the ‘co-operation exception’ or by the doctrines set out in this
work. Fourth, allowing the exception creates uncertainty as to when and in what
circumstances the innocent party will lose its rights without any act on its part but merely as
the result of a conclusion of law reached by the Courts as to its ‘legitimate interests’.105
6.26 That said, the exception is relatively well established in English law.106 Therefore, unless and
until the point is reviewed by the Supreme Court, it must be given some effect. Given the
views set out above, the exception should be confined to the very limited category of cases107
where the continuation of the contract would be ‘wholly unreasonable… quite unrealistic,
unreasonable and untenable’.108 Further, if the exception is to apply: (i) the burden of
showing that the election to continue with the contract was unreasonable must lie on the
contract breaker; (ii) that burden is not discharged by showing that the benefit to be received
by the innocent party from continued performance is small; and (iii) the exception can only
apply in extreme cases where damages would be an adequate remedy and the election is
shown to be unreasonable.109 On those terms, the exception enunciated by Lord Reid amounts
and should amount to no more than a reflection of the practicalities of the case110 or the fact
that the innocent party can only continue the contract with the repudiating party’s non-
existent co-operation.
6.27 That view would be consistent with the unspecified equitable discretion discussed above,111
not only because the analogy with the law of penalties is flawed but also because equity is a
sufficiently flexible and therefore most appropriate tool for the task.
6.28 The circumstances in which the exception would operate Given the above, it is unsurprising
that the circumstances in which it would operate are unclear. There appear to be four
possibilities: the innocent party will not be entitled to elect to keep the contract on foot where
it ‘ought in all reason’ to terminate, damages being an adequate remedy;112 it does not have a
legitimate interest simpliciter in so doing; where it does not have a substantial interest in so
doing;113 and where, in an extreme case, continued performance of the contract is
impracticable and unreasonable given the need for co-operation between the parties. The first
possibility, it is submitted, is asking the wrong question. Not only does the question owe
more to the law governing specific performance but it also imports a parameter of rationality
where there is no obvious basis for such. In any event, it draws the ambit of the exception too
 widely. The innocent party’s right to elect is unnecessarily curtailed and no regard is had to
the remedial aspects of the issue.114 As to the next two, the difference between ‘legitimate’
and ‘substantial’ interests is purely semantic and either test generates practical and analytical
uncertainty. The proper approach is therefore the fourth allowing the Courts to reflect the
commercial practicalities of the case and to prevent oppressive or wholly unreasonable
conduct.115
C. Acquiescence
6.29 In De Bussche v Alt,116 the Court stated the elements of waiver by election as set out above117
and then queried whether short of waiver by election there was some form of acquiescence
whereby:
[i]f a person having a right, and seeing another person about to commit, or in the
course of committing an act infringing upon that right, stands by in such a manner
as to induce the person committing the act, and who might otherwise have
abstained from it, to believe that he assents to its being committed, he cannot
afterwards be heard to complain of the act. This as Lord Cottenham said in the case
already cited118 is the proper sense of the term ‘acquiescence’, and in that sense
may be defined as quiescence under such circumstances as that assent may be
reasonably inferred from it, and is no more than an instance of the law of estoppel
by words or conduct.119
The Court expressly distinguished acquiescence from waiver by election,120 thereby raising
the question as to what in fact it is.
6.30 On the De Bussche formulation, acquiescence does not form part of the law of waiver. Not only
is the formulation much broader than waiver in any of its forms but it also permits
acquiescence to arise as the result of silence or inaction. As set out above, there can be no
waiver as a result of a party’s mere silence or delay in making its election.121 De Bussche
further defines acquiescence by the conduct and belief of the representee. The representee’s
conduct and belief are irrelevant in cases of waiver.122 Acquiescence therefore forms part of
the law of estoppel,123 forming a part of a flexible doctrine124 which will prevent a party
from relying on its strict legal rights.125
 7
ESTOPPELS—A GENERAL INTRODUCTION
A. Introduction 7.01
B. The Unified Theory 7.04
(1) Formulations of the unified theory 7.04
(2) Theoretical bases for the unified theory 7.05
(3) Authority in support of a unified theory 7.10
C. The Failure of the Unified Theory 7.13
(1) The impossibility of a completely unified theory 7.13
(2) Difficulties with a unified theory limited to estoppel 7.16
(3) Rejection of the unified theory—authorities 7.31
D. The Various Estoppels—A Summary 7.33
(1) Outline 7.33
(2) General nature of the doctrines 7.35
(3) Elements 7.39
A. Introduction
7.01 The term estoppel originates from the same root as the word stopped, namely the French
‘estoup’.1 The doctrine of estoppel was so named because it originally operated to prevent the
party estopped from adducing evidence to contradict its previous representation. As Coke put
it:
a man’s owne act or acceptance stoppeth or closeth his mouth to alleage or plead
the truth.
From that single semantic root, Coke analysed estoppel into three categories:2 estoppel by
record, estoppel by deed3 and estoppel in pais.4
7.02 Approximately 400 years later, two differing Courts of Appeal,5 in considering the relationship
between estoppel and restitutionary theories, canvassed the possibilities that there may be a
unified theory from which individual applications could be derived6 and/or a single principle
of unconscionability from which various remedial outcomes could be derived.7 In both cases,
although considering themselves bound by authority to the contrary, the Courts could see the
analytical benefits to be derived from a unified theorem.8
7.03 The difference between Coke and those confessedly tentative formulations is not merely
historical, it is fundamental to any consideration of these doctrines. In brute terms, the
difference is between those who argue that unified theory exists and those who do not. The
proponents of the unified theory believe that it is possible to formulate a theory capable of
subsuming all the various forms of at least estoppel and possibly waiver and variation as well
and of resolving their various inconsistencies. Those who do not believe that the unified
theory is possible point to the various elements and critical distinctions between the various
doctrines. They assert that on that analysis, the distinctions between these doctrines remain
too great to be subsumed into the unified theorem and remain fundamental rather than formal.
B. The Unified Theory
(1) Formulations of the unified theory
7.04 At a level of abstraction, it is relatively easy to formulate a unified theory underlying all
estoppels. That theory can be the stigmatising of estoppel as an ‘odious’ doctrine to be
 avoided.9 The theory can also be one of an exceptionally useful legal device, ‘a simple and
wholly untechnical conception, perhaps the most powerful and flexible instrument to be
found in any system of court jurisprudence’,10 a principle of honesty,11 a principle of
common sense12 and a principle of common fairness.13
(2) Theoretical bases for the unified theory14
7.05 There are two routes into the unified theory. Both flow from a desire to simplify what is a
‘complex legal notion’15 into a coherent doctrine or set of rules. The inspiration for the desire
is, of course, the work done on restitutionary theory.16
7.06 The first and most attractive route flows from the overlap between restitutionary and estoppel-
based theory. As discussed in Scottish Equitable Plc v Derby,17 where restitution and estoppel
by representation are both in play, there is a conflict. On the one hand, the change of position
principle permits of flexible outcomes—recovery is permitted or circumscribed by the merits
of the case. On the other, if a traditional estoppel by representation analysis is applied, then
the estoppel is evidential and the principle as allegedly derived from Avon CC v Howlett18
applies. There are only two outcomes—complete success or complete failure.19 In Scottish
Equitable,20 two means were utilised to resolve the conflict. The first was to rely on the fact
that both doctrines remedy detriment. Once the change of position defence has remedied
detriment, there is no role for estoppel.21 As estoppel was no longer in play, there was no
conflict. The other means of resolving the conflict was to abandon the idea that estoppel by
representation is an evidential doctrine. That can be done by suggesting that the Avon CC
principle is not as stark as might first appear.22 The alternative and more radical route is to
suggest a doctrine permitting remedial flexibility—that is one in which the remedy would be
tailored to meet the merits of the case before the Court. As Lord Justice Robert Walker
tentatively formulated the point in Scottish Equitable, once that is done, there is little to
distinguish it from equitable forbearance or proprietary estoppel. The logical corollary is the
creation of a unified theory.23
7.07 The second is to rely on equity. At its most direct, the argument is that the merits are such as to
require the intervention of equity. Therefore equity intervenes. In the same way that equity
will act in cases of duress or undue influence, so it acts here to protect W from M’s unjust
actions.24 Equity will intervene to the minimum extent required to protect W. This ‘minimum
equity’ route derives support from the fact that there appear to be elements that are common
to all forms of estoppel: that M’s conduct led to W’s forming a certain belief or fortified a
belief W already held; that W changed its position in reliance on the belief; that the change of
position will lead W to suffer detriment if the truth of the belief is subsequently denied; and
that M seeks to deny the truth of the belief. The contention is that if there are those common
elements, there must be a unified theory.
7.08 A more reified version of this theory was discussed in National Westminster Bank Plc v Somer
International Ltd.25 A differently constituted Court of Appeal was considering the same issue
that arose in Scottish Equitable Plc—namely the unattractive position where the beneficiary
of monies paid under a mistake of fact is entitled to complete retention of those monies and
therefore a windfall. The Court explicitly recognised the traditional status of estoppel by
representation as an evidential doctrine26 and the more flexible and, therefore, attractive
application of restitutionary principles.27 At least one member of the Court28 resolved the
contradiction by suggesting that estoppel by representation was founded on a broad-based
equitable principle29 which, if operated, permitted more flexible remedial solutions.30 Those
 solutions would be tailored so as to provide the minimum equity required to remedy the
position as between M and W. In so doing, the Court recognised that there might be issues of
‘jurisprudential “tidiness”’31 but that there were coherent reasons for its adoption—in
particular, potential situations in which the change of position defence would not provide a
proper remedy.32
7.09 Both Scottish Equitable Plc and National Westminster Bank Plc therefore raise the possibility
of a unified theory. What is unclear from both is the ambit of that theory. In both cases
(indeed as nearly all other cases where a unified theory is argued)33 the Courts explicitly
recognised that a unified theory would constitute a departure from the currently and
historically accepted position. In no case, at least since the tenure of Lord Denning, has the
Court of Appeal explicitly contended that there is a unified theory in English law. The
analysis of the unified theory was therefore obiter and, in one case, avowedly tentative.34
Further, both cases are explicable within the exception already set out in Avon CC v
Howlett.35 It follows that it is certainly arguable that neither case represents a new departure
in English law. At the lowest and on any view, however, they must be seen as the latest in a
series of cases in which the unified theory has been discussed and, in some cases, positively
approved.
(3) Authority in support of a unified theory
7.10 The unified theory has powerful dicta in support of it. Both in England and Australia there
have been attempts to elucidate a common, basic principle. Thus, in Grundt v Great Boulder
Pty Gold Mines,36 Dixon J enunciated a basal principle common to and driving all estoppels
—that of equity.37 In England, unsurprisingly, the main progenitor of the theorem was Lord
Denning. Thus, in a series of cases, his Lordship contended that the various estoppel doctrines
were examples of a general principle operating to prevent M’s unjust denial of an assumption
or belief which it has permitted or encouraged W to act upon to its detriment.38 This has been
arguably reflected in suggestions by Lord Justice Neuberger (as he then was) in Steria Ltd v
Ronald Hutchison39 that there was a common factor to all estoppels—unconscionability.40
Similarly, in Crabb v Arun DC,41 Lord Justice Scarman held:
I do not find helpful the distinction between proprietary and promissory estoppel.
This distinction may indeed be useful to those who teach or expound the law; but I
do not think that, in solving the particular problem raised by a particular case,
putting the law into categories is of the slightest assistance.42
7.11 The most wide-ranging formulation was that of Lord Diplock in Paal Wilson & Co A/S v
Partenreederei Hannah Blumenthal,43 where he stated:44
The rule that neither party can rely on his own failure to communicate accurately
to the other party his own real intention by what he wrote or said or did, as
negativing consensus ad idem, is an example of a general principle of English law
that injurious reliance on what another person did may be a source of legal rights
against him. I use the broader expression ‘injurious reliance’ in preference to
‘estoppel’ so as to embrace all circumstances in which A can say to B: ‘You led me
reasonably to believe that you were assuming particular legally enforceable rights
to me…’45
7.12 It is clear from Grundt and Paal Wilson that either more than one unified theory is envisaged
or that there may be unified theories operating at differing levels of generality. Thus the
Grundt and Lord Denning’s formulation of the theory focus on estoppel.46 No account is
taken of waiver. By contrast, Lord Diplock’s formulation is capable of embracing all the
 doctrines in this work.
C. The Failure of the Unified Theory
(1) The impossibility of a completely unified theory
7.13 There is undoubted merit in the simplicity of a unified theory. The difficulty is, however, that
the distinctions between the various doctrines are too stark. All the doctrines we have
considered relate to the modification of obligations. As such a truly unified theory must
account for all such circumstances. It must therefore embrace everything from variation
through to estoppel by convention, to waiver in all its forms and to proprietary estoppel. The
theory must therefore include contractual theory—variations supported by consideration;47
restitutionary theory—estoppel by representation and change of position;48 and property
theory—proprietary estoppel and constructive trusts.49 That seems to be a considerable over-
reach for any theory.50
7.14 As a matter of assertion, a concept of ‘injurious reliance’ may be able to meet that objective.
On analysis, however, there are two key difficulties. A logical corollary of injurious reliance
would be injurious action, a theory whereby B’s injurious conduct to A is remedied. There is
no such doctrine in English law and nor has anyone seen fit to invent it. If there is no need for
the logical corollary, why is there a need for injurious reliance? The alternative formulation
of the point is that injurious action would be a principle of such generality that it would tell
us nothing of the doctrines operating within it. It would, in no sense, be an indication of the
norms or rules applicable. Injurious reliance, we would submit, suffers the same problem.
7.15 The second key difficulty flows from the first. Injurious reliance embraces within it cases
where consideration is present and those where it is absent. It does so without distinction. The
only place for consideration is in the analysis of whether the reliance is ‘injurious’. That may
degrade consideration to the role of a subordinate doctrine forming part of some over-arching
equitable analysis. The practical and theoretical ramifications of that approach would be
considerable if not unsurmountable.
(2) Difficulties with a unified theory limited to estoppel
7.16 One means of circumventing the above is to limit the unified theory to estoppel. Variation and
waiver are excluded. This, on one view, is the Australian approach by which these doctrines
are assimilated into some form of collective entity. If it is the Australian approach, the
immediate problem is that such assimilation is not unanimously accepted there51 and has
been expressly discounted here.52 A further obvious difficulty is that it is far from clear
which estoppels are sought to be included.53 There are two options. The first is a truly unified
theory covering all estoppels. The second is a unified theory covering some estoppels. The
basic objections to the latter are that why should such a theory exist that does not explain all
estoppels; what utility is there in formulating that theory; and which estoppels fall within the
theory and why? The obstacles in the way of both are that (i) there are inconsistencies
between the various estoppels sought to be reconciled; and (ii) the common law appears to be
moving not towards unification but towards division and fracture. For present purposes, two
may be highlighted.
The inconsistencies
7.17 Proprietary estoppel, substantive effect and consideration There is a major divide between
proprietary estoppel and all other forms of estoppel. In simple terms, proprietary estoppel is
an extremely muscular doctrine having substantive effects and founding a cause of action,54
because it relates to property, that the other estoppels do not have and cannot do.55 That
distinction, unless it can be circumvented, is fatal to the unified theory. It follows that, for
 there to be a unified theory, either proprietary estoppel would have to be weakened or the
other estoppels would have to be strengthened. The former is theoretically possible. It is,
however, most unlikely that the Courts would deprive themselves of such a powerful merits-
based tool. For the latter, fundamental inroads would be made into the doctrine of
consideration. Estoppels other than proprietary estoppel often operate in the contractual
sphere and are, axiomatically, representations and promises as to future intention not founded
on consideration. If such estoppels have substantive and actionable effects, there is no need
for consideration. It is for this reason that estoppels are and were restricted. Representations
as to future intention amount to promises and, according to orthodox contract theory, are only
enforceable if given for consideration.56
7.18 Three main methods of overcoming this difficulty have been advocated. The first is to consider
the representations giving rise to the doctrines. The starting point is that estoppel by
representation and estoppel by convention are confined to assumptions of fact. Yet, it is
argued, M may be estopped, under either of these doctrines, from denying that a legally
binding obligation has been entered into. The distinction between promising to undertake
such an obligation and representing that such an obligation has in fact been entered into
seems illusory. Hence, it is argued, estoppel is operating on promises as to future intentions
and obligations. Therefore, estoppel already has substantive force and effectively bypasses
consideration.
7.19 This argument has now been conclusively answered—at least at any level below the Supreme
Court—by the Court of Appeal decision in Baird Textile Holdings Ltd v Marks & Spencer
Plc57 where the Court held it was unarguable that an estoppel (there an estoppel by
convention) could preclude a party from denying the existence of a contract or that the
contract granted particular rights.58
7.20 Second, it has been argued that promissory estoppel can and should operate to create new
rights rather than merely to cover promises to forbear from enforcing existing ones. This
approach has been adopted by the Australian High Court.59 It does not, however, appear to be
valid before the English Courts. Here, the promissory estoppel doctrine is correctly confined
to forbearances. To assert that the doctrine may be used to create new rights is to mistake its
inherent nature. Promissory estoppel is essentially analogous to waiver, filling the lacuna
between waiver and estoppel where there has been an unequivocal representation as to future
conduct without the requisite knowledge for waiver.60 This is why the term equitable
forbearance is a more apposite description of this doctrine rather than the more common
designation of promissory estoppel.61
7.21 Third, it has been submitted that proprietary estoppel may operate in relation to assurances
unrelated to property. Although there is some support in the cases for that approach, the better
view is that proprietary estoppel is still confined to instances where W believes that it has or
will be granted a right in M’s property.62
Difficulties with a minimum equity theory
7.22 Further, and fatally (at least for a unified theory based on a single concept of equity or one
based on minimum equity principles), there is no uniformity as to the states of mind of those
involved, the need for and nature of detriment and the relief flowing. A principle of
broadbased equity—reflecting the respective merits of the various situations—would have to
adopt a common approach to detriment and state of mind (the factors triggering the equity)
and the relief flowing (the effect of the equity).
7.23 The most fundamental point at which the estoppels diverge is as to the nature of the belief
 which M’s conduct has led W to form. Estoppels by representation and convention operate
where M leads W to believe that a certain state of fact exists. Equitable forbearance operates
where M leads W to believe that M’s legal rights under a contract or other legal relationship
will not be enforced. Proprietary estoppel operates where M leads W to believe that W has, or
will obtain, an interest or right over M’s property. Further and as far as detriment is
concerned, although it is clear that detriment is required for proprietary estoppel and estoppel
by representation, it is not settled law that such is required for equitable forbearance. The
analysis suggests that it should be so required, but the cases do not uniformly suggest that it
is.
7.24 Turning to relief, both proprietary estoppel and equitable forbearance permit all the
circumstances to be taken into account in deciding the relief required to reverse detriment.
Estoppel by representation and convention generally still admit of only one remedial
response, namely that M is prevented from denying the facts which it led W to believe.63 In a
further contrast, the relief granted under equitable forbearance and proprietary estoppel will
not always lead to M’s being required to make good W’s belief, though it may sometimes do
so. There is a further subdivision between proprietary estoppel and equitable forbearance. In
proprietary estoppel, the Court will award the minimum equity necessary to avert detriment
to W.64 Although the position is less clear with respect to equitable forbearance, it is
submitted that the same approach is applicable.65 For assimilation to occur, adjustment has to
be made to the remedial approaches currently adopted in the various doctrines. Applying the
flexible detriment-based approach of proprietary estoppel and equitable forbearance to
estoppel by representation and convention would involve a fundamental reappraisal of the
nature of the latter two doctrines. It would also necessitate acknowledging that they are not
merely evidential doctrines but principles of substantive law.66
The movement to division and fracture
7.25 Two developments suggest that far from moving towards a unified theory, the Courts are in
fact moving in the opposite direction—towards a further divided and fractured series of
discrete estoppels: (i) the emphasis on the distinction between proprietary estoppel and all
other estoppels; and (ii) the creation of a wholly new estoppel—contractual estoppel.
7.26 Baird Textile Holdings Ltd v Marks & Spencer Plc As set out above, a fundamental stumbling
block to a unified theory is the fact that one doctrine—proprietary estoppel—has substantive
effect but the others do not, they cannot create a cause of action.67 At one stage, however, it
was thought that an estoppel could be deployed so as to prevent a party from denying a
particular factual position—that it was a party to a guarantee;68 or that there was a concluded
contract between the parties.69 This, as has been recognised,70 came perilously close to
allowing estoppels—other than proprietary estoppel—to create a cause of action. If that was
the case, then the significant division between the various estoppels would be eroded and a
significant obstacle to the unified theory removed.
7.27 That particular possibility came to an end—at least at any level below that of the Supreme
Court—with the decision of the Court of Appeal in Baird Textile Holdings Ltd v Marks &
Spencer71 which makes it clear that only proprietary estoppel can create a cause of action.
Thus, rather than a fundamental stumbling block to a unified theory being removed, the trend
is to highlight and to emphasise the differences between the doctrines. Nor can it be said that
Baird does not represent the current approach to the law in this area. Baird has now been
followed in Tesco Stores Ltd v Costain Construction Ltd,72 Investments Ltd v Development
Ventures Ltd73 and Haden Young Ltd v Laing O’Rourke Midlands Ltd.74
 Contractual estoppel
7.28 In Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd,75 Lord Justice
Moore Bick stated as follows:76
There is no reason in principle why parties to a contract should not agree that a
certain state of affairs should form the basis for the transaction, whether it be the
case or not. For example, it may be desirable to settle a disagreement as to an
existing state of affairs in order to establish a clear basis for the contract itself and
its subsequent performance. Where parties express an agreement of that kind in a
contractual document neither can subsequently deny the existence of the facts and
matters upon which they have agreed, at least so far as concerns those aspects of
their relationship to which the agreement was directed. The contract itself gives
rise to an estoppel: see Colchester Borough Council v Smith [1991] Ch 448,
affirmed on appeal [1992] Ch 421.
7.29 In a series of first instance decisions77 and upon consideration by the Court of Appeal in
Springwell Navigation Corporation v JP Morgan Chase Bank,78 this doctrine has come to be
known as a contractual estoppel which, as the Court made clear in Springwell, was not only
new but did not, unlike all other estoppels, require unconscionability.79
7.30 What matters for present purposes is not whether the new doctrine is well founded (as
suggested elsewhere, it is not)80 but the mere fact of its creation, continued existence and
supposed basis. That the Courts have created a new and independent species of estoppel can
only, it would seem, be a move away from unification rather than a step towards it. Further,
this new estoppel is derived not from the operation of equity or a consideration of detriment
or unconscionability but from the four walls of the contract. If, therefore, contractual estoppel
is an estoppel in the proper sense, any unified theory of estoppels would have to also take on
board—if not subsume—certain elements of contractual theory.81 That seems not only
difficult and unlikely but would also require a fundamental reconsideration of the need for
and role of consideration.82
(3) Rejection of the unified theory—authorities
7.31 If the current inclination of the Courts is against a unified theory, so are the express
considerations of that theory by the Courts. As Lord Justice Millet (as he then was)
emphasised:
[The attempt] to demonstrate that all estoppels other than estoppel by record are
now subsumed in a single and all embracing estoppel by representation and that
they are all governed by the same requirements has never won general acceptance.
Historically unsound, it has been repudiated by academic writers and is
unsupported by authority.83
Further, in Republic of India v India Steamship Co Ltd (No 2),84 Lord Steyn observed:
I do not underestimate the importance in the continuing development of the law of
the search for simplicity. I, also, accept that at a high level of abstraction… an
overarching principle could be formulated. But… to 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.85
7.32 The fact of rejection is obviously relevant. The terms of the rejection are also instructive.
Rejection is based not purely on the basis of impossibility. It is rejected on the basis that a
unified theory would have to operate at such a level of generality as to be either uninteresting
—telling us nothing of the way in which it would operate, or unworkable—falling foul of the
 theoretical obstacles set out above.
D. The Various Estoppels—A Summary
(1) Outline
7.33 The starting point is that Coke’s categorisation at paragraph 7.01 above has evolved. Estoppel
by record is now resjudicata/issue estoppel which is not an estoppel.86 Estoppel in pais is
now further subdivided. It contains both estoppel by convention, which originated in common
law and estoppel by representation.87 The latter doctrine developed at a later stage. It
originated in equity but was subsequently recognised by the common law.88 Although there is
some doubt,89 estoppel in pais is now commonly regarded as also including the equitable
doctrines of equitable forbearance and proprietary estoppel.90 The latter two doctrines have
sometimes been referred to, individually or jointly, as equitable estoppel in order to
distinguish them from estoppel by representation.91 However, the use of the term equitable
estoppel is misleading since estoppel by representation is also recognised by the rules of
equity. The divide between law and equity, however, plays no significant classificatory role in
the modern law of estoppel.
7.34 Adopting that approach leads to the range of estoppels set out below. For the purposes of this
introduction, the distinctions are set out in summary form. The relevant principles and cases
are set out in the respective chapters.
(2) General nature of the doctrines
Offensive/defensive use
7.35 Proprietary estoppel may be used offensively. Not only may it be used to defeat an action by
the property owner to enforce his rights, it may be used as a cause of action to claim property
rights. Equitable forbearance, estoppel by representation and estoppel by convention can only
be used defensively.
7.36 It must be noted, however, that as equitable forbearance and proprietary estoppel give effect to
non-contractual promises, it is superficially difficult to justify the difference between
defensive and offensive action. There seems little conceptual justification for treating
property and contractual rights differently in this context. In both cases, the holder of the
rights is enjoying the benefit of the State’s enforcement mechanisms and so might reasonably
be expected to exercise them responsibly. M’s conduct would seem to be equally
unconscionable whether he encourages W to believe that he, M, will not enforce his
contractual rights or his property rights. The anomaly is particularly apparent where
contractual and properly rights co-exist, for example in cases concerning leases, restrictive
covenants or intellectual property licences. In such cases, promises relating to the duration of
the arrangement may give rise to a proprietary estoppel claim whereas promises relating to
other terms may only trigger the operation of equitable forbearance. Further, it is sometimes
difficult to ascertain which of the doctrines is operating in this context.92
7.37 The difference there is, however, explicable. It flows from the distinction between the two
types of rights involved. In the case of contract, all that is necessary to deprive the promisor
of his rights is allowing a defence to the action for breach of contract. Property rights differ
from contract in that they are enforceable against a wider range of parties. In order to deprive
the holder of its rights, it is necessary to make a positive transfer of that enforceable right to
the claimant.
Evidential/substantive doctrines
7.38 Traditionally, estoppel by representation is an evidential doctrine operating only to prevent a
party to litigation denying the truth of a certain set of facts. Subject to the possible
 development of a greater remedial flexibility,93 the outcome of the case depends on the
application of ordinary legal principles to the facts thus set up by the doctrine. In contrast,
both equitable forbearance and proprietary estoppel94 operate substantively and are sources of
legal obligations in themselves, giving limited effect to certain promises. The alternative way
of drawing this distinction is that equitable forbearance and proprietary estoppel are in a
loose sense subtractive95—they deprive one party to the relationship of rights that it had
against the other. Estoppel by representation, not being confined to cases in which there is a
pre-existing relationship, is not subtractive in that sense. What is lost is not a right derived
under the relationship but a right to contend for a particular state of affairs.
(3) Elements
Pre-existing relationship
7.39 Propriety estoppel and equitable forbearance can operate only between parties which, at the
time of the representation, were in a pre-existing relationship giving rise to legal rights and
duties. No such relationship is necessary in estoppel by representation cases.96
Promise or representation
7.40 Both estoppel by representation and equitable forbearance require M to make a representation
to W. Subject to one possible caveat, the principles governing the means and manner by and
in which a representation may be made are the same in both doctrines. Specifically a
representation may be made by express statement, conduct or silence. In both doctrines,
silence will probably only give rise to a representation where there is a duty to disclose the
fact in issue. It is a requirement of both doctrines that the representation is clear and
unequivocal.
7.41 The most important point of difference, however, between estoppel by representation and
equitable forbearance concerns the nature or content of the representation made. Estoppel by
representation will operate only where M has made a representation of fact, or of mixed fact
and law. By contrast, equitable forbearance will operate only where M has promised not to
enforce its pre-existing legal rights against W. The latter doctrine is therefore triggered by a
representation of future intention, which is incapable of generating an estoppel by
representation. It is, however, very difficult to draw a coherent, factual line between the two
types of representation.
7.42 A further distinction between equitable forbearance and estoppel by representation is that
silence may trigger an estoppel by representation where the representor is under a duty to
speak. In this respect, estoppel by representation is closer to proprietary estoppel. Although
the terminology of duty has not been frequently employed in proprietary estoppel cases, it is
submitted that a similar approach is used: silence or purely passive acquiescence will suffice
to raise a proprietary estoppel where the party sought to be estopped stood by in the
knowledge that the party seeking to raise the estoppel was acting under a mistake. These
circumstances raise a duty to speak.
7.43 Proprietary estoppel is, however, somewhat more flexible than estoppel by representation: it
can arise as a result of mutual dealings between parties in which both have formed a shared
expectation as to the outcome of the transaction or underlying basis of their relationship. In
such cases, it is very difficult to identify any clear-cut representation by either party. It is not
necessary to show an unequivocal representation in proprietary estoppel cases.97 All that is
necessary is to show that M led W to believe either that W was or would become the owner of
property which M in fact owned. If M clearly represents to W that W is the owner of property
that is a sufficient assurance to give rise to proprietary estoppel. By contrast, an unequivocal
 representation is an essential component of an estoppel by representation claim.
7.44 Further, as proprietary estoppel can operate where M leads W to believe that W has or will
obtain a right over M’s property, the relevant words can be either a representation of fact or a
promise. Where the representation can be categorised as one of fact, there is an overlap with
estoppel by representation.98 Where there is a promise and the doctrine is being used
defensively, there may be an overlap with equitable forbearance.
Belief
7.45 The nature of the qualifying belief differs. Equitable forbearance does not require knowledge
or belief, being a bridge between waiver (which requires knowledge) and the other forms of
estoppel (which require inequity based on some form of belief). Estoppels by representation
and convention operate where M leads W to believe that a certain state of fact exists.
Proprietary estoppel operates where M leads W to believe that W has, or will obtain, an
interest or right over M’s property.
7.46 The caveat to the above is that neither proprietary estoppel nor estoppel by representation
require M to know the representation to be false, except where M’s conduct was purely
passive. In such cases, it is probably necessary to show that M was aware that the
representation was false.
Reliance
7.47 All the doctrines require W to have relied on the representation made by M. There must have
been a causative link between W’s acts and the representation made, that is, W must have
been led to act differently by the representation. In cases of estoppel by representation, the
burden is placed on W to establish causation. The onus of proof is probably the same in
estoppel by representation and equitable forbearance, although there is some authority to
suggest the burden may occasionally be reversed.
Detriment
7.48 In order to establish estoppel by representation and proprietary estoppel, it is essential to
demonstrate detriment. Specifically, it is necessary to show that W’s change of position in
reliance on the representation will cause W to suffer material99 detriment in the event that the
correctness of the representation is denied.
7.49 There is some doubt as to whether detriment is a necessary component of equitable
forbearance. It is clear that it is essential to establish that resiling from the promise made
would be inequitable having regard to the dealing between the parties. On balance, it is
submitted that detriment is an essential prerequisite for establishing inequity. Detriment is
therefore required in all doctrines.
7.50 In equitable forbearance, proprietary estoppel and, potentially in estoppel by convention,100
additional factors may be taken into account in assessing whether it would be inequitable to
resile from the representation. Put simply, detriment is a precondition but not a guarantee of
the operation of the equitable forbearance doctrine. By contrast, and subject to some limited
exceptions, detriment will guarantee the operation of estoppel by representation.
Measure of relief
7.51 It is clear that both equitable forbearance and proprietary estoppel contain a significant
remedial flexibility. The remedy will be tailored to the merits of the individual case. Thus,
the operation of equitable forbearance will often be temporary, the doctrine operating only to
suspend M’s right to resile from the representation made rather than to extinguish it. It is also
clear that the doctrine may operate permanently in exceptional cases.
7.52 The distinction between equitable forbearance and proprietary estoppel is that proprietary
estoppel will always grant the minimum relief necessary to reverse the detriment suffered—
 that is the fair result and proprietary estoppel founds itself expressly on the doctrine of
fairness. In equitable forbearance, the adoption of such an approach is not settled law. It is,
however, submitted that the guiding principle is that the measure of relief will go no further
than the minimum necessary to prevent detriment to the representee. Sometimes this may
only be achieved by requiring M to make good its representation, that is, to abide by the
terms of its promise, although this is by no means always the case.
7.53 By contrast, in estoppel by representation cases, the traditional view is that establishing
detrimental reliance leads automatically to M’s being required to make good its
representation. On that analysis, this outcome will follow regardless of whether the benefit
thereby accruing to W will be greater than the detriment suffered. If Scottish Equitable Plc v
Derby101 is, however, given its full effect, it may well be arguable that estoppel by
representation may now admit of greater remedial flexibility along the lines of the minimum
relief model prevalent in proprietary estoppel and equitable forbearance.
Effect on third parties
7.54 Estoppel by representation, being merely evidential, does not affect the reality of the dealings
between the parties. Hence where M represents to W that W is the owner of property, estoppel
by representation will not operate actually to transfer title to W but only to prevent M from
denying that W is the owner. This means that W has no ownership right which it can transfer
to third parties.102 The estoppel affects only the personal rights and liabilities arising between
M and W.
7.55 By contrast, it is submitted that proprietary estoppel does vest property rights in W although
their precise nature and the point at which they arise is highly controversial. Further,
equitable forbearance may affect third parties in a limited fashion. Equitable forbearance will
limit rights under a contract; where that contract is assigned to third parties, the third parties
will take subject to the limitation even if the third parties do not have knowledge of the
limitation.103 The reason for that is the assignment carries with it the benefits of the contract.
If those have been limited, there is no reason why they should be resurrected by the
assignment.
 8
EQUITABLE FORBEARANCE
A. Introduction 8.01
(1) Background 8.01
(2) Summary of elements 8.03
(3) Terminology and approach 8.05
(4) Interface with contract 8.08
B. Elements of Equitable Forbearance 8.10
(1) Pre-existing legal relationship 8.10
(2) Promise or representation 8.14
(3) The promise must have been intended to affect the
8.29
legal relationship between the parties
(4) The promisor must have intended the promise to be
8.30
acted upon or have known that it was acted upon
(5) The promisor’s knowledge 8.32
(6) Reliance 8.39
(7) Detriment and inequity 8.44
(8) Relief 8.65
C. Scope of Equitable Forbearance 8.75
D. Effect of Equitable Forbearance on Third Parties 8.83
(1) Assignment of the contract 8.83
(2) Transfer of land 8.84
E. Formality 8.87
A. Introduction
(1) Background
8.01 In 1877, in Hughes v Metropolitan Railway Company,1 Lord Cairns stated:
… it is the first principle upon which all Courts of Equity proceed, that if parties
who have entered into definite and distinct terms involving certain legal results—
certain penalties or legal forfeiture—afterwards by their own act or with their own
consent enter upon a course of negotiation which has the effect of leading one of
the parties to suppose that the strict rights arising under the contract will not be
enforced, or will be kept in suspense, or held in abeyance, the person who
otherwise might have enforced those rights will not be allowed to enforce them
where it would be inequitable having regard to the dealings which have thus taken
place between the parties.2
8.02Hughes was deployed, some 70 years later, by Lord Denning in Central London Property Trust
Ltd v High Trees House Ltd3 as a basis for stating the following general principle:
… where a promise was made which was intended to create legal relations and
which, to the knowledge of the person making the promise, was going to be acted
upon by the person to whom it was made and which was in fact so acted on… the
promise must be honoured.4
These two cases provide the starting point for the development of the modern doctrine of
 promissory estoppel or equitable forbearance. As will be seen, the width of Lord Denning’s
proposition has since been considerably restricted.5
(2) Summary of elements
8.03 There are four.6 They are well established.7 First, one party to a contract or other legal
relationship (‘the promisor’)8 makes a clear and unequivocal representation to the other (‘the
promisee’); that representation being intended to affect the legal relations between them.
Second, the representation is that the promisor’s legal9 rights under the contract or
relationship will not be enforced or will be suspended. Third, the promisee, to the knowledge
of the promisor, in reliance on the representation alters its position to its detriment.10
Fourth,11 the promisor now seeks to withdraw from that representation.12
8.04 Once these elements are made out, the doctrine will operate to ensure that the promisee is not
left, as a result of its change of position, in a worse position than before the representation
was made. There is, therefore, considerable remedial flexibility dependent on the way in
which the promisee has changed its position in reliance on the representation. Thus, if it is
possible to restore the promisee to its original position and reverse the detriment on
reasonable notice, the doctrine is suspensory of the promisor’s rights and the promisor will be
permitted to resile from the representation on reasonable notice. If, however, that is not
possible or it would be highly detrimental or inequitable so to do, even after notice, the
doctrine may operate as a permanent bar on the withdrawal of the representation.
(3) Terminology and approach
8.05 This doctrine has been referred to as promissory estoppel. It is akin to estoppel by
representation; both are triggered by detrimental reliance on a representation. The doctrine is,
however, distinct.13 It involves a representation as to future intention, that is, a promise that
rights will not be enforced and is ‘promissory’ in that limited sense. Once established, the
relevant promise has legal effect. Estoppel by representation, by contrast, only operates in
response to representations of fact14 and does not have substantive effect. Estoppel by
representation operates to prevent the denial of the truth of a representation of fact. It thus
sets up a state of affairs by reference to which the parties’ obligations are to be governed.
8.06 Although it is correct that an element of the doctrine is promissory, it is only so in a loose
sense. Tritely, the consideration required to translate a promise into a performative obligation
is missing. Further, the promise, such as it is, is not to perform but to forgo a right to expect
performance of a particular type from the other party. New obligations are not created.15 To
this extent, the doctrine is more closely akin to waiver by election than it is to estoppel.
Waiver, however, requires knowledge and flows from the common law.16 This doctrine does
not so require and is founded in equity. Similarly this doctrine requires detriment; waiver
does not.17 The doctrine therefore fills a lacuna between variation, waiver and estoppel and
the terminology ‘equitable forbearance’ is used.18
8.07 As in the remainder of this work, the cases are analysed according to the nature of the
principles actually applied, rather than the terminology used. Hence, reference is made to a
number of cases in this chapter which were expressly decided in terms of ‘waiver’ but
involved the application of equitable forbearance principles.19 This is clear from their
emphasis on the need for reliance rather than informed consent. It should be noted, however,
that a number of cases involve the consideration and/or operation of both doctrines.20
(4) Interface with contract
8.08 Equitable forbearance gives legal effect to promises unsupported by consideration by using the
concept of detrimental reliance. In strict contract theory, detrimental reliance will only
 amount to consideration where it is extracted as the price of the promise. This element of
bargain is obviously lacking in equitable forbearance where, so long as detrimental reliance
actually took place, all that is necessary is that the promisor knew or intended the promise to
be acted upon.21 There is a prima facie conflict between the two rules—equitable forbearance
being capable of circumventing the doctrine of consideration. To avoid this, the common law
has restricted the potential force of equitable forbearance. Thus, equitable forbearance cannot
create new rights, only modify pre-existing ones. Further, establishing the elements of
equitable forbearance does not automatically lead to the enforcement of the promise in issue.
The effects will be limited to those necessary to avert detriment to the promisee. The result is
that the doctrine is frequently only suspensory, that being sufficient to protect the promisee.
8.09 The analysis above is based on a Stilk v Myrick22 or restrictive view of consideration. On this
traditional view, a commercial quid pro quo entered into between the parties, encouraging but
not expanding one party’s performative obligations, cannot amount to consideration. The only
legal manifestation of such a commercial quid pro quo was equitable forbearance or waiver.
As set out above,23 however, the Stilk v Myrick principle has been increasingly qualified. In
Williams v Roffey Bros and Nicholls (Contractors) Ltd,24 it was held that performance of an
existing contractual obligation could amount to good consideration if it was such as to render
a factual benefit to the promisor even though the promisee’s performative obligation was not
altered. Although this is not apparent to date, if this more flexible doctrine of consideration
were to be widely adopted,25 logically, the Courts will inevitably find a greater number of
contractual variations and the operation of equitable forbearance will necessarily decrease. A
promisee will generally prefer26 to put its case in contract because of the more muscular
results. In contract the promisee will be able positively to claim new rights or enforce new
obligations and will be entitled to the full measure of expectation damages for breach. It
should be noted, however, that equitable forbearance will continue to play an important role
where a creditor has promised not to enforce the full debt owed to it and to accept a lesser
sum. The expanded Williams v Roffey Bros notion of consideration will not assist a promisee
in such a case.27
B. Elements of Equitable Forbearance28
(1) Pre-existing legal relationship29
8.10 Equitable forbearance operates only on promises to forbear from enforcing existing legal
rights; it does not create new obligations.30 Therefore there must be some pre-existing
enforceable legal right that can be foregone.31 Consequently, it is essential to demonstrate
that the parties were in a relationship giving rise to legally enforceable rights and duties
before the relevant promise was made.32 The standard example of that relationship is a
contract.33 However, the doctrine extends to other relationships which may potentially give
rise to liabilities and penalties:34 including those of wife and husband,35 company customer
and company director,36 applicant for a statutory pension and the relevant government
department,37 planning authority and applicant,38 victim and perpetrator of undue
influence,39 landlord and tenant (even where there is no privity of contract between them)40
and local authority and owner of land who are negotiating for compensation for proposed
compulsory purchase.41 The doctrine also applies where contractual and other duties co-exist:
for example, an employer’s duty to make a redundancy payment,42 a mortgagee’s statutory
power of sale43 and a director’s right to remuneration under the articles of a company.44
8.11 All of the above can simply be categorised as forms of legal relationships and there is no
 difficulty with the doctrine applying. Greater difficulty arises, however, with non-paradigm
cases. It is unclear, for example, whether the relationship between landowner and trespasser is
capable of sustaining equitable forbearance.45 There are similar difficulties in the
relationship between parties to litigation. In Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV
(‘The Henrik Sif’),46 the Court held:
Whatever the precise meaning of this term, it applies to two parties engaged in an
exchange of correspondence in which one intends the correspondence to have legal
effect and the other party knows of the intention and makes requests or purports to
grant extensions of time which could only be of relevance to the first party if the
correspondence between them affected their mutual rights and obligations.47
The result of this extremely broad formulation was that parties litigating against each other
could be bound by an equitable forbearance.
8.12 A related, third type of complexity is where the parties are about to enter into a legal
relationship. In Brikom Investments Ltd v Carr,48 the defendants were negotiating with the
claimant with a view to entering into a long lease of the claimant’s premises. The defendants
were concerned by the obligation to contribute to roof repairs contained in the lease. As part
of the negotiations, the claimant promised that it would not enforce this provision49 and the
defendants were thereby induced to enter the leases. The claimant was precluded from
resiling from its representation by equitable forbearance even though there was no legal
relationship between the parties at that time.
8.13 In each case, the promisee’s case was more meritorious than the promisor’s. The decisions can
therefore be justified on their merits. There is, however, considerable difficulty in justifying
them on any other basis. It is possible that the representation in Brikom was part of a
collateral contract which could potentially provide the legal relationship. The difficulty with
that approach, however, is that the terms of that contract are the terms of the equitable
forbearance. There is no pre-existing legal relationship. Further, if there is a collateral
contract, not only is there no need for equitable forbearance but there is also a breach of the
contract/ equitable forbearance principles outlined above.50 Ascertaining the relationship in
The Henrik Sif presents greater difficulty. It may be for this reason that the broad reasoning
(as opposed to the result) in The Henrik Sif has not been followed in any other case51 and its
driving proposition may be obiter.52
(2) Promise or representation
8.14 The holder of legal rights must represent that those rights will not be enforced53 or will be
suspended, at least for a period.54 The relevant representation thus concerns what the
representor intends to do in the future; it is not a representation of present fact.55 Although it
is acceptable to use the term representation in the context of equitable forbearance, it is more
accurate to characterise the situation as involving a promise56 or assurance57 by the holder
that it will not enforce its legal rights.
The promise must be clear and unequivocal
8.15 In view of the serious potential consequences of equitable forbearance (namely the suspension
or loss of legal rights), a degree of clarity of promise is required58—that is clarity as to the
rights being foregone.59 The promise must be clear and unequivocal60 having the same level
of clarity as would be necessary for a contractual variation.61 As with waiver, the terms of the
contract can make any given promise equivocal by the insertion of a clause prohibiting
equitable forbearance62 or, potentially, an entire agreement clause.63 Similarly, any
 representation made without prejudice or subject to a without prejudice notice will not be
sufficiently equivocal.64
8.16 Merely to state that the promise must be clear and unequivocal, however, raises further
questions. Is the test as to whether a promise is clear and unequivocal subjective or objective?
Is the same degree of certainty required for the promise as would be required in contract? Can
the promise be inferred from conduct? Does silence or inactivity suffice? Does a failure to
object to defective performance suffice?
8.17 A subjective or objective test In Bremer Handelsgesellechaft v Vanden Avenne-Izegem,65
Lord Salmon adopted an objective approach based on the promisee’s reasonable
interpretation. Therefore, if the promisee reasonably interpreted the promisor’s actions as a
promise to forbear, those actions would be treated as such, even if that were not the
promisor’s intention. This is difficult to reconcile with the approach taken in Woodhouse AC
Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd.66 There Lord Cross in particular
seemed to favour a stricter and more subjective approach.67 The difficulty is compounded by
the fact that Lord Salmon did not refer to Woodhouse on the point and Lord Wilberforce
indicated that Bremer raised no point of principle.68 On balance, however, the objective test is
the correct one for three reasons. First, it is consistent with the Courts’ general approach to
promises and representations. Second, it has been applied without objection in well-
established authorities.69 Third, Lord Cairns, in Hughes v Metropolitan Railway Company,70
held that what is all-important is establishing that the effect of the conduct of the alleged
promisor was such as to lead the other party to suppose that the strict rights arising under the
contract would be abrogated. A finding that the alleged promisee might reasonably have
arrived at that conclusion is insufficient. Put another way, there could only have been a clear
and unequivocal representation if that party could not reasonably have arrived at any other
conclusion.71
8.18 Certainty required Although there is some authority to the contrary,72 the promise must be
sufficiently clear and certain as to have given rise to a contract where there is consideration.73
Whether the promise is sufficiently clear will be decided in light of the surrounding
circumstances.74 Once the Court has determined that the terms of the promise are sufficiently
clear and certain, the mere fact that the promise does not benefit the promisor does not
prevent it giving rise to an equitable forbearance.75
8.19 Promises inferred from conduct The promise may be express76 or may be inferred from
conduct.77 Thus, in Hughes v Metropolitan Railway Company,78 a landlord served on its
tenant a notice to repair within six months. The tenant replied by suggesting that the landlord
might be interested in purchasing the tenancy and stating that it intended to defer the repairs
until the possibility of a sale had been explored. The landlord responded by engaging in
negotiations. That conduct was held to have amounted to a promise to extend the period
allowed for repairs. Therefore the six months was to run from the date of the breakdown in
negotiations not from the date of service of the notice.
8.20 Given the enormous range of possible factual scenarios, it is difficult to extract general
principles as to what type of conduct will and will not give rise to a sufficiently clear and
unequivocal representation. For example, negotiations with a view to an amicable settlement
of a disputed claim were insufficient in Braithwaite v Winwood.79 By contrast, in Co-
operative Wholesale Society v Chester le Street District Council,80 after the Co-op’s cause of
action had become statute barred, the Council continued to negotiate on the basis that the
 latter had a potentially enforceable right to compensation.81 This was held to be a promise to
forbear from taking the limitation point.82 However, a reluctant acceptance that there is an
apparently sustainable defence to a claim does not amount to a promise not to prosecute the
claim or inhibit pursuing the claim if the defence proves to be unfounded.83 Further, a
statement that the alleged promisor believed itself to be liable under a contract,84 or that it
had been so advised by its solicitors,85 does not amount to a promise that it was so liable. A
threat to enforce a legal right, on the happening of some event, does not amount to a promise
to enforce should the relevant event occur.86
8.21 Promises inferred from silence or inactivity Subject to two caveats,87 silence or inactivity
may be a relevant but not determinative factor in ascertaining whether there has been a clear
and unequivocal promise. Thus, in combination with other factors,88 silence/inactivity may
suffice and absent other factors, they will not. The reason is that inactivity, even if prolonged,
is as likely to be attributable to carelessness as an intentioned act89 and pure inactivity will
almost always be equivocal.90 The other factors may include what the alleged promisor said
and what it omitted to say;91 a failure to act when under a commercial duty so to do may in
extreme circumstances suffice.92
8.22 The first caveat is that, as a general rule, it is doubtful whether delay in prosecuting a claim
can ever amount to a promise not to do so in the future. At most, the delay would amount to
an implied representation that the claim was not, at the time, being pursued.93
8.23 The second caveat is that silence or inaction may constitute a promise where the ‘promisor’ is
under a duty to speak.94 In Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik
Sif’),95 Mr Justice Webster held that such a duty arose where a reasonable man would expect
the person alleged to have made the forbearance, acting honestly and responsibly, to bring the
true facts to the attention of the other party where the other party was known by him to be
acting under a mistake as to their respective rights. Whilst the statement of the duty may be
correct,96 its application to the facts of The Henrik Sif is controversial. The duty to speak in
that case was extended to a duty to point out to the opponent in legal proceedings that it had
sought to obtain time extensions from the wrong party.
8.24 The Henrik Sif has, however, been circumscribed in two ways. In RPPC v Bank Leumi,97 the
Court stated that the case turned on its peculiar facts.98 Further, in The Stolt Loyalty,99 Mr
Justice Clarke, whilst applying The Henrik Sif, stated that each case must be judged on its
facts and that opponents in litigation do not normally owe a duty to point out one another’s
errors. Mr Justice Clarke felt it was appropriate to apply The Henrik Sif in The Stolt Loyalty
because the defendants had responded to the requests for an extension in deliberately
equivocal terms so as to prolong the claimant’s error.100 His Lordship further limited the
proposition, holding that, for the duty to arise, the alleged promisor must have at least a
suspicion of ‘the true position’, that is of its own legal rights.101
8.25 The following principles flow from The Henrik Sif and later cases. Silence and delay will
constitute a promise where the appropriate duty exists102 but that duty will only arise in
limited circumstances. It follows that the cases are of limited application. Further, particular
care must be taken when applying The Henrik Sif or The Stolt Loyalty to the parties in
litigation. The cases must either be seen as being confined to their facts or as being applicable
only where one party has employed sharp practice in the conduct of the litigation.103 Finally,
the additional limitation on deploying the doctrine (the alleged promisor must have a
suspicion of its rights)104 is itself an exception to the general rule that such knowledge is not
 necessary for equitable forbearance.105 These cases are therefore doubly anomalous.
8.26 Promises inferred from failure to object to defective performance The above difficulties
are particularly acute where an attempt is made to generate a promise from the alleged
promisor’s conduct after breach. The Courts are generally reluctant to deprive a party of its
right to object to breach, merely because that party does not require strict compliance with
the contract at all times.106 There is an undoubted danger that an overly muscular forbearance
doctrine will discourage co-operation between contracting parties and force them,
prematurely, into litigation. At one level, this result is prevented by the requirement that any
representation made must be clear and unequivocal. As will be seen, however, the doctrine
may still provide something of a trap for the unwary litigant; it throws at least some onus on
contracting parties to obtain clear legal advice as soon as there is any suggestion of breach.
Continuing to press for full and correct performance of the contract is inconsistent with a
promise to forgo the right to complain of breaches of it.107 Likewise, an express reservation
of all contractual rights will generally negative the implication of such a promise.108 There is
authority to suggest, however, that a reservation does not invariably provide protection if the
conduct of the alleged promisor is sufficiently clear.109
8.27 It follows that emphatic reliance on one point of dispute between the parties does not, by itself,
necessarily amount to a promise not to enforce other legal obligations owed.110 In Bremer
Handelsgesellschaft mbH v Vanden Avenne-Izegem,111 a contractual notice was defective. The
recipient did not object to the defects, made a number of other criticisms and then demanded
performance of part of the contract, that demand being necessarily predicated on the notice
being valid. The recipient was held to have promised to forgo its right to challenge the notice
on grounds of the defects. It is important to note that the promisor in Bremer did more than
merely accept the documents without protest or reservation of rights. There was an additional
demand for performance. This additional conduct will usually be necessary to trigger the
doctrine. Thus approving the relevant documents by requiring them to be presented to a
subcontractor will suffice.112 Mere acceptance will generally be insufficient.
8.28 Further, although there is no general requirement that the promisor had knowledge of the legal
rights it is alleged to have forgone,113 such knowledge may be relevant in ascertaining
whether a sufficiently clear and unequivocal representation has been made.114 Thus, in these
cases, the alleged promisor’s conduct is likely to be equivocal unless it either knew of the
defect or the defect was obvious or readily discoverable. Absent such knowledge, it will be
forensically difficult to show that the only reasonable interpretation of the conduct in issue
was that the right to object to the relevant defect was being forgone.115
(3) The promise must have been intended to affect the legal relationship between the
parties
8.29 The Courts have frequently stated that the promise must be intended to be legally binding or
intended to affect the legal relations between the parties.116 This requirement is
indistinguishable from the contractual test of intent to create legal relations.117 Whether the
promise was intended to affect legal relations will be decided objectively.118 The test will be
satisfied if a reasonable person would have concluded that the promise was intended to affect
the legal position.119 Further, the House of Lords has averred that ‘mere acts of indulgence’
will not suffice.120 Similarly, casual conversations between agents,121 mere ‘gossip’122 and
negotiating with a view to an amicable settlement123 have also been dismissed as inadequate.
By contrast, a statement made ‘as a matter of business’124 was sufficient. This requirement
 tends to overlap with that of a clear and unequivocal representation. The purpose of both
safeguards is to prevent casual concessions modifying legal obligations. Due to the infinite
number of factual scenarios and the varying merits of cases, however, it is difficult to
establish where the line is to be drawn between such casual concessions and qualifying
forbearances.
(4) The promisor must have intended the promise to be acted upon or have known that it
was acted upon
8.30 Mere reliance on a promise is insufficient to raise an equitable forbearance, even where it
leads to detriment. To establish the requisite unconscionable conduct or inequity there must
be a connection between the promisor and the reliance. The fact that the promise was made
does not suffice.125
8.31 This may be established in a number of slightly differing ways. The most obvious means is to
show that the promisor intended that the promise should be acted upon by the promisee.126 It
is also sufficient if the promisor knew that the promise would be acted upon127 or was in fact
being acted upon.128 Presumably, however, in the latter case, if the promisor rapidly
intervenes and warns the promisee not to rely on the promise, the doctrine will not apply.
It may be sufficient to show that the promisor ought reasonably to have known that its promise
was being acted upon. Certainly, in Morrow v Carty,129 McVeigh J, although he expressed
some doubt about the proposition, held that it might be. In that case, a contract for the sale of
property provided that the deposit was to be paid immediately. On executing the contract, the
purchaser asked for time to return home to fetch the money. The vendor granted him an hour’s
grace. The purchaser thereupon sold his father’s farm, allegedly in reliance on the belief that
he had the hour’s grace. It was found as fact that he had failed to tender the money within the
hour. Even had he performed more timeously, no equity could be raised against the vendor,
since the acts in reliance were not ones which ‘could reasonably have been contemplated as
being done by [the purchaser] on foot of the promise… no vendor applying reasonable
foresight would think a purchaser who asked for time to go home to get the deposit and who
was to be back in a limited period such as an hour, was contemplating a sale of a property in
order to obtain the deposit’.130
(5) The promisor’s knowledge
8.32 As is set out in the preceding paragraphs, it is essential that the promisor knew that the
promise was being acted upon or intended that it should be so acted upon.131 It is unnecessary
to show that the promisor was aware of its own legal rights or of the facts giving rise to them.
This is necessarily a fine distinction and one which has inevitably led to confusion between
waiver and equitable forbearance. The distinction has also generated some discussion as to
the relevance or otherwise of a party’s ignorance of its rights.
The relationship with waiver
8.33 In Bremer Handelsgesellechaft mbH v Vanden Avenne-Izegem,132 Lord Salmon held that, in
assessing whether a contracting party had ‘waived’ its right to complain of a breach, it was
immaterial that, at the relevant time, it had no knowledge of the breach in question. This
caused some controversy, given that such knowledge has long been accepted as essential for
the operation of the waiver doctrine.133 Further, in Bremer Handelsgesellschaft GmbH v C
Macprang Jr (No 1),134 the Court of Appeal were divided as to what the House of Lords had
meant in the earlier Bremer case.135 Lord Denning MR held that:
If a buyer, who is entitled to reject goods or documents on the ground of a defect in
the notices or the timing of them, so conducts himself as to lead the seller
 reasonably to believe that he is not going to rely on any such defect—whether he
knows it or not—then he cannot afterwards set up the defect as a ground for
rejecting the goods or documents when it would be unfair or unjust to allow him to
do so.136
Shaw LJ expressed himself to be ‘in complete agreement’137 with the views expressed by Lord
Denning MR, stating:
I see no reason… to limit the effect of waiver to rights known to exist. It may be
embracing enough, and so intended as to forego rights which might exist in regard
to a particular contract or in a particular context138 [his lordship’s emphasis].
By way of contrast, Stephenson LJ averred that:
I do not understand Lord Salmon’s reference to waiving any defect in the notice…
‘whether they were aware of it or not’ as laying down any general principle that
there can be a waiver or equitable estoppel on the part of someone who does not
know that his rights have been infringed or has not at the least such obvious means
of knowing that his rights have been infringed that the other party can reasonably
assume that the party waiving or estopped is acting with knowledge of their
infringement. Lord Salmon was I think referring to a patent defect which could
only be missed by not reading the notice or not knowing the law.139
8.34 This confusion is a paradigm example of the difficulties that arise in this area. If one takes the
majority and Lord Salmon in fact to be referring to equitable forbearance rather than waiver,
then that view must be correct.140 It is supported by Lord Goff’s reasoning in The
Kanchenjunga.141 There, in contrasting the principle of election and the doctrine here
discussed, Lord Goff asserted that for the latter ‘[n]o question of any particular knowledge on
the part of representor arises’. In contrast he asserted that an election requires ‘an informed
choice made with knowledge of the facts giving rise to the right’. As is contended throughout,
the requirement of knowledge forms the only coherent basis for distinguishing waiver from
equitable forbearance. The requirement is also consistent with the former’s focus on the
promisor and the latter’s emphasis on the promisee. In equitable forbearance, the presence of
inequity or detriment, triggered by change of position, provides the justification for judicial
intervention, despite the absence of knowledge. Similarly, if one does not take the majority
and Lord Salmon as setting down principles of equitable forbearance, significant taxonomic
difficulties arise.142
Equitable forbearance and ignorance
8.35 Express promises A party may expressly promise to forbear from enforcing a right which it
does not know that it possesses.143 Thus, in Bank Negara Indonesia v Philip Hoalim,144 a
landlord promised its tenant that he could reside in the property for as long as he continued
practising as a lawyer. At the time, both parties thought that the tenant had statutory
protection and the landlord was therefore ignorant of its legal right to evict the tenant. The
Privy Council held, however, that the landlord’s promise not to enforce that right was
sufficient to give rise to an equitable forbearance.
8.36 Inferred promises The corollary of knowledge not being required is that the subject of
scrutiny is the promisor’s conduct. As such, the relevant promise may be inferred from
conduct. As a matter of basic analysis, conduct may be construed narrowly or broadly. There
may be a promise to abandon a specific right that is inconsistent with the conduct. The
alternative is to abandon any rights which the alleged promisor may have inconsistent with
the course of conduct, whether the alleged promisor is aware of those rights or not.145
8.37 In both cases, knowledge is logically irrelevant. On the broad approach, all rights are
forgone.146 On the narrow approach, however, certain difficulties arise. It is difficult to infer
from conduct a clear promise to forgo a specific right unless, as Lord Justice Stephenson
pointed out in Bremer Handelsgesellschaft mbH v C Macprang JR,147 the alleged promisee
reasonably assumed that the alleged promisor knew of the right.148 It will be difficult, though
not impossible, to establish the required clear and unequivocal promise in such cases unless
the defect was of the patent type of defect to which his Lordship refers.
8.38 Silence and inactivity The exception to the above (that knowledge is strictly speaking
irrelevant) is where the promise or representation is to be inferred from silence or purely
passive conduct (without more). In such cases, the alleged promisor must have knowledge of
its legal rights. Without such knowledge, there is nothing to prompt the alleged promisor to
intervene to correct the misapprehension of the alleged promisee.149
(6) Reliance
8.39 It is essential to show that the promisee acted in reliance on the promise.150 At root, reliance
takes the form of a change of position. That change of position must, at the least, amount to
the promisee acting in a different way to that which it would have done had the promise never
been made.151 It is therefore not necessary to show that the promisee has performed a
positive act; proof that it refrained from acting in a particular way as a result of the promise
received is sufficient.152 Further, given the inherent flexibility within the concept of change
of position, the change of position need not fall into any pre-existing category provided that
the requirement of detriment or inequity is met.153 Subject to certain specific restrictions,154
any act will suffice if it is a change of position which is such giving rise to inequity or
detriment if the promise is not fulfilled.
8.40 Reliance further requires a causative link between that knowledge and the relevant conduct. It
is necessary to establish, as a matter of fact,155 that the promise encouraged156 the promisee
to act in the way it did. As with all issues of causation in the common law, this requirement
is, however, at best, imprecise. Thus, a causative link may exist where a belief already held is
strengthened or the promisee is lulled into a false sense of security.157 Yet, the fact that the
promise was a material factor in the decision to act is insufficient.158 What is clear is that
here, as elsewhere in causation theory, the promise need not be the sole cause of the change of
position. It is sufficient if it ‘tipped the balance’ and influenced the promisee to act in the
way it did.159
Burden of proof
8.41 There are inherent difficulties in any consideration of the burden of proof required. In any
change of position case, the Court has to decide a hypothetical issue; namely, what would
have happened if there had been no promise. The Court is therefore engaged in an exercise to
which it is inherently antipathetic. One solution has been to suggest that the normal burden of
proof should be reversed. Instead of requiring the promisee to prove the causative link, the
promisor is required to show that the promisee’s actions were not caused or influenced by the
promise in issue. Thus, in Brikom Investments Ltd v Carr,160 Lord Denning asserted that:
It is no answer for the maker to say, ‘you would have gone ahead with the
transaction anyway’. That must be mere speculation. No one can be sure what he
would or would not have done in a hypothetical state of affairs which never took
place… Once it is shown that the representation was calculated to influence the
reasonable man the presumption is that he was so influenced.161
Another route has been not to require strict proof of reliance.162 Thus, if there was a clear
 indication that the promise was intended to induce the change of position which occurred, it
may well be that the burden would be reversed in the way that Lord Denning suggests.
8.42 These approaches have much to recommend them but have not yet been adopted by the Courts
in this area.163 In Peter Cremer v Granaria BV,164 Mr Justice Goff declined to comment on
the point given a finding of fact that no reliance had occurred. There are numerous cases
where there has been no such presumption and the burden seems to have been placed squarely
on the promisee. The promisee then failed to discharge that burden.165 Indeed it has been
emphasised that promisees are well advised to call witness evidence to substantiate alleged
reliance.166
Discharging the burden
8.43 Save for one type of case, standard principles on discharging evidential burdens will apply.
That type of case is where the allegation of equitable forbearance rests on an implied promise
not to prosecute a disputed claim. In such cases, the promisee will generally believe that it
has a good defence to the claim; this will almost certainly be averred in correspondence
and/or legal proceedings. In the light of such an averral, it is difficult, to say the least, to
establish reliance on any promise. In all likelihood the promisee’s actions would have been
caused by its belief that the promisor had no valid claim.167 This category of cases includes
those where one of the parties promises not to enforce its right to object to past instances of
defective contractual performance.168 Where it is sought to derive such a promise from delay
in prosecuting a claim, it may well be that the actions of the promisee were performed
because of a hope or belief that the action would ‘simply disappear’, rather than in reliance on
any promise.169 Thus in these cases although the promisee continues to bear the burden of
establishing reliance, it will be hard for the promisee to discharge it.
(7) Detriment and inequity
8.44 The doctrine operates to prevent the peremptory withdrawal of promises where that would be
‘inequitable having regard to the dealings which have thus taken place between the
parties’.170 This requirement of inequity or unfairness has been expressed from the earliest
examples171 and since reiterated172 to be central. Precisely what circumstances give rise to
the ‘inequity’, however, are controversial.
Is it necessary to show detriment?
8.45 In Tool Metal Manufacturing Co v Tungsten Electric Co,173 Lord Simonds emphasised that the
promisee must have altered its position. That is consistent with a number of authorities which
state the promisee must establish that it has suffered detriment174 or prejudice.175 Lord
Denning MR disputed this in WJ Alan & Co Ltd v El Nasr Export and Import Co.176 In Lord
Denning’s view, far from being prejudiced in that case, the promisee had received a benefit as
a result of the representation. All that was necessary, therefore, was that the promise should
have been acted upon. Lord Salmon expressly left this point open in Bremer
Handelsgesellschaft mbH v Vanden Avenne-Izegem.177 In other cases, inequity has been
stressed as the key feature of the equitable forbearance doctrine. In The Kanchenjunga,178
Lord Goff held that the doctrine requires ‘such reliance by the representee as it will render it
inequitable for the representor to go back on his representation’.179
8.46 As with many of the subjects under consideration in this work, it seems that the confusion in
this area is semantic not substantial. The divergence of view is explicable largely on the basis
of differing conceptions of what is meant by detriment. For present purposes,180 three points
arise. First, the conduct performed in reliance does not itself have to be onerous, unpleasant
or damaging. Nor need it involve spending money or incurring new liabilities (although this
 type of conduct often typifies detrimental reliance). Second, whilst it is true that while the
promise is adhered to, the promisee enjoys a benefit, it is not the acts in themselves which
must be inherently detrimental, for it is not at that point that detriment is assessed.181 The
time of assessment is when the promise is withdrawn. Therefore, it is essential to show that
the promisee will suffer some prejudice or detriment as and when the promise is purportedly
withdrawn. Third, in a trite sense, it may be said that the promisee would always suffer harm
as a result of being deprived of the promised advantage. This type of detriment is, however,
insufficient. It is necessary that the promisee’s change of position will leave it in a worse
position than it would have been in, had the promise never been made.182
8.47 The point is demonstrated by the supposed locus classicus of the doctrine—Hughes v
Metropolitan Railway Company.183 There, the landlord’s conduct led the tenant to believe
that a notice to repair would not be enforced. The tenant therefore did not carry out the
requisite remedial works. Whilst the promise was adhered to the tenant did indeed enjoy a
benefit, namely not having to perform the repairs. It was not at this point, however, that
detriment was assessed. The relevant point at which to analyse the position of the promisee is
only after the promise has been withdrawn. Thus, the tenant in Hughes would have suffered
detriment, had the landlord been permitted to withdraw his implied undertaking with
impunity: the tenant would have been liable for breach of covenant and open to proceedings
to forfeit the lease.
8.48 Once this definition of detriment is adopted, the boundaries between detriment and inequity
tend to collapse. This appeared to be the view of Mr Justice Hoffmann (as he then was) when
he equated the two concepts in Banner Industrial and Chemical Properties Ltd v Clark
Patterson Ltd.184 A contrary view could be derived from Mr Justice Robert Goff’s decision in
Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser.185 Once,
however, it is borne in mind that the Court in The Post Chaser was considering the detriment
suffered before withdrawal of the promise and not afterwards, there is no inconsistency.
Further support for that conclusion can be drawn from the fact that Mr Justice Robert Goff
clearly considered prejudice or detriment in the sense set out above to be highly material. He
rejected the claim that the conduct in issue had been inequitable on the following basis:
In particular… I cannot see, in the absence of any evidence, that the seller’s
position had been prejudiced by reason of their action in reliance on the
representation. In these circumstances a necessary element for the application of
the doctrine of equitable estoppel is lacking.
8.49 Thus, the true divergence of opinion is between Lord Denning’s view that the mere fact of
acting on the promise is sufficient to bring the doctrine into play186 and those that require
additional prejudice or inequity for its operation. Although the latter view is analytically
correct, the position is uncertain.187 On the one hand, the language used in the inequity cases
is wide enough to include a concept capable of operation without demonstrable detriment. On
the other hand, unless the promisee suffers some prejudice as a result of the withdrawal of the
promise, it is hard to see why it should be unfair to withdraw the promise. Unless prejudice is
essential, it is difficult to ascertain why change of position is necessary at all, let alone
understand the emphasis given to it by Lord Simonds in Tool Metal Manufacturing Co v
Tungsten Electric Co188 or Lord Hodson’s analysis in Ajayi v RT Briscoe (Nigeria) Ltd.189
There, Lord Hodson stressed that both the existence and the duration of the equity depended
on whether the promisee could be restored to its original position. Given the law does not act
in vain, there must be some reason for restoring the promisee to its original position. The
 most obvious reason is detriment flowing from a change of position. That requirement has the
additional function of providing a solid foundation to the doctrine rather than reliance on
nebulous and inchoate concepts.190
8.50 There is one final theoretical point. A distinction may be analytically drawn between inequity
and detriment with the former going to overall position of the parties and the latter to the
impact on the promisee. The case law has not explicitly descended to this level of rigour.191
If, however, the distinction were to be maintained, the requirement of inequity should be
satisfied in addition to the latter threshold test. Put simply, on this approach it may be that the
existence of detriment is a necessary but by itself insufficient element of the doctrine.
Examples of detriment
8.51 Contracting parties may generally protect themselves from becoming bound by equitable
forbearance by rapid withdrawal of the promise made.192 This is likely to be effective as
there will be insufficient time for the promisee to alter its position to give rise to
detriment.193 Assuming that rapid withdrawal does not take place, the following categories of
change of position typically lead to detriment.194
The promisee fails to safeguard its legal position
8.52 Bilateral relations Hughes v Metropolitan Railway Company195 is the paradigm. The
landlord’s conduct led the tenant to refrain from carrying out repairs that it was contractually
obliged to perform. Had the landlord been permitted to withdraw his implied undertaking
with impunity, the tenant would have suffered the detriment of being exposed to proceedings
for breach of covenant and forfeiture.
8.53 Multilateral relations The legal obligations against which the promisee fails to protect itself
need not be bilateral as between promisee and promisor. The obligations can be owed to a
third party. Thus, for example, where a buyer in a string or circle196 breaches the contract by
tendering incorrect documents, the seller may represent that it will not exercise its
consequential right to terminate the contract. In reliance on this representation the buyer fails
to go into the market to purchase suitable substitute goods to sell on in the string/circle. If the
promise is then peremptorily withdrawn, the buyer may be sued by subsequent purchasers in
the string. Alternatively, the buyer may have been planning to use the goods in fulfilling other
types of contracts such as manufacturing or construction and may be sued for late completion
under those agreements.197 In either case, detriment occurs. Further examples include:
reaching a composition with creditors on the basis that the debt owed to the promisor had
been forgone198 and granting planning permission in circumstances where it was
inappropriate.199
8.54 The promisee forgoes something of value This typically involves the expenditure of money
or marketable labour. The prejudice is obvious: the loss of valuable assets. This head of
detriment is not without its complications, particularly in assessing whether the expenditure
or labour has been truly sacrificed or whether the promisee obtained or retains some benefits,
despite withdrawal of the promise. These issues and this type of detriment are discussed
extensively in relation to proprietary estoppel.200 Examples include continuing to trade and
incurring liabilities instead of going into liquidation;201 working on the promotion of various
patents and arranging overseas contracts in relation thereto;202 allowing the promisor to
occupy part of a building owned by the promisee;203 giving up a statutory protected
tenancy;204 paying a statutorily controlled rent assessed on the basis that the landlord was
liable for repairs rather then the tenant;205 and incurring liability for demurrage.206 Incurring
expenditure in legal proceedings will not suffice if the expenditure can be dealt with under
 the normal costs principles.207
8.55 Performance of contractual duties208 Of particular relevance in the context of equitable
forbearance is the promise not to terminate the contract for repudiatory breach. Such a
termination would relieve both parties from any further obligation to perform. In such cases,
detriment will commonly arise as a result of the promisee’s expending money and effort in
continuing to perform the contract in reliance on the promise209 that it will remain on foot.
8.56 Continued performance of a loss-making contract The position is different where the right
in issue is not termination for breach but the right to insist on strict compliance with
contractual obligations.210 Here the promisee’s performance of the reduced obligation cannot
normally lead to detriment. The promisee was required by the contract to perform at least that
obligation in any event. Therefore there is no change of position. The only argument open to
the promisee in these circumstances is to suggest that, in reliance on the promise, it refrained
from abandoning the contract and paying damages. The promisee therefore continued to
perform a loss-making contract. This might be a very real detriment where the promisee has
made a particularly bad bargain—the return for the promisee’s goods and services on the
open market being significantly greater than that yielded under the contract.
8.57 There are two further supports for this position. First, in Williams v Roffey Bros and Nicholls
(Contractors) Ltd,211 the benefit accruing from the continued performance of contractual
obligations formed at least some part of the Court’s findings on consideration.212 In that case,
the defendant had employed the claimant to carry out various building works. The latter
began to experience problems in carrying out the works, partly because it had underestimated
their cost in tendering for the contract. In consequence, the defendant promised the claimant
an extra payment of £10,300 in addition to the contract price for the performance of the
extant contract works. The Court of Appeal held that the promise was given for good
consideration because the defendant obtained actual benefit from the arrangement. Although
there was no suggestion of detriment other than of the type under discussion, their Lordships
expressed regret213 that no full argument based on promissory estoppel (equitable
forbearance) had been put to them.214 Further, if continued performance of an obligation is a
benefit to one party, logically it is capable of being a detriment to another party.
8.58 Second, there are circumstances in which performance of the reduced obligation almost
certainly can amount to detriment. The most obvious is where the buyer and seller enter into a
contract for specific, non-fungible goods. The seller tenders non-contractual performance by
offering non-conforming goods. The buyer at first promises to accept those goods but then
rejects them. If the seller can establish that it would have: (i) sold the goods if they had been
rejected immediately; (ii) obtained other goods that complied with the contract; and (iii) in
the period between the promise to accept and subsequent rejection, the open market value of
the goods fell, it can establish detriment.215
8.59 That said, it will be relatively difficult to establish detriment where the promisee simply
refrains from breaching its contract. Most Courts will refrain from holding that a party has
suffered detriment by continuing with its bargain.216 This is consistent with the Courts’ view
that a party that has made a bad bargain will nevertheless be held to that bargain. Further, it
will be a relatively rare circumstance in which the requisite facts are made out.
8.60 The promisee alters its budget and expenditure An obvious objection to the detriment
requirement stems from the application of the doctrine to promises to forgo the full, agreed
contractual price. Under the other categories outlined above, whilst the promise is adhered to,
it is clear that no detriment is incurred. When the promise is withdrawn, prejudice is suffered
 if the contract terms provide for penalties or forfeiture for late payment. In the absence of
such terms it is superficially hard to discern what detriment the promisee suffers; all that has
happened is that its original obligation under the contract has been revived. It would follow
that the promisee would be unable to invoke detrimental reliance.217
8.61 This apparent absence of detriment is more apparent than real, particularly so when the
correlation between detriment and change of position is borne in mind. Thus, detriment will
be suffered if the promisee has spent its money in a way it would not otherwise have done but
for the reduced liability under the contract. If, for example, it has spent its perceived windfall
in a one-off dividend to its shareholders, which it would not otherwise have made, withdrawal
of the promise would leave it open to an onerous and unexpected liability. That may be
sufficient to effect a permanent bar to resumption of the original contractual position.
Similarly, and a more likely possibility, the promisee may have rearranged its general dayto-
day budget by, for example, committing itself to larger loan repayments or purchase
contracts. Here, peremptory withdrawal of the concession may cause prejudice in the short
term only: income has been committed elsewhere and as a consequence there is insufficient
cash flow to meet the demand. The previous contractual position may be reverted to, on
giving the promisee reasonable time to make the necessary rearrangements to its budget. Put
simply, it must be given time to revert to the position that it was in prior to the making of the
promise in issue.218 This seems to be the explanation for the application of the equitable
forbearance doctrine in the High Trees case.219 There, the landlord promised to accept a
reduced rent for the demised premises for the duration of the war. The landlord was precluded
from resiling from that promise without giving the tenant reasonable notice that it would do
so.220 It has been suggested that, given the realities of ordinary commercial practice, there
will seldom be a case where a promise to accept partial payment will not lead to detriment in
this latter sense,221 but such arguments have by no means always met with a favourable
reception.222
Other relevant factors in establishing inequitable conduct
8.62 As set out above,223 the Courts have not explicitly stated (at least in relation to equitable
forbearance)224 that inequity is required in addition to detriment. It is clear, however, that, in
establishing whether it would be inequitable to permit the promise to be peremptorily
withdrawn, the Courts are prepared to take into account a number of factors other than purely
the detriment suffered by the promisee. Although the position is uncertain, it is submitted that
at best the consideration of these factors amounting to inequitable conduct provides a
superadded hurdle which must be satisfied in addition to the threshold detriment test. On this
analysis, detriment simpliciter is a necessary but not sufficient requirement for the doctrine to
operate. Thus, the Courts may take into account all the circumstances in assessing whether to
allow the promise in issue to be withdrawn.225
8.63 On this basis, the following factors have been considered relevant: that the promisee’s change
of position conferred a benefit on the promisor;226 that the parties are sophisticated
commercial entities;227 that one of the parties owed obligations to the public at large;228 and
that the promise at issue was extracted under duress.229 The Courts have also examined the
general conduct of the parties. Therefore, it will not be inequitable to withdraw a promise if
the promisee has failed to comply with its reduced obligations arising under the contract or
other legal relationship.230 Similarly in Ogilvy v Hope Davies,231 where the vendor of land
had promised that it would not enforce its strict right to timeous completion, the fact that the
vendor, itself, had been partially to blame for the purchaser’s late completion (it had failed to
 supply relevant documents in good time) was taken into account. Finally, in Williams v
Stern,232 the claimant was entitled to seize the defendant’s goods as a means of payment on a
bill of sale. The claimant promised not to enforce his entitlement. When the claimant sought
to resile from that promise, the Court took into account the fact that his decision was
prompted by a landlord’s threat to distrain against the same goods for arrears of rent.
8.64 This taking into account of numerous other factors under the rubric of inequity is obviously
merits based. Save for where other parties may be affected,233 it is difficult to see, however,
the analytical justification for it, once detriment—as analysed above—has been established.
Further, if the function of these doctrines is to restrain abusive behaviour, there is no reason
why they should be any more analytically uncertain than, for example, economic duress. If
the economic duress formula of (i) compulsion on/absence of choice vested in the victim; (ii)
the compulsion/absence of choice being illegitimate; and (iii) the compulsion/absence of
choice is a significant cause of the entry into the contract234 offers sufficient protection to the
victim without resort to nebulous other factors, there is no reason why there should be such
resort in the case of equitable forbearance.
(8) Relief
Suspensory or permanent effect of the doctrines
8.65 It has frequently been stated that equitable forbearance generally operates only to suspend
temporarily,235 rather than wholly to extinguish rights. This is, however, incorrect as an
absolute rule. There are occasions when the relief granted is permanent. The proper rule is
that the maximum extent of relief available is constrained by the terms of the forbearance
made. If the forbearance itself was expressly or impliedly temporary, the resumption of the
original contractual position will always be possible. In, for example, Central London
Property Trust Ltd v High Trees House Ltd,236 the tenant of High Trees House was having
difficulty meeting the rent due under the lease because most of the flats in the building were
empty as a result of the war. The landlord promised that, for so long as wartime conditions
lasted, it was prepared to accept a reduced rent for the property. There was no doubt that the
landlord was justified in demanding the full rent once those conditions had ceased. In cases
where the forbearance is not so limited, two different methods of selecting between
permanent and temporary relief have been suggested in the cases.
8.66 The terms of the forbearance One view is that whether the promise is revocable will depend
on its terms. Thus, the promise to forbear is in terms enforced.237 If, however, the cases in
which this view is advanced are analysed, two subsidiary categories can be derived. First,
there is the category in which the promises were either expressly or impliedly limited in time
or where no provision was made for the duration of the forbearance.238 In such cases, the
automatic enforcement was by way of non-controversial suspensory effect. There is a second,
and more difficult, category. Here, the promise has permanent effect. It is, however, difficult
to see why this was the case—the promisee could have been restored to its original position
(and detriment thereby averted) by means other than the extinction of rights.239 In both
categories, equitable forbearance permits the strict enforcement of the promise without
consideration. As such, the elements of equitable forbearance become substitutes for
consideration. This is particularly so where the forbearance concerns a debt. In those cases,
the above approach conflicts with the principle of Foakes v Beer240 that part payment can
never provide good discharge for the whole sum. The latter category represents an even
starker case in which the conflict with the established requirement of consideration is
permitted where reversing detriment does not so require.
8.67 Restoration of the promisee to its original position: prevention of detriment The second
view was set out in Ajayi v RT Briscoe (Nigeria) Ltd.241 There, the relief granted depended on
the way in which the promisee has changed its position in reliance on the promise:
… when one party to a contract in the absence of fresh consideration agrees not to
enforce his rights an equity will be raised in favour of the other party. This equity
is, however, subject to the qualifications that (1) the other party has altered his
position (2) that the promisor can resile from his promise on giving reasonable
notice which need not be formal notice, giving the promisee reasonable
opportunity of resuming his position (3) the promise only becomes final and
irrevocable if the promisee cannot resume his position.242
Therefore, if it is possible for the promisee to resume its previous position, the doctrine will
suspend the promisor’s rights rather than wholly preclude their enforcement; the suspension
will operate so as to give the promisee a reasonable period in which to resume its previous
position. In Hughes v Metropolitan Railway Company,243 there was no question of the tenant
being released from its obligation to perform the repairs; the effect of the doctrine was merely
to give it a reasonable time to complete them; thus the tenant was returned to the position that
it was in prior to the making of the promise. The third limb of the Ajayi test may be illustrated
by ‘The Chemical Venture’,244 where the shipowners promised not to enforce their right to
object to the charterers docking in an unsafe port. The charterers took the ship into the relevant
port where it was damaged as a result of the Iran/Iraq war; the owners permanently lost their
right to damages because it was impossible to restore the charterers to their previous position
and their detriment could not be reversed.
8.68 The relief available, however, is not confined solely to the choice between suspension or
extinction of rights. Thus, in Brikom Investments v Seaford,245 the rent for a statutory
protected tenancy was assessed on the basis that the landlord was responsible for repairs. In
fact, the lease placed the obligation on the tenant. However, the landlord accepted the rent as
assessed (which was greater than that which would have been due had it been appraised on the
correct basis). The landlord was permitted to enforce the repairing covenant, on giving notice,
but only after reverting to a proper rent and refunding the past overpayments. Hence
withdrawal of the implied promise was permitted on terms that ensured that the parties were
restored to their previous position and that the tenant suffered no prejudice as a result.
8.69 Which view is correct? Arguably, Ajayi’s emphasis on restoration of the original position is
designed to ensure that the promisee suffers no detriment or injustice as a result of its change
of position.246 In Hughes, this result was secured by suspension of rights, in Chemical
Venture by permanent confiscation and in Brikom v Seaford by allowing enforcement on
terms. There is no need or justification for going beyond this measure of relief. In some
cases, the only or only practical way in which to effect this result is by enforcing the
promise247 but this is by no means always the case, as is illustrated above. This approach has
two advantages. First, it links the remedy with the factors which trigger the operation of the
doctrine; namely, the change of position of the promisee and the potential detriment.248
Second, it minimises, although it does not wholly eliminate, the conflict with the law of
contract, discussed above.
8.70Deploying a detriment-based analysis is consistent with the guiding principle in proprietary
estoppel. Thus, Crabb v Arun District Council249 emphasised the ‘minimum equity’ required
to do justice. A very similar approach to equitable forbearance was taken in Roebuck v
Mongovin,250 where the flexibility of the Court’s remedial discretion was emphasised. It was
 alleged that the defendant was prevented from applying to strike out the claim for want of
prosecution, on the grounds that it had represented that it did not intend so to do. As a
consequence, the claimant had incurred some additional legal costs in connection with the
claim. Lord Browne-Wilkinson, referring to the doctrine in issue as equitable estoppel, held
as follows:251
Assuming, for present purposes, that the defendant’s conduct does raise such an
equitable estoppel (which I think doubtful), such equitable estoppel would not
impose an automatic legal bar to obtaining a striking-out order. The effect of such
an estoppel is to give the court power to do what is equitable in all the
circumstances. In Crabb v Arun District Council [1976] Ch 179 the Court of
Appeal emphasised that the nature of the relief to be given when an equitable
estoppel is raised is extremely flexible. If an equitable estoppel is raised the
Court’s function is to determine what, if anything, is necessary to satisfy that
equity in all the circumstances of the case. That is a far cry from saying that, where
a defendant has led the claimant to incur some additional expense, he is therefore
in all circumstances prevented from relying on inexcusable delay by the [claimant]
which has seriously prejudiced him. If on the assumption made, the defendant is
equitably estopped, then the effect of that estoppel would be to give the court a
discretion whether or not to strike out the action (possibly upon terms) depending
upon the balance between the harm done to the defendant by the claimant’s delay
and the expense or other detriment incurred by the claimant by reason of the
defendant’s representation.
Payment by instalments
8.71 The possible suspension/eradication of rights dichotomy would be particularly acute where the
forbearance of the right to receive periodic payments is concerned. In Tool Metal
Manufacturing Co v Tungsten Electric Co,252 Tool Metal was the holder of various patents
licensed to the manufacturer, TECO. The contract provided for various fees including a
monthly compensation payment. Tool Metal promised to forgo their right to this latter fee,
pending negotiations for a new contract. Equitable forbearance suspended that right and Tool
Metal successfully claimed the compensation payments which had become due after the
expiry of the period of reasonable notice. They made no claim to those fees which had
accrued during the period of suspension. The question to which no clear answer was given
was whether, after giving reasonable notice, Tool Metal could have claimed those back
payments. There is obiter dictum by Lord Denning MR asserting that they could not have
done so.253
8.72 There seems little doubt that if the doctrine only suspends the right to full payment, then the
arrears can be claimed as soon as reasonable notice has been given. To deny the claim would
be to entail the permanent confiscation of the contractual right to receive full payment during
the period of suspension. The position is even clearer where the forbearance concerns the
level of instalment payments, rather than254 a recurring right to receive one-off payments. If
the obligation to pay a lump sum is suspended, it is clear that it can be claimed in its entirety
on giving notice. By contrast, if Lord Denning’s view is correct, the debtor who is paying
reduced sums will be excused forever from meeting at least part of the debt and will therefore
be treated more favourably. As Treitel255 points out, there is no clear reason why such a
debtor should receive favourable treatment. It follows that, to establish a permanent defence
to the claim for arrears, the promisee will have to demonstrate the irreversible or significant
 change of position necessary to give the equitable doctrine permanent effect.
8.73 The solution is a focus on remedial flexibility.256 The Court is then not confined to the simple
choice between the suspension of rights and their permanent extinction. The remedy so
granted will be the minimum necessary to ensure that the promisee suffers no detriment as a
result of withdrawal of the promise. Whether back payments are recoverable will depend on
the way in which the promisee changed its position in reliance on the forbearance. In most
cases, the promisee will merely have altered its day-to-day budget to take account of the
reduced liability. In this situation, all that will be necessary to avoid detriment and restore the
promisee to its previous position is time to rearrange its finances to take account of the
increased liability. Hence there is no reason why arrears may not be claimed after reasonable
notice.
Revocation
8.74 Where remediation requires only suspension of the particular right, the promisor will be
allowed to revoke on reasonable notice. What period is ‘reasonable’ is a question of fact for
the judge at first instance257 and, in Tool Metal Manufacturing Co v Tungsten Electric Co,258
the House of Lords warned against introducing technical requirements in this area.
Consequently, there are no specific rules as to the manner or form259 in which notice must be
given and all the circumstances of the case may be taken into account in assessing whether
the notice given is valid and of sufficient duration.260 Further, it may not even be necessary to
give express notice where the concession was originally linked to the continued existence of a
particular state of affairs. Such a concession may terminate spontaneously on the cessation of
that state of affairs.261 In other cases, it is necessary for the promisor to intimate to the
promisee that it no longer intends to be or no longer considers itself to be bound by the
forbearance.262 Sometimes it will be appropriate to specify a date on which the original
contractual position is to be resumed but this is not always necessary; it may be sufficient
merely to refrain from enforcement for a reasonable period after the intimation is given.263
C. Scope of Equitable Forbearance
8.75 The doctrine of equitable forbearance cannot be used to create new obligations.264 Its ambit is
restricted to promises to forgo existing rights and it does not extend to promises to create new
ones. Hence if X gratuitously and without consideration promises to pay Y £100, Y cannot
sue X on the promise even if it has relied on the promise to its detriment. By way of contrast,
where a landlord promises not to enforce the tenant’s repairing obligation under a lease, if the
tenant relies on this promise to its detriment, the doctrine may provide a defence to the
landlord’s action for breach of covenant and forfeiture. If, however, the landlord went further
in its kindness towards the tenant and promised to perform the repairs itself, the tenant will
not be able to insist that they are carried out.265 This proposition was first clearly established
in Combe v Combe.266 The Court there emphasised that to allow equitable forbearance to be
used aggressively to create rights would be to undermine established contract law principles
by enabling promises unsupported by consideration to be enforced.267 The Combe proposition
has been the subject of significant controversy,268 but it still represents the current law and
has been frequently approved.269
8.76 The Combe principle is commonly said to have the effect that equitable forbearance may be
used only as defence270 and not as a cause of action,271 that it can be used only as a shield but
not as a sword. As Ormrod LJ held in Brikom Investments v Seaford,272 however, ‘swords
with a little ingenuity can be beaten into shields or shields into swords’. Thus, it is legitimate
 to apply the doctrine to deprive a party of a defence it would otherwise have had to an
independently existing cause of action based on a pre-existing legal right; for example, if the
promisor undertakes not to rely on a time bar, and the requisite detrimental reliance is
established.273 The forbearance doctrine may not, however, be used to rebut a defence that the
promise in issue was not supported by consideration, for this would breach the Combe
principle.
8.77 Further investigation suggests, however, that the above analysis may be too simplistic. There
are, for example, contrary arguments which can be advanced to support the contention that
equitable forbearance can generate new rights.
8.78 The first of these arises from the significant difficulties in limiting the concept of the
‘preexisting legal right’. The distinction posited above has not always been adhered to.274 In
Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik Sif’),275 the claimants were
the holders of a bill of lading who mistakenly thought that the defendants were parties to the
bill and potentially liable on it when in fact they were not. The claimants obtained various
extensions of time for service of proceedings from the defendants. Mr Justice Webster
rejected the defence that the charterers could not be sued on the bill because they were not a
party to it. The decision was based on a number of grounds, including that of equitable
forbearance. Mr Justice Webster held that the charterers had a legal right to assert that they
were not a party to the bill of lading. It was this legal right that the charterers had impliedly
promised to forgo as a result of their conduct in granting time extensions. Therefore, the
Court could and did contend that there was the loss of a pre-existing right.
8.79 The Court clearly purported to comply with the rule in Combe v Combe by finding a
preexisting right which had been forgone. To argue that X has a legal right to contend that it
is not a party to a contract is, however, not without difficulty. The genesis of legal rights is
the contract to which X is not a party. A fortiori where X is not a party, there are no legal
rights. It follows that the Court was in fact using the concept of the ‘pre-existing legal right’
as a fiction to achieve the result required by the merits; namely the grant of a positive right to
sue the defendants on a promise unsupported by consideration. It would also follow that The
Henrik Sif conflicts with Combe v Combe. The only means by which that conflict could have
been avoided would have been to contend, on the law as it then stood, that the primary basis
for the decision was estoppel by convention and estoppel by silence. Given, however, the
Courts’ recent antipathy to the argument that an estoppel by convention will preclude a party
from arguing that there was no concluded contract between itself and another,276 any
statement as to the role of equitable forbearance was at best obiter277 and, at worst, wrong.
8.80 The second argument draws on those authorities which suggested that estoppel by
representation or convention could create new contractual rights. In those cases, the ‘fact’
which the representor was estopped from asserting is that no binding contract exists between
the parties. Those cases must, however, be treated with care. The classic formulation of
estoppel by convention in this context was Amalgamated Investment & Property Co Ltd (in
liquidation) v Texas Commerce International Bank Ltd.278 There, the guarantor of a loan was
prevented from denying that a particular liability (that of its subsidiary) was caught by the
loan, all parties having acted on the assumption that the loan was covered by the guarantee.
The case is distinct from The Henrik Sif, there being a bargain and nexus of rights between
the parties. The issue was the ambit of that bargain. Thus, Amalgamated Investment &
Property does not in fact assist, it was not a case where the estoppel by convention created a
contract (and thus a cause of action) the existence of which was otherwise in issue. The
 estoppel merely went to the extent of the bargain. Further, there is now Court of Appeal279 as
well as a line of first instance authority which suggests that an estoppel by convention will
not apply to prevent a party from denying the existence of a contract.280 Either of the above
would render the reliance on estoppel by convention principles flawed. Even if that were not
the case, the apparent conferring of rights requires explanation. There are two reasons for it.
First, the estoppel did not give rise to the cause of action. The cause of action flowed from the
Court’s decision as to facts established by the estoppel; that there was a contract of guarantee
which covered the loan in issue.281 The criticism of this approach is that: ‘If it is a question
of fact whether or not one is legally bound to another, then the maxim that equity is only a
shield is meaningless’.282 Second, Texas Bank was a case concerning estoppel by convention
which, it was once argued, could act as a ‘sharp-edged shield’.283 Given the common law
antipathy to an overarching estoppel doctrine,284 the fact that detrimental reliance is common
to both doctrines is not a sufficient basis to contend that equitable forbearance and estoppel
by convention are one and the same doctrine having the same effect. Further, even if, which is
doubtful, estoppel by convention can act as a sharp-edged shield in this particular way285 it
does not mean that equitable forbearance can act in a similar way.
8.81 The third is based on an analogy with proprietary estoppel. It is clear that proprietary estoppel
can be used aggressively and does create new rights. The difference in the spheres of
operation of the two doctrines is that proprietary estoppel concerns promises286 that property
rights will be forgone whereas equitable forbearance concerns contractual rights. It might be
thought to be somewhat arbitrary or formalistic to differentiate between these two types of
promises. There would seem to be little substantive or juridical difference between
contractual and property rights particularly where they co-exist. The difficulty is compounded
by authority in the proprietary estoppel sphere to suggest that the Courts will not permit the
assertion of strict legal rights where this would be unconscionable having regard to
detrimental reliance on the part of the person against whom it is sought to assert them. These
authorities have, on occasion, formed the basis of obiter dicta in other spheres suggesting a
cross-fertilisation and an all-embracing principle.287 Such a principle, if it existed, would
certainly be capable of subsuming equitable forbearance altogether, given the similarity
between the components of the two doctrines. Whilst there may be attractions to the creation
of such an all-embracing doctrine, there is no doubt but that the common law remains
antipathetic to it.288 In light of that approach: (i) it is reasonably clear on the authorities that
the property qualification still constrains the scope of aggressive estoppel doctrine; (ii)
proprietary estoppel and equitable forbearance are separate and distinct doctrines; and (iii) an
analogy with proprietary estoppel cannot assist in assessing the effect of equitable
forbearance.
8.82 The fourth is based on Waltons Stores (Interstate) Ltd v Maher.289 There it was suggested that
it was arbitrary to differentiate between promises to vary existing rights and promises to
create new ones. However, under English law, distinctions are still drawn between the
creation and modification of obligations. Thus, for example, the doctrine of consideration is
still a formidable force in the creation of obligations and rights,290 whereas its impact on the
modification of rights may have been somewhat restricted.291 Similarly, the law recognises a
substantive difference between restricting the obligations or rights of a party and imposing
new and positive obligations on it.292 Equitable forbearance is concerned only with the
modification of obligations, being analogous to waiver where there is insufficient knowledge
for the orthodox form of that doctrine to operate. It is therefore appropriate to limit its effect
 to the restriction of a party’s rights.
D. Effect of Equitable Forbearance on Third Parties
(1) Assignment of the contract
8.83 There is a dearth of English authority on the impact of equitable forbearance on assignment.293
In the case of a simple contract that does not concern land, there seems to be no reason why
assignment should not pass on the rights and obligations, as qualified by the forbearance. In
cases where the doctrine operates, the promisor has, by its conduct, reduced its rights under
the contract and it is difficult to see why their scope should be re-enlarged if the promisor
transfers them to a third party.294 Similarly, the promisee may be able to pass on the benefits
it has obtained as a result of the equitable forbearance doctrine, although it might be sensible
to assign those benefits specifically, in addition to the general rights under the contract.295
(2) Transfer of land
8.84 Where the contract concerns land, the position is more complicated, for sophisticated rules
have emerged to govern which rights and obligations may pass with the transfer of land. It is
most unlikely that the equitable forbearance is capable of vesting a property right in the
promisee capable of binding third parties purchasing the property the subject matter of the
agreement. Any benefit generated by equitable forbearance is insufficient to give rise to an
overriding interest under section 70(1)(g) of the Land Registration Act 1925, even where the
promisee is in actual occupation of the land concerning which the relevant contract was
made.296
8.85 There is authority, however, to the contrary. In Birmingham & District Land Co v London &
North Western Rail Co,297 the claimant was in occupation of land under a building lease. The
terms of the agreement provided that the lease was to terminate on 30 November 1885 if the
works had not been completed. It became apparent that the defendant might be granted a
statutory right to build a railway, which would have a material impact on the building scheme
proposed. As a consequence, the landlord, B, told the claimant not to start the works until it
was clear that the railway scheme was going to go ahead. The claimant accordingly refrained
from commencing the works; B sold part of the land to the defendant, expressly and clearly
subject to the claimant’s rights. The defendant was held to be bound by the forbearance made
by its predecessor in title with the result that the claimant still had a valid and subsisting
lease despite the fact that the time for completion of the works had elapsed. This case may
not be very strong authority on the durability of benefits generated by the equitable doctrine.
Given the emphasis on the clear notice given to the purchaser, it may well be an instance
where the purchaser’s conduct was such as to give rise to a constructive trust; such trusts may
arise where a purchaser takes expressly and positively subject to the rights of a third party;
the obligation arises from the purchaser’s conduct rather than as a result of any inherent
durability of the third party rights.298 Alternatively, the case could be analysed as one of
proprietary estoppel, which appears to be able to generate rights capable of binding third
parties.299
8.86 Similarly, in Brikom Investments Ltd v Carr,300 the occupiers of a building were negotiating
with the owners with a view to entering into long leases of the flats it contained. The
occupiers were concerned about the obligation to contribute to roof repairs contained in the
lease and the owners promised that they would not enforce this provision.301 As a result the
occupiers were induced to enter the leases. Some later assigned their leases. With happy
disregard for several hundred years of learning as to which rights and obligations pass with
the assignment of tenancies, the Court of Appeal held that the equitable doctrine operated to
 protect both the original tenants and the assignees.302 Brikom could, in theory therefore, be
relied on as authority for the proposition that an equitable forbearance can pass with land.
However, since the decision is so at odds with the authorities on the assignment of tenancies,
the case should be treated, at best, as being confined to its own facts.
E. Formality
8.87 Equitable forbearance may affect the legal relationship between the parties without the
execution of formal documentation. The promise or representation that strict legal rights will
not be enforced probably does not need to comply with the formalities required for the main
contract. Thus an equitable forbearance as to the terms of lease of over three years or the sale
freehold property need not be in writing303 whereas a contract to create or transfer such
property rights must be in writing.304 It would appear that the injustice of allowing
inequitable departure from the promise made outweighs the need for formality. The equitable
forbearance doctrine operates outwith the contract and is not constrained by the applicable
formality rules.305
 9
ESTOPPEL BY REPRESENTATION
A. Introduction 9.01
(1) Summary of elements 9.02
(2) A rule of evidence or substantive law: may estoppel
9.04
by representation give rise to a cause of action?
(3) Estoppel by representation and contractual estoppel 9.13
(4) Mutuality 9.16
B. Elements of Estoppel by Representation 9.18
(1) Representation 9.18
(2) Knowledge and intention 9.68
(3) Reliance 9.75
(4) Detriment 9.86
C. Relief 9.108
(1) Can estoppel by representation operate pro tanto? 9.109
D. Defences 9.129
(1) The representation was improperly induced 9.129
(2) Undermining the effect of a statute 9.131
E. Effect of Estoppel by Representation on Third Parties 9.141
(1) Passing title 9.142
(2) Transferring the benefit of the estoppel 9.146
(3) Transferring the burden of the estoppel 9.147
F. Estoppel by Negligence 9.159
(1) Elements 9.160
(2) Points of difficulty 9.161
(3) An alternative explanation of the so-called ‘estoppel
9.162
by negligence’ cases
A. Introduction
9.01 Estoppel by representation is recognised in both law and equity and operates in the same way
in both jurisdictions.1
(1) Summary of elements2
9.02 An estoppel by representation will arise between A and B if the following elements are made
out. First, A makes a false3 representation of fact to B or to a group of which B was a
member. Second, in making the representation, A intended or knew that it was likely to be
acted upon. Third, B, believing the representation, acts to its detriment in reliance on the
representation. Fourth, A subsequently seeks to deny the truth of the representation. Fifth, no
defence to the estoppel can be raised by A.
9.03 There is some debate as to whether there is an additional element that it must be
unconscionable for the representor to resile from the assumption acted upon by the
representee. Much of the debate arises from Commonwealth authority4 where it is clear that
the requirement flows from the concept of an overarching, flexible, estoppel doctrine.5 As is
 apparent throughout this work, English law does not recognise such a doctrine (despite certain
hints to the contrary).6 Further, given the taxonomic complexities that bedevil this area of the
law, it would be impossible to devise an overarching doctrine of estoppel without undertaking
a complete reformulation of the authorities. It follows that references to unconscionability in
the English authorities on estoppel by representation are best understood as describing a
factor inherent within the attempt to resile from a clear representation, upon which it was
reasonably foreseeable that the representee would act, in circumstances where the representee
would suffer detriment by reason of his acts in reliance on the representation.7
(2) A rule of evidence or substantive law: may estoppel by representation give rise to a
cause of action?
9.04 The weight of authority favours the view that estoppel by representation is a rule of evidence
rather than of substantive law.8 The doctrine does not, in itself, amount to a cause of action.9
Once the constituent elements of the estoppel are established, the Court will not allow the
representor to adduce evidence which contradicts the truth of the representation that it has
made. The legal relationship of the parties is then assessed according to the facts as
represented and not according to the true state of affairs. In other words, estoppel by
representation operates only to set up a state of facts. The result of the case will be
determined according to the legal consequences flowing from that state of facts. Hence it is
the facts set up, and not the estoppel, which are the source of the substantive legal obligation.
9.05 The doctrine may have a crucial, albeit indirect, effect on the result of a case. It may be ‘a step
on the way’10 to establishing a cause of action. It will be decisive if the existence of the fact,
which the representor is estopped from denying, determines whether the action will succeed
or fail.11
9.06 In Farrow v Orttewell12 X served a notice to quit on Y, who was an agricultural tenant. Such
tenants who left as a result of a valid notice had a statutory right to apply for compensation.
In fact, the notice was invalid because it was served by X prior to his acquiring legal title to
the premises in issue. X was estopped from denying that the notice was valid. Y, therefore,
had a cause of action against X because the statute applied to the assumed state of affairs set
up by the estoppel, namely the situation where a tenant leaves agricultural land after
receiving a valid notice to quit. Similarly, in TCB Ltd v Gray13 a contract of guarantee was
drawn up. Under a power of attorney granted by the guarantor, consent was given to remove a
clause limiting the liability under the guarantee. The power of attorney had not been properly
executed but the guarantor was estopped from denying that it was valid. The bank could sue
for the full amount of the principal debt rather than the lesser sum due under the unamended
agreement. The cause of action flowed from the assumed state of facts, namely that a contract
had been entered into in the amended rather than the original form.
9.07 In the same way, estoppel by representation may provide a defence to a cause of action which
would otherwise have succeeded. In Ismail v Polish Ocean Lines,14 a cargo owner’s agent
instructed the ship’s master to use capacity that would ordinarily be taken up by wood
partitions to load additional goods. The master was told that the goods were in a new type of
bag that ensured adequate ventilation and that the wood partitions were not required. Under
the charter party, the master was responsible for proper stowage. However, when the goods
arrived damaged, the cargo owner was estopped by his agent’s representation from claiming
that the stowage was defective.
9.08 The question of whether estoppel by representation gives rise to a cause of action has
frequently been debated under the rubric of whether the doctrine may be used as a sword or a
 shield. In SmithKline Beecham Plc v Apotex Europe Ltd,15 Jacob LJ considered that the
doctrine could be used only as a shield:
[A] contends that… An estoppel cannot be used as a key element of a claim (sword
not shield) and particularly it cannot operate to create a legal relationship when
there was none at the outset… I think he was right…
…
It is as well to remember here the fundamental nature of an estoppel. An estopped
party is precluded from asserting that a particular fact or set of facts or state of
affairs is so. Thinking of it in procedural terms, an estoppel inherently must be
raised by way of a riposte. The claimant pleads his case basing himself on alleged
facts x, y, and z. The defendant then raises an estoppel saying: ‘You may not assert
these facts by reason of an estoppel arising from representation, convention or
whatever.’
The pleaded case here does not fit that essential nature, as can be tested by the
procedural model. If [B] applied to the court to enforce the existing undertakings
without asserting the estoppel in their claim, the court would simply dismiss the
application as bad on its face. There would be no need for [A] to assert that which
they are alleged to be estopped from contending, namely that [B] are not to be
treated as parties to the order. Even if [A] did not appear to argue the point, the
claim would fail without the estoppel.
Thus it is essential to [B’s] case that the estoppel be pleaded as part of the claim.
The pleading is not a mere anticipation of a reply to a defence. This shows that
what is relied upon is not an estoppel at all—it is a naked attempt to create a
legally binding agreement when there never was one and never any intention to
create one. That an estoppel cannot do…
9.09 Jacob LJ’s procedural analysis, and the sword/shield terminology itself, may be misleading.
Estoppel by representation may be used both offensively and defensively as set out above.
The critical part of Jacob LJ’s dictum was identified by Ramsey J in Haden Young Ltd v
Laing O’Rourke Midlands Ltd:16 estoppel by representation ‘cannot be used as a key element
of a claim so as to create a legal relationship when there was none at the outset’. Only in this
sense is it true to say that estoppel by representation may not be used as a sword.
Difficulties with the evidential analysis
9.10 Some have classified estoppel by representation as a principle of substantive law17 because it
may have the decisive impact adverted to above.18 Further, in some cases, estoppel by
representation has operated to prevent the representor from denying that a legally binding
obligation has been entered into.19 The distinction between promising to undertake such an
obligation and representing that such an obligation has in fact been entered into seems
illusory. Arguably, it is disingenuous to assert that the representation sets up the facts which
give rise to the cause of action. In such cases it looks very much as if estoppel by
representation is operating substantively to impose legal obligations.20 Despite the attractions
of this argument, on balance, the better view is that estoppel by representation remains tied to
its evidential roots.
9.11 It should be noted, however, that the issue is not merely academic. It has a critical impact on
the relief available in estoppel by representation cases. If the doctrine is purely evidential, the
only possible outcome is that the representor is prevented from denying the truth of what it
has represented.21 There is no intermediate position or alternative remedy. Either the
 representation is deemed to be true or it is not.22 This may be inflexible both in terms of
analysis and remedy. Estoppel by representation now has recognised links with the law of
restitution both in theory and practice.23 There is no doubt that remedial inflexibility is
inappropriate in restitution—any remedy seeking to reverse an individual change of position
being axiomatically flexible. It follows that estoppel would conflict with restitution where
change of position was in play. To avoid that conflict, the inflexible approach would have to
be abandoned. On this logic, restitution-based thinking could lead to a more broadly and
substantively based ‘minimum equity’ concept that in turn leads to a unified doctrine of
estoppel.24
9.12 Given, however, the weight of authority against the existence of a unified doctrine and in
support of estoppel being evidential, to go further and to adopt this logical approach would
be, at present, heterodox. This leaves the immediate difficulty of reconciling the two
doctrines, operating in different ways, on the same facts. Both seek to protect against or
reverse detriment. If detriment is remedied by change of position, there is either no need for
estoppel or nothing on which it would bite; the estoppel is either disabled or made
redundant.25 The key requirement is, however, that the detriments must be the same and the
change of position defence must remedy the detriment completely. If, therefore, the change of
position defence is not open to the defendant, or there is additional non-pecuniary detriment,
the estoppel will still operate in its traditional, evidential form.
(3) Estoppel by representation and contractual estoppel
9.13 It is important to distinguish estoppel by representation from the new doctrine that has been
labelled, or mislabelled,26 ‘contractual estoppel’. In Peekay Intermark Ltd v Australia and
New Zealand Banking Group Ltd,27 the Court of Appeal considered the effect of a term, in a
contract for financial services, which stated that the investor fully understood the nature of
the transaction and its risks. Moore-Bick LJ said, obiter, that:28
There is no reason in principle why parties to a contract should not agree that a
certain state of affairs should form the basis for the transaction, whether it be the
case or not. For example, it may be desirable to settle a disagreement as to an
existing state of affairs in order to establish a clear basis for the contract itself and
its subsequent performance. Where parties express an agreement of that kind in a
contractual document neither can subsequently deny the existence of the facts and
matters upon which they have agreed, at least so far as concerns those aspects of
their relationship to which the agreement was directed. The contract itself gives
rise to an estoppel…
I can see no reason in principle… why a clause of that kind, if properly drafted,
should not give rise to a contractual estoppel… A clause of that kind may
(depending on its terms) also be capable of giving rise to an estoppel by
representation if the necessary elements can be established.
9.14 In Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd,29 Aikens J distinguished the
‘evidential’ doctrine of estoppel by representation from a ‘contractual’ estoppel, stating that
‘having looked at the cases, that the two forms of “estoppel” are different’. The former is a
true estoppel, requiring both reliance on the representation and detriment before the doctrine
will operate. It is difficult to describe the new doctrine as an estoppel: the contract specifies
the mutually agreed factual basis of the transaction entered into by the parties and the law of
contract gives effect to that agreement. To the extent that a party to the contract seeks to
assert contrary facts, this is a breach of contract. As the Court of Appeal pointed out in
 Springwell Navigation Corporation v JP Morgan Chase Bank,30 there are no
unconscionability, reliance or detriment requirements in contractual estoppel; the
representation of fact is enforceable because, and only because, it forms part of the contract
between the parties.
9.15 There remains a question as to whether all representations of fact made in a contract will give
rise to a contractual estoppel. If this is the scope of contractual estoppel then the ‘evidential’
doctrine becomes redundant where a representation is made in a contract and the relevant
terms are not contrary to statute31 or public policy: there is no reason why a qualifying
representation would be construed more restrictively in contract than in estoppel and the
contractual doctrine will operate in circumstances where there has been neither reliance nor
detriment. In Foodco UK LLP v Henry Boot Developments Ltd,32 Lewison J rejected the
submission that ‘an estoppel by contract was permissible where clauses state words to the
effect that there have been no representations. But where the clause was itself a representation
about what a party entering into a contract had (or had not) relied on, only an estoppel by
representation (or evidential estoppel) would do’ holding that both types of representation
could give rise to a contractual estoppel. In Raiffeisen Zentralbank Österreich AG v The Royal
Bank of Scotland Plc,33 Clarke J rejected the argument that ‘a statement as to past facts
known to be untrue cannot be converted into a contractual obligation and is not a contractual
promise’. Following the logic of the cases where contractual estoppel has been considered, it
appears that any representation of fact made in a contract may be given effect by the
operation of the new doctrine.
(4) Mutuality
9.16 It has been asserted that estoppels must be mutual34 but there is very limited scope for the
operation of this principle in relation to estoppel by representation. It is clear that the doctrine
may operate where there has been a unilateral representation by one party: there is no need to
establish the agreement or co-operation of the representee.35
9.17 There are two contexts in which an element of mutuality is required. First, the representation
must have been made to the party seeking to raise the estoppel.36 A third party cannot take
advantage of, or be burdened by, the estoppel.37 Second, the representee is not free to rely
both on the true facts and those as represented to it. It cannot both deny and aver the
representation but must instead elect between the remedies available under the competing
versions of the facts. In Scarf v Jardine,38 the representee entered into a contract with A, who
had for many years acted as agent for B. B was estopped from denying that A was his (B’s)
agent. In fact, A was no longer acting for B but was instead acting as agent for C. The
representee sought to sue both B and C under the contract. It was held that he could sue either
A, on the facts as presupposed by the estoppel, or C, on the true facts. He could not hold both
jointly liable.39
B. Elements of Estoppel by Representation
(1) Representation
9.18 To establish an estoppel by representation it is necessary to show that a representation was
made40 by the party sought to be estopped41 or by its agent, authorised according to the
general rules of agency.42 An expression of opinion is insufficient to give rise to an estoppel
by representation.43 This may amount to a free-standing principle of estoppel, or an example
of the rule that it will seldom be reasonable to rely on the mere opinion of another.44 A
representation made in response to a question by the representee may give rise to an
 estoppel45 unless it can be properly said that the representee, in asking the question, procured
the representation.
9.19 Apart from the requirement that the representation be clear and unequivocal,46 the
representation will be interpreted according to ordinary principles of construction. No special
technical rules apply.47
Representation of fact
9.20 The representation must be one of fact48 which is untrue.49 A representation as to future50
intention does not give rise to an estoppel by representation.51 Hence a promise to do
something in the future does not trigger the operation of the doctrine even where detrimental
reliance has taken place. If such representations are to have legal effect, it must be in
contract,52 waiver,53 proprietary estoppel54 or promissory estoppel/equitable forbearance.
This proposition was first clearly established in the controversial House of Lords decision,
Jordan v Money,55 but has been frequently repeated56 and still forms part of English law.57
This restriction of estoppel by representation has contributed to the development of the other
doctrines referred to, in particular that of equitable forbearance. Jordan v Money has been
heavily criticised and the decision gives rise to a number of difficulties which are discussed
below.
9.21 Representations of future intention: is Jordan v Money still good law? The equitable
forbearance doctrine58 There are significant similarities between estoppel by representation
and equitable forbearance. The following elements are arguably common to both. The
representor’s conduct led to the representee forming a certain belief or fortified a belief it
already held. In reliance on that belief, the representee changed its position. The change of
position will lead the representee to suffer detriment if the truth of the belief is subsequently
denied. The representor now seeks to deny the truth of the belief. The single distinction
between the two is the nature of the representation: estoppel by representation requires a
factual representation; equitable forbearance requires a promise or representation of future
intention. The argument then is that this material distinction either does not exist or is
unnecessary. Under either approach, the proper response is to posit a single unified doctrine.
9.22 There is a number of possible responses to this argument. It could be contended that the
equitable forbearance doctrine is inconsistent with Jordan v Money and is therefore founded
on an illegitimate and incorrect line of authority. Equitable forbearance therefore ceases to
exist. Although not without its difficulties, the equitable forbearance doctrine is now well
established in English law. Simply to delete equitable forbearance as a doctrine is not
possible. An alternative course is to view equitable forbearance as a narrowly circumscribed
derogation from Jordan v Money, a doctrine relating solely to promises to forbear from
exercising existing legal rights and filling a lacuna in the law of waiver. On this construction,
the scope of representations of future intention which will bring the doctrine into play is very
limited and Jordan v Money is not undermined. Additionally, there are distinctions between
the ways in which the two doctrines operate.59 In particular the effects of equitable
forbearance are more limited than those of estoppel by representation. The remedy for the
former doctrine will go no further than is necessary to restore the representee to its previous
position. Thus it may often operate merely to suspend the representor’s right to resile from its
representation.60 Although the issue is controversial, the latter doctrine may require the
representation to be made good. For the last two reasons, it is submitted that the development
of equitable forbearance has left the principle of Jordan v Money intact and that the doctrines
of estoppel by representation and equitable forbearance remain distinct.
9.23 Difficulties in distinguishing representations of fact and representations of intention
Representations of fact capable of giving rise to an estoppel include representations as to the
legal effect of documents61 and contracts.62 In such cases the representor is estopped from
denying that a legally binding obligation has been entered into. The distinction between
promising to undertake an obligation and representing that an obligation has in fact been
entered into seems illusory.63 Hence, it is argued, estoppel by representation is operating on
promises as to future intentions and obligations. Arguably, it is disingenuous to assert that the
representation sets up the facts which give rise to the cause of action. In such cases, it seems
as if the representation itself is being given effect to, giving rise in itself to substantive legal
consequences.
9.24 In Yorkshire Insurance Co v Craine,64 an insurer was estopped from denying the fact that a
valid claim had been made under a contract of insurance.65 In Ismail v Polish Ocean Lines,66
a cargo owner was estopped from denying that its goods had been improperly stowed during
the shipment because its agent had insisted on the method used. This representation would
seem to be capable of analysis either as a representation of fact, namely that the method of
stowage used was the correct one or as a representation of intention, that the cargo owner
would not insist on its right to demand proper stowage. Similarly, a number of cases involve
the representation of fact that notice required by a contract has been validly served.67 There
would seem to be little to distinguish a representation that the notice was in fact validly
served and a promise or representation of intention that the representee would not enforce its
right to compliance with formalities required for notice.68
9.25 Further, while a promise not to enforce a debt cannot give rise to an estoppel by
representation,69 a representation that a debt has been released may do so.70 Doubt has been
expressed as to whether the latter line of authority has survived Jordan v Money.71 However,
in that case, it was emphasised by the majority that Louisa Money had never represented that
she had a ctually released the debt. Had she done so, the result might well have been different.
9.26 Such cases show the difficulty of distinguishing between representations of fact and
representations of future intention.72 Consequently the outcome of cases may depend on the
precise form of the representation rather than its substance. Further, there is considerable
scope for judicial discretion. The fact/intent dichotomy is easily manipulated and may be
used by the Courts to mask policy decisions.73 Despite these difficulties, Jordan v Money still
forms part of English law. It is the means by which estoppel by representation is prevented
from undermining the contractual doctrine of consideration. If estoppel by representation
applied to representations as to future intention, it would thereby render enforceable promises
unsupported by consideration.74
9.27 Representations of present intention A representation of present intention may amount to a
representation of fact. As Bowen LJ memorably put it: ‘The state of a man’s mind is as much
a fact as the state of his digestion.’75 Hence, theoretically, such a representation may trigger
the application of the doctrine. There are, however, two reasons why such a representation is
seldom likely to do so in practice. First, it may be very difficult to prove that the representor
did not in fact hold the relevant intention. The fact that it later acted inconsistently with the
professed intention may frequently be attributable to its having changed its mind rather than
its having misrepresented its original intention. Second, an estoppel precluding the departure
from a previously held intention will not preclude any future change of mind.76 In such a
case, the representee would have to depend on other causes of action (such as fraud or
negligence) in which an estoppel precluding assertion of the falsity of the original
 representation would be a hindrance rather than an aid.77
9.28 Representations of mixed fact and law A representation of mixed fact and law may give rise
to an estoppel by representation.78 To restrict the scope of the doctrine to pure representations
of fact would give rise to significant difficulties for two reasons. First, in number of legal
contexts,79 it has proved notoriously difficult to delineate clearly between issues of fact and
law. Second, such a restriction would severely limit the scope of the doctrine because the
contexts in which it arises frequently give rise to legal questions: the doctrine’s intention and
reliance requirements80 mean that the doctrine may only operate in comparatively formal
situations where significant rights are in issue.
9.29 Representations of law A representation of pure law will not give rise to an estoppel by
representation.81 There are two alternative reasons for this approach. First, both parties are
deemed to be in as good a position as one another to investigate the legal position;82 in such a
situation it is not reasonable for one party to rely on the other.83 Second, a representation of
law is arguably only ever an expression of opinion and, consequently, is incapable of giving
rise to an estoppel.84
9.30 There is conflicting authority as to whether a representation as to the validity of a deed is one
of law85 or fact.86 However, it may be possible to reconcile the cases if it is recognised that
such a representation may be either one of fact or law, depending on the circumstances. For
example, a representation that a deed had been sealed would amount to one of fact87 whereas
a representation that registration under statutory insolvency provisions was not required
would amount to one of law.88
9.31 Admissions of liability An admission of liability may give rise to an estoppel89 if the relevant
issue involves mixed fact and law but not if it comprises a pure question of law.90 It should
be noted, however, that to satisfy the detriment91 requirements in such a context, the
representee must demonstrate that it has incurred expense or suffered damage which cannot
be compensated in a costs order.92
The representation must be clear and unequivocal
9.32 In view of the serious consequences of establishing an estoppel by representation, fairly
stringent clarity requirements are imposed. This is a means of restricting the operation of the
doctrine.93 The same requirement has been expressed in a number of slightly different ways.
Thus it has been stated that the representation must be clear and unequivocal.94 An alternative
formulation is that the representation must be clear and unqualified, precise and
unambiguous.95 There is some uncertainty as to whether the representation will be construed
objectively or not. The traditional rule was stated in Low v Bouverie96 as follows:
The language upon which the estoppel is founded, must be precise and
unambiguous. That does not necessarily mean that the language must be such that
it cannot possibly be open to different constructions, but that it must be such as
will be reasonably understood in a particular sense by the person to whom it is
addressed.97
9.33 This dictum was considered at length by the House of Lords in Woodhouse AC Israel Cocoa
Ltd v Nigerian Produce Marketing Co Ltd.98 Their Lordships held that it was not necessary to
show that the representation was capable of only one possible interpretation.99 It was
sufficient if any interpretation, other than that formed by the representee, was far-fetched and
strained.100 The representation had to be sufficiently clear to justify the representee having no
doubt that the words meant what it took them to mean.101 Their Lordships did not expressly
 disapprove the approach of Bowen LJ. They merely refined the applicable test by making it
clear that it is not sufficient to show that the representee might reasonably have interpreted
the words in the way it did: it is necessary to show that it was very unlikely that any
reasonable person would have interpreted them differently, hence Bowen LJ’s use of the word
‘will’ rather than other more qualified terms such as ‘may’, ‘might’ or ‘could’.
9.34 Commentators102 have attempted to limit the scope of Woodhouse in two ways. First, it has
been distinguished on the grounds that it was a case of equitable forbearance and not estoppel
by representation. This cannot be supported. The comments referred to were clearly directed
at analysis of the authorities on estoppel by representation. Lords Hailsham and Salmon
thereby intimated that the applicable principles were the same for both doctrines. Lord Cross
considered there to be a distinction. For equitable forbearance, he posited a stricter test, more
closely linked to the subjective intention of the representor.103 It is submitted that the two
doctrines do apply the same test, Lord Cross’s subjective approach having failed to gain
acceptance in subsequent equitable forbearance cases.104
9.35 Second, it is suggested that the Woodhouse approach is confined to representations which are
solely express rather than those inferred from conduct or those which are partly express and
partly inferred from conduct. It is possible to read Woodhouse in this way; the case concerned
the interpretation of an express written representation. The authorities which use the
phraseology of Low v Bouverie have tended to involve representations which are at least
partially inferred from conduct.105 Further, it might seem difficult to attain a sufficient
degree of clarity from mere conduct. As set out above, however, it is submitted that there is
little substantive difference between the dictum of Bowen LJ and the approach adopted in
Woodhouse. Consequently, the same test applies to all types of representation, namely that of
Woodhouse.106
9.36 Analogy with equitable forbearance For the reasons set out above,107 it appears that in this
context estoppel by representation is governed by the same principles as equitable
forbearance/promissory estoppel. Hence useful guidance on this issue may be found in
Chapter 8108 where the test is discussed in relation to the latter doctrine.
9.37 Burden of proof In George Whitechurch Ltd v Cavanagh,109 Lord Brampton averred110 that
the evidence supporting an estoppel must be clear and unequivocal. It is probable that this
was merely a restatement of the principle under discussion rather than any modification of
the normal burden of proof. Therefore it suffices to prove on the balance of probabilities that
the alleged representation was in fact made. Once this is done, it is necessary to construe the
terms of the representation to establish whether they are sufficiently clear.
9.38 Equivocal representations It is possible to negative the effect of a clear statement by
immediately contradicting it.111 However, where the representor deliberately expresses its
representation in equivocal terms in order to lull the representee into a false sense of security
whilst endeavouring to preserve its (the representor’s) legal position, an estoppel may arise
despite the lack of clarity.112
The representation must have been made to the party raising the estoppel or to a group of
which it was a member
9.39 The representation must have been made to the representee113 or to a group of which it was a
member.114 It is possible to make a representation to the general public. It is difficult to
discern a general principle which determines the type of conduct that may give rise to such
wide-ranging representations. The issue seems to be at least partly determined by the
intention of the representor. If it intended members of the general public to rely on its
 representation, this will probably be sufficient.115 Further, it may be sufficient if the
representor knew that it was probable that the general public116 would rely on the
representation.117
9.40 Examples of representations to the general public An important example occurs when a
company issues a share certificate in the name of an applicant, X. It thereby represents that X
is the owner of the shares in issue.118 If a member of the public acts to its detriment in
reliance on the share certificate (typically by paying X for the shares), the company will be
estopped from denying X’s title. This principle may be of particular relevance to brokers
asking a company to register a transfer of title, in reliance on a share certificate which states
that X is the owner of shares that actually belong to Y. In a claim against the broker for the
cost of making good Y’s loss,119 the company may be estopped from asserting that the true
owner is someone other than X.120 The representation is probably also made to X.121 This
will be of practical relevance where, for example, X has purchased shares on the strength of a
genuine certificate but a forged transfer. It will seldom be possible for X to raise an estoppel
for two reasons. First, X will be precluded from raising the estoppel if it had any reason to
doubt the veracity of the documents submitted to the company on its application for
registration or where it was in as good a position as the company to know that the transfer
was forged.122 This will prevent an estoppel arising because of the role of the representee in
procuring the representation.123 Second, X will not be able to rely on the money spent on
purchasing the shares because this pre-dates the issuing of the certificate (and thus the
representation). Other acts of detriment will have to be established such as entering into a
contract to sell the shares to a third party or failing to pursue the person who executed the
original forged transfer. If the certificate states that the shares are fully paid up, the issuing
company thereby represents to the general public that this is the case.124
9.41 Similarly, statements in bills of lading are made to the general public and a variety of
individuals relying on such documents may be able to raise estoppels.125
9.42 Successive representees It should be emphasised that although it is possible to make a
representation to the general public, no representor may be estopped as against the whole
general public.126 The estoppel will only arise in favour of those who can make out the other
essentials of estoppel by representation. It is necessary for anyone seeking to rely on the
estoppel to establish that it believed the representation and relied on this belief to its
detriment.127 Take for example the share certificate example referred to above. If Y
purchased the shares from X, then in order to raise an estoppel it must prove that it believed
the representation, that is, that it believed that X was the owner of the shares. If Y sells on the
shares to Z, Z too must establish anew the components of estoppel by representation. If Z
knew that X was not the true owner, no estoppel will arise.128 The fact that Z purchased the
shares from someone who did not can make no difference. Conversely, if Y bought the shares
knowing that they did not belong to X, and sells them on to a purchaser who did not, the
purchaser may be able to raise an estoppel. Y’s knowledge is irrelevant. An estoppel will
arise in favour of the purchaser if it believed the representation and acted to its detriment on
it.129
9.43 It was held in Re Stapleford Colliery Co (Barrow’s Case)130 that a contrary rule applies to
cases where the company has represented that shares are fully paid up. In that case, X
purchased the shares without knowledge of the true facts. X sold them on to Y who was aware
of the truth and knew that the shares were not fully paid up. As pointed out below,131 the case
 was probably wrongly decided.
Examples of representations
9.44 Representation by statement Express statements which have given rise to estoppel by
representation are many and varied. A representation may also arise by implication from a
statement if that implication is sufficiently clear and unequivocal.132 Cases involving express
representations are sometimes referred to as instances of estoppel by statement, but no
special principles apply to them. Estoppel by statement is merely a subdivision of estoppel by
representation. It is neither possible nor useful to attempt a comprehensive listing of all the
different express statements which have given rise to estoppel but some of the more
important and common examples should be noted. Further examples, arising in particular
specialist areas, are discussed in Chapter 14 and following below.
9.45 Representations may be made orally or in writing. The Court may be prepared to construe a
succession of different documents in order to ascertain the representation made, if the
documents are sufficiently linked.133 Particularly important practical examples of express
representations are statements made in bills of lading. These concern matters such as the
nature134 and condition135 of the goods shipped. Both statutory and common law estoppel
may arise as a result of the statements contained in bills of lading.136 Further important
examples are statements contained in share certificates. Additionally, admissions made by
counsel in legal proceedings may give rise to an estoppel,137 as may representations by a
warehouse owner that he holds goods in store to the order of the representee,138 statements by
a landlord that a break clause was exercisable by a certain date,139 a statement by a customer
that a cheque to be drawn on its account was genuine and properly executed,140 a statement
by an employer that its former employee was entitled to the payments he had received,141 a
statement by the agent of a cargo owner that the method of stowage he had recommended was
adequate,142 and a statement by an alleged signatory that the signature on a deed was genuine.
9.46 Certain difficulties arise in relation to representations made by the trustees of pension schemes
to beneficiaries. Where the representee claims to be entitled to raise an estoppel because of a
statement made to members of the scheme generally, or a particular class of members, then it
must show, by adducing evidence to prove,143 that the estoppel is equally applicable to all
other members of that class.144
9.47 Representation by conduct It is possible to make a representation by conduct145 so long as it
is sufficiently unequivocal. This is probably the most common way of making a
representation for the purposes of estoppel. Such cases have sometimes been referred to as
involving estoppel by conduct but no special principles apply to them. Estoppel by conduct is,
in this context,146 used merely to signify a species of estoppel by representation.147 As with
estoppel by express statement, the types of conduct which have been held to give rise to
estoppel are so varied as to make a comprehensive listing neither possible nor particularly
useful. Instead a number of the more important examples are described below. Further
examples are discussed in Chapters 16 to 22.
9.48 A representation may be made by gestures148 or through the use of a map149 or flag.150
Agreeing with a statement made by another and communicating that agreement to the
representee can amount to a representation in terms of the original statement.151 If a
representor is empowered to do X by a contract on condition that certain facts existed, it
cannot deny those facts once it has actually done X, since this would be to aver that its own
conduct had been unlawful.152 One of the most important instances of conduct giving rise to a
 representation is where a party ‘holds out’ another as its agent having authority to carry out a
particular function.153
9.49 In a number of cases, representations have been inferred from a course of mutual dealings.154
In Pickard v Sears,155 goods were seized by X in execution of a debt owed to him by Y. In
fact the goods belonged to Z. Z at no point objected to their seizure even when he and Y
subsequently visited the offices of X’s lawyer and attempted to negotiate a compromise. Z
was estopped from asserting his title to the goods. Similarly, in Sarat Chunder Dey v Ghopal
Chunder Laha,156 X represented his mother in negotiations for a mortgage over certain
property157 she was believed to own. It later transpired that X had a claim to the property. His
conduct in negotiating on behalf of his mother amounted to a representation that he had no
claim to the property. He was consequently estopped from asserting priority over the
mortgagee.
9.50 In Jennings v Great Northern Rly Co,158 it was held that a sale of train tickets to an employer
for the use of his employees estopped the railway authority from enforcing a by-law against
those employees, requiring the passengers to produce their tickets. Service of a notice to quit
has been held to amount to a representation that the notice was valid and that the person
issuing it was in fact the landlord and had power to issue it.159 Clearing a cheque and paying
out funds on it does not amount to representation by the bank that the cheque is genuine, even
where the special collection method is used. At most such conduct amounts to a
representation that the bank believes the cheque to be genuine.160
9.51 Delay in prosecuting legal proceedings The question of whether representations may be
inferred from delay in prosecuting legal proceedings has received extensive consideration in
equitable forbearance cases. The same approach is applicable in estoppel by representation
and therefore reference should be made to the discussion in Chapter 8 above. Mere delay or
inactivity will seldom be construed as an inferred representation sufficient to give rise to an
estoppel since such conduct will almost always be equivocal.161 The Courts do, however,
exercise a degree of flexibility on the issue. In Covell v Sweetland,162 a dispute arose as to the
construction of a maintenance agreement. The wife asserted that the agreement obliged the
husband to pay maintenance for the duration of her life. The husband averred his liability,
under the agreement, ended with the marriage. The judge found as a fact that the latter
construction was the correct one. However, he held that, in any event, the wife would have
been estopped from asserting the contrary because of her failure for five years to enforce the
maintenance provisions or assert her right to payments under the agreement. Further, in
National Westminster Bank Ltd v Barclays Bank International Ltd,163 Kerr J held that the
delay in claiming back money paid out on a forged cheque did not estop a bank from
maintaining an action for money paid under mistake. He conceded, however, that different
considerations might apply to longer delays.164 In William Grant v Glen Catrine Bonded
Warehouse,165 the Court of Session held that, absent any active indication that no action
would be taken, delay would have to be inordinate before estoppel could operate. A lapse of
three years between notice of intellectual property infringement and proceedings was
insufficient, given that the parties had been negotiating within this period to resolve the
disputed use of name. This further illustrates the principle that no estoppel will arise where
the alleged representor continues to assert its rights during the period of delay.166
9.52 Representation by silence Cases where the representation is made by purely passive conduct
are sometimes referred to as involving estoppel by silence or estoppel by acquiescence.167
The latter term has sometimes been used to signify those proprietary estoppel cases where the
 property owner passively acquiesces in the claimant’s belief, rather than giving it active
encouragement.168 Although the principles applicable in such cases have elements in
common with this head of estoppel by representation, there are important differences between
them.169 To minimise confusion, in this chapter estoppel by silence or acquiescence signifies
only a further subdivision of estoppel by representation.
9.53 The theoretically distinguishing feature between representation by silence and representation
by statement is that there is some active conduct in the latter category. However, in practice,
the two tend to blend into one another. Take for instance Pickard v Sears,170 as discussed
above. Although Z’s failure to bring his rights to X’s attention formed an important part of
the finding that a representation had been made, his conduct went beyond mere silence as to
his contrary rights and involved active negotiations with X and Y. The case thus involves a
representation by conduct and not mere silence.
9.54 The duty to speak: general principles In pure silence cases, no representation will be inferred
from silence unless the representor is under a legal171 duty to disclose a particular fact or
facts.172 The principle was set out by Buckley LJ in Spiro v Lintern:173
Where a man is under a duty—that is, a legal duty—to disclose some fact to
another and he does not do so, the other is entitled to assume the non-existence of
the fact. In such circumstances the conduct of the first man amounts to a
representation by conduct to the second that the fact does not exist.
9.55 Inaction or silence, by contrast with positive conduct or statement, is said to be colourless:174
it cannot influence a person to act to his detriment unless it acquires a positive content that
entitles the representee to rely on it.175 This positive content is acquired by the imposition of
a legal duty to disclose some fact to another. The duty to disclose must be owed to the person
seeking to raise the estoppel,176 or to a group of which he was a member. If there is no
disclosure then, due to the existence of the duty, the other is entitled to assume the non-
existence of the fact. An omission amounts to a representation that the fact does not exist.
9.56 There is some controversy as to precisely when such a duty arises. In Moorgate Mercantile v
Twitchings,177 the House of Lords considered the circumstances in which the owner of a car
could be estopped from asserting title against a third party who had purchased the car in good
faith. Lord Wilberforce held:
What I think we are looking for here is an answer to the question whether, having
regard to the situation in which the relevant transaction occurred, as known to both
parties, a reasonable man, in the position of the ‘acquirer’ of the property, would
expect the ‘owner’ acting honestly and responsibly, if he claimed any title in the
property, to take steps to make that claim known to, and discoverable by, the
‘acquirer’ and whether, in the face of an omission to do so, the ‘acquirer’ could
reasonably assume that no such title was claimed.
9.57 In Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik Sif’),178 Webster J adopted
this dictum and reformulated it in the following general terms:
[T]he duty necessary to raise an estoppel by silence or acquiescence arises where a
reasonable man would expect the person against whom the estoppel is raised,
acting honestly and responsibly, to bring the true facts to the attention of the other
party known by him to be under a mistake as to their respective rights.
Mr Justice Webster’s decision gives rise to a number of difficulties. First, the doctrine in issue
in Moorgate was the controversial principle of estoppel by negligence, which may not form
part of the law of estoppel at all.179 Second, Lord Wilberforce dissented on the relevant
 question, namely, ‘in what circumstances did a duty to speak arise?’ Despite these difficulties
the Pacol test has been approved in subsequent authorities180 and now appears to be a correct
general statement of the law.181
9.58 Two aspects of the Pacol test should be noted. There is no need to establish an a fortiori and
pre-existing legal duty to speak, arising from, for example, tort or contract. Thus ‘silence may
amount to a representation when there was a legal, not merely a moral, duty to speak… That
is, in my judgement, essentially a question of fact… Were the circumstances such that silence
was equivalent to a positive statement?’182 The circumstances of the case and the
relationship183 of the parties generate the necessary duty. It is, however, necessary to show
that the representor knew of a mistake made by the representee as to the parties’ respective
legal entitlements. Thus it is necessary to show not only that the representor knew of the
representee’s belief but also that the representor knew (or at least suspected)184 that the belief
was mistaken. It must therefore be established that the representor knew the true facts or had
at least a suspicion of true position.185 Hence, such cases are an exception to the general
rule186 that it is unnecessary to establish that the representor knew that the representation was
false. It is submitted that the terms of the duty presuppose such knowledge. It can scarcely be
reasonable to expect even the most reasonable and honest party to bring to the attention of
another facts of which the first party was unaware.
The duty to speak: examples
9.59 Parties to legal proceedings Whilst the general principle set out in Pacol may be correct, its
application to the facts of the case is controversial. The duty to speak in that case was
extended to a duty to point out to an opponent in legal proceedings that it had sought time
extensions from the wrong party. The decision has therefore been circumscribed and is to be
limited to its facts.187 In The Stolt Loyalty,188 Mr Justice Clark applied Pacol but stated that
each case must depend on its own facts and that opponents in litigation do not normally owe a
duty to point out one another’s errors.189 It was appropriate to impose the Pacol duty in The
Stolt Loyalty, because the defendants had responded to the requests for an extension in
deliberately equivocal terms in order to prolong the claimant’s error. The duty to speak will
not be lightly imposed in new situations, particularly in legal proceedings: the parties are not
expected to ‘nurse maid’ their opponents, at least where they are well used to commercial
litigation, otherwise the client might well ask which side his lawyer is on.190 It is therefore
submitted that the application of the duty to speak, to parties in legal proceedings, in Pacol
and The Stolt Loyalty was exceptional and triggered only by their special facts. Alternatively,
it is submitted that the duty will be imposed only where one party has been guilty of sharp
practice in the conduct of the litigation.191
9.60 Failure to assert an inconsistent legal right In Spiro v Lintern192 the Court of Appeal held
that:
If A having some right or title adverse to B, sees B, in ignorance of that right or
title, acting in a manner inconsistent with it in a way which would be to B’s
disadvantage if the right or title were asserted against him thereafter, A is under a
duty to disclose the existence of his right or title. If he stands by and allows B to
continue in his course of action A will not be allowed, if the other conditions of
estoppel are satisfied, to assert his right or title against B.193
9.61 Hence, like the acquiescence/unilateral mistake cases in proprietary estoppel, the duty to
correct B’s mistake arises wherever A is aware that B is acting to its detriment in reliance on
a belief which is inconsistent with A’s right or title. On the facts of Spiro, the defendant’s
 wife had entered a contract to sell the family home to the claimant. The house was actually
owned by the defendant and his wife had no authority to sell it on his behalf. The defendant
failed to inform the claimant of the wife’s lack of authority. On the contrary, the defendant
stood by and allowed the claimant to act to his detriment in reliance on the belief that he had
the benefit of a binding contract. This conduct was held to amount to a representation that the
wife had sufficient authority to enter the contract. Hence, an estoppel arose to prevent the
defendant from raising the want of authority point.
9.62 In Bradmount Investments Ltd v Williams De Broe Plc,194 X was a company that prepared
financial structures for public flotations, Y was a broker and Z was a company that wished to
raise capital through a listing on the Alternative Investment Market. X was asked to work on
proposals for the Z flotation. X approached Y for assistance but, in order to protect its fee
position vis-à-vis Z, insisted on a written agreement that Y would not act directly for Z
without the written consent of a director of X. In the months that followed, Y began to act
directly for Z. X had not given written consent but was fully aware that Y was so acting. X
and Z subsequently failed to agree terms for X’s participation in the flotation but Y continued
to act for Z. X brought proceedings against Y claiming that, but for Y’s breach of the
agreement, Z would have engaged X. Y argued that X had acquiesced in its acting for Z and
was accordingly estopped from relying on the agreement. Richards J held that:195
[T]his is about as clear a case of acquiescence as can be imagined. [X] knew of its
legal right to refuse consent to [Y] acting for [Z], but instead of exercising or
threatening to exercise that right, it allowed [Y] to carry out a substantial amount
of work… It allowed [Y] to become and remain contractually bound to provide its
services to [Z] for the flotation… [Y] acted to their detriment…
Acquiescence by [X] in the conduct of [Y] which is in breach of [Y]’s contractual
duties to [X] will in appropriate circumstances preclude [X] from later relying on
the conduct as a breach of contract and from claiming damages or other remedies
in respect of it… acquiescence is an aspect of estoppel by representation.
9.63 This potentially wide-ranging principle bears a superficial similarity to the doctrine generally
referred to as estoppel by negligence. Thus, in Fung Kai Sun v Chan Fui Hing,196 the Court
held that if X finds out that a deed has been forged in its name, it is under a duty to inform the
holder of the deed that it was forged. It is not clear whether the Court did so applying the
Spiro principle or the doctrine generally referred to as estoppel by negligence. A distinction
between the two can, however, be drawn. The Spiro principle clearly operates only where X is
aware that Y is acting inconsistently with his right or title. Estoppel by negligence may occur
where X is not aware of Y’s conduct but is simply negligent in arming another with a
presumed right or ostensible title to property.197
9.64 Other examples Where a representation is made, by any one of the three methods outlined in
this section,198 it is deemed to continue until retracted by the representor and that retraction
is communicated to the person to whom the representation was made. The representor comes
under a duty to communicate the retraction to the representee.199
9.65 Further, the failure to respond to enquiries or correspondence may give rise to an implied
representation. In Algar v Middlesex County Council,200 the employee of a local authority
wrote to it asking it to confirm that his pension rights were unaffected by a proposed job
change. Its failure to reply estopped it from asserting that his rights were prejudicially
affected by the change. Similarly, in Holt v Markham,201 a government department wrote to
the defendant asserting that he was not entitled to certain sums paid to him. The ground
 specified was incorrect. The defendant pointed this out to them and heard nothing more for
three months when the authority claimed back the money on a different and correct ground.
The authority was estopped from asserting that the sums were improperly paid. It should be
noted that this approach effectively allows one party to impose a duty to speak on another by
addressing enquiries to it.202
9.66 There is one obvious exception to the above. A duty to speak will not be imposed where the
intended representee is well aware of the relevant facts. Thus, a trustee owes no duty to give
information to the beneficiary as to encumbrances which the beneficiary has entered into with
respect to its beneficial interest. Consequently the trustee owes no such duty to those
authorised by the beneficiary to enquire about such encumbrances.203 Further, a guarantor
owes no duty to its co-surety to remind it of an indemnity agreed between them which both
parties had every reason to recall.204
Representation by negligence
9.67 It has been averred in a number of cases that a representation may be inferred from negligence.
Because of particular difficulties raised by the so-called estoppel by negligence cases, they
are separately analysed below.205
(2) Knowledge and intention
9.68 Subject to one likely caveat,206 it is not necessary to establish that the representor was
dishonest207 or that it knew that the representation was false.208 Innocence of the truth is no
defence and an estoppel may arise even where the representor never knew or has forgotten the
true facts.209 However, if it is possible to demonstrate knowledge of the truth, the representee
may have useful remedies arising in other areas of law such as misrepresentation and fraud.
9.69 It is necessary, though, to demonstrate one of the slightly differing mental states listed below.
However, although the need to establish the relevant mental element has been frequently
repeated, it has not proved to be of great practical significance. Once it has been established
that the representee acted in reliance on the representation, the requisite mental element has
almost invariably been found to exist.210
A representation intended to be acted upon
9.70 An estoppel may arise if it can be shown that the representor intended its representation to be
acted upon.211 An objective approach is taken and therefore it will suffice to show that the
representor has so conducted itself that a reasonable person would believe that the representor
held the requisite intention.212 Thus intention to induce may be presumed.213 This
requirement has seldom been considered in any detail. However, in Trane (UK) Ltd v
Provident Mutual Life Assurance,214 such an intention was presumed where, in the course of
negotiations concerning a lease, a landlord made a clear representation which it was pointless
to make unless the representee was to be able to assume it was seriously meant. This case
gives useful insight into the principle underlying the rule. It seems to be designed to prevent
casual or informal statements from forming the basis of an estoppel. A similar function is
performed in relation to the equitable forbearance doctrine by the requirement that the
representor must intend to create legal relations,215 although the latter requirement is not
itself applicable in estoppel by representation cases.
9.71 It is probably also sufficient to demonstrate that the representor knew that a reasonable person
would be likely to act in reliance on the representation216 or had reasonable grounds to
believe that the representee would so act.217
Knowledge of the representee’s detrimental reliance
9.72 As can be seen from the previous paragraphs, the focus of the intention or knowledge
 requirement is at the point of representation rather than at the point of reliance. The
authorities fail to deal expressly with the situation where the representor makes the
representation without the requisite intention but later learns that the representee is acting in
reliance on it. In the parallel areas of equitable forbearance and proprietary estoppel, it is
clear that mere knowledge of the representee’s acts in reliance218 is sufficient, without
establishing any particular intention.219 It is submitted that such knowledge is probably
sufficient for estoppel by representation, regardless of the initial state of mind of the
representor. Once the representor becomes aware of the acts of the representee and of the fact
that they are being performed in reliance on its representation, the representor comes under a
duty to retract the representation if it does not intend it to be relied on. Unless it so retracts
the representation, or advises the representee not to rely on it, it will probably be presumed to
have intended the representee to continue to rely on it. Except in certain controversial
instances,220 it is not generally necessary to show that the representation was made
negligently,221 although if it was this may give rise to parallel remedies in tort.
9.73 Intention and knowledge are alternatives. It is not necessary to establish both. Once an
intention to induce reliance is demonstrated, it is not necessary to go on to establish that the
representor actually knew222 that the representee was so acting. For example, if a company
issues a share certificate to X, it makes a representation to the general public that X is the
owner of the shares. It is deemed to intend that representation to be acted upon by any
member of the public. In none of the cases where this principle has been applied has the
company actually known of the representee’s acts in reliance, namely contracting to buy the
shares from X and paying the purchase price accordingly.223
No specific acts need be intended
9.74 For clarity, the term intention has been used to describe collectively the slightly differing
mental states referred to above. There is some suggestion in the case law that it is necessary
to establish the requisite mental element in relation to a specific course of conduct, that is,
that the representor intended the representee to act specifically in the way in which it in fact
acted.224 This approach appears too restrictive; it is probably sufficient merely to show an
intention to induce conduct of some sort. As is set out below, in order to establish an estoppel,
the representee must prove that its conduct was reasonable in the circumstances. This
principle prevents unexpected or eccentric acts from amounting to detrimental reliance and
provides an adequate limitation on the scope of such acts. It has been held in some cases that
it must be shown that the representor intended the representee to act to his detriment.225 It is
unlikely that such dicta impose a requirement that prejudice capable of amounting to
detriment was intended. It is probably necessary only to show an intention to induce the
representee to act and that the acts in question gave rise to detriment.226
(3) Reliance
9.75 It is necessary to show that the representation was communicated to the representee227 and that
the representee believed that it was true.228 The representee must have acted in reliance on
the representation.229
It must have been reasonable to rely on the representation
9.76 Although the representee is under no general duty to investigate the truth of the
representation,230 it cannot rely blindly on any representation made to it. It is necessary to
show that the representation was of such a nature as would have misled a reasonable
person.231 It must have been reasonable to believe that the representation was true232 and
reasonable to have acted on it in the way the representee did.233 Whether it is so reasonable
 will depend on the circumstances of the case. There may be facts which should put the
representee on enquiry as to the truth of the representation or the authority of the person
communicating it. For example, it would be unreasonable to rely on a representation by a
junior administrator, working in a branch of a large multinational, that the company had
stocks of green cheese extracted from the moon.234 A highly important general factor is
whether the subject matter of the representation fell within the representor’s particular scope
of knowledge or expertise or was something concerning which the representee could
reasonably be expected to form its own view.235
9.77 In Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd,236 a tenant served
notice of a request to extend its tenancy pursuant to rights under statute. The landlord in turn
served a notice of opposition, one of the grounds of which was a challenge to the validity of
the original notice served on it by the tenant. As a result of a failure on the tenant’s part to
prosecute its claim within the statutory time limits, the tenant later claimed that its notice
was indeed invalid or, alternatively, that the landlord was estopped from denying this. That
claim failed. The representation contained in the landlord’s notice of opposition did not give
rise to an estoppel. It was for both parties to form their own opinion as to validity of the
notice.237 Hence it was unreasonable for the tenant to rely on the landlord’s opinion in the
matter. It should have applied to the Court to ascertain whether it was valid or not.238 By
contrast, in Trane (UK) Ltd v Provident Mutual Life Assurance,239 the landlord’s managing
agent had represented that the date for the exercise of the break clause in the lease was later
than it in fact was. Although the tenant had acted somewhat casually in failing to obtain legal
advice on the matter, Judge Cooke240 held that the representation went against the interests of
the landlord and was therefore one which the landlord could not be expected to make unless it
was likely to be true. Hence it was reasonable to believe the representation and to act on it.
9.78 Both Trane and Bolsom Investment Trust proceeded on the basis that it was appropriate to
inquire as to the reasonableness of the representee’s belief. In Downderry Construction
Limited v Secretary of State for Transport, Local Government & the Regions,241 the Court
held that there was no requirement that reliance on the representation had to be reasonable.
The defendant Council had written to confirm the planning status of land, as a result of a
request by the owners. The letter contained an obvious mistake. The Council contended that
the effect of the obvious mistake meant that it was not reasonable to rely on the
representation. Mr Justice Richards rejected that proposition. That rejection was appropriate
on the facts of the case. A mistake, even if patent, may not affect other representations made
in a letter. Mr Justice Richards then went on, however, to say:
Apart from the absence of authority for the proposition, it would in my view be
surprising if, when a representor has made a false representation intending or
knowing that it was likely to be acted upon and the representee, believing the
representation, had in fact acted on it to his detriment, the representor could then
defeat an estoppel on the basis that the representee’s reliance on it was
unreasonable.242
9.79 It would appear that neither Trane nor Bolsom Investment Trust were drawn to the attention of
the Court. It follows that whilst Downderry was correct on the facts, it was per incuriam on
this point. There is a further logical difficulty with Downderry. If the proposition as
enunciated by Mr Justice Richards is taken to its logical extreme, an objectively wholly
irrational but subjectively honest reliance would still generate an estoppel (assuming all other
elements are made out). To take the example set out above, if the representee honestly relies
 on a representation that a multinational possesses stocks of green cheese from the moon, the
Court would be driven to accept that the multinational was estopped from denying that it had
such stocks.243 Similarly, if the principle were as enunciated, it would be impossible for the
representor to disclaim responsibility for the representation—disclaimers being a
manifestation of the reasonableness parameter on reliance. Neither proposition, it is
submitted, can be correct. That difficulty is compounded by the fact that estoppel is, at root,
an equitable doctrine reversing a detrimental change of position. It is difficult to see how
equity would reverse the detriment flowing from an honest but wholly irrational reliance.
There must be a point when the degree of carelessness attaching to, or absence of rationality
inherent within, reliance undermines the equity of an estoppel claim.244
9.80 Notwithstanding those difficulties, Downderry does illustrate that once (a) an inaccurate
representation has been communicated and (b) the circumstances were such that the
representor could reasonably foresee reliance, it will be difficult to dispute that actual
reliance by the representee was, in all the circumstances, unreasonable.
9.81 Disclaimers If the representor expressly disclaims responsibility for accuracy of
representation, no estoppel will arise.245 It will not be reasonable to rely on a representation
thus qualified.
The representee must have acted in reliance on the representation246
9.82 It is not necessary to show that the representee has performed a positive act. It is sufficient if
the representee refrained from acting in a particular way as a result of the representation.247
What is essential is that the representee has been led to act differently from the way in which
it would have done had the representation never been made.248 Put another way, the
representee must have changed its position in reliance on the representation. Both positive
acts and passive omissions amount to change of position in the legal sense and arguably in the
literal sense as well. A passive omission may give rise to a change of position because
external events may alter the position of the representee. Were it not for the representation,
the representee would have adjusted its affairs to take into account these external events and
thus preserve its original position.
9.83 It is also unnecessary to show that the change of position falls into any pre-existing category.
The categories remain open-ended subject only to the parameter of detriment.249 Any act will
suffice so long as it involves a change of position which is such as to give rise to detriment, in
the event that the representor later denies the truth of the representation. In asserting that the
categories of change of position remain open-ended, it must be remembered, however, that
there may be inherent category limitations within detriment itself. Thus, there are general
categories of acts which may be incapable of ever giving rise to detriment.250
9.84 There must have been a causative link between the representee’s belief that the representation
was true and the acts which would give rise to detriment. This link has been described and
analysed in various different ways. It has been averred that the representation must have been
the real or proximate cause of the relevant conduct251 or that the conduct must have resulted
from the representation.252 However, the cases where such an approach has been adopted
have tended to involve the so-called estoppel by negligence principle, to which different rules
may apply.253 The better view is that it is unnecessary to show that the relevant actions were
caused solely by the representation. As Neuberger LJ pointed out in Steria Ltd v Ronald
Hutchison254 ‘it is probably not necessary for a claimant to satisfy what is known in a
somewhat different area of the law as the “but for” test… He merely has to show that the
representation was a significant factor which he took into account.’ It is sufficient if the
 representation influenced the representee’s decision to act in the way that it did.255 It is
necessary to establish that the representation encouraged or induced256 the representee to act
in the way it did. The fact that it was material to the decision so to act is probably
insufficient.257 The causative link may exist where a belief already held is strengthened or the
representee is lulled into a false sense of security.258
9.85 Proving causation The burden lies on the representee to prove that its conduct was caused by
the representation in the sense described above.259 The doctrine thus operates differently
from proprietary estoppel. Under the latter doctrine, the normal burden is, in certain
circumstances, reversed and the onus is placed on the representor to show that the conduct
was not caused or influenced by the representation made.260 The burden was so reversed in
Hammersmith and Fulham BC v Top Shop Centres Ltd.261 As set out in Chapter 11, it is
difficult to establish clearly whether this was a case of proprietary estoppel or estoppel by
representation or both. The authorities262 cited in support of the reversal of the burden
concerned proprietary estoppel and therefore the case provides little, if any, support for the
application of this principle to estoppel by representation.263 There is some authority to
suggest, however, that where the action taken by the representee is the obvious and expected
consequence of his having been influenced by the representation, a prima facie inference of
causation may be drawn without adducing further evidence.264 The mere fact that the conduct
followed the representation is insufficient evidence of causation.265
(4) Detriment
9.86 To raise an estoppel by representation, the representee must establish detriment266 or
prejudice.267 It is commonly said that the representee must have acted to its detriment.268
This formulation has led to some confusion; as was pointed out by Dixon J in Grundt v Great
Boulder Pty Gold Mines Ltd, whilst it is not strictly incorrect, it ‘does not bring out the basal
purpose of the doctrine’.269 The detriment, which estoppel aims to prevent, is that which
would flow from the representee’s change of position, were the representor to be permitted to
deny the truth of the representation.
[T]he real detriment or harm from which the law seeks to give protection is that
which would flow from the change of position if the assumption were deserted that
led to it. So long as the assumption is adhered to, the party who altered his
situation on the faith of it cannot complain. His complaint is that when afterwards
that other party makes a different state of affairs the basis of an assertion of rights
against him, then if it is allowed, his own original change of position will operate
as a detriment. His action or inaction must be such that, if the assumption on which
he proceeded is shown to be wrong and an inconsistent state of affairs were
accepted as the foundation of the rights and duties of himself and the opposite
party, the consequence would be to make his original act or failure to act a source
of prejudice.270
9.87 Two aspects of the Grundt formulation should be noted. First, since the representee needs to
establish only that it will suffer detriment or prejudice if the representor resiles from the
assumption, the change of position, itself, need not be onerous, unpleasant or damaging. So
long as the assumption is adhered to, the representee suffers no prejudice. On the contrary, it
may benefit from its change of position. For example, in De Tchihatchef v Salerni Coupling
Ltd,271 Fitzgerald entered into a contract with Salerni Coupling Ltd. He represented that the
contract contained certain lucrative terms. In reliance on his representation the company
 referred to these favourable terms in a share prospectus. Whilst the representation was
adhered to, this act by the company enured to its benefit: the relevant item in the prospectus
would amount to an important inducement to subscribe to the share issue. Detriment is
assessed, however, not at the point of performance of the relevant change of position, but at
the point when the representor seeks to resile from its representation. Denial of the
representation in Salerni’s case left the company vulnerable to legal action by those who had
bought shares in reliance on the statement contained in the prospectus.
9.88 Second, it is often contended that the representee has suffered harm as a result of the mere
denial of the truth of the representation. This type of detriment, alone, is insufficient. As
Neuberger LJ said in Steria Ltd v Ronald Hutchison,272 ‘If it were [sufficient], the
requirement for detriment in a claim for estoppel would be nugatory, because in every case
where a claimant advances a claim based on estoppel, he will, virtually by definition, be
better off if the estoppel is established than if it is not: otherwise he would not be raising an
estoppel.’ Some additional disadvantage is necessary, caused by the representee’s change of
position. For example, in the case of Norfolk CC v Secretary of State for the Environment,273
a company applied for planning permission to build a factory. The application was rejected by
the authority but one of its agents mistakenly represented to the company that its application
had been successful. The company thereafter commenced preparations for the development
by placing orders for necessary machinery. Those orders were, however, capable of
cancellation without incurring a penalty. The authority discovered the error. No estoppel
arose to prevent the authority asserting the true facts, namely that planning permission had
not been granted. The company was worse off under the true facts than under the facts as
represented: under the latter it was the recipient of planning permission and under the former
it was not. Thus the company could be said to have suffered harm as a result of the authority
resiling from the representation made. This was, however, insufficient. There was no estoppel
because no detriment flowed from the company’s change of position, namely the ordering of
the machinery: the company had been able to cancel the orders without incurring any
penalty.274
Detriment and inequity
9.89 In marked contrast to other forms of estoppel, the concept of inequity is seldom referred to in
estoppel by representation cases. The vast majority of such cases involve a fairly mechanistic
application of the requirements of representation reliance and detriment. However, in Lipkin
Gorman v Karpnale,275 Lord Goff held that:
[E]stoppel normally depends upon the existence of a representation by one parry,
in reliance upon which the representee has so changed his position that it is
inequitable for the representor to go back upon his representation.
9.90 Similar statements have been made in a limited number of other authorities.276 It has been
frequently averred that equitable forbearance and proprietary estoppel are based on the
prevention of unconscionable or inequitable conduct.277 This has led the Courts to take into
account, in addition to the orthodox requirements of belief, reliance and detriment, a number
of other random factors, in assessing whether liability has been established.278 Until recently,
there was no suggestion that this flexible approach is applicable in estoppel by representation
cases. On the contrary, Slade LJ warned of the dangers of resorting to broad concepts of
equity and the consequent uncertainly that this can generate.279 It follows from Slade LJ’s
interdiction that the uniformity and flexibility created by applying the same general
principles in equitable forbearance, proprietary estoppel and estoppel by representation
 comes at too high a price: the benefits of uniformity and flexibility are outweighed by the
perils of uncertainty.280
9.91 There are two relatively recent decisions which suggest that the balance between certainty and
flexibility may, in future, be redrawn. In National Westminster Bank Plc v Somer
International,281 the Court of Appeal, whilst recognising the risk of uncertainty, explicitly
adopted a convergent approach. Founding its reasoning on overarching doctrines underlying
all forms of estoppel, the Court declined to allow estoppel by representation to operate
‘whether at common law or in equity, to achieve a result which can fairly be described as
unconscionable’.282 In Steria Ltd v Ronald Hutchison,283 Neuberger LJ284 sought to square
the circle by emphasising the strengths and weaknesses of both approaches and suggesting
that unconscionability is a guiding principle, which underlies the application of the
classically recognised elements of the doctrine:
If one had to identify a single factor which a claimant in an estoppel case has to
establish in order to obtain some relief from the court it would be
unconscionability…
Such a broad formulation is a useful general guiding principle, but
unconscionability can, in many cases, be an issue upon which reasonable people
can very easily differ (in relation both to whether the claimant has a valid claim
and as to how that claim should be satisfied). Accordingly, one can well see why it
is appropriate to have some more specific principles. The danger of having such
principles, however, is that they can introduce an undue degree of rigidity into
what is intended to be a flexible doctrine. The tensions between asking whether it
would be unconscionable in all the circumstances of a particular case, to deprive a
claimant of any relief, on the one hand, and, on the other hand, asking whether the
claimant can satisfy the various requirements of a particular type of estoppel, will
be apparent to anyone who has had to consider the law in this area, and it is easy to
find cases to support either approach.
When it comes to estoppel by representation or promissory estoppel, it seems to
me very unlikely that a claimant would be able to satisfy the test of
unconscionability unless he could also satisfy the three classic requirements. They
are (a) a clear representation or promise made by the defendant upon which it is
reasonably foreseeable that the claimant will act, (b) an act on the part of the
claimant which was reasonably taken in reliance upon the representation or
promise, and (c) after the act has been taken, the claimant being able to show that
he will suffer detriment if the defendant is not held to the representation or
promise. Even this formulation is relatively broad brush, and it should be
emphasised that there are many qualifications or refinements which can be made to
it….
[T]he onus must be on the person alleging the estoppel to establish
unconscionability, or, to put it another way, to establish, in the case of estoppel by
representation, the three essential ingredients of representation, reliance and
detriment.
9.92 Neuberger LJ’s approach leaves certain practical questions unanswered: to what extent may the
Court consider factors other than the ‘classic requirements’ and, whilst ‘very unlikely’, is it
nevertheless possible that an estoppel by representation will arise where the ‘classic
requirements’ have not been met? The Courts have yet to provide guidance on these points285
and, until such guidance is given, the concept of ‘unconscionability’ appears to be little more
 than a ‘wild card’ in estoppel by representation, to be prayed in aid when a party cannot make
out, or defend, a classic estoppel by representation case and wishes to introduce elements
from other estoppel doctrines.
Examples of detriment
9.93 Apart from two possible caveats,286 an identical detriment requirement seems to be imposed
by both the doctrines of proprietary estoppel and estoppel by representation287. It should be
noted that, whilst it is not necessary to show that the acts performed fall within any pre-
existing category, some conduct may be inherently incapable of giving rise to detriment.288
Listed below are examples of detriment occurring specifically in the context of estoppel by
representation. The same threefold classification of detriment289 is adopted in relation to
estoppel by representation, proprietary estoppel and equitable forbearance/promissory
estoppel. This is despite two reservations. First, the categorisation is merely a useful
analytical tool, adopted in order to identify the common characteristics of detriment cases. It
may not be comprehensive, although there is no currently recognised example of detriment
which does not fit within it. Second, the categories are not mutually exclusive and overlap
with one another.
9.94 The representee forgoes something of value The detriment in this category results from the
loss of money, labour or other assets of financial value. Examples include advancing money
by way of loan in reliance on the representation that the loan was supported by a valid
unlimited personal guarantee by the managing director;290 failing to withdraw funds from an
investment scheme in reliance on the representation that large profits had been made and
were being held by the scheme managers for the benefit of the representee;291 giving up the
tenancy of a farm, selling off neighbouring properties and entering the tenancy of new
premises in reliance on the representation that a valid notice to quit had been served;292
paying for extensive damp-proofing works to be carried out on a property in reliance on the
representation that the representee had the benefit of a valid contract to purchase the
premises;293 purchase of goods in reliance on the representation by a warehouse owner that it
was holding them for the seller;294 building sea front houses in reliance on the representation
that a neighbour was legally disabled from building so as to obstruct the view from them;295
paying the purchase price for shares in reliance on the representation that the purported
vendor was the owner of the shares;296 failing to apply for social security payments in
reliance on the representation that the representee was legally entitled to a specified level of
pay from his employer;297 failing to put oneself in a position to obtain a spouses’ pension, by
marrying, in reliance on a representation that unmarried partners were entitled to such a
pension.298
9.95 There are a number of cases where the detriment alleged to have been suffered consists of
failure to pursue a legal claim against a third party.299 Three points should be considered in
relation to such cases. First, it may be possible to categorise them either under the first or the
second of the detriment categories. They are included under this head because the second
category concerns conduct which leaves the representee vulnerable to legal penalties rather
than merely undermining its remedies against others. Second, as is discussed below,300 there
is considerable controversy as to whether it is necessary to establish only that it is no longer
practical to pursue the claim (because, for example, the wrongdoer has become bankrupt or
fled the jurisdiction) or whether it is necessary also to show that the claim would have been
successful had it been prosecuted in due time. Third, a number of the cases in which this issue
 has been considered concern the controversial doctrine of estoppel by negligence.301 As is set
out below,302 there is some doubt as to whether such cases actually form part of the law of
estoppel at all. Any general principles extracted from them may, therefore, be suspect.
9.96 The representee fails to safeguard its legal position The detriment in this category results
from positive acts (or more usually omissions) on the part of the representee which would
make it vulnerable to legal proceedings in the event that the truth of the representation is
denied. For example, in Ismail v Polish Ocean Lines,303 shippers stowed a cargo defectively
in reliance on the representation by the cargo owner’s agent that the method used was
adequate. Had the cargo owner been permitted to deny the truth of his representation, he
would have been able to claim damages for defective stowage against the shippers. In De
Tchihatchef v Salerni Coupling Ltd,304 a company stated in a share prospectus that it had the
benefit of a contract on lucrative terms, in reliance on the representation that the contract
included the specified terms. Denial of the representation would have rendered the company
vulnerable to legal proceedings by those who subscribed to the issue in reliance on the
contents of the prospectus.
9.97 Further examples include contracting to sell shares to a third party in reliance on the
representation that the representee was the owner of the shares. The denial of the
representation leaves the representee vendor liable to an action for breach of contract by the
person to whom it purported to sell the shares.305 Failing to apply to the Family Court to have
a maintenance agreement varied in reliance on the representation that maintenance was only
payable for a limited period will suffice,306 as will failing to serve notice to exercise a break
clause within the time specified in the lease.307
9.98 The representee alters its budget or expenditure The detriment in this category is relevant
where the representor has led the representee to believe that the latter is legally entitled to
some benefit received. The most usual example is where A makes a payment to B and
represents that B is legally entitled to that payment and is thus free to spend the money as it
wishes.308 B therefore needs to establish that it would suffer detriment if the representation is
withdrawn, namely where A denies B’s entitlement and asks for the return of the money. To
establish detrimental reliance, the following three requirements must be satisfied.309
9.99 First, B has spent money.310 There is no need to establish that the money spent was that
actually received from the representor, nor is there any need to show that the money spent
was the traceable proceeds of the money so received.311 Second, B has spent money in
reliance on the representation. Put simply, the representee must have spent the money in a
way it would not have done but for the representation. If the money has been spent on
ordinary day-today expenses which the representee would have been obliged to meet anyway,
the requirement of reliance has not been satisfied. The representee has done nothing which it
would not have done in any event.312 Third, B has spent the money in a way which cannot be
recouped. It is necessary to show that the money has been spent in a way which leaves the
representee with no retained value. Examples might include spending the money on a holiday,
paying it to charity or, in the case of a company, issuing a special one-off dividend to
shareholders. If the money has been used to purchase a saleable asset which is retained by B,
no detriment will result from its being asked to refund the money. B can sell the asset and
return the money.313
9.100 In Avon CC v Howlett,314 the defendant was overpaid by his former employer, who
represented that the payments had been correctly made. The defendant and his wife altered
their budget accordingly. It was found as a fact that they increased their spending in
 accordance with their perceived income. The money was thus spent on a number of small
improvements to their daily life.315 Some goods bought with the money were retained but
they were of minimal value. Although the defendant had received a benefit from the
increased spending, to have required him to refund the overpayments would have been to
impose an onerous and unexpected liability, which he would have been unable to meet.
9.101 There is some authority to suggest that it is sufficient merely to show that the money has
been spent.316 Unless the second and third requirements are made out, no harm can flow to
the representee as a result of its being required to refund money to which it was never
entitled in the first place. This head of detriment is closely related to the restitutionary
defence of change of position from which useful analogies may be drawn. The relationship
of estoppel by representation and change of position is discussed further below.317
Points of difficulty
9.102 Loss of a chance: hypothetical loss The application of the principles set out above
necessarily involves an element of speculation as to what would have happened in a
hypothetical situation. The Court is required to compare what actually happened with what
would have happened had the representation never been made. To establish detriment, the
representee must show that it was worse off under the former situation than under the latter.
This has sometimes given rise to difficulties, particularly where the representee’s acts in
reliance consist of forgoing some opportunity, such as a omitting to prosecute a cause of
action. In theory, it should be necessary to show that the opportunity forgone had some
intrinsic value, that is, that there was a chance of a successful outcome for the representee.
If, for example, there was no chance that the representee would have obtained an
enforceable judgment had it prosecuted the cause of action, it is difficult to aver that it
suffered any detriment as a result of refraining from so doing. However, the Courts have
sometimes seemed reluctant to investigate whether there was any chance of a successful
outcome for the representee.
9.103 For example, in Knights v Wiffen,318 X sold some of the goods which he held in his
warehouse to Y who sold them on to Z. X told Z that he had appropriated goods to the
contract (which would have had the effect of passing title to the goods to Z). Y later became
bankrupt. X had not in fact appropriated goods to Z’s contract but was estopped from
denying that he had. If Z had not received the assurance from X, he would have terminated
the contract and asked for his money back, although ‘very likely he might not have derived
much benefit if he had done so’.319 Their Lordships held that this conduct gave rise to
detriment despite their doubts as to Z’s chances of successfully retrieving his money from
Y.
9.104 Some doubt as to the correctness of the decision was expressed in Simm v Anglo American
Telegraph,320 where the alleged detriment consisted of failing to pursue a third party who
had executed a forged transfer of shares to the representee. The Court of Appeal emphasised
that it was necessary to show not just that the representee had refrained from pursuing the
wrongdoer but that it had been prejudiced by so doing.321 No such prejudice existed in
Simms because the stock exchange rules gave the representee a watertight claim against the
dealer through whom the forger had sold the shares.
9.105 There are four possible views on this issue. First, the rationale behind Knights rests simply
on the Courts’ reluctance to engage in speculation as to the outcome of hypothetical
proceedings. Once the representor has allowed the opportunity to be lost to the representee,
uncertainty should be resolved in the latter’s favour and detriment is assumed. The result of
 Simms may be reconciled with such an approach because there was no such uncertainly in
that case. The Court of Appeal was not required to assess what would have happened had
the original claim been prosecuted, since it was clear that there was an alternative and
cogent remedy against a third party. Second, the representee might be said to have suffered
prejudice because it lost forever the opportunity to take a reasoned decision on the
transaction, in the light of all the circumstances, unfettered by the misapprehension caused
by the representation. The loss of a chance, in itself, might amount to detriment, regardless
of the prospects of success.322 Third, in Dixon v Kennaway & Co,323 Farwell J analysed the
problem in terms of the onus of proof. The burden fell on the representee to prove that it
had refrained from prosecuting its claim. Once it had done this, the onus shifted to the
representor to prove that no prejudice or detriment resulted from the delay, ie that the
wrongdoer had never been worth suing in the first place. Fourth, Knights is wrongly
decided. On balance, the first view appears to be the most convincing explanation of the
case law.
9.106 Granting or entering a sub-lease As a matter of basic analysis, there appear to be three
circumstances where the grant of or entry into a sub-lease could amount to detriment. First,
detriment would occur if the benefit gained from the arrangement was affected by the
withdrawal of the representation.324 Take, for example, the case where a sub-lease is
entered into in reliance on the representation that a neighbour had no power to build so as to
obstruct the view from the sub-let property. If the representation is denied, detriment occurs
in that the view expected is lost. The asset purchased is less valuable as a result of
withdrawal of the representation.325 Second, detriment would be suffered if the sub-lessor
and sub-lessee were restricted as to the terms on which they could transfer their interests.
Third, if denial of the representation means that the sub-lessor cannot give good title to the
sub-lessee, the detriment suffered is clear. The lessor will be liable to the sub-lessee for
breach of contract should the representation be denied. Absent one of these factors, it is
hard to see why the granting or entering of the sub-lease should necessarily give rise to
detriment. If the representee was left with a valuable disposable asset, arguably no
detriment is suffered: the representee has got what it paid for.326
9.107 In Keith v R Gancia and Co Ltd,327 it was held, however, that granting or entering into a sub-
lease amounts to detriment regardless of the terms. On that analysis, none of the three
factors listed is necessary. The reasoning in that case is somewhat obscure. It might be
possible to explain the apparent lack of detriment in one of two ways. The representee
might be said to have suffered prejudice because it forever lost the opportunity to take a
reasoned decision on the transaction, in the light of all the circumstances, unfettered by the
misapprehension caused by the representation. Perhaps the better explanation of this line of
authority is that it forms an anomalous instance where deemed328 rather than actual
detriment suffices to give rise to an estoppel.329
C. Relief
9.108 It has been frequently averred that the effect of estoppel by representation is to prevent the
representor from presenting the true facts.330 Instead the representor is bound by its
representation or estopped from denying its truth. If absolute and unqualified, this approach
has one very significant drawback. Either the representation is deemed to be true or it is
not. There is no intermediate position. Hence the establishment of any detriment, regardless
of its seriousness or extent,331 will give rise to an estoppel and trigger the consequence
referred to. If this analysis is correct, it is not possible to reflect the extent of the detriment
 suffered in the order made: the doctrine cannot operate to give partial, or pro tanto, relief to
the representee. The consequence of holding the representor to its representation may result
in a benefit to the representee which far outweighs the detriment that would be suffered if
the representor were permitted to resile from it.
(1) Can estoppel by representation operate pro tanto?
Arguments against the pro tanto approach: the decision in Avon CC v Howlett
9.109 The issue was raised in Avon CC v Howlett,332 where the claimant local authority had
repeatedly overpaid one of its employees, the defendant. The total overpayment amounted
to £1,007 and the authority sought the return of this sum as money paid under a mistake of
fact. Estoppel was raised as a defence to this restitutionary claim. At first instance, Sheldon
J found as a fact that all the money had been spent in a way which could not be recouped.
He found that the defendant and his wife had spent the money on a number of small
improvements to their daily lives. It is uncontroversial that such conduct would be
sufficient to give rise to detriment in the event of the recipients being called upon to repay
the funds in issue. However, the pleaded case only covered spending and other acts of
detriment to the value of £546.61. Counsel declined to amend his pleadings because the
parties wished to use the proceedings as a test case to establish whether the lesser acts of
detriment amounted to a complete defence. When the matter came before the Court of
Appeal, both Lords Justice Slade and Eveleigh held that it did:333 estoppel could not
operate pro tanto to give a partial defence to the claim. Lord Justice Cumming Bruce
refused to decide the case on the pleaded facts but expressed himself in obiter agreement
with Slade LJ’s judgment on them.334
9.110 The authorities considered in Avon It is at least doubtful whether the authorities cited in
Avon stand for the proposition that estoppel by representation can never operate pro tanto.
Reliance was placed on Ogilvie v West Australian Mortgage & Agency Corporation335 and
Greenwood v Martins Bank Ltd.336 Both of these cases concerned instances where a bank
customer discovered that cheques on his account had been forged but failed to inform the
bank of this until a significant period had elapsed. In both cases it was held that there was
no need to investigate whether the bank could actually have recovered any money from the
forger had it acted immediately. It was enough to show that it was no longer possible or
practical to recover money from the wrongdoer. The two cases involved the application of
the principle generally referred to as estoppel by negligence. As set out below,337 there is
some doubt as to whether such cases fall within the scope of estoppel at all. It is submitted
that they are more accurately characterised as examples of circuity of action. The customer
was in breach of a duty to inform the bank promptly of any forgeries and the bank owed a
duty not to make payments for which it had no mandate. The mutual breaches of duty, in
effect, cancelled one another out.
9.111 The above analysis is somewhat controversial. Less controversially, both cases may be
explained as examples of the application of the principle of Knights v Wiffen,338 whereby
the Court refuses to speculate as to the outcome of hypothetical proceedings. Once it is
shown that the opportunity to pursue the claim has been lost, uncertainty is resolved in the
representee’s favour. Thus the detriment suffered covered the entire extent of the claim
since it was presumed that the bank would have succeeded in recovering the full amount
from the forger. Ogilvie can clearly be explained in this way, as can the judgment of Greer
LJ in Greenwood.339 It is conceded, however, that it is not possible to explain all of the
general comments of Scrutton LJ on this basis.
9.112 Further reliance was placed on Skyring v Greenwood340 and Holt v Markham,341 on the basis
that in neither case did the Court assess exactly how much of the money had been spent. In
Skyring there appeared to be no evidence of any detrimental reliance. The Court seemed
prepared to assume that it had taken place. It is submitted therefore that the case can give
no assistance on the point. In Holt, it was clear that not all the money had been spent342 but
there was no indication as to whether a substantial amount remained unspent. Further
detrimental acts additional to the mere spending of the money were established.343
9.113 The principles applied in Avon Lord Justice Slade based his judgment on two reasons of
principle. First, his Lordship held that to require the representee to prove precisely the
extent of its acts of detriment would be to impose too harsh an obligation. However, there is
no reason to believe that the application of the normal civil burden of proof would cause
such difficulty: proof on the balance of probabilities would not require the representee to
account for every penny spent344 or equate precisely the detriment suffered with the benefit
which would be bestowed by holding the representor to its representation. Further the
House of Lords has accepted that such a process will have to be performed in relation to the
restitutionary defence of change of position.345 There is no probative distinction between
restitution and estoppel and Lipkin Gorman must therefore throw doubt on Lord Justice
Slade’s decision on this point.346
9.114 Second, his Lordship held that as estoppel was a rule of evidence, its consequence must
simply be that the representor was precluded from averring facts which contradict its
representation. In Avon’s case, the employer authority had represented that its employee
was entitled to £1,007. It was estopped from denying that the employee was so entitled. It is
on this ground that the result of the case can be justified. On the traditional, all or nothing,
view of estoppel as an evidential doctrine with no remedial flexibility, the conclusion
reached in Avon must inexorably follow. As is set out below, Avon itself may be of limited
weight in terms of precedent. It is those cases which adopt the traditional approach that
estoppel by representation is an evidential, rather than a substantive, doctrine347 which
effectively rule out a pro tanto approach.
9.115 Subsequent authorities Avon has been approved in subsequent authorities.348 In Lipkin
Gorman v Karpnale,349 Lord Goff accepted the correctness of the Avon principle as applied
to estoppel by representation. In his view, this aspect of the doctrine made it an unsuitable
tool with which to deal with the problems he was discussing. It was one of a number of the
reasons which led his Lordship to recognise the restitutionary defence of change of
position.350
Arguments in favour of the pro tanto approach
9.116 Avon, on its face, should not be regarded as conclusively excluding the possibility that
estoppel by representation may operate pro tanto. It is clear that the Court was considering
a hypothetical state of facts rather than an actual case. This must limit Avon’s value as a
precedent.351 Further, all three of their Lordships contemplated that there might be certain
circumstances in which a pro tanto approach was appropriate.352 Unfortunately they gave
little indication as to what those circumstances would be and failed to reconcile these
comments with their general rejection of the pro tanto approach.
9.117 In two subsequent cases, the Court of Appeal held that the matter before them fell within the
exception indicated in Avon and adopted a pro tanto approach. The impetus so to do came
from the law of restitution and an analysis of the change of position defence. In Scottish
Equitable Plc v Derby,353 the link between the restitutionary change of position analysis
 and estoppel by representation was explicitly recognised.354 The argument focused on the
role of estoppel by representation where there was also a change of position defence. Two
remedial outcomes were therefore possible: in restitution, a pro tanto change of position
defence; in estoppel, a complete estoppel by representation defence. The remedial outcomes
therefore conflicted.355 Robert Walker LJ considered two routes through such a conflict.
The first was provided by the ‘minimum equity’ concept. On this analysis, the estoppel
would provide the minimum remedy to reverse the detriment. Whilst this approach resolves
the conflict, such an answer points towards an overarching ‘unified doctrine of estoppel’.356
The second route was to contend that there was no role for the estoppel: the presence of
detriment is considered at the point at which the representor seeks to resile from the
representation; if the change of position defence is available then the detriment does not
arise and, consequently, the estoppel does not operate. Robert Walker LJ did not explicitly
resort to this analysis, albeit he found it correct and convincing. The following example was
given:357
A pays £1000 to B, representing to him ‘I have carefully checked all the figures
and this is all yours’. B spends £250 on a party and puts £750 in the bank. A
discovers that he has made a mistake and owed B nothing. He learns that B has
spent £250 and he asks B to repay £750.
B: ‘You are estopped by your representation on which I have acted to my
detriment.’
A: ‘You have not acted to your detriment. You have had a good party, and at my
expense, because I cannot recover the £250 back from you.’
The facts that B has spent £250 in an enjoyable way, and that A readily limits his
claim to £750, put the argument in its most attractive form. But it seems to have
some validity even if B had lost £250 on a bad investment, and A began by suing
him for £1000.
9.118 In National Westminster Bank Plc v Somer International (UK) Ltd,358 the point was again
considered. Here the claimant bank sought to recover money paid under a mistake of fact,
the defendant having received US$76,708.57 by way of transfer. The bank further
confirmed, mistakenly, that this payment had come from one of Somer’s creditors. In
reliance on the representation, the defendant released US$21,616.13 of goods to the
creditor, who subsequently was unable to pay for those goods. Both at first instance, and in
the Court of Appeal, the operation of estoppel was limited to actual detriment suffered (that
is, the value of additional goods forwarded) and Somer was ordered to repay the balance.
9.119 Noting that a flexible approach to remedies had been adopted in actions for money had and
received where no estoppel was in play, Potter LJ stated:359
When the mistake occurs, particularly in the context of a banker/customer
relationship, whether or not an actual representation as to entitlement was made or
can be spelt out is largely fortuitous and ex hypothesi the result of accident rather
than deliberate conduct… It also seems clear that, where there had been such a
representation, the only substantial hurdle standing in the way of recovery, subject
to an appropriate equitable adjustment in relation to the actual detriment suffered,
is the view that the historical origin and technical status of estoppel by
representation as a rule of evidence dictates an all or nothing solution.
9.120 Whilst acknowledging that it was not open to the Court to depart from the traditional
classification of estoppel as a rule of evidence, Potter LJ went on to state that ‘there yet
 remained scope for the operation of equity to alleviate the position on the grounds of
unfairness or unconscionability’.360
9.121 The approach common to National Westminster Bank Plc and Scottish Equitable is the
positing of an overarching minimum equity/unconscionability test. Here, consistent with
the developments in the change of position cases, equity intervenes. The level of detriment
will be judged at the point in time when the representor seeks to go back on his
representation.361 Detailed demonstration of the extent of detriment will remain
unnecessary, with Courts adopting a broad-brush approach unless the discrepancy is such
that detriment bears ‘no relation’ to sums sought to be retained. In such situations, the
unconscionability test will apply and the Courts will require repayment by recipients to
avoid a result which ‘can fairly be described as unconscionable’.362
9.122 This approach has the advantage of apparent theoretical simplicity and there is support for it.
In Brikom Investments v Seaford,363 an estoppel arose in relation to the representation by
the landlords that they and not the tenant were responsible for repairs. A statutory rent was
fixed based on this assumption. The rent would have been fixed at a lower level had the rent
officer believed that the tenant was responsible for repairs. In fact the lease did place the
obligation on the tenant. It was held that the landlord could enforce the repair obligation
and thus retract its representation, once it had refunded the past rent overpayments. Hence
so long as the detriment, namely the payment of the higher rent, was reversed, the true facts
could be adduced. Although this case is probably best viewed as one of equitable
forbearance, it is susceptible to analysis as one of estoppel by representation. It therefore
gives some support to a more flexible approach. Similarly, in Civil Aviation Authority v
Internationale Nederlanden Aviation Lease BV and the European Organisation for the
Safety of Air Navigation (Interveners),364 one of the reasons for Judge Diamond’s rejection
of the estoppel claim was that the results of its operation would be wholly disproportionate
to the mischief suffered by the representee.
9.123 However, on one view, the minimum equity approach goes too far. The supposed conflict
does not require a minimum equity resolution. If a reversal of detriment analysis is applied,
there is no conflict such as necessitates resolution: estoppel by representation operates only
where the change of position does not. Further, if one has to go this far, it is theoretically
possible to separate the estoppel-based analysis into two limbs. The first is the evidential
trigger, the second is that which the Court will do to reverse the detriment suffered. The
remedial analysis need not be bound to the evidential representation. The legal
consequences will flow from the facts established if, and insofar as, they are necessary to
reverse detriment. On another view, postulating the intervention of broad-based equity does
not actually answer the difficult question of the relationship between restitution and
estoppel. This can be easily demonstrated by considering a case where the change of
position defence does not operate. What is equity’s role in such circumstances? Does the
absence of any restitutionary analysis of detriment mean that one reverts to estoppel by
representation as an evidential concept with the concomitant ‘all or nothing’ results?
9.124 Quite apart from whether the argument is necessary, there are other theoretical difficulties.
The minimum equity approach appears to be reliance based. A reliance-based remedy may
not be a complete remedy.365 If so, reversing the reliance will not reverse the detriment.
Similarly, and perhaps more importantly, the principle explicitly draws on the concept of an
underlying equity. That is extremely close to suggesting that there is a unified estoppel
doctrine, which is not yet recognised in English law.366 Put another way, there is nothing to
 stop the transfer of broad-based equitable reasoning to areas outwith the narrow realm of
representations accompanying monies paid under mistake of fact.
9.125 The practical application is also difficult. There are obvious issues as to what level of
detriment or imbalance is required to trigger the equitable adjustment. Further, in National
Westminster Bank Plc, the process of adjustment was simplified by the fact that Somer was
able to quantify its detriment with precision. In the vast majority of cases, that will not be
possible. Deriving more general guidance is difficult.
9.126 Such difficulties suggest that the minimum equity/unconscionability approach may not be
correct. The alternative approach is to recognise two doctrines—both reversing detriment
and overlapping to that extent. Here, once the change of position defence has operated, if
there is no further detriment on which an estoppel could operate the doctrine is disabled or
made redundant. Despite some academic and terminological criticism,367 this appears to be
the correct analysis.
9.127 There is one further approach to Avon. This is to subdivide the representation.368 In cases
such as Avon, the representor might be estopped from denying that the representee was free
to spend £546 but free to retract his representation as to the sum which remained unspent.
This would involve rewriting the representation and is inconsistent with the evidential
approach to the doctrine. Alternatively, it has been suggested that in cases where the result
of the estoppel might confer a benefit exceeding the detriment suffered, the Court might
extract an undertaking from the representee to refund the excess to the representor.369 It is
submitted, however, that it would be improper to enable the Court to effect by means of
undertakings what it could not do under substantive principles of law.
Conclusion
9.128 If the Avon principle is enunciated in stark terms, without taking on board their Lordships’
comments as to the potential for flexibility in certain circumstances, a strong case can be
made for its being abandoned. Once that case has been made, the most obvious course is to
reformulate estoppel by representation into a substantive doctrine. This would involve
recognising the doctrine as a source of legal obligation in itself and not merely a means of
setting up a state of facts on which ordinary principles of law then operate. Such a course
would have three primary advantages. First, it would reflect more accurately the
fundamental and decisive effect which the doctrine can have on the substantive legal
position of the parties. Second, it would bring estoppel by representation into line with
equitable forbearance and proprietary estoppel which are clearly substantive doctrines.
Third, it would avoid the unfairness inherent in the Avon principle and enable the Courts to
choose a remedy which is proportionate to the detriment suffered. As set out above,
however, this step is not necessary to resolve the conflict between restitution and estoppel.
Further, it does not appear that the English law has evolved this far. If, therefore, there are
discrete estoppels and no unified theorem, estoppel by representation remains an evidential
doctrine, albeit one with limited utility in restitution cases or, perhaps, a greater degree of
remedial flexibility.
D. Defences
(1) The representation was improperly induced
9.129 The mere fact that the representation was made in response to a question by the representee
does not prevent its giving rise to an estoppel. However, no estoppel will arise where the
representation was extracted under duress, whether the relevant pressure was exerted by the
representee or a third party.370 Nor will an estoppel arise where the representation has been
 induced by the concealment of some material fact by the representee. The general principle
was stated by Lord Brampton in George Whitechurch Ltd v Cavanagh:371
No representations can be relied on as estoppels if they have been induced by the
concealment of any material fact on the part of those who seek to use them as such;
and if the person to whom they are made knows something which, if revealed,
would have been calculated to influence the other to hesitate or seek for further
information before speaking positively, and that something has been withheld, the
representation ought not to be treated as an estoppel.372
9.130 For example, by issuing a share certificate to Z, a company thereby represents to Z that it is
the owner of the shares. An estoppel may arise in favour of Z if it later acts to its detriment
in reliance on the belief that it is the true owner of the shares.373 The George Whitechurch
principle will prevent an estoppel arising where the circumstances of the original transfer to
Z were sufficiently suspicious to put Z on enquiry.374 In this situation, a duty is imposed on
the representee, Z, to make the relevant enquiries and pass the information obtained on to
the company. If it fails to do so, no estoppel can be founded on the representation
subsequently made by the company. It may be sufficient merely to show that the
representee was in a better position to evaluate the propriety of the transaction and thus the
truth of the representation.375 This ‘defence’ may simply be a manifestation of the principle
that it must have been reasonable for the representee to rely on the representation.
Arguably, it can never be reasonable for a party to rely on a representation the truth of
which it has clear grounds to doubt.
(2) Undermining the effect of a statute
9.131 No estoppel by representation will arise if its effect would be to would be to undermine the
operation of a statute.376 The Court will take account of the particular statutory provision,
its purpose and the social policy behind it when deciding whether an estoppel is to be
allowed.377 In determining whether an estoppel undermines the effect of a particular
provision, the Court will consider the language of the statute as a whole.378 Hence no party
can be estopped from denying the invalidity of a deed of arrangement379 or contract of
guarantee380 rendered void by statute. Similarly, in Re Exchange Securities & Commodities
Ltd,381 an investment company had represented to its clients that large profits had been
made and that these profits were being held for them in accounts with the company. No
such profits had actually been made. The company went into liquidation. The clients
asserted that the company’s representations would have estopped it from denying that the
profits had been made. They attempted to prove a claim in the insolvency proceedings for
both their original capital investment and for the profits which the company had
represented. Mr Justice Harman held that the liquidator had a statutory duty to assess the
true liabilities of the company, and could not be bound by estoppels which would prevent or
hinder the carrying out of this duty.382
9.132 If a statute prohibits a certain type of express agreement or contract, estoppel cannot be used
to achieve the same effect indirectly. Put simply, a party cannot be estopped from denying
that which it could not lawfully have agreed.383 Hence, no party can be estopped from
asserting that its tenancy falls within the scope of the statute.384 Conversely, a
representation that a tenancy falls within the statute cannot give rise to an estoppel, so as to
bring the tenancy within the statute.385 The parties cannot by contract or estoppel give a
tribunal jurisdiction which it does not have.386
9.133 The point may be put more widely. Given the separation between public and private law, a
statute may, by implication, exclude recourse to estoppel. Thus, not only may estoppel not
undermine the statute, the statute may prevent any estoppel from forming. In R v Somerset
Council, ex parte Morris & Perry,387 the Council sought to argue that the applicants were
estopped from contesting its power to impose, out of time, additional conditions applicable
to a planning permission. Maurice Kay J considered the presence of a contractual
mechanism for extensions of time, laid down by Parliament, as implicitly excluding
recourse to other private law doctrines such as estoppel.
Public authorities and ultra vires
9.134 An important example of the principle that estoppel may not be used to nullify the effect of a
statute concerns public authorities. Estoppel by representation cannot be used where its
effect would be to force a public authority to do that which is beyond its powers.388 No
authority can be estopped from denying that which it could not lawfully have agreed. An
ultra vires agreement cannot become intra vires by estoppel, lapse of time, acquiescence or
delay:389 if an authority had no power to enter a particular agreement or give an
undertaking, it cannot give itself the power through estoppel.390 Estoppel cannot be raised
to prevent the exercise of a statutory discretion or excuse the failure to perform a statutory
duty.391 This strict approach may lead to some harsh results,392 where members of the
public have relied to their detriment on ultra vires representations. It has been held,
however, that the duty of an authority to obey the law and stay within the limits of its
statutory powers is more important than any duty not to cause injury by inadvertent
representations.393 The damage to the general public, which would result from permitting
an authority to go beyond the powers granted by Parliament, is deemed to outweigh the
damage to individual representees.394
9.135 The House of Lords case of R v East Sussex CC, ex p Reprotech (Pebsham) Ltd395 appears to
have put an end to the previously widespread use of estoppel against396 public authorities
exercising statutory powers.397 Dealing with a claim that a local authority was estopped by
its representation that no planning permission was required, Lord Hoffmann expressed the
opinion that ‘it is unhelpful to introduce private law concepts of estoppel into planning
law… public law has already absorbed whatever is useful from the moral values which
underlie the private law concept of estoppel and the time has come for it to stand upon its
own two feet’. In Flanagan v South Bucks DC,398 the Court of Appeal was concerned with a
first instance decision that a local authority was estopped from enforcing certain planning
notices that purported to restrict the use of land. Keene LJ considered the effect of
Reprotech and the relationship between estoppel and the public law concepts of legitimate
expectation and abuse of power:
It is clear that the House saw the earlier cases where estoppel had been applied in
planning law as an attempt to achieve justice at a time when the concepts of
legitimate expectation and abuse of power had scarcely made their appearance in
public law. Now that those concepts are recognised, there is no longer a place for
the private law doctrine of estoppel in public law or for the attendant problems
which it brings with it.
9.136 In cases where an estoppel would have arisen but for the ultra vires principle, the authority
may have breached a public law duty such as the duty to act fairly or the duty not to
undermine legitimate expectations.399 As suggested by Lord Hoffmann in Reprotech,400
some claims which would previously have succeeded by virtue of an estoppel may now be
 brought in reliance on public law principles. However, it appears that the scope of doctrine
of legitimate expectation in public law is somewhat narrower than the scope of estoppel by
representation as it operates in private law cases. Remedies against public authorities must
take into account the interests of the general public.401 In R (Wandsworth) v Secretary of
State for Transportation Local Government and the Regions,402 Sullivan J rejected the
argument that a local authority could be estopped from pursuing enforcement action, having
wrongly approved the installation of a telecommunications mast, and then went on to
consider
the proposition that the same decision could be reached by applying public law
principles of legitimate expectation, I accept it is entirely possible that the same
decision might be reached. But it is plain… that the circumstances in which it will
be appropriate to find a legitimate expectation in the planning field are limited, and
the decision taker is engaged in a task that is very different from an attempt to
decide whether or not there is an estoppel in private law.
9.137 The potential hardship created by Reprotech may, however, be mitigated by the availability
of a change of position defence to a local authority’s claim.403 For example, the Court of
Appeal has held that a local authority employee, having received redundancy payments in
excess of powers, was not to be obliged to repay moneys spent in reliance upon a series of
payments received prior to discovery of ultra vires.404
9.138 Extent of the use of estoppel by representation against public authorities The scope for
the use of estoppel against405 public authorities exercising statutory powers, particularly
those dealing with planning issues, is now either extremely limited or non-existent.406
Reliance on the doctrine will not be permitted where the effect of the estoppel would be to
alter the authority’s public functions.407 The movement to restrict the application of the
doctrine began in Western Fish Products v Penrith DC,408 where Megaw LJ confined its use
to two situations.409 First, where an authority validly delegates its functions to an officer, it
will be bound by the decision made by the officer.410 Second, if an authority waives a
procedural requirement relating to an application made to it for the exercise of its statutory
powers, it may be estopped from relying on its absence.411
9.139 After Reprotech, it is doubtful that even these limited exceptions to the general rule survive.
In R (Wandsworth) v Secretary of State for Transportation Local Government and the
Regions,412 Sullivan J refused to accept
the proposition that the first exception in Western Fish survives Reprotech… In my
judgment the House of Lords could not have made it more plain that estoppel no
longer has any place in planning law. The observations of Lord Hoffmann and Lord
Mackay apply with equal force to a ‘kind of estoppel [that] is akin to res judicata.’
If a matter is res judicata there is no need for an estoppel, if it is not there is no
longer any scope for estoppels which are akin to res judicata.
9.140 Similarly, the second exception, which was based on the reasoning in Wells v Minister of
Housing and Local Government,413 does not appear to have survived Reprotech.414 Where a
procedural requirement is expressly imposed by statute no estoppel will arise. Even where
the requirement is not expressly imposed by statute, it is unlikely that the Courts will
permit a public authority’s interpretation of its statutory duties to be restricted by an
estoppel.
E. Effect of Estoppel by Representation on Third Parties
9.141 The effect of estoppel by representation on third parties is an area of considerable difficulty
 and uncertainty. A number of broad general principles have been formulated in the cases.
For example, it has been held that estoppel binds the representor and its ‘privies in title’415
and that estoppel binds only the original representor and those claiming ‘in right’ of the
original representor.416 Unfortunately, these principles have not always provided a reliable
guide.417 Particular uncertainty remains in evaluating the status of those principles laid
down before the development of modern principles as to the transmissibility of commercial
rights and interests. The difficulties in this area have been compounded by the possibility of
analysing the problem from two different angles. Some cases have addressed the issue by
asking simply whether the effect of the estoppel is transferred to the third party whilst
others have asked whether the estoppel is effective to pass title to the third party.418
(1) Passing title
9.142 A relatively common instance of estoppel concerns representations as to title to goods or
other property. Where X represents to Y that Y is the owner of the goods, an estoppel may
arise, under normal principles, to prevent X’s denying its representation. The estoppel does
not, however, operate to pass title to Y, since it has no effect on the real nature of the
transaction. As Lord Mustill put it in Re Goldcorp Exchange Limited:419
[I]t seems to me that an estoppel gives no title to that which is the subject-matter
of estoppel. The estoppel assumes that the reality is contrary to that which the
person is estopped from denying, and the estoppel has no effect at all upon the
reality of the circumstances… a person may be estopped from denying that certain
goods belong to another; he may be compelled by a suit in the nature of an action
of trover to deliver them up, if he has them in his possession and under his control;
but if the goods, in respect of which he has estopped himself, really belong to
somebody else, it seems impossible to suppose that… he can be compelled to
deliver over another’s goods to the person in whose favour the estoppel exists
against him: that person is entitled to maintain a suit in the nature of an action of
trover against him; but that person cannot recover the goods, because no property
has really passed to him, he can recover only damages. In my view estoppel only
creates a cause of action between the person in whose favour the estoppel exists
and the person who is estopped.
9.143 Two particular aspects of this approach should be noted. If the goods which X has
represented belong to Y actually belong to a third party, Y cannot use estoppel by
representation to claim them. The third party has real title whereas Y has merely a pretence
to title which cannot prevail.420 The estoppel will prevent X’s adducing evidence contrary
to Y’s title but it will not so prevent the third party.421 Further, although X may be estopped
as against Y from denying Y’s title, Y is unable to pass title to the goods to a third party, Z.
This principle is applicable whether or not X is the owner of the goods. If Z is to claim the
goods it must establish afresh the requirements of estoppel by representation. Specifically,
Z must prove that X represented to Z that Y was the owner of the goods. The original
representation to Y will not suffice to raise an estoppel in Z’s favour.
9.144 This analysis gives rise to two difficulties. First, there are a number of cases decided under
the controversial principle of estoppel by negligence which suggest that estoppel can
operate to pass title. The most important examples are where a principal represents that its
agent has authority to sell its goods (typically by arming the agent with the documents
sufficient to enable it to represent that it is the owner of the goods)422 and where a principal
gives a completed and signed bill or security, with the express purpose of allowing the
 agent to sell or negotiate the bill or security.423 As is explained below,424 the principle
applied in these cases is best analysed as falling outwith the law of estoppel. The principle
is better viewed as an exception to the nemo dat rule, generated by commercial expediency.
9.145 Second, some confusion may result from the fact that it is possible to make a representation
to the general public. For example, in issuing a share certificate in the name of X, the
company thereby represents to the general public that X is the owner of the shares. If X
purports to sell the shares to Y, the company will be estopped from denying X’s title.425 It
looks superficially as if title has passed as a result of the estoppel. However, the estoppel in
favour of Y is generated by the renewed and continuing representation to Y contained in the
share certificate. Hence, this line of authority is consistent with the general principle set out
above. This is confirmed by the fact that, in such cases, Y is not entitled to the shares but
only to compensation for the company’s failure to register Y as their owner.426 If the
company issues a share certificate, in favour of X, stating that the shares are fully paid up,
it thereby represents to the the general public that this is the case. In Re Stapleford Colliery
Co, Barrow’s Case,427 it was held that the purchaser from X could claim the benefit of the
estoppel even where it (the purchaser) knew that the shares were not fully paid up. No new
estoppel can arise in favour of a representee who knows the representation to be false,
hence it appears that the estoppel was given substantive effect, transferring rights and title
to a third party. The case should therefore be regarded as wrongly decided.
(2) Transferring the benefit of the estoppel
9.146 The executors or personal representatives of the representee may be able to take advantage of
an estoppel arising in favour of the deceased, as a result of events taking place during his or
her lifetime.428 Similarly, a trustee in bankruptcy can take advantage of estoppels arising in
favour of the bankrupt429 and a liquidator can take advantage of estoppels arising in favour
of the company.430 The narrowness of this beneficiary group was confirmed by the
Supreme Court of Queensland in Grace v Peter Harrison Designs & Signs Pty Ltd:
It might well be asked why persons with sufficient proximity to enable them to sue
a defendant for a tort cannot also sue that defendant to enforce an estoppel if such
persons would otherwise be subject to continuing detriment. On current authority
(or lack of it) I would hold that in general a claimant who is not a party or privy to
the principal transaction is not able to enforce an estoppel arising from a
representor’s conduct, at least in the absence of some special nexus between the
claimant and representor.431
On the facts of the case, a company director was held unable to sue personally upon a
representation made to his company, though he was able to pursue separate tortious claims. No
further guidance was given as to examples of ‘special nexus’ relationships. Given the strict
approach outlined, such cases are likely to be rare.
(3) Transferring the burden of the estoppel
Liquidators and trustees in bankruptcy
9.147 There is some uncertainty as to the circumstances in which a company liquidator or trustee in
bankruptcy may be bound by an estoppel arising against the company or bankrupt
respectively. The same principles apply to both types of officer.432 It is clear that a
liquidator will be bound by an estoppel arising as a result of the representation, in a share
certificate issued by the company, that shares are fully paid up.433 Assuming all the
components of estoppel are made out, the liquidator cannot claim a contribution from the
representee, even where the shares were not in fact fully paid up.
9.148 In Re Exchange Securities & Commodities Ltd,434 Mr Justice Harman held that the liquidator
was not bound by an estoppel arising from a representation made by the company as to the
amount it owed its creditors. Mr Justice Harman’s decision was based on two grounds. The
wider ground was that there was a general principle that the representation had to have been
made by the party to be estopped. Since the liquidator had not made the representation, he
could not be bound. This approach gives rise to some difficulties, given his Lordship’s
general assertion that an estoppel could arise against someone claiming in right of the
representor. Earlier authority, of considerable weight,435 had suggested that the liquidator
can be in no better position than that of the company, leading to the conclusion that it was
indeed someone claiming in right of the representor. The narrow ground was that the
liquidator had a statutory duty to ascertain the true debts owed by the company, rather than
the fictional ones as represented by it. He distinguished the earlier line of cases referred to
above on the grounds that they concerned recovery of money owed to the company rather
than paying out what the company owed to others.436
9.149 It is submitted that three different general approaches are possible. First, a liquidator is not
bound by estoppels arising in respect of how much the company owed but is bound by
estoppels arising as to how much was owed to the company. Second, the liquidator is bound
by estoppels arising against the company except where the effect would hinder the carrying
out of a statutory duty.437 Third, the liquidator is not bound by estoppels arising against the
company,438 the explanation of the share cases being that the representation made in the
certificate is a continuing one impliedly adopted by the liquidator. Hence, such cases are
not examples of the liquidator being bound by a pre-existing estoppel but examples of a
new estoppel arising against the liquidator. The second approach appears to be the most
credible. It reflects Mr Justice Harman’s narrower ground and is the most effective means
of reconciling the case with what was said in the earlier authorities. Exchange Securities is
therefore an application of the principle that estoppel cannot be used to prevent the carrying
out of a statutory duty.
9.150 Purchasers of real property As set out above,439 it has been held that an estoppel binds the
representor and its privies. There is no clear principle, however, which determines who is a
privy.440 The term has been used to describe the situation where a representation is made
through an agent.441 Given the nature of the agency relationship, however, this is not a true
third party case. Alternatively, those deriving title from or under the representor have been
described as its privies.442
9.151 An estoppel by representation may arise in relation to real property, for example where X
represents to Y that the boundary between two properties is at a certain point and Y relies
on this representation and constructs a building which adjoins the perceived boundary. If
X’s representation is untrue and, in fact, Y’s building extends on to X’s neighbouring plot,
an estoppel will arise to prevent X from complaining of Y’s trespass.443 The difficult
question which arises, however, is what happens if X sells the neighbouring plot to a third
party? These facts arose in Hopgood v Brown,444 where the Court of Appeal held that the
third party was bound because he claimed title through X. The purchaser gave value for the
land. There was no express finding as to whether he had actual notice but it is clear that he
had constructive notice because Y was in occupation of the land, namely the disputed strip.
However, their Lordships made no reference to these factors. It was sufficient that the
purchaser derived title through X because X could grant no more than he actually owned.
9.152 There are three significant difficulties with this approach. First, in reaching its conclusion,
 the Court of Appeal applied Taylor v Needham.445 Taylor v Needham concerned the
application of estoppel by deed rather than estoppel by representation. Second, such an
approach is premised on the assumption that the estoppel operates to deprive X of some of
his property rights, namely the ownership of the disputed strip of land. Unless it has this
substantive effect, there is nothing to disable X from selling the entirety of the property,
including the strip, to the purchaser. This approach is in conflict with the principle that
estoppel by representation does not operate to pass title but only to prevent the representor
from contradicting his earlier statement.446 Third, such an approach creates a lacuna in the
conveyancing system. Rights of fundamental importance may be created informally, and
may bind unwary purchasers without the need for registration or even notice. To allow, as
the Court of Appeal appeared to do, such an important doctrine to operate wholly outwith
the registration schemes applicable to real property is little short of astonishing.447
9.153 It is submitted that obligations created by estoppel by representation are purely personal in
nature and will not pass with conveyance of the property. It is difficult to reconcile
Hopgood v Brown with the analysis above.448 At the highest, such rights can only pass in
the limited circumstances where proprietary estoppel would operate. This would accord
with the suggestions in the case law that the bona fide purchaser for value without notice of
the estoppel is not a ‘privy’ to the estoppel and therefore not bound by it, whereas other
purchasers are.449 Such an approach involves an application of the doctrine of notice.450
9.154 Alternatively, Hopgood may be partially explained as a proprietary estoppel case. If the
owner of land, X, represents to a third party, Y, that Y owns the land, a proprietary estoppel
may arise in favour of Y. In contrast to estoppel by representation, this type of estoppel is
substantive in nature and may affect the actual ownership of the relevant property.451
Rights created by proprietary estoppel may pass to transferees of land in the circumstances
set out in paragraphs 11.112 to 11.123 below.
Other third parties
9.155 The executors or personal representatives of the representor are bound by any estoppel
arising as a result of a representation made by the deceased during his or her lifetime.452
9.156 Further, an assignee of rights will take subject to a limitation on the assigned rights by virtue
of an estoppel.453 This is the case irrespective of whether the assignee had notice of the
limitation because the assignment transfers such rights as exist at that time. If the
assignment served to circumvent the estoppel, it would be open to the assignor to bypass
any limitation on its rights by assignment with a provision for reassignment at its option.
9.157 Where a company makes a representation concerning its property, no estoppel thereby
arising will bind a debenture holder, even where the representation takes place prior to the
crystallisation of the floating charge over the assets in question.454 Under the terms of such
a charge, the company is free to deal with its assets. However, the chargee’s rights will be
affected only where the company creates and transfers property interests in those assets.
The chargee’s security interest will not be affected by the company’s entering into personal
obligations relating to the property.455 As set out above,456 estoppel by representation does
not operate to create property rights or transfer ownership but only gives rise to personal
rights and obligations between representor and representee. Hence, the debenture holder is
unaffected by an estoppel by representation arising against the company. It should be noted,
however, that where the company’s representation concerns the ownership of its property, a
proprietary estoppel may arise in favour of the representee in addition to an estoppel by
representation. That doctrine operates substantively and is capable of passing ownership
 interests to the representee.457 Hence, the representee may be able to attain priority over the
debenture holder using this doctrine.
9.158 In Hammersmith and Fulham BC v Top Shop Centres Ltd,458 an estoppel arose between the
landlords of a property and their subtenants. The landlords sold the reversion to a purchaser
for value. The conveyance was made expressly subject to such rights as the subtenant might
have.459 Mr Justice Warner held that an estoppel bound the purchaser of the reversion. The
case may not be of general application for two reasons. First, it is by no means clear
whether the doctrine applied was estoppel by representation or proprietary estoppel. As is
set out elsewhere, proprietary estoppel may create transmissible interests in circumstances
where estoppel by representation cannot. Second, the point was not disputed by the parties.
F. Estoppel by Negligence
9.159 Estoppel by negligence is a further possible variant of estoppel by representation. Just as a
representation may be made by conduct, so too, it is averred, may a representation be made
by negligence.460 This doctrine is dealt with in brief because most, and probably all, of the
cases thought to involve the doctrine are more satisfactorily explained using alternative
legal principles.
(1) Elements
9.160 Estoppel by negligence requires the following elements. First, the representor owed a duty to
the representee to take reasonable care.461 It is sufficient if this duty was owed to the
general public or to a group of which the representee was a member.462 Second, the
representor negligently failed to perform the duty.463 Third, the negligence of the
‘representor’ must have led the representee to believe a certain state of facts.464 Fourth, the
negligence was the proximate or real cause of loss to the representee.465 The consequence
of establishing the estoppel is to prevent the ‘representor’ from alleging facts contrary to
the belief induced by its negligence.
(2) Points of difficulty
9.161 Considerable confusion has surrounded this area of law. There is no clear principle
determining when an estoppel will arise. According to some authorities, duty, breach and
damage will suffice. In such cases it is difficult to discern any representation made or belief
induced.466 Hence, it is difficult to fit such cases within the general framework of estoppel
or estoppel by representation. Further, in the majority of estoppel by negligence cases, the
party sought to be estopped never intended or knew that others would act on its
representations. Thus, a further essential component of estoppel by representation seems to
be missing. It may be possible to bypass this difficulty using a strictly objective approach
to the question467 but this seems fairly artificial. Finally, in certain cases the doctrine has
operated to pass title to third parties.468 As set out above,469 this conflicts with well-
established principles of estoppel by representation.
(3) An alternative explanation of the so-called ‘estoppel by negligence’ cases
Negligence in the custody or preparation of cheques and other bills of exchange
9.162 A bank has a mandate to pay out funds only in accordance with the instructions of the
customer. Therefore if a bank pays out on a forged cheque, it has breached its mandate and
the customer can generally sue for the return of the funds wrongly paid out. It has been held
in a number of cases, however, that negligence in the preparation or custody of the cheque
will prevent the customer complaining of the breach of mandate. These cases are discussed
at paragraphs 17.55 to 17.59 below. For the reasons there set out, it is submitted that
estoppel is not the doctrine in play in such cases. Rather they are examples of circuity of
 action: no action lies against the bank because it has a corresponding negligence claim
against the customer. The latter claim provides a complete answer to the first.470
9.163 It should be noted, however, that an estoppel by representation may arise, on normal
principles, where the customer actually represents, expressly or by conduct, that the cheque
is genuine and correct.471 Thus an estoppel may arise where a representation can be inferred
from evidence other than that of negligent breach of a duty owed to the bank. Such cases are
not examples of estoppel by negligence.
Negligently entrusting a third party with ostensible ownership of goods or securities
9.164 Under the nemo dat rule, where X purports to sell goods to Z, which in fact belong to Y,472 Y
can assert title to the goods against Z. In a number of authorities, it has been held that Y is
prevented from asserting title against Z where it has negligently armed X with apparent
ownership of the goods or securities and thereby represented that X has authority to sell
them. The principle was considered in Lenn Mayhew-Lewis v Westminster Scaffolding
Plc.473 There, Mr Justice Popplewell noted and rejected the academic view that there was
no such thing as an estoppel absent representation.474 He founded an estoppel by negligence
on a breach of an owner’s duty of care, in failing to alert the defendants to the likely
invalidity of a sale by his agent. This breach was found to be a proximate cause of the
defendants’ decision to purchase the goods in dispute. The former was estopped from
disputing title. As contended elsewhere,475 this reasoning is equally consistent with circuity
of action and is better explained by reference to this principle.
Estoppel as a defence to restitutionary claims476
9.165 The estoppel by negligence cases where a duty of accuracy has been placed on a payer are
probably better explained as early examples of the change of position defence. Estoppel has
been used to provide a defence to a restitutionary claim for money paid under a mistake of
fact. If estoppel continues to operate at all in this area,477 there seems to be no reason why
it would not also apply to other restitutionary claims, such as those for money paid under
contracts which fail. It will not be applicable to those claims where the recipient is aware of
the existence of the relevant vitiating factor, such as duress. In such cases, the defendant
knows that it is not entitled to the money and, consequently, the third essential element (as
set out in the next paragraph) of the estoppel is missing.
9.166 Elements of the estoppel defence An estoppel defence to a restitutionary claim478 has been
found to arise in the following situation. First, the claimant payer represented, expressly or
impliedly, that the money had been correctly paid to the defendant payee and that it was
free to spend the money as it wished. Second, the defendant believed this representation.
Third, the defendant acted to its detriment in reliance on the representation, usually by
spending the money in a way which cannot be recouped.479
9.167 Representation and duty It is necessary to show either that there was a genuine (or
collateral) representation, made by express statement or inferred from conduct,480 or that
the payer was under a duty to the payee to calculate the sum accurately.481 In the latter type
of case, the requisite representation may be inferred merely from the fact of payment to the
defendant. The cases falling within the former category do not form part of the law of
estoppel by negligence whereas those in the latter category seemingly do.
9.168 Problems with the estoppel defence The problems which have beset other variants of
estoppel by negligence have occurred in this context. Three particular difficulties should be
noted. First, there is no coherent principle which determines those relationships where a
duty of accuracy is imposed. Arguably a duty should be imposed only where the parties are
 unequal and the payer has a great deal more information and expertise, in the relevant
matters, than the payee. However, there is no consistency as between the cases. For
example, in Weld Blundell v Synott,482 the first mortgagee, pursuant to its statutory rights,
took possession of the secured property and sold it to meet an outstanding debt. After
deducting the sums due to it, the first mortgagee is under a duty to remit the proceeds to the
holder of any second mortgage or charge. Such mortgagees are in a vulnerable position and
have very limited rights to information on the repossession sale. In Weld, the first
mortgagee mistakenly overpaid the second. No duty of accuracy arose despite the inequality
between the parties. By contrast, in Avon CC v Howlett,483 it was held that an employer
owed a duty to its employees to calculate their remuneration accurately. Arguably an
employee is in as good a position as his or her employer to know the level of remuneration
due to him or her. If there is a degree of inequality in such cases, it is not nearly as marked
as that present in Weld.484
9.169 Second, the content of the inferred representation is uncertain. If the payer is deemed to
represent that the payment is correct and final, this imposes a very severe burden. It is more
likely that the representation is only that care has been taken and that any error will be
brought to light within a reasonable time.485 If the inferred representation is so limited, the
defence will not operate immediately on receipt of the payment.
9.170 Third, issues arise as to whether or not estoppel by representation can operate pro tanto.
These issues are discussed in relation to Avon CC v Howlett at paragraphs 9.109 ff above.
9.171 Interrelationship with the defence of change of position According to Lord Goff, the first
and third difficulties referred to provide ‘a strong indication’ that estoppel is not an
appropriate concept to deal with this situation.486 In Lipkin Gorman v Karpnale,487 the
House of Lords recognised the existence of the defence of change of position. In summary:
[T]he defence is available to a person whose position has so changed that it would
be inequitable in all the circumstances to require him to make restitution, or
alternatively to make restitution in full.488
9.172 Both estoppel and change of position will be triggered by detrimental reliance. They operate
in different circumstances. Thus, the defence of change of position operates where
restitution would be inequitable due to factors which are causally linked to mistaken
receipt, as opposed to the representation;489 whereas estoppel will operate where the bars to
change of position apply. It is also clear from Lipkin Gorman that change of position differs
in two additional ways. First, there is no need to establish any express or implied
representation. It is sufficient if the payee formed the belief that the money was its own and
that it was free to spend it as it liked. The source of that belief is not material. Second, it is
clear that change of position can and often will operate as a partial rather than a complete
defence. Hence, if the defendant still retains some of the money paid to him, he will be
obliged to disgorge it even if the remainder cannot be recouped.
9.173 The question which arises is whether the change of position defence has wholly supplanted
that of estoppel490 in this context or whether the two doctrines will operate in tandem.491
As canvassed in detail at paragraphs 9.109 ff above, it appears that both doctrines may
operate in tandem. Estoppel by representation (when properly defined) operates to prevent
detriment. On that approach, an estoppel will often be pre-empted or disabled by change of
position defence, there being no detriment to reverse. As Lord Justice Robert Walker stated
in Scottish Equitable Plc v Derby,492 ‘since Lipkin Gorman the defence of change of
position pre-empts and disables the defence of estoppel by negativing detriment’.493 That is
 not to say, however, that estoppel by representation becomes completely redundant. Where
change of position does not operate or does not negative the detriment suffered, there is no
reason why an estoppel should not apply.
9.174 Even with this in mind, there seems very little justification for survival of the duty cases,
given the particular difficulties associated with them.494 It is submitted this line of
authority should not survive Lipkin Gorman. Arguably, the cases were, in fact, early and
crude manifestations of the change of position defence laid down in Lipkin Gorman.
9.175 Conclusion In summary, it is submitted that a further category of estoppel by negligence
cases, namely those where a duty of accuracy is placed on a payer, rests on distinctly
dubious foundations. Such cases are better explained as early examples of change of
position rather than estoppel.
The remaining cases
9.176 It is noteworthy that the doctrine of estoppel by negligence has made only one, fleeting,495
appearance in the cases reported over the last decade. The preceding paragraphs
demonstrate that the majority of the cases on this subject can be excluded from the law of
estoppel. This leaves a negligible rump of authorities which may be governed by the
estoppel by negligence doctrine. Examples include the negligent issue of mercantile
documents, such as delivery orders, on which others are likely to rely. Such cases may be
explicable in terms of the modern law of tort.496 Further, if a party discovers that a deed has
been forged in its name, it has a duty to inform the holder of the deed of the forgery.497 It is
not entirely clear whether it is necessary to establish negligence on the part of the original
party. If not, such cases are no more than a further instance where the law imposes a duty to
speak, as discussed above. If negligence is a requirement, it may be possible (and indeed
preferable) to accommodate these cases within the law of tort rather than of estoppel.
 10
ESTOPPEL BY CONVENTION
A. Introduction 10.01
B. A Broader Analysis of the Doctrine 10.04
C. Application of the Doctrine 10.09
(1) Shared assumption 10.09
(2) Unjust or unconscionable 10.11
D. Estoppel by Convention as a Sword 10.13
A. Introduction
10.01 On one level, the elements of estoppel by convention can be simply stated. Thus the estoppel
will occur where:1 (i) the parties have established, by their construction of their agreement
or a common apprehension as to its legal effect, a convention basis;2 (ii) on that basis the
parties have regulated their subsequent dealings;3 (iii) one party would suffer detriment4 if
the other were to be permitted to resile from that convention.5 These three limbs have
recently been restated as:
(i) It is not enough that the common assumption upon which the estoppel is based is
merely understood by the parties in the same way. It must be expressly shared
between them.
(ii) The expression of the common assumption by the party alleged to be estopped must
be such that he may properly be said to have assumed some element of responsibility
for it, in the sense of conveying to the other party an understanding that he expected
the other party to rely upon it.6
(iii) The person alleging the estoppel must in fact have relied upon the common
assumption, to a sufficient extent, rather than merely upon his own independent view
of the matter.
(iv) That reliance must have occurred in connection with some subsequent mutual
dealing between the parties.
(v) Some detriment must thereby have been suffered by the person alleging the estoppel,
or benefit thereby have been conferred upon the person alleged to be estopped,
sufficient to make it unjust or unconscionable for the latter to assert the true legal (or
factual) position.7
10.02 As such, estoppel by convention can on this level8 be relatively easily distinguished from
estoppel by representation and equitable forbearance. Estoppel by convention depends on a
shared assumption9 which can be one of fact or law10 and not on either a representation as
to a state of facts11 or a promise12 as to future obligations.13
10.03 However, there are three complications to the above analysis. First, is the analysis too
categorical and should a broader, more flexible approach be adopted? Second, when, as a
matter of fact,14 will the doctrine apply? Third, can estoppel by convention provide the
party relying on it with a cause of action?
B. A Broader Analysis of the Doctrine
10.04 The analysis of the three requisite limbs of estoppel by convention is and was15 derived, as
has been realised,16 from Keen v Holland17 and Republic of India v India Steamship Co Ltd
(No 2).18 The doctrine has also, however, been formulated more broadly. The origin of the
 broader formulation is Lord Denning MR’s statement in Amalgamated Investment and
Property Co Ltd v Texas Commerce International Bank Ltd:19
The doctrine of estoppel is one of the most useful and flexible in the armoury of
the law. But it has become overloaded with cases… It has evolved during the last
150 years in a sequence of separate developments… At the same time it has been
sought to be limited by a series of maxims… All these can now be seen to merge
into one general principle shorn of limitations. When the parties to the
transaction proceed on the underlying assumption—either of fact or of law—
whether due to mistake or misrepresentation makes no difference—neither of
them will be allowed to go back on that assumption when it would be unfair or
unjust to allow him so to do. 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.20
This overarching doctrine is the keystone to Lord Denning’s approach to the law in this area.
Put simply, the idea that there were different operating estoppels was to be abandoned and
replaced with one broad doctrine of estoppel.21 A later Master of the Rolls, Lord Donaldson,
expressly included estoppel by convention within that single broad doctrine.22 Further and
most recently, in Johnson v Gore Wood & Co,23 Lord Bingham appeared to accept that such
an overarching doctrine existed.24 There is therefore powerful authority to suggest that the
approach outlined above would be incorrect at least in relation to estoppel by convention
and, possibly, in relation to all estoppels.
10.05 Despite such powerful authority, Lord Denning’s formulation of an estoppel is not without
difficulty. As far as Johnson is concerned, not only was Lord Bingham’s proposition drawn
from a common concession between Counsel25 but also (and strikingly) Republic of India v
India Steamship Co Ltd (No 2), the leading, recent House of Lords authority on the point,
was not cited to their Lordships. There may, therefore, be some doubt as to the status of the
authority on this point. The only other express consideration of the point was by Lord Goff.
Lord Goff rejected any such overarching doctrine in terms of its own logic26 and because of
its detrimental effect on the doctrine of consideration27 and then reaffirmed the absence of
any single formula.28 The furthest Lord Goff was willing to go was to accept that there may
be a common link of unconscionability between estoppel in its various forms.29 Johnson
does not therefore provide other than lukewarm support for a more broadly formulated
doctrine.30
10.06 It is also difficult to deduce the existence of such an overarching doctrine from the case law.
In plain terms, the Courts still regard estoppel by convention and estoppel by representation
as different doctrines.31 Further, as and when the Courts have been invited to formulate an
overarching doctrine, they have declined that invitation.32
10.07 The above might not pose considerable difficulties if there were some utility in the creation
of the overarching doctrine or there were powerful juridical or policy arguments against a
taxonomic approach. As far as utility is concerned, it is difficult to discover any clear need
for a unified doctrine other than for reasons of perceived doctrinal simplicity or a desire for
broadly-based civil law concepts. The creation of an overarching doctrine does not, for
instance, bypass the requirement that a party must plead and prove that it acted in a
particular way on the strength of a particular representation, assumption or promise.33
Further, the introduction of a broad, inchoate concept does nothing to mitigate the
criticisms of ‘estoppel’ as a vague or uncertain doctrine.34
10.08 The main juridical criticism of a taxonomic approach is that it could fragment a flexible
doctrine into a series of inflexible categories. However, such criticism is misplaced for
three reasons. First, there is sufficient flexibility in each of the categories to cover all
factual situations.35 Second, if the approach leads to clarity and certainty then that approach
should be adopted especially where, as here, the approach does not over-complicate the
issues. Third, English law still recognises (due to the doctrine of consideration)
fundamental differences between promises and representations. If a clear and consistent law
of obligations is to exist, those differences must be reflected across the board.
C. Application of the Doctrine
(1) Shared assumption36
10.09 For the doctrine to be invoked, the assumption at issue must be shared. If one party merely
acts individually there is no estoppel by convention.37 The notion of a shared assumption
carries within it two elements. First, one party must have acted so that ‘across the line’
between it and the other party, a belief or expectation is created in the mind of the other
party.38 Second, the conduct required for there to be a ‘crossing of the line’ is ‘mutually
manifest conduct’39 or course of dealing40 which although not a contract41 must be
‘something very close to it’.42 As such, an estoppel by convention will not arise from mere
silence or inactivity.43 Similarly, the estoppel may be negatived by the terms of any
contract between the parties, the most obvious being the presence of an entire agreement
clause.44 Further, there is some debate as to whether an estoppel by convention can arise
from pre-contractual negotiations, the fact that negotiations are on foot making it unlikely
that there will be a sufficient common assumption.45 Finally, it is likely that if the conduct
at issue is not sufficient to found a waiver, it will also not be sufficient to found an estoppel
by convention.46 It is important to note, however, that the requirement of a shared
assumption does not mean that one party must have induced or encouraged the other to act
on a particular assumption.47
10.10 It follows that an estoppel by convention will only arise in limited circumstances.48 Where
there is no shared assumption, there will be no estoppel by convention49 no matter how
unjust the other party’s conduct may be. In those circumstances, the party seeking to
establish an estoppel must rely on estoppel by representation if it is to succeed. The
difficulty in so doing is that an estoppel by representation cannot arise from
silence/acquiescence unless one party is under a duty to speak.50 Given that where there is
no shared assumption, there will in all probability be no express conduct on which reliance
can be placed, it is highly likely that the estoppel by representation claim will also fail.
(2) Unjust or unconscionable
10.11 For the plea to succeed, it must be ‘unjust’ or ‘unconscionable’ to allow one party to resile
from the common assumption.51 The requirement of unconscionability has been summed
up as:
In almost all cases, such unconscionability must be based on the prejudice which
would be caused to the claimant if the strict legal position applied. As I see it,
the claimant must also establish that that prejudice arises from its reliance upon
the convention. In other words, the Court generally must be satisfied that (a) the
claimant will suffer real prejudice, and (b) the prejudice arises from its reliance
upon the convention. It should be emphasised that, even if the claimant satisfies
these criteria, there may still be no estoppel, because there may be other, more
 powerful, factors pointing the other way.52
10.12 This limitation is nothing more nor less than the requirement of detriment certainly present
in proprietary estoppel and estoppel by representation and probably present in equitable
forbearance.53 For present purposes, four general points should be noted. First, in
considering the question of unconscionability the Courts will not confine their analysis to
the acts of the party who allegedly relied on the assumption or, indeed, merely to the acts of
the parties. As Mr Justice Neuberger (as he then was) pointed out in PW & Co v Milton
Gate Investments Ltd,54 the Court will take account of other factors, including the impact
on third parties. Thus, where the alleged estoppel relates to a multi-party arrangement (for
example, pensions), the Court will not only examine the prejudice to others but will be
unwilling to hold that a convention as between A and B should bind all the others to the
arrangement.55 Second, the party seeking to establish detriment must show it acted on the
basis that the shared assumption was correct.56 Third, provided that the party seeking to
establish the estoppel has so acted, detriment will be suffered by the mere fact that there
has been a change from the presumed position.57 This is because there is an element of
injustice inherent within the concept of the shared assumption—one party has acted
unjustly in allowing the belief or expectation to ‘cross the line’ and arise in the other’s
mind.58 Therefore, the detriment suffered by the withdrawing from the shared assumption
will suffice to establish the estoppel.59 Fourth, by contrast, in certain limited circumstances
it will not be unconscionable for one party to resile from the representation. Thus, where
one party has already resiled, it will not be unconscionable for the other to do likewise60
(assuming that the estoppel by convention operates only between those two parties).61
D. Estoppel by Convention as a Sword62
10.13 The consistent and uncontroversial approach in this work is that estoppel63 is an evidential
doctrine that does not create substantive rights. It follows that an estoppel by convention
cannot create, in the proper sense of the word, a cause of action.64 Similarly, estoppel by
convention cannot validate a transaction that the legislature has made invalid.65
10.14 However, estoppel by convention will preclude a party from arguing that a particular state of
affairs does not exist. What is now controversial is how far this principle can be applied or
extended.
10.15 Historically, the authorities suggested that an estoppel by convention would operate to
preclude a party from denying that it is a party to a guarantee;66 or that there was a
concluded contract between the parties;67 or that it is obliged to indemnify the facts at issue
falling within the indemnity provided.68 This, it was thought, was legitimate as the estoppel
was purely defensive—the other party is being prevented from contending that the claim
must fail. However, the effect of the estoppel was that the other party’s contention that it
was not liable failed and, by parity of reasoning, the party relying on the estoppel succeeded
even if the effect of the estoppel was to grant a party greater rights than existed under the
contract.69 That came perilously close to the estoppel providing the party with a cause of
action—which would be illegitimate.
10.16 It was for this reason that the Court in Baird Textile Holdings Ltd v Marks & Spencer Plc70
held that it was not even arguable that an estoppel by convention precluded Marks &
Spencer from either denying the existence of a contract or that the contract was subject to a
particular notice period.71 Both contentions meant, the Court of Appeal held, that the
estoppel was creating a cause of action. As such, only a proprietary estoppel (which can
 create a cause of action) would operate to preclude a party from denying particular facts
where the practical effect of that operation was to grant the other party a cause of action.
10.17 The approach in Baird has been reflected in three cases where the Court has been considering
whether or not the parties had, contrary to the case now advanced by one party, entered into
a concluded contract—Tesco Stores Ltd v Costain Construction Ltd,72 Investments Ltd v
Development Ventures Ltd73 and Haden Young Ltd v Laing O’Rourke Midlands Ltd.74 In
each case the Court held that an estoppel by convention could not be relied on in support of
the case that there was a concluded contract—either because of Baird or because of a
finding that a state of affairs which was not sufficiently clear to create a contract could not
be sufficiently clear to generate the necessary convention.
10.18 Thus, as the law currently stands, there are two schools of thought—the historical expansive
approach and the Baird approach. As Mr Justice Colman recognised in BP Plc v AON Ltd,75
the result in Baird conflicts with the reasoning in Amalgamated Bank and the previously
decided cases on estoppel by convention. Further, it is difficult to see, if Baird is right, what
role—if any—remains for estoppel by convention76 or indeed how the doctrine continues to
be used to modify contractual obligations (as the authorities relied on in this chapter
demonstrate it is). As Amalgamated Bank and Baird are both Court of Appeal authorities,
any resolution of the conflict must await the Supreme Court. Until then, considerable
caution must be exercised in using an estoppel by convention where the pragmatic effect of
so doing is to create a cause of action or, as it was put in the previous edition, the estoppel
is acting as a sharp edged shield.
 11
PROPRIETARY ESTOPPEL
A. Introduction 11.01
(1) Summary of elements 11.03
(2) Terminology 11.04
B. Categories of Cases 11.08
(1) The ‘imperfect gift’ cases 11.09
(2) The ‘common expectation’ cases 11.11
(3) The ‘unilateral mistake’ cases 11.17
C. Elements 11.21
(1) Assurance 11.21
(2) Reliance 11.53
(3) Detriment 11.63
D. Remedies 11.82
(1) The aim of the discretion 11.84
(2) Exercising the discretion: relevant factors 11.95
(3) Exercising the discretion: quantum 11.104
(4) Examples of remedies granted 11.107
E. Effect of Proprietary Estoppel on Third Parties 11.112
(1) The burden 11.113
(2) The benefit 11.122
F. The Scope of Proprietary Estoppel 11.124
(1) Land and other types of property 11.126
(2) Present and future rights in property 11.128
(3) After-acquired property 11.130
(4) Specific property 11.131
G. Comparison with the Law of Constructive Trust 11.133
(1) Common expectation and common intention 11.134
(2) The commercial context 11.141
(3) The domestic context 11.146
(4) Remedies 11.157
H. Comparison with the Law of Contract 11.160
A. Introduction
Under the law of this country—as, I venture to think under the present law of
England… proprietary rights fall to be governed by principles of law and not by
some mix of judicial discretion, subjective views about which party ‘ought to
win’… and the ‘formless void’ of individual moral opinion…
per Deane J in Muschinski v Dodds (1985) 160 CLR 583, 615–16, High Court of Australia.
11.01 The doctrine of proprietary estoppel has its origins in equity’s traditional jurisdiction to
prevent the fraudulent assertion of legal rights. The narrative thread running through the
cases that have shaped the doctrine is one of judges balancing the desire to address
 unconscionable conduct against the principle that laws should be accessible, clear and
predictable. Although this tension occurs throughout the common law and equity, in this
area it is heightened by three recurrent features of the circumstances that give rise to a
dispute. First, the dispute will usually relate to an interest in land and therefore engage the
principle that proprietary rights must be certain, so as to permit an efficient market.
Second, the dispute will often relate to ‘domestic property’, and may1 or may not2 engage
‘a special principle’ which operates in the domestic context. Third, the rights that are
claimed will usually lack the definitional certainty of rights that have been formed in
accordance with the formalities for the creation or disposition of an interest in land.3
11.02 The incremental development of proprietary estoppel against this background tension has
resulted in a doctrine that is over-complicated and conceptually incoherent. The problem to
which Deane J refers in the above extract from Muschinski v Dodds is that of rules which
lead to uncertain consequences. The applicable rule may be ascertainable and clear but if it
permits too great an element of judicial discretion, or if that discretion is unregulated, then
the results will be unpredictable. This type of unregulated discretion remains a feature of
proprietary estoppel’s remedial machinery. However, the greater, and logically precedent,
uncertainty arises when the rules that apply in a given situation cannot be ascertained. The
history of proprietary estoppel is blighted by examples of this problem: a century of
attempts to apply Fry J’s ‘five probanda’,4 relevant only to cases of unilateral mistake,5 to
other forms6 of proprietary estoppel; the development of proprietary estoppel by analogy
with constructive trust theory,7 followed by warnings against assimilation;8 high authority
for the proposition that the doctrine is a ‘sub-species of promissory estoppel’9 and high
authority for the proposition that this classification is incorrect.10 It is therefore
unsurprising that the first11 detailed examination of the doctrine by the House of Lords in
145 years was reported12 as heralding its death, whilst the second,13 a year later,
demonstrated that this report was an exaggeration.
(1) Summary of elements
11.03 The doctrine of proprietary estoppel operates to prevent the unconscionable assertion of
property rights. The trigger for the operation of the doctrine, ‘unconscionability’, has
crystallised14 into three reasonably settled elements: assurance, reliance and detriment. A
claim in proprietary estoppel will only arise where a claimant has acted to his detriment in
reliance on an assurance, from the owner of property, that he has, or will be granted, rights
over that property. Once this is established, the Court will take into account ‘all the
circumstances of the case’15 to ascertain whether it would be unconscionable to deny the
claimant a remedy. The Court’s discretion, although flexible, is not wholly unstructured16
and it is increasingly clear that the Court will seek to grant the minimum remedy necessary
to avert unconscionability. This may, but will not necessarily, involve granting the claimant
rights over the property.
(2) Terminology
11.04 It may not be appropriate to refer to the doctrine under consideration as a species of estoppel.
The effect of proprietary estoppel was originally described as preventing or estopping the
owner from enforcing his strict legal rights, namely his property rights. The modern
doctrine goes beyond mere restriction on enforcement and may operate to transfer
enforceable property rights to the claimant. Unlike other estoppels, it is a source of legal
obligation in itself and may give rise to a cause of action.17 Further, a claim in proprietary
estoppel may result in a much wider range of consequences than other estoppel claims. For
 example, in estoppel by representation, the effect is almost always binary: if the estoppel
operates, then the party that made the representation is prevented from denying its truth, if
the estoppel does not operate then it is not so prevented; the outcome is either as asserted
by the representor or as asserted by the representee. By contrast, the Court has a wide
remedial discretion in proprietary estoppel cases. For example, the assertion by a claimant
that she is entitled to a freehold interest in a piece of land will not necessarily result in the
award of that interest, even if the original owner is estopped from denying it: the original
owner may be required to grant some lesser right to the claimant or to pay compensation.
Thus, it is possible to characterise the doctrine as simply a species of liability generated by
detrimental reliance, which shares features not only with estoppel but also with the
doctrines of constructive trust, unjust enrichment, contract and tort.
11.05 However, the term proprietary estoppel remains apposite for two reasons. First, it is so well
established as to make departure from it impractical and pedantic. Second, the entire
estoppel concept has progressed beyond its original evidential emphasis on estopping or
preventing the assertion of the strict factual position. The assertion of an estoppel may
permit the Court to exercise a range of remedies rather than the straightforward and
traditional binary determination of the assertion before it. Although this versatility is
manifested to differing degrees across the various species of estoppel,18 there remains a
sufficient overlap between the doctrine under consideration and other species of estoppel to
make a common classification both feasible and useful.19
11.06 Additional terminological and semantic, but also substantive, difficulties flow from the fact
that the modern doctrine of proprietary estoppel is the fusion of equity’s responses to three
different factual situations: an imperfect gift of property; a common expectation that a
party would be granted property rights; and a party’s unilateral mistake as to its property
rights. The amalgamation of the principles applied in these situations has resulted in a
doctrine that addresses mistakes as to property rights and promises of additional rights in
property. Some have concluded that there are two wholly different doctrines operating in
this area, one based on mistake and one on promises or expectations. A further distinction
was drawn by Lord Scott in the case of Thorner v Major,20 as between ‘cases in which the
representations relied on relate to the acquisition by the representee of an immediate, or
more or less immediate, interest in the property in question’ and cases ‘where the relevant
representation has related to inheritance prospects’. His Lordship suggested that, whilst the
remedy available in the first type of case could properly be described as proprietary
estoppel, cases in the second category were better explained by the principles of
constructive trust. Such difficulties are the reason why the term ‘proprietary estoppel’ has
been described as ‘an amalgam of doubtful utility’.21
11.07 Despite these difficulties, it remains possible to identify a single doctrine, albeit one which
operates slightly differently according to whether the property owner has engaged in active
encouragement or whether his conduct has been purely passive. Consequently, the word
assurance is used as an umbrella term to describe the conduct of the property owner in
either of the situations described. This term is offered, for reasons of practicality, as the
best available shorthand. A comprehensive description of the doctrine must identify its
disparate origins22 and distinguish it from the potentially overlapping doctrines of
constructive trust23 and contact.24 Lastly, when authorities and hypothetical examples are
discussed in this chapter, the letter C represents the party claiming an interest in property
and the letter P represents the original property owner.
 B. Categories of Cases
11.08 The essential common elements of what is now called proprietary estoppel emerge from
equity’s response to ‘three broad, and not entirely distinct, categories of circumstance.
These categories comprise (1) the “imperfect gift” cases, (2) the “common expectation”
cases, and (3) the “unilateral mistake” cases.’25
(1) The ‘imperfect gift’ cases
11.09 In these cases, P tells C that he has made her a gift of the property but fails to make a
formally valid transfer. This form of proprietary estoppel developed by analogy with the
now abolished Court of Chancery doctrine of part performance.26 The leading authority is
Dillwyn v Llewelyn.27 In that case, P wished to give C, his son, land upon which to build a
home and presented C with a signed memorandum to that effect. The memorandum was not
a deed and therefore did meet the formality requirements for a transfer of land. C spent
£14,000 building a house on the land. After P died, C’s brother disputed his title. Per Lord
Westbury LC:28
About the rules of the Court there can be no controversy. A voluntary agreement
will not be completed or assisted by a Court of Equity, in cases of mere gift. If
anything be wanting to complete the title of the donee, a Court of Equity will not
assist him in obtaining it; for a mere donee can have no right to claim more than he
has received. But the subsequent acts of the donor may give the donee that right or
ground of claim which he did not acquire from the original gift… so if A puts B in
possession of a piece of land, and tells him, ‘I give it to you that you may build a
house on it,’ and B on the strength of that promise, with the knowledge of A,
expends a large sum of money in building a house accordingly, I cannot doubt that
the donee acquires a right from the subsequent transaction to call on the donor to
perform that contract and complete the imperfect donation which was made. The
case is somewhat analogous to that of verbal agreement not binding originally for
the want of the memorandum in writing signed by the party to be charged, but
which becomes binding by virtue of the subsequent part performance.
11.10 A more recent example is Pascoe v Turner29 where, after a period of cohabitation between P
and C, the former left stating ‘the house is yours and everything in it’. No formal transfer
was ever executed. P then encouraged C to spend £230 on repairs and improvements and re-
decoration to the house in the belief that it was hers. An equity arose which the Court of
Appeal considered could only be satisfied by a declaration that C was entitled to the estate
in fee simple in the house. Per Cumming-Bruce LJ:
[T]his court concludes that the equity to which the facts in this case give rise can
only be satisfied by compelling the appellant to give effect to his promise and her
expectations. He has so acted that he must now perfect the gift.
(2) The ‘common expectation’ cases
11.11 In this category, C, as a consequence of her dealings with P, believes that she will be granted
an interest or right over P’s property. In Ramsden v Dyson,30 P was the owner of a large
estate and C held a plot of land on the estate as a tenant at will. C spent money building on
his plot on the strength of assurances, said to have been given to him by P’s agent, that he
would never be disturbed. Lord Kingsdown31 focused on P’s encouragement of C’s
expectation:32
If a man, under a verbal agreement with a landlord for a certain interest in land, or,
what amounts to the same thing, under an expectation, created or encouraged by
 the landlord, that he shall have a certain interest, takes possession of such land with
the consent of the landlord, and upon the faith of such promise or expectation, with
the knowledge of the landlord and without objection by him, lays out money on the
land, a Court of equity will compel the landlord to give effect to such a promise or
expectation.
11.12 The common expectation may be formed by one of two slightly different methods: either it
results from an express promise by P that such a right will be granted33 or as product of the
mutual dealings between the parties:
Short of an actual promise, if [P], by his words or conduct so behaves as to lead
another to believe that he will not insist on his strict legal rights—knowing or
intending that the other will act on that belief—and he does so act, that again will
raise an equity in favour of the other.34
11.13 Examples of the express promise are ER Ives Investment Ltd v High35 and Crabb v Arun
DC,36 where C was promised a right of way over P’s property.
11.14 The understanding was less explicit in Plimmer v Wellington Corporation:37 P (a provincial
authority) was the owner of a harbour and C occupied the harbour’s jetty and wharf under a
licence. P asked C to extend the jetty and build a warehouse and shed to accommodate
arriving immigrants. Both parties used the facilities harmoniously and to their mutual
advantage for, at least, the following 16 years. It was held that the parties’ mutual dealings
showed clearly that both must have intended C to have an indefinite and irrevocable right to
remain on the premises, despite the absence of any evidence that the parties had ever
discussed the matter. A similar approach was applied in Inwards v Baker.38 C was
considering building a house; P, his father, said ‘why don’t you build it on my land and
make it a bit bigger?’ P’s conduct was held to have generated an expectation in C that he
would be allowed to remain in occupation of the land for as long as he wanted. In Gillett v
Holt,39 C worked for P, a farmer, from his teenage years for a period of over 40 years. P
gave C a number of assurances over the years that C would inherit the farming business and
executed a will in his favour. P later fell out with C and executed a new will leaving his
farming business to another. P’s unambiguous assurances over a long period that the
farming business would be C’s formed the basis of a claim based on proprietary estoppel.
The change of intention in the will did not preclude C from relying on the previous
assurances.
11.15 It may be possible to characterise the common expectation cases as involving promises
whether explicit or implicit. The expectation, by definition, must relate to the acquisition of
rights in C’s property. Where qualifying mutual dealings take place, P, as the prior holder
of the interest or right in question, must, at least implicitly, undertake to transfer it to C.
However, the process which gives rise to liability may be considerably more subtle than a
simple promissory analysis would seem to suggest. The mutual understanding may have
emerged as a result of a number of factors occurring over a period of time, rather than as a
result of a clear indication by P that an interest is to be transferred. It is sufficient if the
parties have dealt with one another and conducted business on the mutual assumption that a
relevant right will eventually be granted, even if neither the precise nature of the right40 nor
the terms of grant have been finalised or even considered.
11.16 The distinction between the common expectation and the imperfect gift cases is minimal. It
depends partly on the nature of the representation made by P and partly on the belief
formed by C as a result. A promise to transfer in the future can give rise to liability only
 under the expectation head. A statement of present gift or entitlement, for example ‘the
house is yours and everything in it’ may lead to liability under either head. If C
consequently forms the belief that the gift has been perfected, either by mistake of law (she
believed an averment of gift was sufficient) or one of fact (she knew formalities were
required but believed that they had been carried out), the case falls within the first heading.
If, however, she knew that further formalities were necessary to perfect the gift, the case
falls under this heading and involves the expectation of future grant of an interest, a
statement of present gift being readily construed as including an undertaking that formal
requirements had been or would be complied with.
(3) The ‘unilateral mistake’ cases
11.17 In these cases, C believes that she owns property which, in fact, belongs to P. Whilst
examples of this situation are becoming increasingly rare,41 the problem occurred quite
frequently in the nineteenth century, when the construction of a canal and railway network,
coupled with the complexity of unregistered conveyancing, often resulted in building works
being carried out on land without the agreement of its owner. An early example of the
principle is Rochdale Canal Company v King (No 2):42
The principle on which the Defendants rely is one often recognised by this Court,
namely, that if one man stand by and encourage another, though but passively, to
lay out money, under an erroneous opinion of title, or under the obvious
expectation that no obstacle will afterwards be interposed in the way of his
enjoyment, the Court will not permit any subsequent interference with it, by him
who formally promoted and encouraged those acts of which he now either
complains or seeks to take advantage.
Despite the reference to ‘encouragement’43 the distinguishing feature of this class of cases is
that the mistake is not induced or caused by P but is made independently and unilaterally by C.
The unconscionability stems from P’s knowledge of C’s mistake combined with P’s
knowledge or encouragement of C’s detrimental reliance. It is not necessary to demonstrate
P’s active encouragement of the mistake or expenditure. Passive but knowing44 acquiescence45
suffices. Mere delay, however, will not constitute acquiescence.46 The mistake may be one of
fact or law (questions of property ownership inevitably involving issues of both types).47
11.18 Lord Cranworth’s analysis in Ramsden v Dyson48 provides an early statement of the
principles applicable to ‘unilateral mistake’ cases and an illustration of the overlap between
the categories. Whereas Lord Kingsdown49 considered the key feature of this case to be P’s
creation or encouragement of C’s expectation, placing it within the ‘common expectation’
category, Lord Cranworth stressed the importance of C’s mistake and P’s knowledge of that
mistake:
If a stranger builds on my land supposing it to be his own, and I, perceiving his
mistake, abstain from setting him right, and leave him to persevere in his error, a
court of equity will not allow me afterwards to assert my title to the land on which
he had expended money on the supposition that the land was his own. It considers
that, when I saw the mistake into which he had fallen, it was my duty to be active
and to state my adverse title; and that it would be dishonest of me to remain
willfully passive on such an occasion, in order, afterwards to profit by the mistake
which I might have prevented.50
11.19 A great deal of confusion has been caused by a failure properly to distinguish between the
principles that operate where C has made a mistake as to the extent of her present rights and
 those that operate where C expects to be granted an interest in the future. In Willmot v
Barber,51 Fry J laid down five probanda which he perceived to be vital in establishing
proprietary estoppel:
In the first place [C] must have made a mistake as to his legal rights. Secondly, [C]
must have expended some money or must have done some act (not necessarily on
the defendant’s land) on the faith of his mistaken belief. Thirdly, [P], the possessor
of the legal right must know of the existence of his own right which is inconsistent
with the right claimed by [C]. If he does not know of it then he is in the same
position as [C] and the doctrine of acquiescence is founded upon conduct with
knowledge of your legal rights. Fourthly, [P], the possessor of the legal right, must
know of [C]’s mistaken belief of his rights. If he does not there is nothing which
calls upon him to assert his own legal rights. Lastly, [P], the possessor of the legal
right, must have encouraged [C] in his expenditure of money or in other acts which
he has done, either directly or by abstaining from asserting his legal right. Where
all these elements exist there is fraud of such a nature as will entitle the court to
restrain the possessor of the legal right from exercising it, but, in my judgement,
nothing short of this will do…52
11.20 The first of the five probanda requires C to have made a mistake as to her legal rights. It is
semantically possible to characterise the expectation cases as involving a mistake: C
mistakenly thought that P would keep his promise or that the plans made by the parties
would come to fruition. However, it is artificial to analyse such situations as mistake and
according to Professor Finn requires ‘a willing suspension of disbelief’.53 It masks the
problem with which the Courts are seeking to deal in this type of case, namely the situation
where C has relied on P’s promise in such circumstances that it would be unconscionable
for C to be permitted to resile from it. At the time the promise was made, both parties may
and frequently do intend that the promise should be fulfilled. The Willmot probanda were
not devised to deal with this type of case and their application to such cases is
inappropriate, as Oliver J explained in Taylors Fashions Ltd v Liverpool Victoria Trustees
Co Ltd:54
In Lord Kingsdown’s example… for instance, there is no room for the literal
application of the probanda, for the circumstances there postulated do not
presuppose a mistake on anybody’s part but the fostering of an expectation in the
minds of both parties at the time but from which once it had been acted upon, it
would be unconscionable to permit the landlord to depart…55
Furthermore the more recent cases indicate, in my judgment, that the application of
the Ramsden v Dyson LR 1 HL 129 principle… requires a very much broader
approach which is directed rather at ascertaining whether, in particular individual
circumstances, it would be unconscionable for a party to be permitted to deny that
which, knowingly, or unknowingly, he has allowed or encouraged another to
assume to his detriment than to enquiring whether the circumstances can be fitted
within the confines of some preconceived formula serving as a universal yardstick
for every form of unconscionable behaviour.56
The five probanda remain a fairly57 accurate description of this head of proprietary estoppel.
They have, however, been frequently and incorrectly applied even in fairly recent expectation
cases.58 The difficulty in identifying a mistake in an expectation case explains some of the
harsher decisions in this field, particularly those occurring in a family context where a firm
 belief in legal entitlement is often lacking.
C. Elements
(1) Assurance
11.21 The concept of ‘assurance’ is not straightforward. Whereas the terms ‘reliance’ and
‘detriment’ carry a fairly consistent meaning across the categories of cases, a
comprehensive definition of assurance requires the synthesis of a range of qualitatively
different behaviour. An assurance may be a written promise,59 an oral promise,60 an
inaccurate statement of fact,61 a request,62 a pattern of non-verbal conduct63 or a failure to
act.64 It may be made by someone who is aware of his own rights in the property or
someone who is ignorant of those rights.65 The common factor which connects these
different forms of assurance is the public policy principle which P’s behaviour violates:
that owners of property interests should exercise those rights responsibly and in a manner
which does not lead others to act to their detriment. This principle imposes both duties to
refrain from certain conduct66 and duties to take positive action67 if P is to enjoy the State’s
protection of his rights.
11.22 The assurance is not itself an ‘unconscionable’ act.68 It is not objectionable for P to tell C
that he is divesting himself of rights in property so that she may enjoy them, nor is it
unconscionable for P to fail to safeguard his rights by informing C that she has mistakenly
encroached upon them. P’s conduct becomes unconscionable when, having caused or
permitted C to suffer detriment by disavowing or disregarding his interests, he seeks to
assert them. In these circumstances, the Court will weigh his conduct and that of C to
determine whether, and to what extent, the State’s enforcement mechanisms will operate to
protect his rights in property.
11.23 The assurance has been equated with a contractual promise.69 It is submitted that this
mischaracterises both the purpose of the modern doctrine of proprietary estoppel and the
role the assurance plays within that doctrine. In common with most of the doctrines
considered in this work, proprietary estoppel addresses the unconscionable assertion of pre-
existing rights, not the unconscionable failure to confer promised benefits.70 The
importance of this distinction was at the heart of the leading opinion of the majority in the
House of Lords case of Yeoman’s Row Management Ltd v Cobbe.71 As Lord Scott pointed
out:72
An ‘estoppel’ bars the object of it from asserting some fact or facts, or, sometimes,
something that is a mixture of fact and law, that stands in the way of some right
claimed by the person entitled to the benefit of the estoppel… So, what is the fact
or facts, or the matter of mixed fact and law, 73 that, in the present case, [C] is said
to be barred from asserting? And what is the proprietary right claimed by [C] that
the facts and matters [P] is barred from asserting might otherwise defeat?
In Yeoman’s Row, P had promised C that he would be permitted to purchase a property at a
certain price. Both parties knew that, in the absence of a concluded contract and the
observation of the requisite formalities, neither was bound. C relied upon that promise to his
detriment by obtaining planning permission for the redevelopment of the property. P then
refused to sell at the agreed price. The House of Lords allowed P’s appeal, finding that no
proprietary estoppel arose. At no point did P’s conduct cause C to believe that he had
acquired, or was certain to acquire, rights in P’s property. The conduct that the Court of
Appeal had found to be unconscionable was no more than a failure to confer a promised
benefit.
11.24 The following principles of general application may be extracted from the various categories
of proprietary estoppel cases.
The nature of the assurance
11.25 The assurance, whether given expressly or impliedly, or in standing-by cases, tacitly,
should relate to identified property owned, or about to be owned,74 by P75 For the
doctrine to operate, C and P must be asserting inconsistent rights in rem. If C’s dispute is
not with the property owner, or does not relate to identified property,76 then it is not a
proprietary estoppel claim: it is a claim in respect of a failure to confer a benefit rather than
a claim to restrict P’s assertion of property rights. Consequently, general promises to
benefit C, such as the provision of ‘financial security’77 or ‘a roof over her head’,78 will not
give rise to a proprietary estoppel claim, unless explicitly or implicitly linked to P’s
property. The assurance must relate to ownership or use rights. Thus a landlord’s promise to
reduce the rent due on demised premises cannot give rise to proprietary estoppel whereas a
promise to extend the lease may do so.79 There is some scope for flexibility where the
assurance relates to property owned by a person heavily connected with P, such as a
company of which he is the sole shareholder. In such circumstances, Courts have been
inclined to equate P with his company.80
11.26 The assurance need not define the exact right that C has acquired or will acquire This is
evident from the acquiescence cases81 but applies across the categories. In Plimmer v
Wellington Corporation,82 a common expectation that C would have a right to remain at
property arose in the absence of any discussion of the nature of the right which C was to
acquire.83 In Thorner v Major,84 their Lordships found that an assurance had been given
despite the absence of any express reference to the property (a farm) and despite the fact
that the physical extent of the farm had changed over the years in which P’s expectation had
arisen.
11.27 Some confusion85 has been caused by Lord Scott’s use of the term ‘a certain interest in
land’86 when discussing the necessary qualities of the assurance in Yeoman’s Row.87 His
Lordship appeared to suggest that one of the reasons why C’s proprietary estoppel claim
failed was that the precise terms of the interest had not been defined. However, it is clear88
that the obstacle was not the lack of definition itself but the fact that a commercial party
could not reasonably have believed that it had acquired, or was certain to acquire, a
proprietary interest when important terms had yet to be agreed. Similarly, the case of Orgee
v Orgee,89 which has been cited as authority for the proposition that uncertainty as to the
nature and scope of the interest may prove fatal to a claim,90 is more readily explained by
the absence of a reasonable belief that C had acquired or was certain to acquire a
proprietary interest. In Orgee, P and his son, C, had begun to negotiate the terms of an
agricultural tenancy but could not agree important terms including the rent and
maintenance obligations. Negotiations continued over the course of six years, during which
time P would ask for rent, the parties would fail to agree an amount and no payment would
be made. C and P also discussed the possibility that C would purchase an alternative
interest such as a grazing licence but no agreement was reached. Eventually P gave C notice
to quit and C responded by claiming an agricultural tenancy by proprietary estoppel. The
Court of Appeal held that C’s ‘ case on expectation or belief’ failed and made reference to
the difficulty the Court would have if it was required to determine the terms that had not
been agreed between the parties. This, however, is not a real problem in proprietary
estoppel cases: if an equity arises, the Court satisfies it by doing what is just in all the
 circumstances; the Court is not required to complete a bargain or fulfill an expectation. The
better explanation for why C’s claim failed is that he was well aware that the basis of his
property rights was to be a lease or licence and that neither had been agreed.
11.28 The assurance must be made by P or someone authorised to act on his behalf In Pleming
v Hampton,91 Chadwick LJ dismissed a claim for proprietary estoppel saying:92
The fundamental objection is that the promise was made not by the owner of the
land… nor by anyone shown to have been acting at the time with her authority, but
by her mother. Those authorised to act on P’s behalf will plainly include P
agents.93 P’s husband or wife may also be presumed to have the authority to give
an assurance.94
11.29 Where the assurance comprises active encouragement, it can take the form of
encouraging C’s belief or expectation95 or encouraging C to perform acts in reliance on
the relevant belief or expectation96 To distinguish the two types of encouragement would
be extremely difficult given that in proprietary estoppel cases P must know of, or expect,
C’s reliance.97 Consequently, an encouragement of belief is an invitation to rely and an
encouragement of acts of reliance is a confirmation of C’s belief.
11.30 P’s words, actions or silent acquiescence, objectively assessed, must indicate that C has a
present interest in property or that P has bound himself to grant an interest in
property to C The assurance must provide a reasonable basis for C’s certainty that an
interest in property has been acquired or will be acquired. It is not necessary to show intent
to create legal relations, in the strict contractual sense.98 Nor is it necessary that the
arrangements comply with any contractual certainty requirement.99 There is high authority
for the proposition that the assurance must be ‘clear and unequivocal’.100 However, it is
apparent that what constitutes a ‘clear and unequivocal’ assurance is highly dependant on
the factual context.101 A better formulation is that put forward by Hoffmann LJ in Walton v
Walton:102
The [assurance] must be unambiguous and must appear to have been intended to be
taken seriously. Taken in its context, it must have been [an assurance] which one
might reasonably expect to be relied upon by the person to whom it was made.
11.31 This context-sensitive approach is apparent if the facts of Yeoman’s Row Management Ltd v
Cobbe103 and Thorner v Major & Ors104 are compared. Thus, a non-contractual agreement
to sell a property at a certain price will not constitute an assurance where commercial P and
commercial C are aware that an entitlement will only be created when the precise terms of
the sale are concluded and the formal requirements are complied with.105 By contrast, in
the context of a relationship between a taciturn P and his relative C, showing C a life
insurance policy and passing on information which would only be of use to P’s successor in
title is capable of amounting to an assurance that C will inherit the property.106
11.32 It has been said that Yeoman’s Row and Thorner are difficult to reconcile.107 The reasoning
in Yeoman’s Row has been criticised on the basis that it draws an unjustifiable distinction
between the knowledgeable and the ignorant: penalising parties by reason of their
awareness of their strict legal rights and rewarding parties by reason of their ignorance of
the requirements for the creation of an interest in property.108 The result in Thorner has
been explained as a relaxation of the prerequisites of proprietary estoppel in the domestic
context,109 reflecting a movement away from the traditional rejection of ‘a special principle
leading to a different conclusion’110 in domestic property cases.
11.33 There is, however, another explanation that does not depend on ‘special principles’. The
assurance is an act or omission on the part of P which fixes him with responsibility for C’s
detrimental reliance. Consequently, the search for an assurance requires an examination of
P’s conduct rather than C’s subjective state of mind:111 it is not C’s belief that must be
ascertained but the objective meaning which P’s words, acts or acquiescence would
reasonably have conveyed.112 Whilst P is not responsible for C’s knowledge or ignorance,
he is responsible for the likely effect of his words and actions (objectively ascertained) on
someone in C’s position (also objectively ascertained). In certain circumstances, P cannot
reasonably expect C to treat his act or omission as conduct which binds him. This may be
because their relationship is insubstantial or it may be because the immediate context
negatives an assumption that P is bound, for example where the act is an undertaking given
in the context of an incomplete commercial transaction.113 In such cases, C’s acts in
reliance are speculative,114 carried out in hope rather than expectation of obtaining rights,
and it is not unconscionable for C to bear the burden of them. However, where the
circumstances are such that P should know or reasonably expect115 that C will treat his
conduct as binding, then P must bear responsibility for C’s detrimental reliance. This may
occur where the relationship between P and C is very close, so that C could reasonably
believe that P had bound himself despite the absence of a legal document,116 or where P’s
assurance consists of a promise combined with acts which indicate that the further steps
necessary to confer rights on C will be executed.117
11.34 Whilst Yeoman’s Row appears to have made it considerably more difficult for C to establish
an assurance arising out of a commercial relationship,118 there is no hard and fast rule
prohibiting a claim. In Yaxley v Gotts,119 P was a property developer and residential
landlord and C was a self-employed builder. P and C agreed that P would purchase a block
of flats and C would carry out certain building works, in exchange for which he would be
given the ground floor flat. C asked P for a legal document showing his interest and was
told that one would be provided but P and C had a close relationship and the matter was left
as a ‘gentleman’s agreement’. C fulfilled his part of the bargain but P refused to transfer
ownership of the flat.120 The Court of Appeal held that both a proprietary estoppel and a
constructive trust had arisen. Yaxley was not said to have been wrongly decided in
Yeoman’s Row, despite being cited at first instance121 in support of the estoppel which the
House of Lords rejected.122 Yaxley appears to be an example of a commercial case where,
given the context,123 the assurance provided a reasonable basis for C to be sure that he
would acquire an interest in property. Similarly, Crabb v Arun DC,124 where an assurance
given by a local authority to an owner of commercial property, was considered in Yeoman’s
Row125 without any indication of disapproval. In that case, the features which suggested
that C had acquired, or was certain to acquire, a right of way included P’s erection of
gateposts and a gate to facilitate access.126
11.35 Revocability127 Must P indicate that he has irrevocably bound himself to grant an interest?
The problem is temporal and occurs most often in the context of testamentary promises,128
where there will usually be a significant period of time between the assurance and its
fulfilment. A concrete example is found in Thorner. It was argued129 that whilst P’s
conduct may have been capable of creating a reasonable belief that P had bound himself to
leave C the farm, as at the time the representation was made, C could not reasonably
believe that P had irrevocably bound himself. C could not have reasonably believed that P
 had bound himself to pass on the farm even if, for example, P became ill and needed to sell
to pay for medical treatment. The answer provided by their Lordships130 was that P’s
conduct need not lead C to form any view on whether P’s intentions might change at a later
date: it was sufficient that the assurance provided grounds for a reasonable belief that P
intended himself to be bound as at the time it was given.131 First, as Robert Walker LJ
pointed out in Gillett v Holt:132 ‘it is [C’s] detrimental reliance on the promise which
makes it irrevocable’. Second, part of remedial flexibility of the doctrine of proprietary
estoppel comes from the fact that it looks backwards at what has happened rather than
forwards at what might happen.133 The unconscionability of P’s conduct is assessed at the
time when he attempts to assert pre-existing rights, not at the time the assurance is given.
Thus, events which occur after the assurance has been given and relied upon may taken into
account134 when the Court decides how to satisfy the equity generated by C’s detrimental
reliance: if P’s financial situation has deteriorated significantly or his need has increased, it
may not be unconscionable for him to assert some135 or all of his pre-existing rights in the
property. There is no need to examine the meaning of P’s words or conduct in the light of
what might have happened when the Court has the benefit of seeing what has happened.
The property owner’s knowledge
Knowledge of inconsistent rights
11.36 Passive acquiescence cases In passive acquiescence cases, P will incur no liability unless he
knew not only of C’s belief but also of his own inconsistent legal rights. Put simply, in
passive acquiescence cases P must know that C’s belief is mistaken.136 Some doubt has
been expressed as to whether such knowledge is an essential prerequisite of liability or
merely one of a number of factors to be taken into account.137 It is submitted that such
knowledge is essential in passive acquiescence cases. The underlying basis of the doctrine
is unconscionability or unfairness: P will be prevented from taking unfair advantage of C’s
belief. There seems little warrant for making P bear the consequences of this belief unless
he played some part in its formation or continuance. In cases where P has provided no
active encouragement of C’s belief, he may only be said to have played a role in its
formation or continuance where he was aware of C’s error and failed to correct it. Thus a
duty to speak out or to protest at performance of the relevant works is generated;138 such a
duty cannot arise unless P believes that he has a right over the property in question;139 it
cannot be unreasonable to refrain from correcting a belief which you do not know is
mistaken.140 It may not be necessary to demonstrate that P had actual knowledge of his
rights so long as it could be shown that he had ‘at least a suspicion of the true position’.141
11.37 Encouragement cases Where active encouragement has taken place, it is not necessary to
establish that P knew of his own inconsistent right.142 The reason for the distinction
between passive acquiescence and active encouragement cases is as follows. Whereas it
cannot be unconscionable to refrain from asserting rights which you do not know you own,
it may well be unconscionable to assert those rights after you have actively encouraged
another to believe that they have acquired, or will acquire, rights which are inconsistent
with those you wish to assert.
11.38 Knowledge of C’s acts in reliance The traditional view is that proprietary estoppel may only
be established against a party who either: (i) intended C to act in reliance on the
assurance;143 or (ii) knew of C’s acts in reliance or C’s intention to act in reliance.144 These
are not dual requirements but alternatives: in passive acquiescence cases it is highly
unrealistic to say that P indicates an intention that C should act in reliance—the
 requirement is fulfilled by P’s knowledge of C’s acts.
11.39 Requirement fulfilled by P indicating to C that he intends her to act in reliance The
‘knowledge requirement’ can be fulfilled by an assurance which communicates P’s
intention that C should act in reliance. In such cases it is considered that P ought to know
that C will act in reliance on the assurance. There is now authority for the proposition that it
can also be fulfilled by an assurance which indicates that C may act in reliance. In Thorner
v Major,145 Lord Hoffmann said:
It was enough that the meaning he conveyed would reasonably have been
understood as intended to be taken seriously as an assurance which could be relied
upon. If [C] did then rely upon it to his detriment, the necessary element of the
estoppel is in my opinion established.
This suggests a relaxation of the requirement to the point that it is artificial to suggest that
any knowledge on the part of P is required: the question is whether C was entitled to
consider the assurance binding rather than whether P knew or ought to have known of C’s
reliance. It is not yet known whether this approach will be followed.
11.40 Requirement fulfilled by P’s knowledge of the acts or reliance or P’s knowledge of C’s
intention to act It is not always necessary to show that P knew of the actual commission of
the relevant conduct, so long as he was aware of the intention so to act: in Crabb v Arun
District Council,146 C sold a portion of his land without retaining a right of way over it and
did so in reliance on the expectation of a right of access over the property of the Council.
The latter’s subsequent refusal to allow such access left C’s property landlocked. The claim
succeeded, despite the fact that P was not notified of the actual sale transaction. It was
sufficient that P knew that C intended to sell the plots separately and that he would
consequently need the access point which its agents had promised him. Lord Denning’s
judgment147 suggests that this is a general principle whilst Scarman LJ was more cautious:
… the court must be careful to avoid generalisation. I can conceive of cases in
which it would be absolutely appropriate for a defendant to say: ‘ But you should
not have acted to your detriment until you had had a word with me and I could have
put you right.’ But there are cases in which it is far too late for [P] to get himself
out of his pickle by putting upon [C] that sort of duty; and this, in my judgment, is
one of those cases.148
P could no longer complain about C’s failure to inform it of the impending transaction for
two reasons. First, it had failed, for 13.5 months, to inform C that no right of way would or
could be granted without a decision of the Council itself (rather than the employees with
whom C had discussed the matter). Second, it had reaffirmed C’s expectation by erecting
gates at the point where access had been agreed in principle.149
11.41 Requirement fulfilled where P ought to have known of C’s acts in reliance? There is
some uncertainty as to whether it is sufficient to show that P ought, in all the
circumstances, to have known that they were taking place. It was held in both Salvation
Army Trustee Co Ltd v West Yorkshire Metropolitan County Council150 and Swallow
Securities Ltd v Isenberg151 that it suffices to show that P ought to have known that C was
acting in reliance on the relevant expectation. However, in neither case was the point
addressed in any detail.152
11.42 Knowledge of detriment It is not necessary to show that P realised that detriment was likely
to flow from C’s conduct, were he to resile from the assurance made. Often, such an
inference will be obvious to anyone who knows of the acts performed, for example where
 money is spent on improving P’s property. Qualifying detriment may, however, take
diverse and sometimes unexpected forms.153 The proprietary estoppel doctrine is probably
flexible enough to permit P’s failure to appreciate the possibility of the harm to the
claimant to be taken into account in determining the final outcome between the parties.
11.43 Knowledge through P’s agent The knowledge requirements may be satisfied via an agent,
where the knowledge may be imputed to P on ordinary principles of attribution.154
Formality
11.44 The Law of Property (Miscellaneous Provisions) Act 1989 Before the coming into force of
section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (‘the 1989 Act’), it
was well established that a failure to comply with the formalities for an agreement to
transfer land was not an obstacle to the operation of proprietary estoppel.155 This is no
longer invariably true. Section 2 provides156 that any contract for the disposition of an
interest in land must be made in a particular documentary form or will otherwise be void.
This requirement embodies ‘Parliament’s conclusion, in the general public interest, that the
need for certainty as to the formation of contracts of this type must in general outweigh the
disappointment of those who make informal bargains in ignorance of the statutory
requirement’.157 Subsection 2(5) carves out an exception: an informal bargain for the
disposition of land may still give rise to a constructive trust. By contrast, the operation of
proprietary estoppel is not expressly preserved by the 1989 Act.
11.45 The inter-relationship between section 2 of the 1989 Act, proprietary estoppel and
constructive trust has given rise to two controversies: the first relates to the circumstances
in which section 2 will negate an otherwise well-founded claim in proprietary estoppel; the
second relates to the circumstances in which a constructive trust will arise to save an
otherwise well-founded claim in proprietary estoppel from the effect of section 2. There is
an overlap between these two debates: the greater the range of circumstances where a
meritorious claim in proprietary estoppel must yield to the statute, the greater the range of
circumstances where the Court will look to see whether the set of facts that would have
given rise to an estoppel will also give rise to a constructive trust.
11.46 The effect of section 2 of the 1989 Act on a claim in proprietary estoppel Section 2 of the
1989 Act replaced section 40 of the Law of Property Act 1925 (‘the 1925 Act’), which itself
replaced part of section 4 of the Statute of Frauds Act 1677 (‘the 1677 Act’). Under section
40 of the 1925 Act and section 4 of the 1677 Act, oral contracts relating to the sale of land
were unenforceable. The 1989 and 1925 Acts provided a statutory defence to those who
pleaded the relevant provision; however, in the absence of such a plea the Court would not
apply the statute. In the eighteenth and nineteenth centuries, the Court of Chancery
developed158 the doctrine of part performance159 to mitigate the effect of section 4 of the
1677 Act. The change brought about by section 2 of the 1989 Act was to render oral
contracts for the disposition of land void rather than merely unenforceable. The doctrine of
part performance, which relied on the distinction160 between a statutory defence161 to an
action and a statutory requirement that certain contracts be treated as ineffective, did not
survive the change.162
11.47 The effect of section 2 on the equitable doctrine of proprietary estoppel remains unclear. At a
high level of generality, there was much common ground between the doctrines of
proprietary estoppel and part performance. Whilst the Law Commission report that made
the case for legislation163 contemplated that proprietary estoppel might continue to be
available to do justice in cases where a contract for the disposition of land was void for
 want of formality, the first case in which the Court gave detailed consideration to the
question was Yaxley v Gotts164 in 1999. There P agreed orally to give C, a builder, the
ground floor of a house which he was proposing to purchase if C converted the house into
flats and managed the flats on P’s behalf. The house was purchased by P’s son, who either
permitted C to carry out the work in the belief that he would be given the ground floor or
agreed with C that the agreement would be binding as between him and C.165 After the
property had been converted by C, P’s son refused to grant C any interest in the ground
floor. The Court of Appeal upheld the first instance judge’s order that a 99-year lease
should be granted to C. There was unanimity as between Robert Walker, Clarke166 and
Beldam LJJ that: (i) but for section 2 of the 1989 Act, C would have a good claim in
proprietary estoppel; (ii) section 2 would not negative all claims in proprietary estoppel;
and (iii) the legal interest in the house was subject to a constructive trust under which C’s
beneficial interest was a term interest, rent free, in the ground floor.
11.48 However, as between the three judgments, there was no consistent reasoning in relation to
when section 2 would operate to negate a claim in proprietary estoppel and whether it had
that effect in the present case. Having found that a constructive trust had arisen, putting the
case within the section 2(5) exception, it was deemed unnecessary to answer the logically
prior question of whether section 2 negated the proprietary estoppel claim—even if it did,
the claim succeeded by virtue of section 2(5). This is an important consideration because of
the very different nature of potential rights167 created by proprietary estoppel and
constructive trust. If a proprietary estoppel claim is valid only because the circumstances of
the case also give rise to a constructive trust, then there are two overlapping remedies, each
capable of generating distinct types of property rights.
11.49 Robert Walker LJ168 referred to the public policy principle that the doctrine of estoppel may
not be invoked to render valid a transaction which the legislature requires, on grounds of
public policy, to be treated as invalid. He concluded that:
If an estoppel would have the effect of enforcing a void contract and subverting
Parliament’s purpose it may have to yield to the statutory law which confronts it,
except so far as the statute’s saving for a constructive trust provides a means of
reconciliation of the apparent conflict.
But that:
The circumstances in which s. 2 has to be complied with are so various, and the
scope of the doctrine of estoppel is so flexible, that any general assertion of s. 2 as
a ‘no go area’ for estoppel would be unsustainable.
11.50 The role of the assurance Whilst Robert Walker LJ’s guidance is helpful, it does not define
the precise circumstances when proprietary estoppel has to yield to section 2. It is
submitted that there are two ways of approaching the problem.169 The first looks to the
nature of the relief which is to be granted. C may, in a proprietary estoppel claim, seek
anything from the dismissal of an adverse claim, founded on P’s assertion of certain
property rights, to the transfer of a freehold interest in land: some may be seen as
amounting to the disposition of an interest in land (ordering a transfer) whilst other may not
(dismissing P’s claim for possession). However, to hold that the policy underlying the
statute is frustrated by the granting of any remedy which involves the disposition of an
interest in land would enfeeble the doctrine to an extent that cannot be justified by
reference to aims of section 2.170 The second approach is to look at the nature of the
assurance relied upon to found the proprietary estoppel claim. The public policy behind
section 2 promotes certainty in agreements for the transfer of land; it does not speak to, or
 seek to restrict, the circumstances where land can be transferred other than pursuant to the
agreement of the transferor and transferee. Thus, where C’s proprietary estoppel claim is
founded on an agreement with P, which is intended to be binding, but which does not
comply with section 2, then it must yield to the statute. However, if the assurance relied
upon does not have the character of an agreement then s 2(1) should have no application.
11.51 This second approach was adopted by the Court of Appeal in Kinane v Mackie-Conteh171 and
receives support from the reasoning of Lord Scott in Cobbe v Yeoman’s Row Management
Ltd:
… proprietary estoppel cannot be prayed in aid in order to render enforceable an
agreement that statute has declared to be void. The proposition that an owner of
land can be estopped from asserting that an agreement is void for want of
compliance with the requirements of section 2 is, in my opinion, unacceptable. The
assertion is no more than the statute provides.172
11.52 Comment: an alternative approach—section 2 offers no bar to a proprietary estoppel
claim?173 An interpretation which calls for the invalidation of claims where the assurance
has the character of an agreement, but does not affect claims where the assurance takes the
form of acquiescence, promotes uncertainty: as the precision and clarity with which P’s
assurance defines C’s belief or expectation increases, so too does the likelihood that it will
fall foul of section 2. Such an interpretation is neither desirable nor necessary. If the aim of
the remedial discretion is properly defined,174 there need be no conflict between the
purpose of the doctrine and the policy which underlies section 2. Proprietary estoppel is
concerned with P’s unconscionable assertion of rights and not with the enforcement of P’s
agreements; the fact that its application may sometimes lead to C acquiring the rights that P
has promised should be seen as an incident of its remedial flexibility, rather than a
fulfilment of its underlying purpose.175 P and C cannot use the doctrine to agree the
informal creation of property rights because the Court’s assessment of the rights that have
been created, if any, will not have the enforcement of the agreement as its aim. If, on the
other hand, the policy objection is not to the purpose of the doctrine but relates to the
uncertainty created by the remedial discretion itself, then this is an argument that the entire
doctrine falls foul of the statute, not just instances where the assurance clearly defines C’s
belief or expectation.
(2) Reliance
11.53 A proprietary estoppel claim will arise only where C has acted in reliance176 on the
assurance. The element of reliance is the ‘causal link between the assurance and detriment
asserted’.177 C must have been led to change her position in the sense of acting differently
from the way in which she would otherwise have done. It is not necessary to establish that
the acts performed fall within some pre-existing recognised category.178 Any lawful179 act
will suffice so long as it involves a change of position which is such as to cause C to suffer
detriment in the event of P’s resiling from the assurance. There are certain general
restrictions inherent in this apparently flexible approach: certain categories of acts have
been held to be incapable of giving rise to detriment. Reliance is essential180 to a claim for
proprietary estoppel because it provides the causative link between the conduct of P and the
harm suffered by C.
11.54 The assurance need not have been the single or primary motivating factor behind C’s
actions.181 It is sufficient if the assurance induced182 or influenced183 C’s decision to
perform the relevant acts but not if it was merely material to it.184 The rule is illustrated by
 contrasting the results in the two cases in issue in Taylors Fashions Ltd v Liverpool Victoria
Trustees Co Ltd,185 in which Taylors and Olds were both tenants of Liverpool Victoria. The
terms of Olds’ lease made its duration dependent on that of Taylors. Both tenants
mistakenly believed that Taylors had a valid option to extend its lease by 14 years. Both
performed extensive works on their respective demised premises: the works carried out by
Taylors were virtually essential for the use of the building and the capital cost would have
been written off by the end of the unextended term of the lease. Further, the works would, in
all likelihood, have been performed even had the assumption never been made. Put simply,
the works were performed in the belief that the term could be extended but not on faith of
that belief. In contrast, it was obvious that Olds would neither have performed their works
nor entered the lease in the terms which they did, were it not for their belief that the
Taylors’ lease could be extended. Olds therefore succeeded and Taylors failed.
Burden of proof
11.55 In certain circumstances, once C has shown that she has changed her position,186 she does not
have to prove, affirmatively, the causal link between her actions and her belief or
expectation. Put simply, she does not have to prove that she would not have performed the
acts but for the assurance: there is a rebuttable presumption that they were so performed.
The burden of proof shifts to P to show that C’s acts were not so performed.187 Precisely in
what circumstances the burden shifts is not, however, clear.
11.56 In Greasley v Cooke,188 it was held to be sufficient to show that P’s statements189 were
‘calculated to influence’190 C or ‘would be of such a nature as would induce… tend to
induce… [C] or would be a part of the inducement’191 on C to perform the relevant acts.
The mere fact that P intended so to influence C would seem to be insufficient, if the
particular circumstances suggest that C was unlikely, in fact, to have been so influenced. In
Watkins v Emslie,192 the tenant had a statutory right to extend her tenancy but failed to
serve the requisite notice in the correct form. The Court of Appeal doubted193 whether the
tenant’s clear assertions that her tenancy was subsisting were calculated to make the
landlord believe that the notice to extend was a valid one as the wording of the relevant
statute made it clear that it was not and the landlord had been advised throughout by
solicitors.
11.57 In Wayling v Jones,194 the Court of Appeal appeared to shift the emphasis away from
examination of the nature of the assurance given by P to analysis of the nature of the acts
performed by C. Their Lordships held that the burden would only be reversed, where C’s
‘conduct is of such a nature that inducement may be inferred’. No guidance is given as to
what type of conduct suffices but, presumably, if C’s acts are of such a nature as would
probably have been done anyway, the burden will not be reversed.195 An alternative
formulation is to require C to prove that she acted in a way no reasonable person could be
expected to, in the absence of reliance on the belief in issue. There seems no doubt that the
burden will be reversed if C can discharge the onus, both in respect to the nature of the
communication and the acts performed, but whether these distinct conditions are
cumulative or alternative is not clear.
11.58 The tools that have been employed by the Courts when considering the issue of reliance
include the concepts of ‘materiality’—is this the sort of assurance that P could reasonably
have expected C to rely upon?196—and ‘referability’—is C’s act the sort of thing one would
reasonably have expected as a result of P’s assurance? It has been argued that materiality
plays a similar role in both the law of estoppel and contractual misrepresentation cases
 where the Court is concerned to establish whether a representation was made and whether it
was the sort of representation that would induce a reasonable man to enter a contract.197
Rebutting the presumption
11.59 To rebut the presumption, it should be sufficient to demonstrate that C would have acted in
the same way even had she never formed the belief or expectation in issue.198 This is most
easily done by showing that C acted in the way she did because of some reason other than
her expectation of an interest in disputed property. In Wayling v Jones,199 C stated, in
crossexamination, that he would have performed the relevant acts and services even had P
never made the promise in issue. Despite this finding, C’s claim succeeded, because of his
evidence that he would have left P and ceased the relevant services, had the promise been
withdrawn. This approach seems out of line with some of the earlier authorities but has
since been followed.200
11.60 C cannot establish a proprietary estoppel on the basis of acts which it was under a statutory
duty to perform in any event.201 Deliberate attempts to obtain an interest through
proprietary estoppel by performing acts in response to an assurance given will probably
fail202 because the conduct is not motivated by the relevant belief but by the hope of a legal
remedy.
11.61 The commission of domestic services will rarely give rise to a successful proprietary
estoppel claim, because of the practical difficulties in establishing a causative link with the
relevant belief or expectation.203 Such acts are frequently performed because of love and
affection rather than because of any belief in or anticipation of an interest in property.204
The presumption of reliance is thus fairly readily rebutted. The Courts have been reluctant,
however, to penalise those with altruistic motives and have devised various (sometimes
dubious) ways of avoiding application of strict causation principles.205 For example, in
Griffiths v Williams,206 C succeeded despite failing consciously to connect her work on the
property with P’s promise and ‘being reluctant to admit even to herself that she was
spending money with a view to her own inheritance rather than the comfort of her mother
[P]’. It was enough that P’s assurance prevented C from considering the long-term position;
if she had, she might not have effected the improvements which she did.207
11.62 Although substantial financial contributions to household expenses (including repairs) are
capable of giving rise to a proprietary estoppel,208 such payments will frequently, though
not invariably,209 be viewed as being paid for reasons other than any expectation of an
interest in that property. Specifically, where C is in occupation of property to which the
outgoings relate, such payments are often found to be made in exchange for the benefit of
being allowed to live in the property,210 to enhance the enjoyment of the use of the
property211 or as a contribution to shared common expenses (where there is shared
occupancy).212 Even substantial redecoration and renovation, where performed against the
background of a personal relationship, have frequently been found to be motivated by a
wish to benefit the family and contribute to family life213 rather than by any belief in legal
entitlement.
(3) Detriment
11.63 It has often been said that C must have ‘acted to her detriment’ in order to establish a claim
in proprietary estoppel. This formulation, as was pointed out by Dixon J in Grundt v Great
Boulder Pty Gold Mines Ltd, whilst it is not strictly incorrect, ‘does not bring out the basal
purpose of the doctrine’.214 The detriment which proprietary estoppel aims to prevent is
 that which would flow from C’s change of position, were P to be permitted to resile from
the relevant assurance or deny the truth of C’s belief:
… the real detriment or harm from which the law seeks to give protection is that
which would flow from the change of position if the assumption were deserted that
led to it. So long as the assumption is adhered to, the party who altered his
situation on the faith of it cannot complain. His complaint is that when afterwards
that other party makes a different state of affairs the basis of an assertion of rights
against him, then if it is allowed, his own original change of position will operate
as a detriment. His action or inaction must be such that, if the assumption on which
he proceeded is shown to be wrong and an inconsistent state of affairs were
accepted as the foundation of the rights and duties of himself and the opposite
party, the consequence would be to make his original act or failure to act a source
of prejudice215
11.64 Two aspects of the Grundt formulation should be noted. First, since C needs to establish only
that she will suffer detriment or prejudice if P resiles from the assumption, the change of
position, itself, need not be onerous, unpleasant or damaging. So long as the assumption is
adhered to, C suffers no prejudice. On the contrary, she will often benefit from her change
of position, for example, where she has made improvements to a property which she
occupies and in which she believes she has, or will be granted, an interest.216 Second, C
may be said to suffer a detriment as a result of the mere fact of a broken promise, that is,
the denial of the promised benefit. This type of detriment, alone, is insufficient to bring the
proprietary estoppel doctrine into play; some additional disadvantage is necessary, caused
by C’s change of position.217 This limitation on the scope of the doctrine is necessary to
prevent the undermining of the doctrine of consideration. Were such detriment to be
sufficient for an estoppel claim, all promises relating to property would become legally
enforceable, whether supported by consideration or not.218
11.65 The detriment must be suffered by C rather than another person. The acceptance by the Court
of Appeal in Matharu v Matharu219 that works and expenditure carried out by P’s husband
could be used to support her claim to proprietary estoppel is questionable.220 Further, it
seems that no proprietary estoppel claim will lie where the detriment suffered is trifling or
de minimis.221 In assessing the gravity of the detriment, however, the Court will be
prepared to take into account C’s personal circumstances and means.222 Mere personal
distress, however, cannot give rise to a claim:223 in this context ‘equity is concerned with
the protection of property and proprietary interests, not with the protection of people’s
feelings’.224
11.66 There is a considerable overlap between detriment and unconscionability. It will be
impossible to establish sufficiently unconscionable conduct in the absence of detriment.
However, the two concepts are distinguishable since the Court will take into account a
number of factors other than detriment in establishing whether unconscionable conduct has
occurred.225
A relaxation of the requirement?
11.67 Obiter comments of Lord Denning MR in Greasley v Cooke226 might be taken to suggest that
detriment is not a necessary component of a claim in proprietary estoppel. However, these
comments are better understood as relating to the causal link between the acts performed
and the assumption,227 that is, as referring only to the reversal of the burden of proof of
reliance. Alternatively, these comments may refer to financial expenditure, confirming that
 other types of conduct are capable of amounting to sufficient change of position. In any
event, Lord Denning averred that, ‘It is sufficient if the party to whom the assurance is
given, acts on faith of it, in such circumstances that it would be unjust and inequitable for
the party making the assurance to go back on it’; unless some detriment flows from the
change of position, it is difficult to conceive of circumstances where it would be
unconscionable for P to resile from the assurance.228
11.68 It has been suggested that the cases display a shift to a wider concept of alteration of
position.229 There is some indication that the Courts may now be prepared to accept an
alteration of position as triggering liability, even in the absence of detriment. Most notably,
Lord Bridge in Lloyds Bank v Rosset230 held that, once the relevant assurance or belief has
been demonstrated, it will only be necessary for the claimant to show that ‘he or she has
acted to his or her detriment or significantly altered his or her position in reliance on the
agreement’ (emphasis added). Although of high authority, undue weight should not be
given to his Lordship’s dicta: it may well be that his Lordship was merely stating the same
proposition in two slightly different ways and using ‘or’ accordingly.
11.69 More significantly, the Courts have sometimes been reluctant to examine precisely whether
an opportunity forgone had any value. Thus, in Hammersmith and Fulham BC v Top Shop
Centres Ltd,231 it was held that a tenant’s forgoing the opportunity to negotiate for a new
subunderlease or apply for relief against forfeiture of a sub-underlease, amounted to
detriment, regardless of whether the application was likely to prove successful. However,
unless there was some chance of success, it is difficult to see how C’s conduct could have
been a source of detriment to her. On this analysis, three points arise from Top Shop
Centres. First, the simplest explanation of the case is that estoppel by representation
principles were in play, where slightly different detriment principles operate.232 Second, an
alternative explanation may rest in the Court’s reluctance to engage in speculation as to the
outcome of hypothetical proceedings. Once the landlord allowed the opportunity to be lost
to the tenant, uncertainty should be resolved in the latter’s favour.233 Third, the tenant
might be said to have suffered prejudice because she has forever lost the opportunity to take
a reasoned decision on the transaction, in the light of all the circumstances, unfettered by
the belief fostered or acquiesced in by P. That loss of a chance, in itself, might amount to
detriment, regardless of the prospects of success.234
11.70 Detriment remains an essential component of a claim in proprietary estoppel.235 This has
been emphasised in recent cases of the highest authority.236 It remains the case that a
change of position will give rise to liability only where it gives rise to detriment in the
orthodox sense: it is a means of demonstrating detriment not an alternative to it. The shift
identified by commentators is probably semantic only, amounting to a clearer recognition
that it is not the conduct itself which amounts to detriment but the fact that C has acted in
such a way that she can no longer be restored to the position she was in before the relevant
assurance was made or the belief formed.
Examples of detriment
11.71 General It is not necessary to establish that the detriment falls within some pre-existing
recognised category.237 Whether detriment has been suffered is a question of fact and
degree.238 The qualifying change of position may involve positive acts or mere
forbearance.239 It need not involve expenditure of money,240 though it will often do so. It is
not a narrow and technical concept and it must be approached as part of a broad inquiry as
to whether the repudiation of an assurance is or is not unconscionable in all the
 circumstances.241 It requires something substantial.242 The detriment need not flow from
anything that occurred on P’s property243 nor be referable or related to it244 (in any other
sense than that inherent in the causation requirement discussed above under ‘reliance’).
Further, it is not necessary that any benefit or enrichment is conferred on P.245 In Crabb v
Arun DC,246 for example, C decided to divide a plot of land and sell the part on which an
access point to P’s road was located. P’s agents, knowing of C’s plans, undertook to grant a
new access point from the portion that C intended to retain. In reliance on this undertaking,
C sold half of his land. Without the grant of the promised access, C’s retained property was
wholly landlocked. The Court of Appeal held that an estoppel arose despite the fact that P
gained no benefit from C’s dealings with his land. Although benefit or enrichment to P is
not a necessary component of a proprietary estoppel claim, it is factually relevant to many
circumstances and may be a useful tool in marginal cases: where C gratuitously confers any
benefit on P, whether by way of expenditure, labour or other means, she has sacrificed the
opportunity to require payment from him. Lastly, it appears possible that liability could
arise even where C’s acts in reliance were positively harmful to P.247
Specific categories248
11.72 C fails to safeguard her legal position C will be able to establish detriment where her
change of position exposes her to legal penalties. Hence the doctrine will operate where C
has trespassed on P’s land in reliance on an assurance that she had rights over it.249
Alternatively, her change of position may leave her in a legally less favourable position.
Examples include failing to reserve a right of way over land sold,250 failing to apply for
relief against forfeiture proceedings251 and failing to object to a planning application.252
Such conduct may also fall under the next head, since C may well have forgone a valuable
opportunity to bargain or secure some advantage for herself, in reliance on her belief.
11.73 C forgoes something of value Where the conduct performed in reliance on P’s assurance
involves expenditure or labour, it is necessary to show that C received no adequate value for
the expenditure or remuneration for the labour. Put simply, it must be shown that they were
wasted,253 thus demonstrating the loss of a valuable asset (the money or hours of labour), or
that, were it not for C’s belief, she would have spent her money on profitable activities or
demanded remuneration for her labour in the job market.254 For example, in Ives v High,255
C built a garage on his property which could be accessed only by using a right of way which
he believed that he had acquired over P’s land. The garage became unusable (and the
expenditure wasted) once the right of way was denied. By contrast, in Christian v
Christian,256 P and C were proposing jointly to purchase a farm. C feared that the plot
might be too small to be financially viable. To allay her anxieties, P promised to transfer a
neighbouring plot into their joint names so that the two properties could be run as a single
unit. No detriment257 flowed from the purchase of the farm, since there was nothing to
suggest that the land which had been purchased was worth less than the price which had
been paid for it or unsaleable. C had not forgone anything of value; she had not in any sense
‘lost’ her money.
11.74 The Courts have been reluctant to recognise a mere change of lifestyle as sufficient change of
position, since no loss of value can generally be shown. C’s moving into P’s house and
giving up the chance of a job in his home city were not sufficient in Watts v Story.258
However, where such conduct is accompanied by additional detriment, the position may be
different. In Tanner v Tanner,259 where C had given up her rent controlled flat, an asset of
value, C succeeded; in Stevens v Stevens260 C succeeded because, by the time P sought to
 resile from his assurance, the reduction in the public housing stock had seriously impaired
C’s prospects of obtaining council accommodation.
11.75 Examples of C forgoing something of value include:
• Expenditure of money on building261 on P’s land or effecting alterations,262
improvements, redecoration263 or repairs264 to it;
• Gratuitous or underpaid labour on P’s land;265
• Expenditure of money or labour on works to C’s land;266
• Contributing towards the purchase price,267 mortgage payments268 or other outgoings due
in respect of P’s property;269
• Working in P’s business gratuitously270 or for inadequate271 financial remuneration;
• Building up goodwill under a particular trade name and style;272
• Promoting various musical works (six pop songs) through 14 years of arduous and
financially unrewarding concert tours;273
• Expenditure in support of P’s planning application, with a view to a joint building venture
to be carried out on P’s land;274
• Refraining from demanding repayment of, or interest on, a loan to P;275
• Refraining from serving notice to quit under the Landlord and Tenant Act 1925, section
25 and thereby delaying date on which possession might have been obtained;276
• Granting an underlease (regardless of its terms);277
• Payment of premiums due on P’s insurance policy;278
• Devoting the best years of working life to P’s business, showing loyalty and devotion to
business interests, social life and personal wishes;279
• Forgoing the opportunity of trying to better oneself through education or pursuing a
career;280
• Acting as a carer for an elderly couple whilst staying with them as a paying lodger.281
11.76 Domestic services The limits of what may constitute detriment have been explored largely in
the area of domestic services and have yet to be clearly defined.282 There is no doubt that
the detriment necessary for a claim in proprietary estoppel may arise, even where the
change of position occurred against a background of a personal or family relationship with
P. In Grant v Edwards,283 Sir Nicholas Browne-Wilkinson VC stated in such a context that
‘any act done by [C] to her detriment relating to their joint lives, is in my judgment,
sufficient to qualify’. However, a restrictive approach to detriment was taken by Jonathan
Parker QC in Coombes v Smith.284 C left her husband and moved into a property owned by
P; she gave up her job, as a van driver, after becoming pregnant by P; she looked after their
child and the house and took no steps to find a job. The relationship broke down after 10
years. None of C’s acts were considered sufficient to cause her detriment.285 By contrast,
the Court of Appeal in Greasley v Cooke,286 held that C’s acting as P’s housekeeper and
mistress and looking after his disabled sister for 28 years, without payment, was sufficient
‘when otherwise she might have left and got a job elsewhere’.287 Two points emerge from
these cases. First, the Courts are concerned not merely with the qualitative nature of the
relevant conduct but also with quantitative issues; weak acts of reliance may, it seems, be
compensated for by prolonged periods of acting.288 Second, the more commercial the
context in which domestic services are provided, the easier it is to establish an estoppel.289
11.77 Housekeeping and child care services are probably capable of giving rise to detriment. Such
services have a clear financial value; in performing them gratuitously in the home, C has
 sacrificed the opportunity, either to ask P for payment, or to sell those services in the job
market. There is no justification for treating such labour differently to that performed
outside the home, for example in a business run by P or in works carried out on his
property. Work in such an enterprise is clearly capable of giving rise to detriment.290 This
view is supported by Greasley but not by Coombes. Greasley, as the decision of the superior
Court, is to be preferred.291 In Coombes, the judge also stressed that P had supported C
financially throughout the relationship. The commission of domestic services by one
partner will often, though not invariably, be accompanied by conferral of benefits by the
other, such as general financial support. Such benefits may be taken into account when
assessing whether net hardship has occurred and may often outweigh the detriment suffered
as a result of commission of the services.292 This will significantly limit the number of
successful claims in this area, as will the difficulties inherent in establishing reliance.293
11.78 Where value cannot be ascribed to the services or detriment, the detriment being emotional
or a change in purely personal circumstances, a claim should be rejected. The judge in
Coombes was therefore correct to reject C’s claim that detriment flowed from ending her
marriage, becoming pregnant by P and giving birth to his child. Not only is it difficult to
value such conduct in financial terms but it would be almost impossible for the Court to
establish whether C was harmed or benefited by such conduct. To do so would require an
analysis of intangible emotional issues with which the doctrine of proprietary estoppel is
manifestly ill-equipped to deal. Similar justiciability difficulties, combined with an
understandable delicacy, probably mean that the more intimate spousal, or quasi-spousal
services, do not qualify either. Admittedly, however, Doris Cooke’s ‘looking after [C]’ was
taken into account in the calculation of detriment in Greasley.294
11.79 Expenditure whilst in occupation of P’s property Some doubt exists as to whether on
going repairs to or paying of outgoings on a property occupied by C is conduct capable of
triggering detriment, since such acts seem to inure solely to C’s benefit. On the one hand,
accrual of incidental benefit does not negative the possibility that overall C has suffered a
net detriment. For example, C may view money spent on repairs or outgoings on a property
which she occupies as contributing to the long-term preservation of the property and thus
more appropriately met by its owner rather than by a transient occupier.295 P may well have
been happy to occupy the premises without carrying out such repairs; in completing them,
in reliance on her belief, arguably she has suffered a detriment: her expenditure has been
wasted. On the other hand, C received the benefit of her expenditure rather than wasting it
in the sense required for establishing detriment. C would only be able to establish
detriment, in such a case, if the Court was prepared to make a subjective evaluation of C’s
contention that she would have preferred to live in the unrepaired house and spend the
money in other ways. It is unlikely that the Court would be willing to undertake an inquiry
of that nature296 and the argument would be unsustainable if the repairs were essential to
make the property habitable.297 Thus whilst, in theory, expenditure on ongoing repairs
whilst in occupation may be capable of amounting to detriment, as a matter of practice C
faces considerable difficulties in establishing reliance in such cases.298
Benefits received: offsetting the detriment
11.80 Benefits received by C from P may be taken into account when assessing whether C has
suffered detriment.299 C must show that she has suffered net detriment after such benefits
are taken into account.300 The balance of benefit and detriment may fluctuate over time,
such that it may be unconscionable for P to seek to resile from his assurance at some points
 in time but not others. Take an example where P encourages C to make certain
improvements to P’s property in the belief that she will be permitted to remain there. It
may be unconscionable for P to resile from the assurance immediately after C carries out
the works: C would suffer a detriment and would have gained little benefit. However, if
after C carries out the works she lives in the property for 18 years without paying rent,
insurance or further maintenance expenses, it may not be unconscionable for P to then
assert his ownership rights.301
11.81 Comment Relevant benefits have usually involved the gratuitous or discounted use of the
property in dispute.302 It is submitted that the ‘off-setting’ principle should be confined to
benefits flowing from the specific transaction which gives rise to an estoppel. To allow
more remote benefits to be taken into account would involve both undesirable uncertainty
and forensic difficulty.303 No doubt in Inwards v Baker304 C received all the benefits from
his father (both financial and otherwise) that parents normally confer on their children;
there was no suggestion, however, that these should be taken into account in assessing
whether he should succeed in his estoppel claim against his father’s estate. By contrast, in a
case like Jennings v Rice,305 where C provided gratuitous care services to an employer in
reliance on an assurance that P’s property would be his, any payment for those services or
extravagant gifts306 could be seen as flowing from the transaction. Even in Coombes v
Smith,307 where the general financial support given by P to C was taken into account, C’s
belief and reliance were so interconnected with general family living arrangements that
general financial support by P may legitimately be characterised as part of a single ongoing
transaction.
D. Remedies
11.82 Once it is established that the elements of assurance, reliance and detriment are present the
Court has a wide discretion as to what remedy, if any,308 should be awarded.309 The extent
of this discretion is reflected in the reluctance of the appellate Courts to interfere with
decisions at first instance in the absence of the clearest justification.310
11.83 Fulfilling the three requirements is no guarantee of a particular remedy and may be no
guarantee of a remedy at all.311 All the circumstances of the case may be taken into account
in deciding which remedy is appropriate.312 In particular, the Court will look to the general
conduct of the parties and their respective financial circumstances.313 It is possible to
characterise such factors as amounting to an additional requirement for establishing a claim
in proprietary estoppel, thus reformulating its components into the fourfold classification of
assurance, reliance, detriment and absence of bars to the equity. Alternatively, it may be
that the threefold test establishes a cause of action in proprietary estoppel, but that the grant
of relief is discretionary.314 The issue is almost wholly semantic.315 It has been masked by
the use of the language of equities rather than causes of action: the standard approach of the
Court is to use the orthodox threefold test to establish whether an equity has arisen,
followed by an assessment of the appropriate way in which to satisfy the equity.316
(1) The aim of the discretion
11.84 A wide remedial discretion necessarily creates unpredictability: as to the outcome in a
particular case and, consequently, as to the parties’ pre-adjudication interests in property. It
can only be in accordance with the rule of law317 if it is necessary, has an aim fixed by law
and is susceptible to review. There is a good argument for the necessity of the discretion:
the circumstances which give rise to an estoppel are so varied that it would be impossible to
 formulate a rigid set of rules that provided an appropriate response in each case. However,
the Courts have struggled to describe the aim of the discretion or agree upon the factors
relevant to its exercise.
11.85 Historically, there have been two general approaches to the grant of relief. They are rooted in
different understandings of the aim of the remedial discretion. The first holds that, where
P’s assertion of pre-existing rights would cause C to suffer detriment, it is unconscionable
for P to assert his rights to the extent that they are inconsistent with the assurance. This
approach will result in a remedy that is always co-extensive with the belief or expectation
generated by the assurance but sometimes out of proportion to the detriment which C would
suffer. The second approach holds that it is unconscionable for P to assert pre-existing
rights which are inconsistent with the assurance to the extent that this would cause C to
suffer detriment. Here, the focus is on alleviating the harm which will be caused to C if P is
permitted to assert his pre-existing rights, even if this means that rights granted to C are
less than her expectation. The two competing aims are illustrated by the divergent
approaches of majority and minority in Sledmore v Dalby,318 where Roch and Butler Sloss
LJJ held that ‘The extent of the equity is to have made good, so far as may fairly be done
between the parties, the expectations of [C] which [P] has encouraged.’319 By contrast,
Hobhouse LJ adopted the detriment-based approach as the starting point, holding that the
Court ‘may do what is required but no more to prevent a person who has relied on an
assumption… which [P] has induced him to hold, from suffering detriment in reliance on
that assumption as a result of the denial of its correctness’.320
11.86 In many,321 although not all,322 of the older authorities, P was required to fulfil the
expectation generated by the assurance: C would be awarded the rights she believed she had
or expected to obtain. This reflected a traditional understanding that all estoppels
‘established a state of facts which P could not then deny’; it did not reflect proprietary
estoppel’s unique capacity to found a claim which created new property rights. Granting
relief on this basis has three significant drawbacks. First, the mechanical fulfilment of
expectations may lead to overcompensation of C, for example where C has spent £100 on
building a shed in reliance on the promise that she will be given P’s £1 million plot of
land.323 Second, if the purpose, rather than the occasional effect, of the doctrine is to satisfy
the expectation generated by P’s assurance, then proprietary estoppel is being used to
enforce promises unsupported by consideration and undermines the established principles
of contract.324 Third, since proprietary estoppel is capable of generating property rights
binding on third parties,325 the automatic satisfaction of P’s expectations becomes an
informal means of creating rights in real property, undermining established formality
rules.326
11.87 As the doctrine developed, the expectation approach was increasingly qualified by reference
to equity and fairness. In ER Ives Investment Ltd v High, Lord Denning MR held that the
Court would not allow the expectation to be defeated ‘where it would be inequitable so to
do’.327 In Crabb v Arun DC,328 Scarman LJ applied the concept of ‘the minimum equity to
do justice to [C]’ in order to fashion an appropriate remedy. By the time of Pascoe v
Turner,329 Scarman LJ’s tool had become the ‘principle to be applied’.330 The introduction
of the ‘minimum equity’ concept recognised that:
The object of the equity is not to compel the party bound [by it] to fulfil the
assumption or expectation: it is to avoid the detriment, which, if the assumption or
expectation goes unfulfilled, will be suffered by the party who has been induced to
 act or abstain from acting thereon.331
11.88 Pascoe v Turner was seen as heralding the completion of ‘the divorce of equities from
expectations’.332 However, this looked past the fact that the remedy given to C in Pascoe
was ownership of the house that she had been assured was hers. The Court of Appeal may
not have felt compelled to fulfil C’s expectations but, nevertheless, they did so. It appears
that sometimes it will be necessary to fulfil C’s expectations in order to avoid
unconscionability. Detriment may be difficult to assess. Take for example a case where
there has been an extended period of reliance during which C has given up an opportunity to
pursue an education or career and laboured for decades in the expectation of acquiring
property.333 Is the detriment which C would suffer quantifiable in terms of a labourer’s
salary for the relevant period? Is this adequate to compensate someone who never intended
to pursue that path and only did so in reliance on P’s assurance? If what C has lost is an
education and/or an unknown career then how can the value of this to C possibly be
quantified?334 In cases such as this, the only way to prevent unconscionability may be to
give C what she expected. Further, an approach which looks solely at detriment and does
not take account of the scope of the assurance may also lead to unpalatable results. Assume
an elderly and infirm P tells C that she will inherit part of P’s estate, a plot of land worth
£25,000. C begins to work on P’s estate, without pay, in reliance on that assurance.
Surprisingly, P lives on for a decade, by which time the total value of C’s labour is
£100,000, whilst the market value of the land is only £50,000. If P then fails to honour his
promise and sells the land, one measure of what C has lost by acting in reliance upon it is
£100,000. In such circumstances, P cannot be responsible for detriment which exceeds the
value of the property that C expected to acquire.
11.89 The Courts’ current approach, which takes account of both detriment and expectation, owes
much to the Australian jurisprudence. In Commonwealth of Australia v Verwayen,335 Dixon
J explained:
… a court of Common Law or Equity may do what is required, but not more, to
prevent a person who has relied upon an assumption as to a present, past or future
state of affairs, which assumption the party estopped has induced him to hold, from
suffering detriment in reliance upon the assumption as a result of the denial of its
correctness. A central element of that doctrine is that there must be a
proportionality between the remedy and the detriment which is its purpose to
avoid. It would be wholly inequitable and unjust to insist upon a disproportionate
making good of the relevant assumption.
This was cited with approval by Hobhouse LJ in Sledmore v Dalby336 and became the basis
of majority’s reasoning in the leading case of Jennings v Rice.
11.90 In Jennings v Rice,337 C worked at P’s house part-time over a period of 30 years. After 20
years P stopped paying C. When C asked for payment P would say ‘don’t worry this will all
be yours one day’. For the last few years of her life P was ill and extremely dependant on C,
who would stay overnight at P’s house, do her shopping and help her to dress and go to the
toilet. After P died, C maintained that he was entitled to her whole estate, which was worth
£1.285 million, or alternatively the house, valued at £435,000. The Court of Appeal upheld
the first instance decision to award £200,000, a figure based on the market cost of the care
provided by C to P. Both Aldous LJ and Robert Walker LJ emphasised that the Court must
look at both expectation and detrimental reliance when determining the appropriate remedy.
C’s expectations would not be fulfilled if they were disproportionate to the detriment which
 C might suffer.
Aldous LJ’s view was:338
The value of [such an] equity will depend upon all the circumstances including the
expectation and the detriment. The task of the court is to do justice. The most
essential requirement is that there must be proportionality between the expectation
and the detriment.
Robert Walker LJ’s view was:339
… there is a category of case in which the benefactor and the claimant have
reached a mutual understanding which is in reasonably clear terms but does not
amount to a contract… In such a case the court’s natural response is to fulfil the
claimant’s expectations. But if the claimant’s expectations are uncertain, or
extravagant, or out of all proportion to the detriment which the claimant has
suffered, the court can and should recognise that the claimant’s equity should be
satisfied in another (and generally more limited) way.
But that does not mean that the court should in such a case abandon expectations
completely, and look to the detriment suffered by the claimant as defining the
appropriate measure of relief. Indeed in many cases the detriment may be even
more difficult to quantify, in financial terms, than the claimant’s expectations.
Detriment can be quantified with reasonable precision if it consists solely of
expenditure on improvements to another person’s house, and in some cases of that
sort an equitable charge for the expenditure may be sufficient to satisfy the
equity…
11.91 Jennings v Rice confirms that the primary role of proprietary estoppel is not to enforce P’s
promises or to give effect to C’s expectations. The maximum remedy which the Court may
award is to make good C’s expectation.340 Within this cap, the Court retains a considerable
discretion to fashion a remedy and there remains considerable uncertainty as to how that
discretion will be exercised. As has been pointed out,341 saying that there must be
‘proportionality between the expectation and the detriment’342 does not tell us how to
quantify the relief when fulfilling the expectation would be disproportionate to the
detriment that C would suffer; in terms of the guidance it provides to a judge, it means little
more than ‘pitch for somewhere between the two’.343
11.92 It has been suggested344 that Robert Walker LJ’s judgment in Jennings v Rice establishes two
categories of cases with differing approaches to relief:345 a ‘bargain’ category, where the
assurance clearly defines both C’s expectations and the detrimental reliance which is
required of her;346 a ‘non-bargain’ category where it is difficult to ascertain the scope of
the expectation or where the expectation is out of proportion to the detriment which would
be suffered. In ‘bargain’ cases the relief should vindicate C’s expectation, the parties
themselves being taken to consider the detriment proportionate to the expectation, whilst in
‘non-bargain’ cases the Court has a wide discretion and may take account of a number of
factors including proportionality of relief.347 However, after Kinane v Mackie-Conteh348
and Cobbe v Yeoman’s Row Management Ltd,349 there is some doubt as to whether a
proprietary estoppel can arise at all in a ‘bargain’ case, unless the facts of that case also
give rise to a constructive trust.350 There is further uncertainty as to whether, in cases
where proprietary estoppel and the constructive trust overlap, the appropriate remedy is
determined by reference to the principles of the former doctrine or the latter.351
11.93 Since Jennings v Rice the higher Courts have been careful to reject the notion that in certain
 categories of case there is no need to inquire into the proportionality of the relief to the
detriment C would suffer. This process is always fundamental to the exercise of the Court’s
discretion. In Henry v Henry (St Lucia),352 a case where C had been promised P’s half-share
in a plot of land, the Privy Council rejected the appellate Court’s conclusion that the
specific nature of the promise meant that the Court had no power to grant a lesser remedy,
proportionate to the detriment suffered:353
that statement betrays a fundamental misconception as to the nature and purpose of
the doctrine of proprietary estoppel… Proportionality lies at the heart of the
doctrine of proprietary estoppel and permeates its every application.
11.94 Comment It is clear from the authorities that the aim of the discretion, like the aim of the
doctrine itself, is to prevent ‘unconscionability’. However, whilst the ‘unconsionability’
necessary to trigger the operation of the doctrine has crystallised into the reasonably settled
concepts of ‘assurance’, ‘reliance’ and ‘detriment’, the principles to be applied when
fashioning the remedy remain too vague to be compatible with a well-defined and well-
regulated discretion. The prime aim of the discretion should be to prevent detriment. Where
the detriment that C would suffer is easily ascertained and quantified then C’s expectations
ought to be relevant only as a limit on the relief that the Court may grant. Even where
detriment is difficult to quantify the Courts should attempt to create a remedy which is
proportionate to what C has given up in reliance on the assurance. Only in circumstances
where the detriment is intangible and of comparable magnitude to a lost education354 or a
lost career355 should it be necessary to look to C’s expectations in order to prevent the
unconscionable assertion of P’s rights. This approach has the following advantages. First, it
puts the estoppel doctrine on a coherent conceptual foundation356 and provides a governing
aim to control what might otherwise be an arbitrary and idiosyncratic exercise of
discretion.357 Second, it seeks to ensure that the relief granted is proportionate to the harm
or potential harm suffered as a result of P’s conduct.358 Third, it better preserves the
boundary between contract and estoppel. As Brennan J pointed out in Waltons Stores
(Interstate) Ltd v Maher,359 so long as this underlying aim of estoppel is kept in mind ‘the
concern that the general application of estoppel will lead to the principle of equitable
estoppel and would make non-contractual promises enforceable as contractual promises can
be allayed’. Although some effect is given to promises unsupported by consideration, it
cannot be said that the promise itself is enforced. Fourth, it avoids a conflict with section 2
of the Law of Property (Miscellaneous Provisions) Act 1989 and therefore obviates the need
for uncertain and unattractive rules to govern the precise circumstances when proprietary
estoppel must give way to the statute.360 Although the doctrine may result in the informal
creation of interests in real property, the content of such rights is not determined by the
parties themselves.361
(2) Exercising the discretion: relevant factors
11.95 In order for the Court’s discretion to be susceptible to review, it must be possible to
distinguish the factors that are relevant to its exercise from those that are irrelevant.
Understandably, the Courts have been reluctant to fetter their discretion by attempting a
comprehensive statement of relevant factors;362 less understandable is the reluctance of the
appellate Courts to find that certain factors, taken into account at first instance, were
irrelevant or were taken account of in the quantification of the remedy when their only
relevance is to the mode of relief. Whilst it is difficult to extract overarching principles
from the authorities, it appears that the following considerations will be taken into account
 when the Court exercises its discretion.363
The general conduct of the parties—the clean hands principle
11.96 Pre-adjudication misconduct This factor is relevant to both the extent and mode of relief.
Examination of the parties’ conduct goes beyond the analysis of assurance, reliance and
detriment to look at their general behaviour. The Court will take account of misconduct on
the part of C364 and particularly oppressive conduct on the part of P.365 No remedy will be
granted where C has covertly acted on P’s assurance with a view to obtaining an interest in
his property.366 Further, C’s failure to comply with related obligations may bar her claim to
a proprietary estoppel remedy.367 The Court may take into account the conduct of the
parties up to and including trial.368 The Court will also enquire into the relationship
between the parties and whether C and P were on an equal footing and may refuse a claim
based on proprietary estoppel if the result would be to uphold an arrangement which was
manifestly disadvantageous to P.369
11.97 Post-adjudication misconduct In Williams v Staite,370 Lord Denning MR suggested that
post-judgment misconduct might, in an extreme case, deprive C of the rights granted at
trial.371 This proposition was rejected by the majority.372 Further reservations were
subsequently expressed by the Court of Appeal in J Willis and Son v Willis.373 The
approach advocated by Lord Denning MR might be feasible in cases where the remedy
previously granted does not define C’s interest, for example, where the Court has simply
refused P’s application for possession. It seems most unlikely, however, that the Courts
would intervene to divest C of an orthodox, defined and possibly registered proprietary
interest.374 Post-trial misconduct is more appropriately dealt with using the ordinary
principles of criminal law, tort, trespass, nuisance, landlord and tenant.375
The parties’ personal circumstances (including financial) and the general effect of the
order on them376
11.98 This factor has been held to be relevant to both the quantum and mode of the remedy. In
Sledmore v Dalby, Roch and Butler Sloss LJJ377 reversed an order granting C a life licence
to reside in P’s property because: ‘the Recorder should have considered the position of [P]
and her needs and balanced those against the present use of the premises made by [C] and
his present need for them’. P had been left a widow living in a house which was too large
for her, with mortgage arrears of £6,000, and she was dependent entirely on her widow’s
pension and on welfare benefits; C was employed and used the property for only two nights
a week. The Court of Appeal granted P possession of the property. However, according to
Beldam LJ in Baker v Baker,378 P’s financial position was irrelevant to the quantum of the
remedy and could be taken into account only in deciding the mode of relief. It is submitted
that Beldam LJ’s approach is to be preferred. It is difficult to see how P’s financial position
is relevant to his responsibility for the detriment that C would suffer and therefore difficult
to argue that this factor is relevant to quantification.
The subsisting relationship between the parties
11.99 This factor is relevant to the mode of relief but should have no bearing on quantum. A Court
is unlikely to grant an order which requires continued co-operation (by way, for example, of
cohabitation379 or co-ownership)380 between parties, if the personal relationship between
them has broken down.381 Contrary to this general approach, the Court has sometimes
confined the remedy to refusing an application for possession or granting C a licence to
occupy P’s property.382 In such cases a degree of continued co-operation is inevitably
 required.383
Other claims on P’s estate
11.100 In Campbell v Griffin,384 Robert Walker LJ held that:
[C] has a moral (and, as I see it, a legal) claim on the property, but it is not so
compelling as to demand total satisfaction, regardless of the effect on other
persons with claims on [P’s] estate.
Consequently, this factor appears to be relevant to quantification. It is not easy to see why
this should be the case. Other claims on P’s estate are irrelevant to P’s responsibility for the
detriment that C has suffered and should therefore be irrelevant to the extent of C’s
entitlement. They may, however, be relevant to the mode of relief: it may be appropriate to
liquidate P’s property assets in order to ensure a fair distribution as between the parties that
have a call on P’s estate.385
Welfare benefits paid to the claimant
11.101 The Court will not take into account welfare benefits received by C as a result of P’s resiling
from the assumption, for example where C has been rehoused in rent free local authority
accommodation as a result of exclusion from P’s property. It was held in Baker v Baker,386
that:
… payments out of scarce public resources which become necessary due to private
wrong should not be taken to reduce a private liability for that wrong… The
principle on which equity proceeds is that it would be unconscionable for [P] not
to satisfy, so far as money payment can do so, the interest which they had
promised [C]. I see no reason in conscience why that interest should in part be
satisfied at the public expense from housing benefit.387
The effect of taxation
11.102 This is not relevant to the extent of the relief to which C is entitled but will often be relevant
to the cost to P of satisfying the equity and, consequently, the mode of relief. The Court
may therefore determine the substance of what is to be achieved and then consider how to
do so in a manner which does not unnecessarily penalise P, or allow P to choose how C is to
receive the determined net benefit.388
Illegality
11.103 Where dealing in the property in issue is barred by statute, no relief will be granted.389
(3) Exercising the discretion: quantum
11.104 No strict principles of quantification have been established. If, as set out above,390 the prime
aim of the remedy is avoiding detriment to C rather than fulfilling her expectations,
quantum should, insofar as is possible, be determined by reference to the nature and extent
of C’s detrimental reliance.
11.105 Where this consists of improvements to P’s property, there remains a choice between two
alternative measures. The award may reflect the cost of the works performed391 or it may be
based on the amount by which value of the property was enhanced.392 Whichever method is
selected, there are appealing arguments in favour of including a sum for capital
appreciation,393 reflecting overall movements in the market, rather than conventional
interest. Arguably, this is necessary in order adequately to compensate C’s loss and is
particularly appropriate where it is likely that C’s money would have been invested directly
in the property market, were it not for P’s conduct.394
11.106 Where C has provided services to P then the market value of these services can be
ascertained.395 More difficult is the situation where C has given up significant
 opportunities, whether in terms of C’s career or education, in order to provide services to P.
In cases such as this there may be evidence from which C’s loss can be calculated,396 but in
the absence of such evidence it may be necessary to look to the nature and extent of the
assurance in order to quantify the remedy.
(4) Examples of remedies granted
11.107 A wide range of options are available. The examples cited may be combined397 with one
another and may be granted subject to conditions, such as payment of a reasonable purchase
price for the property,398 or contributing towards its outgoings and maintenance.399 They
may be accompanied by injunctive relief designed to prevent P’s interference with the
exercise of the rights granted.400
Refusal of P’s application to the Court
11.108 This may take the form of failing to accede to an action in trespass401 or for breach of a
restrictive covenant402 or for possession.403 The latter remedial outcome has considerable
practical disadvantages. First, C’s rights are vulnerable to third parties. Second, they are
tied to the particular property in question; C cannot move to another without forfeiting
them.404 Third, the rights may not extend to C’s family405 and on death she can pass no
rights to dependants.
Grant of a right to occupy the property for life406
11.109 Before the coming into force of the Trusts of Land, Appointment of Trustees Act 1996407 this
was a controversial remedy. The grant of right to occupy for life is arguably408 a life
interest in the property. Under the Settled Land Act 1925409 the holder of a beneficial life
interest enjoyed extensive rights including the right to dispose of the legal estate in the
settled land.410 As of 1 January 1997, the grant of a beneficial life interest takes effect
under the 1996 Act rather than the 1925 Act and the holder of the interest has no right to
dispose of the legal estate. Before 1997, the Courts adopted a pragmatic approach by
selecting alternative remedies411 which gave approximately equivalent protection to C. The
justification for its selection has generally been an attempt to reflect the arrangement
actually contemplated by the parties. Once it is recognised that the aim of the remedy is not
the fulfilment of the parties’ expectations, there appear to be few reasons for making such
an order.412
Grant of ownership rights in the property
11.110 Such relief has included the grant of a wide range of legal rights and interests such as full fee
simple ownership,413 a beneficial share,414 an easement415 and a lease416 (or option to
extend or renew an existing lease).417 An obvious analogy may be drawn between this type
of order and one for specific performance of a contract. Alternatively, C may be granted
equitable ownership rights in the property.418
Compensation and/or charge
11.111 In the past, monetary awards were generally made only where the grant of a property interest
was impractical419 or, for some specific reason, undesirable.420 Since Jennings v Rice,421
such awards appear to have become more common.422 In some cases P has been given the
option of satisfying the equity by transferring property or by paying a sum of money to C in
compensation.423 They often provide a simple and accurate way of compensating C without
causing unnecessary harm to the interests of P or of third parties.424 Payment may be
required immediately or over a period.425 Awards are frequently secured by a charge or lien
over the property in issue.426 Further, the Court may grant an occupation right, terminating
 on final payment.427
E. Effect of Proprietary Estoppel on Third Parties
11.112 The outcome of many, though not all, proprietary estoppel cases involves vesting a property
right in C. This section attempts to identify the circumstances: (i) where rights acquired by
C may be enforced even though the property has passed to a third party (that is, where the
burden of the estoppel passes to a third party); (ii) where C may transfer her rights to a third
party (that is, where the benefit of the estoppel may be passed to a third party). These issues
are complicated by the different natures of the rights that C possesses before the Court
makes an order (‘an equity’) and after the Court has granted a remedy.
(1) The burden
11.113 In the cases under consideration in this part, an estoppel arises and P subsequently transfers
ownership of the relevant properly without making provision for the protection of C’s
interest. Cases where the conduct of a transferee of property gives rise to an estoppel are
governed by the ordinary principles of proprietary estoppel, discussed generally in this
chapter. The precise borderline between the two types of case can sometimes be blurred,428
for example where both P and the transferee give assurances or where C’s acts of reliance
continue after the transfer has occurred. In cases where the third party acquires the property
pursuant to an agreement with P to take title subject to C’s rights, the correct analysis may
be that he takes the property subject to a constructive trust for C’s benefit.429
Pre-adjudication rights
11.114 C acquires no enforceable rights until all the three elements of liability are satisfied, that is to
say until she has relied to her detriment on P’s assurance.430 Considerable controversy
surrounds the question as to what, if any, interest is generated at this point. C has a
sufficient interest to merit compensation in the event of compulsory purchase of the
property.431 Further, some cases indicate that proprietary estoppel vests an equitable
ownership interest in C432 (or creates a constructive trust, in her favour)433 from the date of
detrimental reliance. This would explain the numerous instances where third parties have
been bound by rights generated by proprietary estoppel. Specific examples include
donees434 (such as those taking under P’s will),435 a trustee in bankruptcy,436 a successor
public authority,437 a successor associated company438 and purchasers with actual
notice.439 It would also explain the dicta in ER Ives Investment Ltd v High440 and Duke of
Beaufort v Patrick441 suggesting that proprietary estoppels bind all but the bona fide
purchaser for value without actual or constructive notice.442 In Holiday Inns Inc v
Broadhead,443 the purchaser, with neither constructive nor actual notice, took free of the
estoppel rights.
11.115 The nature of pre-adjudication rights None of the authorities analyse the nature of the
rights generated by estoppel with any clarity. As a result of the remedial flexibility of the
proprietary estoppel doctrine, there are significant logical difficulties in characterising such
rights as full equitable interests. Prior to the adjudication of the dispute, it is impossible to
predict what, if any, proprietary interest may be granted by the Court. C cannot insist on a
particular interest; she is a supplicant for the Court’s discretion and may be granted a lesser
interest, compensation or denied any remedy. Further, given the power of the Courts to take
into account factors such as the conduct of the parties up to the date of judgment,444 the
extent of C’s rights may fluctuate over time. This uncertainty has led some445 to conclude
that proprietary estoppel gives rise to a remedial constructive trust with the following
 characteristics. First, the Court, in tailoring the remedy to fit the wrong, is creating new
rights rather than upholding existing property interests and that its order has, therefore,
prospective effect only. Second, whether third parties are bound is a question for the
discretion of the Court, in each particular case, the determining factor being whether the
conscience of the third party is affected.
11.116 This thesis has undoubted attractions, not the least of which is that it obviates the need to fit
pre-trial estoppel rights into the conveyancing system. The results of many of the cases
where third parties have been bound may be susceptible to ex post facto rationalisation as
instances where the Court has seen fit to exercise a flexible discretion. The thesis does not,
however, accurately describe the reasoning used in cases where third parties have been
bound by rights created by the doctrine. That reasoning involves two stages: first, the
recognition of some form of pre-existing property right created by the doctrine; second, the
application of ordinary conveyancing principles to ascertain whether that right binds the
current owner of the property.446 Further, although the path of future development may lie
with the remedial constructive trust, the Courts have yet to decide what, if any, role the
concept will play in English law.447
11.117 Such rights as C has prior to adjudication are probably too vague and uncertain to amount to
fully-fledged equitable interests.448 The most convincing characterisation of such rights is
as mere equities.449 They are capable of binding third parties but probably only when
attached to some form of orthodox proprietary interest.450 The only feasible interest with
which an estoppel right can form this parasitic relationship is that granted by the Court on
trial of the issue. There seems to be a process of relation back whereby the inchoate equity
(generated by, and at the time of, acts in reliance) binds retrospectively, when a proprietary
interest is granted.451 This admittedly somewhat artificial analysis seems to be the most
logical way to explain why such vague and unformed rights can bind third parties in the way
made clear in the cases. If this approach is correct, third parties may only ever be bound by
estoppel rights if the final order made by the Court involves the grant of a property interest.
In cases where the relief granted does not take the form of a proprietary interest, P has a
personal liability to C which does not pass and is undiminished by the transfer of the
property to a third party.452
11.118 Conveyancing principles Where an equitable or legal ownership interest is granted at trial,
triggering the relation back process, the effect of the equity on third parties is determined as
follows.453
11.119 Unregistered land C’s rights are incapable of being protected by registration unless a
specific interest in land has been claimed and litigation has commenced.454 They are also
incapable of being overreached455 by a purchaser of the legal estate.456 In the absence of a
registrable right, the question of whether C’s pre-trial ‘equity’ binds a third party is
governed by the doctrine of notice:457 all transferees will be bound apart from the bona fide
purchaser, for value, of a legal or equitable458 interest or estate, without actual459 or
constructive notice460 of the facts giving rise to the equity.
11.120 Registered land Under the Land Registration Act 2002,461 C’s ‘equity by estoppel…has
effect from the time the equity arises as an interest capable of binding successors in
title’.462 In all cases, except for a disposition of the property for valuable consideration, the
transferee will be bound by C’s equity.463 C may protect her right against the effect of a
disposition for valuable consideration by entering a ‘notice’464 or a ‘restriction’.465 Even if
 the equity is not registered, it is capable of overriding466 a disposition for valuable
consideration if: (i) C is in actual occupation467 of the property and (ii) C’s interest was
either known to the transferee,468 or ‘obvious on a reasonably careful inspection of the land
at the time of the disposition’.469 This places the onus on the prospective purchaser to take
the precaution of asking occupants whether they claim rights in the property. It has been
suggested that the effect of overriding status and the entry of a notice or restriction is
merely to require the third party purchaser to demonstrate that their assertion of title is not
unconscionable.470 In other words, whilst the third party is bound by the ‘equity’, the
question of unconscionability must be considered afresh as between C and the third party
and the remedy that is granted will not necessarily be the remedy that would have been
granted if the property remained in P’s hands. This point was considered by the Privy
Council in Henry v Henry (St Lucia)471 and, although the Board refused to rule out the
possibility that reassessment may be necessary in some cases, it was implicit in the
language used that such cases would be rare.472 If a reassessment of the relief is required
even in cases where C’s right is overriding or the subject of a notice or restriction, then
ascertaining the extent of C’s entitlement as against P will necessarily be the start point and,
in the absence of a compelling reason,473 often the end point of the exercise.
Post-adjudication rights
11.121 After due execution of the Court order, including performance of any necessary formality
requirements required to vest title in C, priority will be determined by the ordinary
principles applicable to the type of interest granted. An order for the payment of a money
sum would therefore be enforceable only against the original party to the litigation, whereas
a registered legal fee simple in possession would be enforceable against all. The origin of
the rights becomes immaterial.
(2) The benefit
Pre-adjudication rights
11.122 There is clear Commonwealth authority to the effect that the benefit of estoppel rights can be
transferred.474 There is a dearth of English authority on the point. In Plimmer v Wellington
Corpn,475 an estoppel arose in 1856 as a result of works performed by C, a licensee, at the
request of the government. C subsequently sold his interest to J who leased to the
appellants. The Privy Council held that the right which C had sold to J was a perpetual right
to occupy the property. In Unity Joint Stock Mutual Banking Association v King (a
bankrupt),476 it was held that a lien for expenditure, acquired by estoppel, had been validly
mortgaged prior to trial. The juridical nature of pre-adjudication estoppel rights will
determine whether they are transmissible. If a full equitable interest arises, there should be
no restrictions on transmissibility, so long as orthodox formal requirements are complied
with. If all that vests in C prior to trial is a right to take legal proceedings to request the
Court to exercise its discretion,477 such a right cannot be readily transferred. The Court’s
general discretion may be sufficiently flexible, however, to allow it to grant a remedy to a
purported assignee, if merited in the particular circumstances of the case. If, as suggested
above, a mere equity arises, the position is less certain. Such an interest is probably
sufficiently proprietary in nature as to be capable of transfer, at least where the remedy
granted after trial amounts to a transferable interest. This analysis might explain the
suggestion in Fryer v Brook478 that estoppel rights are personal and non-transferable, the
right claimed there being a personal licence to occupy.479
Post-adjudication rights
11.123 Where a proprietary estoppel claim succeeds at trial, any rights granted are transmissible
according to the ordinary principles of law governing the particular right. Thus equitable
and legal ownership interests can be freely sold, leased, mortgaged and so on whereas
personal rights to occupy or to demand payment of a sum of money are transferable (if at
all) only in limited circumstances. Once the interest has vested, there is no reason to
distinguish rights generated by estoppel from those originating from any other legal
relationship.
F. The Scope of Proprietary Estoppel
11.124 Proprietary estoppel is capable of giving rise to a cause of action.480 It is not confined to a
defensive role and may be used positively to claim property rights. It may used against both
equitable and legal rights.481 Its effects may be permanent,482 although they will not
invariably be so. The Courts’ flexible discretion allows a selection from a wide range of
outcomes, including both short-term arrangements and the permanent transfer of property
rights.483
11.125 The doctrine of proprietary estoppel has been described as a manifestation of a wider
principle which enables the Court to interfere where the assertion of strict legal rights is
found to be unconscionable.484 One of the most controversial questions relating to the scope
of the doctrine concerns the species of rights that are vulnerable to its effect. As currently
formulated, proprietary estoppel will only bite on P’s unconscionable assertion of property
rights. This does not mean that C’s remedy is confined to a restriction of, or subtraction
from, P’s property rights.485 It does, however, mean that the rights which C has been
assured that she has or will obtain, must be property rights in order for the doctrine to
operate.486 This section examines the scope of the doctrine by analysing the rights that are
capable of being the subject of P’s assurance.
(1) Land and other types of property
11.126 P’s assurance may relate not only to outright ownership of the freehold487 but may
encompass any one or more of the numerous ownership rights recognised by the English
law of real property. Examples include trust interests,488 leases,489 profits à prendre,490
rights of way491 and restrictive covenants.492 Moreover, the scope of the doctrine extends
beyond orthodox ownership interests. It is sufficient to show that C expected to be granted a
mere use right over P’s property, such as a licence.493
11.127 The weight of authority indicates that proprietary estoppel can operate in relation to property
other than land. In his discussion of proprietary estoppel principles in Moorgate Mercantile
Co Ltd v Twitchings,494 Lord Denning MR referred both to chattels and to land without
drawing any distinction between them. These comments were cited with approval by
Megaw LJ in Western Fish Products v Penrith DC,495 where it was indicated that the
doctrine might extend to forms of property other than land.496 There is now clear authority
that the doctrine is applicable to: insurance policies;497 shares held in trust;498 furniture and
other items of personal property;499 intellectual property rights in musical works;500 and
entire commercial enterprises.501
(2) Present and future rights in property
11.128 As set out above, it is not necessary for C to show that the assurance related to a present
interest in property; it is sufficient that the assurance created an expectation of acquiring
property rights at some point in the future.502 In such cases, the parties often fail to specify
when the transfer of the expected interest or right in the property is to occur.503
 Alternatively, they may set a specific date for the transfer or make it conditional on the
happening of some future event, commonly the death of P.504 Frequently, the triggering
event occurs prior to adjudication.505 The Court may, however, intervene prior to this
point506 where, after C’s detrimental reliance, P indicates that he does not intend to comply
with the assurance made. In such circumstances, C’s detrimental reliance has made the
assurance irrevocable and an equity has arisen.507 The Court will consider the question of
relief in the context of the circumstances that have led P to resile from the assurance. C may
be granted a future right, restricting P’s powers over the property, pending the occurrence of
the triggering event.508 In such cases, hardship to P will be taken into account in assessing
the appropriate relief.509 P might well suffer such hardship if his rights to dispose of and
deal with it were subject to a long-term fetter. This will be particularly important where an
elderly P has promised to leave his home to relatives,510 given that the equity value in such
homes is increasingly in demand to pay for the escalating medical and care expenses of the
elderly.511
11.129 If P disposes of the property prior to the occurrence of the triggering event,512 C may have a
claim against the transferee513 and will have a personal claim against P. In Wayling v
Jones,514 a claim for proprietary estoppel succeeded where the property in issue had been
disposed of after the triggering event had occurred but prior to the Court hearing. There
seems to be no cogent reason for treating an earlier disposal any differently, although
admittedly the prior disposal point was not taken in Wayling.515
(3) After-acquired property
11.130 No proprietary estoppel will arise where the asset which is the subject matter of the assurance
has yet to be purchased by P,516 as there is no property on which the doctrine can bite. A
proprietary estoppel claim may arise as soon as the asset is acquired by P.517 The estoppel
is ‘fed’ by the acquisition. There is no authority on the status of after-acquired non-specific
property.518 It is probably unnecessary for the actual asset to be specified in advance of the
detrimental reliance, if the assurance is of such a nature as to make the property readily
ascertainable once acquired. For example, if P, prior to selection of any actual property,
promises C ‘a share in the house I plan to buy’, the estoppel should be fed by acquisition of
a house, in the same way as it would in the case of a promise of an interest in a pre-
designated and specified property.519 Hence, so long as the specific subject property is
eventually identified, a proprietary estoppel claim is possible.520
(4) Specific property
11.131 There is conflicting authority as to whether C must establish that she expected to gain an
interest over specific items of property or whether it is sufficient that the belief was formed
in relation to unspecified items of P’s property. In Layton v Martin,521 Mr Justice Scott held
that the former approach was correct. Layton v Martin was not cited in Re Basham dec’d,522
where Nugee QC held that an expectation of unspecified property was sufficient. It is
possible to reconcile the results in these cases, if not the reasoning. In Layton v Martin P
promised C that he would provide her with financial security after his death: the belief
formed did not relate to P’s property at all, whether specified or unspecified items of it. By
contrast, in Re Basham, C succeeded in establishing a proprietary estoppel claim on the
grounds that P had promised to leave her all his property in his will. She was awarded assets
which remained unspecified and unascertained until the death of P, which took place after
the relevant promise was made and the detrimental reliance had occurred.
11.132 In Re Basham, the judge justified his approach by analysing proprietary estoppel as giving
rise to a constructive trust over the whole estate, which consisted of a floating obligation,
descending on the specific assets owned on death.523 The difficulty presented by this
approach concerns the status of P’s property prior to death and the extent of the constraints
on lifetime dispositions. Nugee QC524 held that P had been free to deal with his property as
he wished (hence the floating nature of the trust), save that he could not make dispositions
calculated to defeat the intentions of the parties. Arguably, such a trust would have
overcompensated C,525 since there was no indication that P had made any promises
fettering his right to dispose of his property during his lifetime. These matters were not
directly in issue in Re Basham, since the dispute arose only after P’s death, but they are of
great importance to the conceptual basis of the remedy. If a situation arises where P wishes
to dispose of parts of his estate before the relevant trigger point then how is the Court to
respond? What are the rights that P is estopped from asserting? C cannot point to a specific
piece of property and say that P’s ability to dispose of it is limited by detrimental reliance
on an earlier assurance; consequently, ascertaining the scope of the assurance and the
maximum extent of relief becomes a difficult exercise, governed by little other than a
judicial impression of what is ‘fair as between the parties’. Whilst the reasoning in Re
Basham has been questioned in recent cases, it has not been said that the case was
incorrectly decided.526 If the Courts are minded to provide a remedy in circumstances
where the property is never specified, then it may be better to describe such a remedy as
arising from a remedial constructive trust, rather than distorting the principles of
proprietary estoppel to the point of incoherence.527
G. Comparison with the Law of Constructive Trust
11.133 The assimilation of the doctrines of proprietary estoppel and the constructive trust has been a
recurring theme in the authorities. It is possible to identify a long movement towards
assimilation, followed by recent reconsideration of whether combining the doctrines is
necessary or desirable.
Sir Nicolas Browne-Wilkinson V-C said in Grant v Edwards:528
.… useful guidance may in the future be obtained from the principles underlying
the law of proprietary estoppel which in my judgment are closely akin to those laid
down in Gissing v Gissing. In both, the claimant must to the knowledge of the
legal owner have acted in the belief that the claimant has or will obtain an interest
in the property. In both, the claimant must have acted to his or her detriment in
reliance on such belief. In both, equity acts on the conscience of the legal owner to
prevent him from acting in an unconscionable manner by defeating the common
intention. The two principles have been developed separately without cross-
fertilisation between them: but they rest on the same foundation and have on all
other matters reached the same conclusions.
Lord Walker commented, however, in Stack v Dowden:529
… as to proprietary estoppel. In… Oxley v Hiscock, Chadwick LJ considered the
conceptual basis of the developing law in this area, and briefly discussed
proprietary estoppel, a suggestion first put forward by Sir Nicolas Browne-
Wilkinson V-C in Grant v Edwards. I have myself given some encouragement to
this approach (Yaxley v Gotts ) but I have to say that I am now rather less
enthusiastic about the notion that proprietary estoppel and ‘common interest’
constructive trusts can or should be completely assimilated.
 (1) Common expectation and common intention
11.134 As Robert Walker LJ pointed out in Yaxley v Gotts:530
Plainly there are large areas where the two concepts do not overlap: when a
landowner stands by while his neighbour mistakenly builds on the former’s land
the situation is far removed (except for the element of unconscionable conduct)
from that of a fiduciary who derives an improper advantage from his client.
11.135 The area of commonality is as between the common expectation or imperfect gift cases in
proprietary estoppel531 and the ‘common intention constructive trust’. Patten LJ described
the overlap in De Bruyne v De Bruyne:532
In common intention constructive trusts the equity arises because it would be
unconscionable for the owner of the property to be allowed to deny the [C] the
interest which it was agreed or understood that he or she would have and in
reliance on which the [C] acted to his or her detriment… This requirement of
detrimental reliance is closely bound up with the question of unconscionability
and in the analogous context of proprietary estoppel has come to be regarded as
something which ought properly to be considered as part of a broader inquiry into
whether the repudiation of the assurance given was or was not reasonable in all the
circumstances…
11.136 The common intention constructive trust can arise from the express intention of the parties or
where the Court is able to imply a common intention to confer an interest in property on C.
Per Lord Bridge in Lloyd’s Bank v Rosset:533
The first and fundamental question which must always be resolved is whether,
independently of any inference to be drawn from the conduct of the parties in the
course of sharing the house as their home and managing their joint affairs, there
has at any time prior to acquisition, or exceptionally at some later date, been any
agreement, arrangement or understanding reached between them that the property
is to be shared beneficially. The finding of an agreement or arrangement to share
in this sense can only, I think, be based on evidence of express discussions
between the partners, however imperfectly remembered and however imprecise
their terms may have been…
In sharp contrast with this situation is the very different one where there is no
evidence to support a finding of an agreement or arrangement to share, however
reasonable it might have been for the parties to reach such an arrangement if they
had applied their minds to the question, and where the court must rely entirely on
the conduct of the parties both as the basis from which to infer a common
intention to share the property beneficially and as the conduct relied on to give rise
to a constructive trust. In this situation direct contributions to the purchase price
by the partner who is not the legal owner, whether initially or by payment of
mortgage instalments, will readily justify the inference necessary to the creation
of a constructive trust. But, as I read the authorities, it is at least extremely
doubtful whether anything less will do.
11.137 Proprietary estoppel arising from a common expectation has much in common with both
types of common intention constructive trust. First, there is a superficial similarity between
the constituent elements of each doctrine: common expectation, reliance and detriment as
compared with common intention, reliance and detriment or change of position. Second,
both are equitable claims in rem and, in contrast with the in personam claims for damages
and restitution that may also be available on the same facts, may result in the award of an
 interest in property. Third, in contrast with restitutionary remedies which grant relief in
accordance with the value of C’s services or the amount of P’s enrichment at C’s expense,
both proprietary estoppel and the constructive trust may534 provide C with relief based on
the value of C’s non-contractual expectations, albeit by very different routes.
11.138 The most significant differences lie in the type of conduct that gives rise to C’s expectation
and the nature of the rights that are generated. The first distinction is one of emphasis. In
proprietary estoppel, the focus is on whether P’s conduct is sufficient to found C’s belief or
expectation. By contrast, the doctrine of constructive trust looks for a common
understanding as to the parties’ property rights. The greater difference relates to the
remedial machinery: proprietary estoppel gives rise to no more than a mere equity535 which
may be satisfied by the later grant of a proprietary interest by the Court; by contrast, the
proprietary interest held under a constructive trust arises automatically, prior to an order of
the Court which upholds it.
11.139 Despite these differences, the two doctrines are often treated as interchangeable. Per Robert
Walker LJ in Yaxley v Gotts:536
… the species of constructive trust based on ‘common intention’ is established by
what Lord Bridge in Rosset called an ‘agreement, arrangement or understanding’
actually reached between the parties, and relied on and acted on by the claimant. A
constructive trust of that sort is closely akin to, if not indistinguishable from,
proprietary estoppel. Equity enforces it because it would be unconscionable for the
other party to disregard the claimant’s rights.
11.140 Recently, however, defining the areas of divergence has become a matter of considerable
importance. This is for three reasons. First, in commercial cases, an ‘express intention’
constructive trust will provide a remedy in circumstances which, post-Cobbe,537 will not
give rise to a proprietary estoppel. Second, the recent relaxation of the requirements for an
‘implied intention’ constructive trust538 threatens to render the doctrine of proprietary
estoppel redundant in the domestic context. Third, where the facts of a case trigger the
operation of both doctrines, it will be necessary to establish whether the rights generated are
mere equities, given flesh by the order of the Court, or fully formed proprietary interests
which are later upheld by the Court.
(2) The commercial context
11.141 In almost all commercial cases, C will expect to acquire a property interest pursuant to a
formally valid agreement. In such cases, the failure to conclude a formally valid agreement
will usually indicate to C that P is not bound to grant an interest539 and, consequently, the
doctrine of proprietary estoppel will not operate.540 By contrast, a constructive trust may
arise where C cannot claim that P’s conduct indicated that an interest in property was
certain to be created or transferred. In Cobbe v Yeoman’s Row,541 Lord Scott considered the
case of Holiday Inns Inc v Broadhead.542 In Holiday Inns, P and C reached an agreement,
binding only in honour, that P would acquire a suitable site and, with C’s help, obtain
planning permission to develop it as a hotel. The property was then to be leased by P to C.
After purchasing the site and obtaining planning permission, P leased the property to a third
party. Goff J applied the principles of proprietary estoppel and reached the conclusion that
an equity had arisen because C had expended money ‘under a mistaken belief that the
property is his own’. Lord Scott considered that Holiday Inns was better explained as a case
of a constructive trust arising out of a joint venture relating to property.543 It would be
artificial to describe C’s expectation of a lease in Holiday Inns as a mistake as to his present
 property rights or belief that he was bound to acquire an interest in property at some point
in the future544—the parties may not have found a suitable property, planning permission
may not have been granted or the parties may have been unable to agree final terms. In such
cases C’s entitlement arises from detrimental reliance on a sufficiently certain agreement,
rather than detrimental reliance on a sufficiently certain expectation of property rights.545
11.142 The application of the constructive trust concept to non-contractual commercial agreements
is limited by the distinction that the doctrine draws between pre-acquisition and post-
acquisition intention. In contrast with proprietary estoppel,546 it is much more difficult to
establish a qualifying common intention after P acquires the relevant property. Per Morgan
J in Crossco No 4 v Jolan:547
.… there can be an important difference between a case of a pre-acquisition
arrangement and a post-acquisition arrangement. With a case of a pre-acquisition
arrangement, an equity can be established even where all parties know that they
have not entered into a binding contract before the asset is acquired. Conversely,
where the arrangement relates to an asset which one party already owns and which
is to be the subject of future negotiations for the grant of rights in the asset to
another, that other cannot say that he has relied upon the expectation of the
negotiations producing rights in the future, because he is taken to know that he has
no present legal or equitable rights and that the future grant of rights is speculative
and contingent on the other party being prepared to grant such rights. There does
therefore appear to be a different approach to the position of a party who knows he
has not got the benefit of a binding contract depending on whether the non-
contractual arrangement is made before the asset is acquired, or afterwards. It is
not necessary for me to explore in more detail why there should be this distinction,
and why it should be treated as so important, but I think that it really arises out of
the reaction which a court of equity is likely to have in a case where one party to a
non-binding arrangement has used that arrangement to secure a benefit which was
intended to be shared with another and then the acquiring party claims the benefit
for himself, to the exclusion of the other.
11.143 In Cobbe v Yeoman’s Row,548 Lord Scott’s summary of the reasons for rejecting C’s
constructive trust claim makes reference to both the fact that the agreement post-dated P’s
acquisition of the property and to the fact that it was incomplete:
[P] owned the property before [C] came upon the scene,… the… agreement
produced by the discussions between him and [P]… was inherently speculative and
contingent on [P ’s] decisions regarding the incomplete agreement…
11.144 Whilst there is post-Cobbe authority for the proposition that a non-binding post-acquisition
agreement can give rise to rights under a constructive trust, it is authority from which it is
difficult to extract principles of general application. In Herbert v Doyle,549 P owned a large
house and garden. He wished to redevelop his property by constructing mews houses in the
garden. C owned the adjacent property, which was a dental surgery, and also leased the
ground floor of P’s house. P and C reached an oral agreement whereby C would transfer
certain ‘green’ parking spaces to P in exchange for which P would grant C a long lease of
the ground floor of his property and transfer other ‘red’ parking spaces. The parties clearly
envisaged that terms, including the identification of the parking spaces, would be finalised
through communications between their respective solicitors and that a formally valid
agreement would be drawn up. After the date of the oral agreement, P began to construct the
 mews houses and there were various further negotiations between the parties. After the
building works had finished, C refused to convey the green parking spaces to P and P
brought proceedings claiming that the oral agreement gave rise to both a constructive trust
and a claim in proprietary estoppel. P’s claim failed at first instance, the judge finding that
whilst there was a sufficiently certain oral agreement, P had not fulfilled his part of the
bargain.550 The judge expressed the view that, in the light of Cobbe, P’s proprietary
estoppel claim might have failed, even if he had fulfilled his part of the bargain, but felt it
unnecessary to decide the point. When judgment was handed down, C applied to amend his
counterclaim, alleging that the oral agreement gave rise to a constructive trust and that, if
he transferred the green parking spaces to P, then P would hold the red parking spaces and
the long lease on constructive trust for C. C’s counterclaim succeeded at trial. P appealed to
the Court of Appeal. Arden LJ, who delivered the only fully reasoned judgment, held that a
constructive trust had arisen from the oral agreement. It was noted that the transaction was
commercial551 and that the common intention post-dated P’s acquisition of the property in
question.552 Arden LJ considered that ‘the relevant question [was] whether, subject to
section 2 of the 1989 Act, there was a valid contract’553 and concluded that as the oral
agreement met the contractual certainty requirements a post-acquisition constructive trust
arose.
11.145 For several reasons, Herbert v Doyle is a difficult case. First, it appears that the principal
point taken by counsel for appellant was that the agreement lacked certainty;554
consequently, there was no consideration of the distinction between pre- and post-
acquisition intention. Second, little seems to have been made of the fact that the parties
intended the transfer of the various property interests to be pursuant to a formal agreement,
drawn up by their respective solicitors after the location of the relevant parking spaces had
been identified. Third, Arden LJ’s reasoning is based on the proposition that both
proprietary estoppel and constructive trust have a ‘requirement for completeness of
agreement with respect to an interest in property. Certainty as to that interest in those
situations is a common component… where the transaction is commercial in nature.’555 It
was on this basis that the Court of Appeal felt able to distinguish the case from Cobbe.
However, the reasoning appears to conflate three qualitatively different certainty
requirements: certainty as to one’s present or future entitlement to an interest in property,
certainty as to the nature of the interest that is to be created and certainty as to the terms of
the agreement which gives rise to an interest in property. In proprietary estoppel, the
requisite certainty relates to a belief in, or expectation of, property rights.556 There is no
need for an agreement, let alone an agreement that meets the contractual certainty
requirements, and there is no need for C to be certain of the precise nature of the right to be
acquired. Hebert v Doyle appears to be somewhat unsatisfactory authority for the
proposition that a non-binding post-acquisition agreement to create or transfer an interest in
property can give rise to rights under a constructive trust if it meets the contractual
certainty requirements. It is submitted that the reasoning in Herbert v Doyle cannot be
reconciled with Lord Scott’s speech in Cobbe and, for this reason, the case is wrongly
decided.
(3) The domestic context
11.146 In the domestic context, parties often give little thought to ensuring that their intentions in
relation to the ownership of property are documented, let alone embodied in formally valid
arrangements. One party may have sole legal ownership of a property but regard their
 interest in it as shared with a spouse or co-habitant. Where there is joint legal ownership,
the parties may consider that their interests are equal or that one individual is the true
owner.557 There may be an informal understanding, as between family members, that a
certain individual is to inherit specific property. In all these cases, both proprietary estoppel
and constructive trusts may operate to give effect to the intention of the parties, provided
that there is detrimental reliance. However, the difference between the search for a
‘common intention’ in constructive trust and the search for conduct on the part of P giving
rise to an estoppel may be important: since Stack v Dowden558 it appears possible that C
may acquire an interest, or additional interest, in property, pursuant to a constructive trust,
in circumstances where P’s conduct would not amount to an ‘assurance’ in proprietary
estoppel.
11.147 Before the Court of Appeal case of Oxley v Hiscock,559 it appeared that a common intention
constructive trust would not arise unless the actual intention of the parties could be
objectively ascertained from evidence before the Court. This requirement was established
by three House of Lords cases. In Pettitt v Pettitt,560 the majority of the Appellate
Committee considered that there was a need for an actual bargain between the parties and
rejected the notion that common intention could be imputed to the parties in its absence. In
Gissing v Gissing,561 it was Lord Diplock’s opinion that a common intention might be
‘inferred’ from the conduct of the parties. The conceptual difference between imputation
and inference is difficult to discern562 unless it goes to the presence or absence of an actual
common intention and the nature of the evidence that may be considered to determine the
existence and content of that intention. It followed that, in the absence of an express
agreement, the Court could objectively deduce the actual intention of the parties but could
not decide what they would have intended, had the issue been considered, by reference to
evidence that did not shed light on their actual intentions.563 In Lloyd’s Bank v Rosset,564
Lord Bridge confirmed that the Courts would only find an intention that C should have an
interest in property on the basis of evidence that P and C had discussed the issue of sharing
the property, or evidence of C’s financial contribution to its purchase.
11.148 The House of Lords’ refusal to impute common intention reflected the constructive trust’s
traditional characterisation as institutional, as opposed to remedial, in nature. English law
has, historically, recognised only the institutional constructive trust565 and rejected566 the
remedial constructive trust.567 Per Lord Browne-Wilkinson in Westdeutsche Landesbank
Girozentrale v Islington LBC:568
Under an institutional constructive trust, the trust arises by operation of law as
from the date of the circumstances which give rise to it: the function of the court is
merely to declare that such trust has arisen in the past. The consequences that flow
from such trust having arisen (including the possibly unfair consequences to third
parties who in the interim have received the trust property) are also determined by
rules of law, not under a discretion. A remedial constructive trust, as I understand
it, is different. It is a judicial remedy giving rise to an enforceable equitable
obligation: the extent to which it operates retrospectively to the prejudice of third
parties lies in the discretion of the court.
11.149 A relaxation of the requirement for actual common intention might permit a constructive
trust to arise in circumstances where P has given no assurance that C is to have property
rights. In such circumstances the Court is not preventing P from resiling from a promise or
representation but retrospectively imposing its understanding of what the parties ought to
 have agreed. The movement towards overt imputation of common intention began in Oxley
v Hiscock and was confirmed by the House of Lord in Stack v Dowden.569 In Stack, P and C,
a cohabiting couple, disputed the apportionment of the beneficial interest in their home. As
they had a joint legal interest in the property, it was not in issue that both parties also had a
beneficial interest; however, P and C had never considered the question of their respective
shares, let alone reached an agreement. Baroness Hale, with whom the majority agreed,
stated that in ‘domestic consumer’570 cases the starting point was that joint legal ownership
gave rise to a presumption of beneficial ownership in equal shares. By contrast, sole legal
ownership would give rise to a presumption of sole beneficial ownership.571 Both these
presumptions could, however, be displaced by evidence of a contrary ‘common intention’ to
hold the beneficial interest in different shares. If so, a constructive trust would arise to give
effect to that common intention. In a significant departure from previous jurisprudence,
Baroness Hale considered that the existence and content of a common intention constructive
trust was to be determined by ‘undertaking a survey of the whole course of dealing between
the parties’.572
11.150 Stack v Dowden saw the abandonment of the rule requiring evidence of actual common
intention, and a blurring of the distinction between the institutional and remedial
constructive trust, in ‘the domestic consumer context’. Although Baroness Hale appeared to
reject the remedial constructive trust,573 it is difficult to describe the exercise which the
Court undertakes as giving rise to anything else. Per Baroness Hale:574
The search is to ascertain the parties’ shared intentions, actual, inferred or
imputed, with respect to the property in the light of their whole course of conduct
in relation to it.
11.151 As Rimer LJ pointed out in Kernott v Jones,575 it is difficult to understand what is meant by a
judicial ‘search for’ or ‘ascertainment of’ imputed intention: in cases where there is no
actual shared intention, the Court is telling the parties what they ought to have intended.
The problem is not merely semantic: maintaining the concept of an interest in property
which is referable to common intention appears pointless if the evidence to be weighed does
not go to the existence and content of an agreement or arrangement576 between P and C.
Whilst the Appellate Committee rejected the idea that a constructive trust arose to allocate
‘that share which the Court considers fair having regard to the whole course of dealing
between them in relation to the property’,577 if the trust is not giving effect to actual
intention then its real basis can only be what the Court considers fair in all the
circumstances.
11.152 The practical significance of the Stack approach will depend on the extent to which it applies
where P is the sole legal owner and a constructive trust is both the means by which C
establishes an entitlement to a beneficial interest and the mechanism for its
quantification.578 Whilst Baroness Hale declined the opportunity to answer this question in
Stack, an indication was given:579
We are not in this case concerned with the first hurdle [i.e. establishing a
beneficial interest] There is undoubtedly an argument for saying… that the
observations, which were strictly obiter dicta, of Lord Bridge of Harwich in
Lloyd’s Bank plc v Rosset have set that hurdle rather too high in certain respects.
11.153 In Abbott v Abbott,580 the Privy Council applied the Stack approach in a case where P was the
sole legal owner of the matrimonial home. The presumption of sole beneficial ownership
was rebutted by, among other things, the fact that the parties had ‘organised their finances
 entirely jointly, having only a joint bank account into which everything was paid and from
which everything was paid’.581 P was found to be holding the property in trust for both
himself and C in equal shares. However, in that case P had accepted in cross-examination
that C was entitled to some beneficial share. In James v Thomas,582 C claimed a beneficial
interest in a property which had been both P’s home and business premises before C and P
embarked upon an 11-year relationship. During the course of the relationship, C lived at the
property, worked with P in his business without remuneration and carried out renovation
works to the property. The Court of Appeal held that she was not entitled to a beneficial
interest in the property under a constructive trust. Per Chadwick LJ, who gave the only
reasoned judgment:583
… a constructive trust can arise some years after the property has been acquired
by, and registered in the sole name of, one party who (at the time of the
acquisition) was, beyond dispute, the sole beneficial owner: Gissing v Gissing,
Bernard v Josephs. But, as those cases show, in the absence of an express post-
acquisition agreement, a court will be slow to infer from conduct alone that parties
intended to vary existing beneficial interests established at the time of acquisition.
11.154 The reasoning of the Court of Appeal in James v Thomas reflects the distinction that is drawn
between pre- and post-acquisition intention.584 There was no reference in Stack to this
distinction and, following the logic of that case, it is difficult to understand how it can be
maintained. The artificiality of a search for a fictional ‘shared intention’, by reference to the
parties’ ‘whole course of conduct’ is stretched to the point of absurdity if the Court is also
being tasked with the identification of whether the fictional shared intention pre-dated or
post-dated acquisition. If the Court is to impose a constructive trust where there is no
agreement, by reference to evidence which goes to matters other than the existence or
content of an actual common intention, it may be thought that little or nothing of worth is
added by asking whether the non-existent intention came before acquisition of the property.
In James v Thomas, the conceptual problem was masked by the fact that P’s ownership of
the property pre-dated his relationship with C: the evidence could only relate to post-
acquisition intention. However, in Kernott v Jones585 the Court of Appeal was required to
apply the Stack reasoning in a case where the parties’ relationship pre-dated the acquisition
of the property but the conduct relied upon by C occurred over a period of 14 years
following their separation and P’s departure from the property.
11.155 In Kernott v Jones, P and C had a joint legal interest in the property and accepted that their
beneficial shares were equal at the time of their separation.586 After P’s departure, C was
solely responsible for all outgoings relating to the property and the maintenance of the
parties’ children. C commenced proceedings for a declaration that she had the entire
beneficial interest in the property. At first instance, it was found that C held a 90 per cent
beneficial share under a constructive trust. In the Court of Appeal, the majority found that
there was no basis to displace the presumption of equal shares since there was no evidence
of an actual intention to hold the property in different shares. Unlike the majority in Stack,
the majority in the Court of Appeal refused to give weight to evidence that did not go to
actual intention.587 Only Jacob LJ accepted that it was legitimate to consider whether ‘a
different intention is to be inferred or imputed from the facts following the departure’.
11.156 The cases since Stack show the reluctance of the lower Courts to exercise a remedial
discretion which is not referable to the actual intention of the parties. As a result, it is
difficult to predict the extent to which the Stack approach will be applied to the threshold
 question of whether C has any beneficial interest at all.588 Permitting the imputation of
intention in order to establish an interest would expand the scope of the doctrine of
constructive trust to such an extent that proprietary estoppel might become redundant, other
than in straightforward cases of unilateral mistake. It has been said589 that relaxing the
requirements for a constructive trust while at the same time restricting590 the doctrine of
proprietary estoppel is counterintuitive. Whilst proprietary estoppel permits the Courts to
exercise a wide remedial discretion, the elements which trigger the operation of the doctrine
are more certain and reliable than the imputation of intention from the parties’ ‘whole
course of dealing’.
(4) Remedies
11.157 After Yaxley v Gotts,591 Kinane v Mackie-Conteh592 and Cobbe v Yeoman’s Row593 it seems
clear that where the assurance takes the form of an agreement which is intended to be
binding but does not comply with section 2(1) of the Law of Property (Miscellaneous
Provisions) Act 1989 then no proprietary estoppel will arise unless the same facts also give
rise to a constructive trust.594 Where the two doctrines overlap, is the Court limited to the
remedies available in constructive trust or is the more flexible remedial discretion of
proprietary estoppel also available?
11.158 The traditional constructive trust arises automatically, prior to an order of the Court
upholding the proprietary interest, and is capable of binding third parties prior to any
declaration by the Court. On the other hand, if C relies on a proprietary estoppel, this gives
rise to no more than a mere equity, although such equities have been found to bind third
parties retrospectively following the grant of a proprietary interest by the Court.595 In
proprietary estoppel, the Court awards such interest in property as it deems necessary to
satisfy the equity generated by C’s detrimental reliance on P’s assurance. The common
expectation of the parties does not define C’s interest in property, although it may
ultimately provide the best guide to the appropriate measure of relief.596 Given that the
Court is concerned to grant the ‘minimum equity to do justice’,597 a personal, as opposed to
a proprietary, remedy may be granted in proprietary estoppel cases.598 By contrast, the
interest held under a constructive trust is proprietary and defined599 by the express or
implied common intention of the parties, the role of the Court being to ascertain that
intention and give effect to it if there has been detrimental reliance or a change of position.
11.159 These differences were not thought to present any great conceptual problem in Yaxley v
Gotts,600 where overlapping proprietary estoppel and constructive trust claims resulted in a
finding that P had, from the date of his acquisition of the property, held it subject to a
constructive trust under which C’s interest was a 99-year lease free of ground rent. Here the
Court combined the remedial features of the two doctrines: a defined interest from the date
of acquisition but an interest which, in its detail and derivative nature, was not referable to
the parties’ intentions. If the species of constructive trust that is regarded as analagous to
proprietary estoppel is to have this kind of remedial flexibility then it requires formal
recognition, and conceptual definition, by the Courts.601
H. Comparison with the Law of Contract
11.160 Proprietary estoppel cases which involve a unilateral mistake on the part of C, followed by
acquiescence or encouragement by P, are distinct from contract in that they do not involve
the making of a promise as to future entitlement but only an error as to present entitlement.
Arguably, however, cases in which the relevant assurance concerns an expectation of rights
in property involve a promise by P that he will grant those rights to C. English law has
 traditionally regulated promissory liability using the law of contract but it is impossible to
assimilate the expectation cases into the latter discipline. There are significant differences
between the operation of proprietary estoppel and that of contract.
11.161 The distinction between contract and proprietary estoppel lies in the former’s requirement of
a mutual bargain. Detriment to one party is capable of amounting to consideration,
regardless of whether benefit is thereby conferred on the other. Such detriment will not,
however, amount to consideration unless it is bargained for by the parties, namely C must
promise to act to her detriment as the quid pro quo or price of the benefit to be conferred by
P: ‘Reliance is, according to [the classical model], only justifiable if it has been paid for or
bargained for. A person who relies on another, where such reliance is not actually part of a
bargain, is still, according to this theory, acting at his own risk. In the shadow of 19th
century individualism, lawyers still pay lip service (and sometimes more) to the
fundamental belief that a man should rely on himself and not on others.’602 Thus, Mr
Crabb’s sale of his land in reliance on Arun DC’s promise of an easement did not give rise
to a contract: he did not, at any stage, promise or undertake any obligation to the Council to
sell the land; it formed no part of the arrangement made between the parties; indeed, the
Council were entirely indifferent to whether he did so or not (a fact which would eventually
prove to be their downfall). It is only by extending the scope of consideration beyond its
conventional and generally accepted limits that Crabb’s case can be characterised as
contractual.603
11.162 The bargain requirement is not, however, the only point of divergence between the operation
of contract and proprietary estoppel. Were the doctrine of consideration to be abolished or
altered, for example by extension to cover those acts of detrimental reliance which were the
reasonably foreseeable consequence of the promise, proprietary estoppel would continue to
operate in a number of cases where no contract exists. First, a promise which is
insufficiently certain to give rise to a valid and enforceable contract may give rise to a
proprietary estoppel.604 Second, a promise or understanding which is reached without intent
to create legal relations may give rise to a proprietary estoppel but not a contract.605 Third,
a promise relating to land, or an interest therein, which is not made in writing may give rise
to a proprietary estoppel but not a contract.606 Further, the consequences of contract and
proprietary estoppel differ. The remedy in contract cases is enforcement of the promise or
full expectation damages.607 In contrast, the remedy for proprietary estoppel will only
extend to the minimum equity to do justice.608
11.163 A number of the older authorities use contractual terminology609 to describe what are now
regarded as principles of the doctrine of estoppel. However, some of the early authorities
that are now commonly viewed as involving estoppel might be more accurately categorised
as contractual.610 A degree of confusion arises because of the formality requirements for
contracts for the sale of land. The Court’s concentration on C’s acts in reliance is explicable
on the basis not of establishing an estoppel, but instead of providing a justification for
dispensing with contract formality requirements. These cases concern the enforcement of
bargains, where an otherwise binding contract is rendered potentially unenforceable for
want of evidence in writing, with C’s reliance amounting to an act of part performance. The
doctrines of estoppel and part performance were mutually influential, particularly in the
earlier stages of their development.611
11.164 There is authority to suggest that the same set of facts may give rise both to proprietary
estoppel and contract.612 Prior to performance by the promisee, where the contract remains
wholly executory, no estoppel analysis is possible because of the absence of reliance.
However, all executed contracts are susceptible to being analysed as involving
representation and reliance: the promisor represents that he intends to comply with his
promise and the promisee relies on the representation, to her detriment, by performing her
part of the bargain. Arguably, the mere fact that the relevant acts were specified as the quid
pro quo of the promise need not prevent their amounting to detrimental reliance for the
purposes of proprietary estoppel.613 To superimpose a proprietary estoppel in every case
where the contract contemplated concerns the acquisition of property would obviously
undermine, fundamentally, established contract principles, in particular those relating to
certainty, legal intent and formality. If the contract claim failed for want of one or more of
these three requirements, C might be able to fall back on proprietary estoppel, with the
ironic consequence that the more informal and vague arrangement may be upheld where the
contractual bargain would have failed. This consequence is averted if it is recognised that
detrimental reliance, additional to mere compliance with the original contract, is required
to give rise to an estoppel relationship.614
 12
ESTOPPEL BY DEED
A. Introduction 12.01
(1) Terminology 12.04
(2) Categorising estoppel by deed 12.05
B. Elements of Estoppel by Deed 12.14
(1) Summary of elements 12.14
(2) A statement of fact contained in a deed 12.15
(3) Estoppel by deed only operates in actions on the deed
and does not cover collateral issues between the 12.37
parties
(4) Detrimental reliance 12.40
C. Relief 12.46
D. Defences 12.47
(1) The statement was not intended to be attributable to
12.47
the party that W seeks to estop
(2) The deed is void, voidable, or rectifiable 12.50
(3) The estoppel would contravene or undermine a statute 12.53
(4) The estoppel would contravene public policy 12.54
E. Parties Affected by Estoppel by Deed 12.55
(1) The original parties 12.55
(2) The privies of those who executed the deed 12.57
(3) Other parties 12.63
(4) Passing title 12.65
F. Estoppel Arising in Property Transactions 12.66
(1) Estates or interests created by estoppel 12.66
(2) Feeding the estoppel 12.72
(3) Distinctions between the operation of the two estoppel
12.74
doctrines
(4) Feeding title to registered land 12.77
(5) Practical limitations on the feeding title principle 12.78
A. Introduction
12.01 Estoppel by deed is a rule of evidence1 whereby parties are bound by the ‘solemn and
unambiguous statements’ in a deed that they have executed.2 The doctrine does not provide
a cause of action but will prevent the party estopped from contradicting a statement made in
a deed. The legal outcome between the parties will then be determined on the basis of the
state of facts established by the estoppel.3 That state of facts may generate a valid defence4
or cause of action5 to the party raising the estoppel. Therefore, an estoppel by deed may
have a material impact on the outcome of a case.6 In the standard shield/sword argot
applicable to estoppels, estoppel by deed can be classified either as a sharp edged shield or
as a blunt sword capable of only operating indirectly. In either case, the estoppel is more
 than a mere shield.
12.02 The doctrine’s underlying rationale was originally that deeds were to be taken so seriously
that they could not admit contradiction. Evidence could therefore not be adduced to
contradict the statements they contained. This absolutist approach was later mitigated.
Under the modern doctrine, the statement at issue must have formed the basis on which the
parties contracted with one another. Further, the parties will not be bound by statements
contained in void or voidable deeds or by statements in those parts of a deed which a Court
is prepared to rectify.
12.03 Even with these modifications, the doctrine appears antiquated. As early as 1878, Lord Jessel
MR took the view that it ought not to be extended.7 The current application of the doctrine
suffers from the fact that many of the relevant principles and cases date from the Victorian
and pre-Victorian era.8 Such rules do not easily apply to modern commercial and
conveyancing situations. Further, the new doctrine that has been labelled, or perhaps
mislabelled,9 ‘contractual estoppel’,10 appears expansive enough to absorb the narrower
doctrine of estoppel by deed.11 However, given the absence of any express authority for the
proposition that estoppel by deed has been replaced or abolished, and the relatively recent
application of the doctrine in First National Bank v Thompson,12 it is not possible to
contend that estoppel by deed is so antiquated as to form no part of the modern law. Instead,
estoppel by deed is to be viewed as comprising two subcategories: a version of estoppel by
representation and a doctrine relating to title. The doctrine is to be given effect in both
common law and equity.13 Equity differs in that it will recognise a wider range of
circumstances in which the doctrine may be excluded.14 This reflects the wider range of
circumstances in which equity will set a contract or deed aside.
(1) Terminology
12.04 There is no term which accurately describes the parties to an estoppel by deed. Representor
and representee are not quite accurate because of the mutuality of many of the statements
which give rise to an estoppel by deed.15 In this chapter, W is the party attempting to raise
the estoppel and M is the object of the estoppel.
(2) Categorising estoppel by deed
12.05 Estoppel by deed formed the second limb of Coke’s threefold division16 of estoppel into
estoppel by record, estoppel by writing17 and estoppel in pais. In the modern law of
estoppel, there is considerable overlap between estoppel by deed and the doctrines of
estoppel by representation and estoppel by convention and an even greater overlap with the
recently formulated concept of contractual estoppel.18 The overlap with estoppel by
representation and estoppel by convention had led some to suggest that estoppel by deed no
longer forms a useful or independent category,19 a suggestion that can only have greater
force if the doctrine of contractual estoppel continues to gain ground both at first instance
and in the higher Courts.
Two different types of estoppel by deed
12.06 In First National Bank Plc v Thompson,20 the Court of Appeal held that it is not possible to
subsume estoppel by deed into the category of estoppel by representation.21 The Court
identified two distinct doctrines, both of which have been referred to as estoppel by deed.
The first was characterised as an instance of estoppel by representation. It operates only on
express and positive statements contained in a deed. The second is an older and more
broadly based doctrine which operates where M has purported to transfer to W an estate or
interest in property which he does not own. It does not depend on any express statement or
 representation, but on the mere fact of defective grant.22 The greater part of this chapter
concerns the first of these doctrines and, unless otherwise indicated, references to estoppel
by deed are intended to signify the principles that operate when there has been an express
statement rather than an imperfect grant.
Estoppel by deed and estoppel by representation23
12.07 Can estoppel by deed be described as nothing more than an instance of estoppel by
representation? This question is best answered by comparing the constituent elements of the
two types of estoppel.
12.08 Statements and representations There seems to be no situation where estoppel by deed can
be raised which would not also give rise to an estoppel by representation. Both depend on a
statement of fact communicated by M to W. In estoppel by deed cases the statement is
contained in a mutually agreed document. This is slightly different from the unilateral
representation by M to W that usually founds an estoppel by representation. Superficially it
has more in common with the mutual assumption that triggers the operation of estoppel by
convention.24 However, in reality, neither estoppel by deed nor estoppel by representation
will operate unless the statement is attributable to M. As far as estoppel by deed is
concerned, in many cases that attribution will flow from the fact that M has executed the
deed in which the statement was contained. However, this is not invariably the case. If it
can be shown that the parties intended the statement to be attributable to a person other than
M, no estoppel by deed will arise.25
12.09 The only material difference relates to the construction of the representation in issue. Under
estoppel by deed, a stricter construction of the representation will apply. An inferred
representation from the words of the conveyance will not suffice and only a direct and
positive statement will trigger the operation of the doctrine.26 No such rule applies in
respect of estoppel by representation. However, this minor distinction is insufficient to
support the contention that estoppel by deed is a different doctrine from estoppel by
representation. The restrictive construction principle flows from the fact that the
representation is contained within a deed and is to be treated as such: it flows from the
context rather than from any ontological distinction.
12.10 Detrimental reliance Estoppel by representation requires a detrimental change of position
by W as a result of the representation. Little, if any, reference is made to such requirements
in estoppel by deed cases. The absence of that reference may not be a material distinction
given the limited circumstances in which an estoppel by deed may arise. Estoppel by deed
can only arise in actions on the deed.27 Further, it will arise only where the statement forms
the basis on which the parties entered the transaction.28 Arguably, these limitations amount
to a requirement of detrimental reliance, albeit only of a narrow and specifically defined
type: W has entered into a contract in reliance on the statement made.29
12.11 Effect on third parties There is, or should be, a clear difference between the effect of
estoppel by representation and estoppel by deed on third parties. It is fairly certain that
estoppel by deed may bind all those claiming through the parties, even the bona fide
purchaser for value without notice. As is set out below,30 such an approach is justifiable31
by reference to characteristics peculiar to estoppel by deed, specifically its inherent link
with a solemn and formally executed document. This approach is indefensible as far as
estoppel by representation is concerned.32
12.12 Conclusion on categorisation It follows that estoppel by deed is capable of being explained
as an instance of estoppel by representation. The doctrine has a much narrower scope, but,
 as regards the original parties,33 there seems to be no situation where estoppel by deed will
operate where estoppel by representation will not also apply.
12.13 Given this conclusion, it is debatable whether any exposition of estoppel by deed should go
beyond the specific and distinct doctrine which depends on an imperfect grant rather than
an express statement or representation.34 Both doctrines are considered in this chapter, for
two reasons. First, the express statement form of estoppel by deed continues to be referred
to as a distinct doctrine in the cases. Second, there is some difficulty in reconciling all
aspects of this form of estoppel by deed with estoppel by representation, in particular the
effect on third parties. Until the rules relating to transmission are assimilated, there will be
instances where estoppel by deed will operate where estoppel by representation will not.
B. Elements of Estoppel by Deed
(1) Summary of elements
12.14 W will be able to raise an estoppel by deed against M if the following elements are made out.
First, M executes a formally valid deed to which W is named as a party.35 Second, the deed
contains a statement of fact, intended by the parties to be attributed either to both M and W
or to M alone. Third, the statement forms the basis on which the parties contract. Fourth, M
seeks to deny that statement of fact in an action on the deed brought by a party to it. Fifth,
no defence to the estoppel can be raised, in particular, the deed is not void, voidable or
rectifiable.
(2) A statement of fact contained in a deed
The deed must be valid
12.15 No estoppel by deed will arise if the deed has not been properly created by the execution of
the relevant formalities.36 However, statements contained in invalid deeds may give rise to
an estoppel by convention or by representation. A party who makes use of a document,
purporting on its face to be a deed, may thereby represent that the deed had been validly
executed. Hence an estoppel by representation will arise to prevent the party relying on the
defective execution.37
Creation of a deed
12.16 The following is a brief guide to deeds and their creation, aimed at giving some background
information. A more detailed account lies beyond the scope of this work. Reference should
be made to specialist texts on contract, deeds and conveyancing.38 A deed must perform
one of three functions. First, it may transfer an interest, a right or property. Second, it may
create an obligation binding on a party or parties. Third, it may confirm some act by which
an interest, right or property has passed. Thus many documents under seal, such as share
certificates, are not deeds.39
12.17 Deeds created before 31 July 1990 must have been signed, sealed and delivered. Delivery
could be actual or constructive. Deeds created on or after 31 July 1990 need not be sealed if
they are created by an individual.40 Instead, it is sufficient if the signature of the individual
is attested and the document states on its face that it is intended to be a deed.41 The delivery
requirement is retained.42 From the same date, companies may create deeds without
sealing, so long as certain statutory provisions are complied with.43 The sealing
requirement has been liberally interpreted.44
Which types of deed may give rise to an estoppel?
12.18 Deeds have traditionally been divided into indentures and deeds poll. A deed poll may be
made either by a single party expressing its intention or, alternatively, by two or more
parties all of whom express a single common intention.45 There is some doubt as to whether
 such a deed can give rise to an estoppel. There is dicta46 to suggest that it can. However,
estoppel by deed only applies in actions on the deed.47 The scope for such actions on a deed
poll is very limited. Consequently, deed polls will rarely give rise to estoppel by deed.48
Indentures are deeds to which two or more persons are party and which evidence some act
or agreement between them other than the single common intention which gives rise to a
deed poll.49 Such deeds are clearly capable of giving rise to an estoppel.50
A statement of fact or mixed fact and law
12.19 Estoppel by deed will operate only on a statement contained in a deed.51 The statement must
be one of fact52 or of mixed fact and law.53 The doctrine does not apply to promises or to
statements of intention. The same restriction applies to estoppel by representation. As
regards the latter doctrine, the restriction is necessary to hold the line between estoppel and
contract. If estoppel by representation could operate on statements of future intention, this
would allow promises to be enforced which are unsupported by consideration. In the case of
estoppel by deed, no such difficulty arises. The doctrine will only operate on statements
contained in a deed. Promises contained in deeds are enforceable whether or not they are
given for consideration.54 Practical rather than doctrinal factors explain why estoppel by
deed does not operate on promises: there is no need to resort to estoppel, since any promise
contained in a deed will be enforceable in contract.
12.20 Estoppel by deed operates where the parties have agreed that a certain statement of fact or
facts would form the basis of the transaction which they were about to enter.55 It may not
be necessary to show that the party seeking to raise the estoppel believed that those stated
facts were actually true. It is probably sufficient if W believed that they would be regarded
as true for the purposes of the agreement between the parties.56 Nor must the statement
necessarily have been untrue.57 The rationale of the doctrine is that a party cannot deny the
terms of the contract on which it is suing58 or being sued, reducing it almost to a principle
of construction.59
12.21 Where the deed contains a true but incomplete statement of the facts, no estoppel will arise
to prevent the parties adducing evidence of additional facts necessary to establish the true
position.60
Examples
12.22 Statements which may give rise to an estoppel by deed are many and varied. They include
statements that: certain goods have been delivered to a party to the deed;61 W was the
inventor of various improvements to industrial machinery;62 a particular price was paid for
the purchase of property;63 M was the owner of, or seized of, a legal estate in fee simple
absolute in possession, free from encumbrances;64 a neighbouring tenant had a valid option
to renew its lease;65 the deed was effective from specified date;66 a debt has been secured
on specified property.67
12.23 The most important practical application of estoppel by deed is in relation to issues of title to
property. It may apply where M has purported to grant or transfer property68 by deed and
has been applied where M has mortgaged property.69 In these situations the doctrine
operates to prevent M from subsequently asserting an ownership right or interest
inconsistent with that previously granted.70 Mortgagees and purchasers may derive
significant advantages if a positive assertion of title is included in a conveyance or other
deed. Such statements are necessary to give rise to the type of estoppel by deed under
consideration in the greater part of this chapter. In the absence of such an express recital of
 title, mortgagees and purchasers may still derive benefits from the wider species of
estoppel by deed.71 However, as set out below, the benefits are not as extensive as those
which accrue in express assertion cases.
Which parts of a deed may give rise to an estoppel?
12.24 Deeds are conventionally divided into various sections, all of which may give rise to an
estoppel by deed.72
12.25 Recitals Recitals follow the introduction to the deed and usually begin with the word
‘WHEREAS’. They are generally used to explain or narrate the factual background and
purpose of the deed. Statements contained in recitals may give rise to an estoppel73 and are
the most common foundation for estoppel by deed.74
12.26 Operative words The operative part of the deed follows the recitals and is usually
introduced with the words ‘NOW THIS DEED WITNESSETH AS FOLLOWS’. This section
of the deed contains the provisions accomplishing the purpose of the instrument, such as the
promises which go to make up the relevant contract or transaction. In Taylors Fashions Ltd
v Liverpool Victoria Trustees Co Ltd,75 Mr Justice Oliver held, obiter, that the operative
part could give rise to an estoppel, so long as it was sufficiently clear and precise. In that
case, a tenant’s option to renew was expressed to operate only in the event of the tenants of
a neighbouring property ‘exercising their option to renew’. This was held to amount to a
statement that the neighbouring tenant had a valid option. They could not exercise it if they
did not have it.
12.27 There are Court of Appeal dicta which suggest that the operative part cannot give rise to an
estoppel.76 Further, a promise by M to convey or transfer property does not amount to a
statement that M is the owner of that property.77 However, subject to that discrete
limitation, the better view is that the operative part may give rise to an estoppel provided
the representation is sufficiently clear and definite. In any event, given the restrictive
approach taken to construction and the obvious availability of an action in contract, it will
be a rare case in which the operative part triggers an estoppel.78
12.28 Other parts of the deed The remaining parts of the deed are the introduction and the
testimonium. The introduction states what type of deed is being created (a lease, mortgage,
conveyance, etc), the date and the parties. The testimonium is premised by the words ‘IN
WITNESS whereof’ and links the signatures79 to the remainder of the document. It is
theoretically possible for an estoppel to arise as a result of these parts of the deed, although
such cases will be rare, given the limited scope of their contents.80 However, an estoppel
may arise as a result of the date specified in the deed. The language of the deed generally
speaks from the date of delivery and not from the date of execution81 but a party may be
estopped from denying that a date later than that of delivery is to govern. In Rudd v
Bowles,82 various leases were executed with incomplete dates. The parties subsequently
agreed to insert dates later than those of actual execution and delivery. The parties were
estopped from denying that what had been inserted were the relevant governing dates,
enabling the Court to construe the deed according the circumstances existing at the later
dates.
The statement must be clear and unequivocal
12.29 No statement may give rise to estoppel by deed unless it is clear and unequivocal.83 This
requirement of clarity has been expressed in different ways. It has been held that the
statement must be certain as to every intent,84 distinct, precise and unambiguous.85 The
statement will be construed objectively, according to the principles laid down in Low v
 Bouverie86 and refined in Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing
Co Ltd.87 Hence, it is sufficient if any reasonable person would have interpreted the
statement in the way contended, even if M did not itself subjectively form that
understanding. This approach is derived from operation of estoppel by representation cases
as there is no direct consideration of the point in this context.88
12.30 No estoppel will arise where the deed contains both the statement relied on and a
contradictory statement of the true position.89 Nor will an estoppel arise where the truth is
contained in an earlier deed which is recited in the instrument relied on.90
12.31 Inferences and implied statements will not give rise to an estoppel A general statement is
insufficient to raise an estoppel: a statement of a specific fact is required.91 Further, in
Onward Building Society v Smithson,92 it was held that no estoppel could arise where the
state of facts relied on was a matter of mere inference from the words of the deed.93 Hence,
it is said that nothing is to be taken by way of intendment94 and that there is no such thing
as an estoppel by something implied.95 The parties will be estopped from denying only
facts directly and positively asserted in the deed.96
12.32 A more flexible approach was adopted in Taylors Fashions Ltd v Liverpool Victoria Trustees
Co Ltd.97 A tenant’s option to renew was expressed to operate only in the event of the
tenants of a neighbouring property ‘exercising their option to renew’. Mr Justice Oliver
held, obiter, that this was a statement that the neighbouring tenant had such an option and
that it was legally valid. He distinguished Smithson on the grounds that it was not simply a
matter of inference that the neighbour’s option was valid, but a matter of necessary
inference. Unless the neighbour had such an option the relevant clause could be given no
sensible effect.98 However, the strict approach was reaffirmed by Mr Justice Walton in Re
Distributors and Warehousing Ltd.99 M had guaranteed the liability of Y under a lease. The
reversion was assigned to W but not the guarantee. Subsequently, Y and W agreed new
lease terms and both M and Y executed deeds of variation to reflect them. His Lordship
held that it was a clear inference from the wording of the deed of variation that W had the
benefit of the guarantee. Despite this, Smithson was applied and the plea of estoppel was
rejected.
12.33 There is an obvious conflict between Taylors and Re Distributors:100 in both cases, the clause
in issue could be given no sensible operation without drawing the inference relied on by W.
Whilst the flexible Taylors approach would bring estoppel by deed more into line with
estoppel by representation, where mere inferences may be sufficient to found a claim, it
appears that the stricter approach of Smithson and Re Distributors remains good law.101
12.34 The Smithson principle is important in cases where W seeks to prevent M from denying a
statement that M is the owner of particular property. This type of case is discussed further
below.102 Because of the strict approach laid down in Smithson,103 considerable care needs
to be taken when drafting statements of title. The more muscular form of estoppel by
deed104 will arise to prevent M denying ownership or property only where there is a direct
and positive statement of M’s title,105 for example a statement that M is the owner, or
seized, of a legal estate in fee simple absolute in possession, free from encumbrances.106 A
mere covenant or promise that M has a particular interest does not amount to a positive
statement that M has that interest.107 It merely represents an agreement that M shall be
treated as having the property and shall be liable for damages if this proves to be untrue.108
The ordinary operative words of a conveyance, namely the promise to transfer property, do
 not therefore give rise to an estoppel.109 Further, the statement that M has power to convey
the property does not amount to a positive statement that M is the legal owner of it. There
are a number of circumstances in which a party might have power to convey without being
the legal owner of property.110 Hence the usual implied covenants of title are not sufficient
to raise an estoppel.111
12.35 A statement that M is entitled to the legal or the equitable title is insufficient to raise an
estoppel by deed.112 It is necessary to specify the legal estate or interest held.
Consequently, a statement that M was ‘well and sufficiently entitled to the property … free
from encumbrances’ will not raise an estoppel.113 However, in Poulton v Moore114 the
majority115 held that the statement that M was entitled to a right of way was sufficient to
raise an estoppel to prevent M denying that she was the owner. Given the failure to specify
the type of estate or interest to which M was entitled, this decision is questionable.116 The
heterodoxy of Poulton is demonstrated by Williams v Pinckney;117 in a conveyance to W, M
and C stated that they ‘hereby convey’ their respective interests together with ‘all right,
title, claim and demand whatsoever’, subject to certain specified encumbrances. No
estoppel was raised to prevent M claiming the benefit of a mortgage granted by C over his
share of the property conveyed. The deed had not stated that the listed encumbrances were
the only existing ones.118
12.36 Similarly, in District Bank Ltd v Webb,119 a statement that W and M were seized of an
unencumbered fee simple absolute in possession did not amount to a representation that the
premises were free from tenancies. Mr Justice Dankwerts held that no estoppel arose to
prevent M from asserting that she had been granted a tenancy of the property by W and M.
The judge held that the term encumbrance was the one generally used to describe
mortgages. The words ‘in possession’ were used to distinguish the fee simple from one in
reversion and were not meant to signify ‘vacant possession’.120 Webb is indicative of the
orthodox, restrictive approach to representations of title.
(3) Estoppel by deed only operates in actions on the deed and does not cover collateral
issues between the parties
12.37 Estoppel by deed may only be used in actions on the deed that contains the statement relied
on. It does not apply to separate or collateral actions between the parties to the deed.121 In
such cases, the deed may be relied on as evidence of the facts asserted in it but there is
nothing to stop the parties adducing contradictory evidence. For example, in Carpenter v
Buller,122 W and M executed a deed pursuant to various building works which they were
carrying out. The deed recited that W was the owner of a specified plot of land. M later
sued W for trespass over the land specified. No estoppel arose to prevent M from asserting
his title to the land. The action in trespass was wholly collateral to the deed and was not an
action founded upon it.123
12.38 This line between actions on the deed and collateral actions is not always easy to draw. In
Wiles v Woodward,124 M and W entered into a deed dissolving a partnership. The deed
recited that paper to the value of £898 4s 11 d had been delivered to M. By the deed, M
assigned the stock in trade of the partnership paper manufacturing business to W, apart
from the aforementioned paper. M later sued W for failure to deliver the paper. The claim
was not collateral to the deed and M was estopped from denying that the paper had been
delivered.
12.39 This restriction is an important limitation on the operation of estoppel by deed. Generally,
 only those named as parties to the deed may sue on it.125 Hence the benefit of estoppel by
deed enures only to those named parties.
(4) Detrimental reliance
12.40 A common factor which links most forms of estoppel is detrimental reliance. This
requirement may be broken down into two parts. First, W has changed its position, in
reliance on the statement or representation in issue. Second, that change of position will
lead W to suffer detriment if the truth of the statement or representation is subsequently
denied. References to reliance and detriment are noticeably lacking in estoppel by deed
cases.126 In PW & Co v Milton Gate Investments Ltd,127 Neuberger J thought it well
established that estoppel by deed ‘requires no subsequent conduct or any other act of
reliance by the party invoking the estoppel’. As with the new doctrine of ‘contractual
estoppel’,128 the rationale appears to be that the statements which trigger the operation of
the doctrine form the mutually agreed basis of the transaction entered into by the parties.
Consequently, the relatively recent characterisation of estoppel by deed as an instance of
estoppel by representation129 may soon give way to a theory that estoppel by deed is an
instance of contractual estoppel.130 Unlike estoppel by representation,131 there is no
requirement for detrimental reliance in contractual estoppel.132 However, it may also be
said that the requirements of reliance and detriment are effectively built into the existing
and uncontroversial elements of the doctrine.
Reliance and knowledge
12.41 The operation of the estoppel is confined to actions on the deed.133 Only those who are
named as parties to the deed134 may maintain an action on it.135 An estoppel will therefore
arise only in favour of those who are parties to an agreement containing the relevant
statement. There is no express requirement that the person seeking to raise the estoppel
entered the agreement in reliance on the statements it contained. Further, it is possible to be
named as a party to a deed without executing it.136 Thus an individual may become a party
to the deed without being aware of even the existence of the deed, let alone the statement it
contains. However, such parties probably would not be able to raise an estoppel by deed.
The doctrine does not operate in such an inflexible manner. In Greer v Kettle,137 it was
emphasised that only statements which form the basis on which the parties contract will
give rise to an estoppel by deed. Thus it is necessary to demonstrate a causative link
between entering the contract and the statement relied on to raise the estoppel. Where W
has executed the deed, reliance can effectively be presumed: it is only to be expected that
the parties will have relied on the contents of the agreement in deciding whether to enter
into it or not. Hence the requirement of reliance or change of position can be said to be
satisfied. Where W is a party but did not execute the deed and/or was not even aware of it,
the causative link will be broken and the requirement of change of position will not be
satisfied.
12.42 A further factor common to other estoppel doctrines is that M should have knowledge that W
is acting, or will act, in reliance on the statement in issue. This requirement is also satisfied
on the above analysis of change of position: in executing the deed M will invariably obtain
knowledge of the other parties named within it.
Detriment
12.43 Further problems arise with the detriment requirement. Under the orthodox analysis, it would
be insufficient for W to show that it entered the contract in reliance on the truth of the
statements it contained. It is necessary to go further and demonstrate that the benefits
 received under the contract are reduced as a result of the denial of the truth of the
representation. If the contract provided a good bargain in any event, no detriment will have
been suffered as a result of the change of position: W will have got what it paid for.138 The
problem is compounded by the fact that parties to the deed need give no consideration for
the benefits received under it. The deed may confer purely gratuitous benefits on W without
imposing any obligations. It is difficult to characterise W’s being named as a party to such
a deed as detrimental.
12.44 There are three possible ways to explain this anomaly.139 First, the cases have invariably
involved instances where the benefits under the deed have been diminished as a result of the
denial of the correctness of the statement. That reduction in benefit constitutes detriment.
However, this point has never arisen for consideration. Second, there is authority to suggest
that, for the purposes of estoppel by representation, the mere undertaking of a legal
obligation is sufficient to amount to deemed detriment.140 Although the validity of this
proposition is doubtful, this would explain most estoppel by deed cases. Third, the analysis
used in estoppel by convention could be applied whereby the mutual dealings inherent in
entering a contract and acting under it almost necessarily carry with them a finding that
detriment has been suffered.
Unconscionability or inequity
12.45 Broad principles of inequity or unconscionability have played a significant role in related
doctrines such as proprietary estoppel or equitable forbearance.141 Such concepts seemingly
play no part in the law of estoppel by deed. However, it remains possible to analyse the
requirements of estoppel by deed as involving detrimental reliance.142 Arguably, to allow M to
resile from the statement, after W has relied on it to its detriment, would, in itself, be inequitable.
Hence estoppel by deed could be said to require inequity in this indirect sense. As far as equitable
forbearance and proprietary estoppel are concerned, the concept of inequity has been used to allow the
Court to take into account a number of random factors, other than detrimental reliance, in assessing
liability between the parties. There is no authority to suggest that such an approach is applicable in
estoppel by deed cases.
C. Relief
12.46 If the component elements of estoppel by deed are made out, M will be estopped from
denying the truth of the statement.143 The legal relationship between the parties and the
outcome of the case will then be determined according to the facts contained in the
statement. There is no authority to suggest that any other remedy is possible.144 This
inflexible approach results from the evidential nature of the doctrine.145 Its result is to
prevent the party estopped from adducing evidence to contradict the statement in issue.
This permits only one remedial outcome. Either the statement is true or it is not. There is no
intermediate position.
D. Defences
(1) The statement was not intended to be attributable to the party that W seeks to estop
12.47 Not all statements in deeds are intended by the parties to be attributable to all those
executing the document. If the parties intended the statement to be that of one particular
party,146 the estoppel may be raised only against that party.147 The other parties executing
the deed will not be bound by it148 and may adduce evidence to contradict it. Whether the
statement is intended to be that of a specific party is a question of construction of the
deed149 as a whole. It will depend partly on whether the relevant matter was particularly
within the knowledge of the relevant party.
12.48 In Greer v Kettle,150 by contract under seal, M agreed to guarantee a debt owed by A to W
which was secured on shares issued by B Ltd. Unknown to either party, the B shares had not
been correctly issued. No liability could arise on ordinary contract principles: M had agreed
to guarantee a debt which did not exist, namely one owed by A to W which was secured in
the manner required by the guarantee. However, the deed recited that A did owe Y a debt
secured on the B shares. W argued that M was estopped from denying the truth of the recital
and hence was contractually liable under the facts as stated in the deed. The House of Lords
held that the relevant recital was intended by the parties to be that of W alone. The recital
concerned matters which could be expected to be within the knowledge of W rather than M.
M had certainly requested that the security be taken but was not present when the
transaction supposedly took place.
12.49 In analytical terms, this principle negatives the whole existence of the estoppel so it may not
be strictly correct to include it in a section concerning defences.
(2) The deed is void, voidable, or rectifiable
12.50 No estoppel will arise as result of statements contained in a deed which is void.151 No
estoppel can result from a void deed because there is no deed to estop the parties.152 The
parties are free to adduce evidence to establish vitiating factors such as non est factum153 or
failure to comply with registration requirements.154 Nor will an estoppel arise where the
deed is voidable, for example where procured through fraud or misrepresentation, nor
where there is a right to rescind the deed in equity.155
12.51 No estoppel will arise if the deed itself is valid and enforceable but the Court is prepared to
rectify the part which contains the statement in issue.156 Hence the parties will not be
bound by statements in a deed which were included as a result of a common mistake
sufficient to merit rectification.157 Instead of going through the two-stage process of
rectifying and thus preventing the estoppel from arising, the Court may be prepared to short
circuit this process and give direct relief by declaring that the parties are not bound by the
relevant statement.158
12.52 It is beyond the scope of this work to set out the circumstances in which deeds will be void,
voidable or rectifiable. Specialist works on contract should be consulted on these issues.
(3) The estoppel would contravene or undermine a statute
12.53 No estoppel by deed will arise if its effect would be to undermine the operation of a
statute.159 To undermine the statute, the estoppel must operate contrary to the purposes of a
particular statutory provision, interpreted according to the ordinary principles of statutory
construction.160 The relevant principles are the same as those applicable to estoppel by
representation.161
(4) The estoppel would contravene public policy
12.54 As with other forms of estoppel, no estoppel by deed will arise where the result of the
application of the estoppel will be to contravene public policy. Thus, estoppel by deed
cannot be used to preclude another party from arguing that a restraint of trade clause is
unenforceable.162
E. Parties Affected by Estoppel by Deed
(1) The original parties
The benefit
12.55 Estoppel by deed operates only in actions on the deed and not in other disputes between the
parties.163 Generally, only those named as parties to the deed may sue on it.164 Hence
 benefit of estoppel by deed enures only to those named parties. Strangers to the deed cannot
use the statements it contains to raise estoppel by deed.165
The burden
12.56 Subject to one caveat,166 those who executed the deed are bound by estoppels arising from
it.167 Strangers will not be bound by an estoppel by deed.168 Those who have not executed
the deed will not generally be bound by it.169 This remains true even where the deed is part
of a chain of conveyances making good that party’s title to land.170 However, those who
have acted on the deed and received a benefit under it may be bound by the statements it
contains.171
(2) The privies of those who executed the deed
12.57 Privies are those who claim under or in right of the original parties and include personal
representatives,172 legatees173 and volunteers (including beneficiaries under a
settlement).174 They also include those purchasing175 from the original parties even where
they are bona fide purchasers of the legal estate, for value, without notice.176
12.58 As set out in detail elsewhere in this chapter, two doctrines commonly operate under the title
of estoppel by deed. The following analysis applies to the technical estoppel by deed which
requires an express representation rather than the more broadly-based doctrine which is
dependent on a defective grant of title. The latter doctrine has a more limited effect on third
parties.177
The benefit
12.59 The benefit of estoppel by deed may be passed to the privies in title of the original parties
raising the estoppel.178 Privies seeking to take advantage of the estoppel do not have to
establish the requisite elements of estoppel de novo in their own favour. It is necessary only
to demonstrate that the party from whom the privy derives its title could have raised the
estoppel. If no estoppel could have arisen in favour of the original party, none will enure to
the benefit of its privies. Take, for example, the situation where the original party could not
have raised the estoppel because the deed was fraudulently procured. The originals party’s
privy cannot take the benefit of the estoppel even if innocent of the fraud.179
The burden
12.60 The burden of estoppel by deed180 will bind the privies of the original parties estopped.181
Compared to related doctrines, estoppel by deed has far-reaching and enduring effects.
Where estoppel by deed arises in relation to real property, it may create durable
encumbrances and provide a significant hazard for purchasers. Such an approach is at odds
with the preference for certainty in English conveyancing law.182 The likely explanation is
twofold. First, a significant manifestation of this preference for certainty concerns the
manner in which rights are created. Specifically, informal right creation is disliked. The
estoppel by deed doctrine presupposes the existence of a formal document, namely a deed.
There is therefore no conflict with the aspect of the certainty principle adverted to. Second,
the doctrine developed during a period when deeds were viewed almost as public
documents.183 It was reasonable to hold third parties to the statements contained in such
significant documents, even those outside the body of deeds forming the root of title of the
property purchased.184
12.61 It follows that the durability of the rights created by estoppel by deed can and should be
specifically linked to its unique characteristics. It is neither desirable nor correct to
transplant the relevant principles to other forms of estoppel, such as estoppel by
 representation, which do not share those characteristics. As a consequence, this remains a
point of divergence between estoppel by deed and estoppel by representation.185
12.62 This durability of interest should not be more widely applied for a further, historical reason.
It is doubtful whether rules formulated in the seventeenth and eighteenth centuries should
continue to operate in the radically altered framework of modern English land law. The
bulk of estoppel by deed cases pre-date the introduction of widespread registration of title
in 1925. There is almost no guidance as to how the doctrine will operate in relation to
registered land, if at all. The general principles set out above are probably confined to the
diminishing amount of property governed by unregistered conveyancing. That said, the
Court of Appeal has held that estoppel by deed and its companion doctrine, ‘feeding the
estoppel’, has at least some role to play in registered conveyancing.186
(3) Other parties
12.63 There is some authority to suggest that those who have relied to their detriment on the deed
may raise an estoppel by deed, even if they were neither parties to it nor the privies of
someone who was.187 In Re Kings Settlement,188 M transferred property to A and B. The
conveyance was expressed to be absolute and ‘in consideration of love and affection’. In
reality, A and B had agreed to hold the property on various trusts. The trust deed was
separately executed and the transfer was absolute on its face. A and B granted an equitable
mortgage to W. M was estopped from denying A and B’s title was absolute. Although W
derived its interest from A and B, it could not rest its claim on the conventional ground that
it was the privy of A and B. No estoppel had arisen in favour of A and B: they knew that the
statement was untrue and was never meant to represent the true position between the
parties. Hence W was neither a party to the deed nor was it the privy of someone who could
raise an estoppel and yet was still able to invoke the doctrine. Further, in no sense could the
action be described as one ‘on the deed’ in the sense set out above. Thus fundamental
principles of estoppel by deed were breached.
12.64 The case is best explained simply as an instance of the wider doctrine of estoppel by
representation.189 The latter doctrine may operate in favour of all those to whom the
representation was made, who have acted to their detriment in the reliance on the belief in
the truth of the representation. Unlike estoppel by deed, its scope is not confined to those
parties executing a particular document or to their privies.
(4) Passing title
12.65 Estoppel by deed does not operate to pass ownership. However, the doctrine may create
rights which are, in almost every respect, equivalent to title. They do not amount to genuine
title. If it is stated in the deed that X is the owner of property, the other parties bound by the
estoppel190 will not be able to dispute this fact. If, however, the actual owner of the
property is not one of those parties, there is nothing to stop it claiming the property from
X.191
F. Estoppel Arising in Property Transactions
(1) Estates or interests created by estoppel
12.66 Where M purports to grant an interest or estate in property which it does not in fact own, it
will be estopped thereafter from denying the title of the grantee.192 M cannot use its own
lack of title to undermine the purported grant. This fundamental rule of English property
law has manifested itself in the familiar law that the mortgagor cannot dispute the title of
its mortgagee193 and vice versa. Similarly a tenant cannot dispute the title of its
landlord.194 Nor may a landlord dispute the title of its tenant, merely by citing its own want
 of title to create the tenancy.195 A tenant cannot defend an action on the covenants in a
lease by disputing the title of the landlord,196 unless the actual owner of the premises has
interfered with the tenant’s use of the premises during the term.197 This restriction
continues even after the tenant has left possession of the premises at the end of the term.198
12.67 This principle operates to vest rights in the grantee which are equivalent to a valid grant of
title, except that they will not prevail against the actual owner of the property.199 Hence, it
is said that the grantee acquires an estate or interest by estoppel,200 which is equivalent to
genuine title, save in the one crucial respect mentioned.
12.68 Although the principle has operated largely in relation to real property, there no reason why
it should be restricted to this type of property.201 There is authority to suggest that it
applies to other types of property such as patent rights202 and chattels.203
Distinguishing the two types of estoppel which may arise: express representation of title
12.69 Some difficulty has been caused by the application of a single analysis to two distinct
common law doctrines.204 The relevant principles were discussed by the Court of Appeal in
First National Bank Plc v Thompson.205 The first of these doctrines requires the original
grant to have contained an express statement that the grantor is entitled to the interest or
estate transferred.206 This doctrine is the one which has been discussed generally in this
chapter. It was categorised by their Lordships as an instance of estoppel by representation
and described as a technical estoppel.
12.70 Their Lordships also identified an older and more widely-based doctrine also described as
estoppel by deed. This doctrine operates even in the absence of an express statement of
title.207 All that is necessary for its operation is a purported grant of ownership rights by a
party lacking title to the subject property. It may operate in the absence of a deed, where it
is possible to grant the estate or interest without one.208 For example, a legal tenancy of
three years or less may be created where the property owner, M, with the intention of
creating a tenancy, lets another take possession of the premises and pay rent.209 If M does
not own the premises at the time when these events take place, a tenancy by estoppel will be
created, despite the lack of express recital or deed of grant.210
12.71 In EH Lewis & Son Ltd v Morelli,211 the Court of Appeal expressed doubts as to whether the
doctrine depending on mere grant, rather than express recital, is a species of estoppel at all.
In particular, Harman J referred to the fact that the doctrine does not require the tenant to
have believed that the landlord was the true owner of the property. Harman J considered
that an essential for the operation of the doctrine was thus missing, namely reliance on the
truth of the representation made. As set out above,212 such a belief may not be essential,
even in technical estoppel by deed cases where there is an express recital of title. However,
the estoppel by defective grant doctrine has much in common with the principle that a party
cannot take the benefit of the agreement without the burden.213 Once the landlord has
accepted rent under the purported tenancy, it cannot deny the validity of the arrangement.
Further, once the tenant has accepted possession and made use of possession of the
premises, it cannot dispute the tenancy unless that use is interrupted by the real owner.
(2) Feeding the estoppel
12.72 If the grantor acquires title after the defective grant, the estoppel is said to be ‘fed’ and the
estate by estoppel is converted into an estate in interest. Put simply, the grantee thereby
acquires genuine title as soon as the grantor obtains it.214 There is no need for the grantor to
execute a fresh conveyance.215 Once the estoppel is fed the grantee’s title is as effective as
 if it had been granted in the orthodox manner. There is no longer any paramount title which
can displace it.216 Both the estoppels referred to above may be fed by this companion
doctrine.217 However, its consequences differ slightly according to which estoppel is
operating.218
12.73 The doctrine of feeding the estoppel has generally operated in relation to legal estates.
However, the House of Lords, in Abbey National v Cann,219 assumed that it was capable of
applying where the grantor has purported to confer an equitable interest on another party.
Further, a similar ‘feeding title’ principle operates with respect to goods.
(3) Distinctions between the operation of the two estoppel doctrines
Grantor’s legal title at the time of the grant
12.74 The two types of estoppel by deed operate differently where, at the date of purported transfer,
the grantor possesses legal ownership rights which are insufficient to support the grant.
Where there is an express recital of title, the grantor will be estopped from denying that it
had the particular legal title averred. Consequently, the grantee’s title will be fed on the
acquisition of sufficient title by the grantor, whether or not the grantor had some lesser
legal estate at the time of grant.220 Where there is no express recital, the grantor will be
estopped only from denying that it had some form of legal title. Consequently, no estoppel
will arise if the grantor owned any legal221 estate in the property at the time of the grant,
even if it was insufficient to support the grant. In such cases, the grantee obtains an estate in
interest immediately on grant but the title acquired cannot exceed that of the grantor. There
was no estoppel to be fed. Consequently, the grantor’s subsequent acquisition of a larger
title capable of supporting the grant does not benefit the grantee.
Effect on third parties
12.75 Both types of estoppel vest title which is precarious, being vulnerable to displacement by the
genuine owner of the property.222 However, the two types of estoppel differ in their effect
on purchasers of the legal estate from the grantor. As is set out above, where there is an
express recital to title, the estoppel binds all those claiming including assignees and
purchasers. The grantee is protected even from the bona fide purchaser for value without
notice.223 Equity is not able to intervene to protect such a purchaser in this situation. If
there is no express recital, the estoppel binds all except the bona fide purchaser for value
from the grantor without notice of the earlier transaction. Such purchasers take the legal
estate free from the rights of the earlier grantee.224
12.76 In summary, if the grantor made successive grants of legal title for value, one before and one
after the acquisition of title, the earlier grantee prevails only where there was an express
recital of title.225
(4) Feeding title to registered land
12.77 In First National Bank Plc v Thompson,226 it was held that the doctrine of feeding the
estoppel could apply to registered land. In July 1991, Mr Thompson purported to grant a
charge over a property to First National. He did not acquire title to the property until
December 1991. First National registered their charge in July 1992. The chargees had an
unquestionable contractual right to demand the execution of a fresh charge, which they
could then register. However, because the priority of charges is determined by the date of
registration, First National sought to uphold the validity of the earlier charge. According to
the Court of Appeal, there was no good reason why the doctrine of feeding the estoppel
should not apply to registered land.
(5) Practical limitations on the feeding title principle
12.78 Estoppels may only be fed by such title as the grantor acquires. The practical scope of the
feeding doctrine was consequently restricted by the House of Lords in Abbey National v
Cann.227 In that case, the grantor had purchased the relevant property using funds secured
by a mortgage over it. In an earlier decision, Church of England Building Society v
Piskor,228 the Court of Appeal analysed such a transaction as follows. Although the actual
transfer and mortgage might take place simultaneously, such transactions were held to
involve a series of steps taking place in a logically predetermined manner. Only the owner
of property could grant a mortgage over it. Once the funds had been paid to the vendor, the
unencumbered legal title vested in the purchaser for a notional moment in time. The
purchaser could then grant the charge to the mortgagee who had provided the funds for the
transaction. Hence, if the purchaser had previously purported to granted an interest in the
property to W, W’s title was fed during the notional moment when the purchaser owned the
unencumbered legal estate. W’s interest therefore pre-dated that of the mortgagee and was
capable of taking priority over it.
12.79 In Abbey National v Cann,229 the House of Lords disapproved this approach. Their Lordships
held that any estoppel fed by the doctrine will be automatically subordinated to the interests
of mortgagees in a limited number of circumstances. First, all or some of the money used to
fund the purchase was raised by way of a loan. Second, the loan was to be secured by a
mortgage over the property to be acquired. Third, the mortgage was executed
simultaneously with, or in rapid succession to, the sale transaction. If these three conditions
are satisfied, the purchaser never obtains the unencumbered legal ownership of the
property. The purchaser only ever acquires the equity of redemption. Hence any estoppels
arising out of previous grants are fed only by the equity of redemption and not by full legal
title.230 If the property is purchased without mortgage finance, the estoppel may be fed in
the normal manner and will take priority over mortgages executed at a later date. In such
cases, there is insufficient connection between the acquisition and the mortgage for the
Cann principle to apply.
 13
THE ANOMALIES—THE PANCHAUD FRÈRES ‘DOCTRINE’
AND CONTRACTUAL ‘ESTOPPEL’
A. Introduction 13.01
B. Panchaud Frères 13.02
(1) The doctrine 13.03
(2) Subsequent consideration of the doctrine application 13.07
(3) Resolving the contradiction 13.10
(4) Effect of the decision 13.15
C. Contractual Estoppel 13.16
(1) Peekay 13.17
(2) Subsequent consideration 13.19
(3) True nature of the doctrine 13.22
A. Introduction
13.01 The rationale for the doctrines discussed in this text is flexibility. The Courts are in each case
dealing with the parties’ various changes of position reflecting changing market realities
and so, in each case, attempting to reflect their view of the merits. This can generate the
obvious uncertainty that flows from the difficulty of abstracting guiding principles from the
numerous factual scenarios being considered. It can also generate the uncertainty of seeking
to understand which of the doctrines is being relied on and why—the subject matter of this
text. Finally, there is the difficulty created by the creation of new and apparently anomalous
doctrines. It is this last difficulty which is the subject of this chapter which focuses on one
long standing anomaly—Panchaud Frères—and one recently created anomaly—contractual
estoppel.1
B. Panchaud Frères
13.02 Much commercial litigation is triggered by changes in market prices or conditions so that it
becomes advantageous for one party to a contract to change its conduct or to refuse to
perform the contract as originally agreed. One party being consistent in its own desire for
commercial advantage generates inconsistency in its approach to the bargain. The standard
response to such conduct is to rely on the party’s obligation to pay damages in default. If,
however, there is inconsistency which cannot be remedied by damages,2 the innocent party
will wish to rely on waiver and estoppel. Where there is blatant inconsistency that cannot be
categorised under either waiver or estoppel, a party may seek to rely on various statements
made by the Court of Appeal in Panchaud Frères SA v Etablissements General Grain Co.3
(1) The doctrine
13.03 The facts of the case are relatively simple. By a contract dated 14 May 1965, the claimant
sellers sold 5,500 tons of yellow maize to the defendant buyers cif Antwerp, payment by
telegraphic transfer against documents on first presentation. Shipment was to be in June or
July 1965. 5,300 tons were shipped in June or July. However, in breach of the contract, 200
tons were not shipped until 11 or 12 August 1965. Notwithstanding the late shipment, the
claimant sellers amended the bill of lading covering that late shipment to state that the 200
tons had been shipped on 31 July 1965 in compliance with the contract. However, the
certificate of quality which was supplied as part of the documents stated that shipment had
 been on 11 or 12 August. Whilst the shipment was at sea, the buyers took up the documents
without making any complaint as to date on the bill of lading. When the shipment arrived
the goods were defective and litigation ensued. During the arbitration, the defendant buyers
discovered that the shipment had been made late and that the bill of lading had been altered.
The defendant buyers therefore purported to reject the shipment on that basis. The Court of
Appeal held that the defendant buyers were not entitled to do so.
13.04 Lord Denning MR reached that conclusion by finding that the buyers were estopped by their
conduct from relying on the late shipment and
[t]he basis of it is that a man has so conducted himself that it would be unfair or
unjust to allow him to depart from a particular state of affairs which another has
taken to be settled or correct… If a man, who is entitled to reject goods on a certain
ground, so conducts himself as to lead the other to believe that he is not relying on
that ground, then he cannot afterwards set it up as a ground of rejection, when it
would be unfair or unjust to allow him to do so.4
It appears from the judgment that Lord Denning presumably felt that, notwithstanding the
deliberate alteration of the bill, the buyers should have known from the certificate of quality
that the shipment was late, and therefore went on to hold that:
By taking up the documents and paying for them, they are precluded afterwards
from complaining of the late shipment or of the defect in the bill of lading.5
13.05 Lord Justice Winn agreed and stated:
In my own judgment it does not seem possible in this case to say affirmatively that
there was here either a fresh agreement to rescind or vary the original contract, or
anything which, within the scope of the doctrine as hitherto enunciated, could be
described as an estoppel or a quasi estoppel. I respectfully agree with my Lord that
what one has here is something perhaps in our law not yet wholly developed as a
separate doctrine—which is more in the nature of a requirement of fair conduct—a
criterion of what is fair conduct between the parties. There may be an inchoate
doctrine stemming from the manifest convenience of consistency in pragmatic
affairs, negativing any liberty to blow hot and cold in commercial conduct.6
13.06 The case therefore would appear to be authority for two general propositions. The first is a
restatement of Lord Denning’s concept of estoppel stated and restated by him in numerous
cases.7 The existence and current applicability of the principle are discussed elsewhere.8
The second is Lord Justice Winn’s statement that parties in a commercial relationship owe
each other some form of duty to act consistently. The two principles can be loosely
reformulated as an ‘inchoate’ principle: the Courts will intervene to prevent a party taking
an unmeritorious and inconsistent course of action, albeit that course is commercially
justified and, in extreme cases, otherwise lawful. It is that loose principle which, if correct,
could be referred to as the Panchaud Frères doctrine.
(2) Subsequent consideration of the doctrine application
13.07 The doctrine has been considered and applied in both narrow and broad terms.9 Narrowly, the
doctrine has been applied in directly analogous circumstances. Where notices are issued
under the contract which were defective and the other party has appeared to accept those
notices, that other party has been precluded from later relying on the defects in the
notices.10 That is at least consistent with the doctrine of precedent. The principle has also
been deployed more widely. Thus, where the parties had conducted their affairs on the basis
that there was a concluded contract between them, it was held to be unfair and unjust to
 permit one party to resile from that position and contend that there was no concluded
contract.11 More broadly still, Panchaud Frères has been relied on as authority for the
proposition that no detriment or reliance is required to create an estoppel when the parties
involved are experienced commercial operators. In Surrey Shipping Co Ltd v Compagnie
Continentale (France) SA (‘The Shackleford’),12 a dispute as to lay-time under a charter
party, Mr Justice Donaldson pointed out that both the claimant and the defendant had
considerable experience in chartering vessels and therefore were to be taken as being aware
of their rights.13 Therefore, Panchaud Frères would apply to all notices served by either
party. Applying Panchaud Frères, the Judge held:
I do not understand these judgments as requiring any evidence of positive or active
reliance. If a man so conducts himself that another could reasonably regard a
particular state of affairs as existing or settled, the only question is whether or not
in all the circumstances it would be just and fair to allow him to resile. It is in this
context that the position of the other party has to be considered. Deliberate action
or inaction in reliance upon the alleged estopping conduct will provide good, and
probably overwhelming reason for holding that it would be unfair or unjust to
allow any resilement. Evidence that the conduct was unnoticed or disregarded or
treated as of no importance might well lead to the opposite conclusion.14
All of the above would suggest that there is a valid and subsisting doctrine which has been
termed the ‘so-called Panchaud principle of fair dealing’.15
Rejection
13.08 In Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce,16 the
Court reviewed the authorities and held that: (i) the only legitimate basis for the decision in
Panchaud Frères was section 35 of the Sale of Goods Act which precludes late rejection of
goods;17 (ii) there was no further doctrine requiring fair dealing between commercial
parties; (iii) the only relevant principles in play were of waiver and estoppel, which had to
be pleaded and proved as such; and (iv) therefore, the Panchaud Frères doctrine was either
an application of section 35 or nothing more than a waiver or estoppel.18
13.09 The decision in Glencore is consistent with prior suggestions that Panchaud Frères is to be
confined to its facts19 and that the case laid down no new principles of law20 or indeed no
principle of law at all.21 The most articulate prior formulation of the point is in BP
Exploration Co v Hunt (No 2).22 There Mr Justice Goff stated that:
All that the Panchaud case decided was that if, in a cif contract, the documents
show that the goods were shipped late, and the buyer nonetheless accepts the
documents, then, even if he has failed to notice the late shipment date when he took
up the documents, he will thereafter be precluded from rejecting the goods for that
reason. The decision stems from the need for finality in commercial transactions23
before going on to hold that Lord Justice Winn’s dictum was not of ‘general application’
and that the Lord Justice ‘was merely expressing the principle of finality which underlies
the doctrine of acceptance in contracts of sale of goods’.24
(3) Resolving the contradiction
13.10 There are therefore two inconsistent streams of appellate authority on point. One means of
resolving the conflict is to recognise that the intellectual basis of a broad Panchaud Frères
doctrine is Lord Denning MR’s broad concepts of justice and fairness reflected in equally
broad formulations of the law of estoppel. Current judicial thinking appears to be
antagonistic to the formulation of such broad concepts.25 Therefore, Panchaud is to be
 curtailed or ignored. The alternate route is to consider what the Court of Appeal decided in
Panchaud.
13.11 It is clear that the case was not one of waiver in any form. The defendant buyers did not have
the appropriate knowledge of the defect. It follows that either the case was decided on the
basis of estoppel or some other principle. As far as estoppel is concerned, it is possible that
the buyers were prevented from relying on a defect in the documents by reason of the
explicit contradiction between the certificate of quality and the bill of lading. That
contradiction was patent. The alternative view was that the buyers made some form of
representation as to their future conduct which resulted in their losing their right to reject. It
is submitted that neither view is satisfactory especially as it is difficult to spell out any
form of representation which would found an estoppel.26 Further, in considering Panchaud
the Courts have found it difficult to identify exactly what type of estoppel formed the basis
of the decision. Thus, Mr Justice Goff, in BP Exploration Co v Hunt, was of the view that
Panchaud did not raise any point of equitable estoppel27 and, in Avimex SA v Dewulf &
Cie,28 the Judge appeared to treat the case as one raising a common law estoppel. The
conclusion must therefore be that the better view is that Panchaud is not a case on estoppel
in the proper sense of the word.
13.12 Other than rejection or section 35, the only other logical possibility is that Panchaud sets out
a new doctrine. If so, the formulation of that doctrine is fraught with difficulty. On the one
hand, on more than one occasion the Courts have suggested that it might be appropriate to
create one doctrine which would prevent a party acting opportunistically. Thus there are
references to a developing concept of ‘injurious reliance’29 or to unconscionability in
addition to Lord Denning’s attempt to instill a loose concept of ‘fairness’ into the English
law. Panchaud would therefore form part and parcel of these attempts.30 The arguments in
support of such a doctrine are superficially straightforward—that it would simplify what is
an allegedly over-complex or unclear area of the law.
13.13 There can be no doubt that such a broad principle is forensically attractive. That attraction is
not, however, founded on any compelling principle. At the lowest, Lord Denning’s approach
may create uncertainty and in the end depends on the individual judge’s view of the merits
of the particular case. Further, whilst the interpolation of a general principle of
‘unconscionability’ into the common law would apparently simplify matters, the Courts
have repeatedly refused so to do.31 The furthest the Courts have gone to date is to suggest
that waiver has been subsumed by estoppel,32 suggestions that have not been expanded or
relied on to any extent. There are good reasons for that antipathy. Quite apart from the
difficulties with formulating the doctrine, as Lord Goff recognised in Johnson v Gore Wood
& Co,33 such a doctrine would have a radical effect on the law of consideration34 and would
require the overruling of the mass of authority which forms the subject of this work. Further
explanation would have to be given to reconcile this new doctrine with the established
limited circumstances in which parties owe each other good faith obligations.35
13.14 Quite apart from the jurisprudential difficulties with the doctrine, there must also be
considerable doubt whether the reasoning in Panchaud can bear the weight of being treated
as the keystone of a new doctrine. The rationale of Panchaud is protective. Party Y is to be
protected against the inconsistent and unmeritorious actions of party X. Yet both X and Y
are not only commercial parties but are parties to a relatively abstruse international trade
transaction. Traditional protective legal models seek to protect the supposedly
economically weak consumer. Yet there is nothing in Panchaud to extend the principle that
 far.
(4) Effect of the decision
13.15 It follows from the above that Panchaud is an unsatisfactory decision which accords neither
with principle nor with logic. However, Panchaud has not been overruled and therefore
must be treated as good law. It cannot therefore be baldly contended that Panchaud was
wrongly decided.36 Accordingly, it is submitted that the proper view is that suggested in
Glencore and in BP Exploration Co. Panchaud is only authority for the proposition that in
certain extreme circumstances a party to a shipping contract will be precluded from relying
on an otherwise valid ground for repudiating the contract. Viewed in this light, Panchaud
forms part of a line of cases to this effect37 which are extremely difficult to explain38 and
limited to their particular facts.39
C. Contractual Estoppel
13.16 It is common for parties to insert into contracts clauses which purport to restrict the parties’
liabilities for extra-contractual statements. The most common of these are entire agreement
clauses (which state that the agreement between the parties is solely as set out in the
contract)40 and no reliance clauses (which provide (and usually warrant) that no reliance
has been placed on any representations made by the other party to the contract and/or that a
particular state of affairs or facts exists). The former raise questions as to whether such a
clause may prevent any estoppel arising.41 The latter, since the Court of Appeal decision in
Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd,42 raise the question
of whether a party can be precluded by the operation of a new and anomalous doctrine of
contractual estoppel from ever contradicting the scope and content of such a clause or
warranty.
(1) Peekay
13.17 In Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd,43 Lord Justice
Moore-Bick stated as follows:44
There is no reason in principle why parties to a contract should not agree that a
certain state of affairs should form the basis for the transaction, whether it be the
case or not. For example, it may be desirable to settle a disagreement as to an
existing state of affairs in order to establish a clear basis for the contract itself and
its subsequent performance. Where parties express an agreement of that kind in a
contractual document neither can subsequently deny the existence of the facts and
matters upon which they have agreed, at least so far as concerns those aspects of
their relationship to which the agreement was directed. The contract itself gives
rise to an estoppel: see Colchester Borough Council v Smith [1991] Ch. 448,
affirmed on appeal [1992] Ch 421.
It is common to include in certain kinds of contracts an express acknowledgment
by each of the parties that they have not been induced to enter the contract by any
representations other than those contained in the contract itself. The effectiveness
of a clause of that kind may be challenged on the grounds that the contract as a
whole, including the clause in question, can be avoided if in fact one or other party
was induced to enter into it by misrepresentation. However, I can see no reason in
principle why it should not be possible for parties to an agreement to give up any
right to assert that they were induced to enter into it by misrepresentation, provided
that they make their intention clear, or why a clause of that kind, if properly
drafted, should not give rise to a contractual estoppel of the kind recognised in
 Colchester Borough Council v Smith. However, that particular question does not
arise in this case. A clause of that kind may (depending on its terms) also be
capable of giving rise to an estoppel by representation if the necessary elements
can be established: see EA Grimstead & Son Ltd v McGarrigan (C.A.) (unreported,
27th October 1999).
13.18 Thus relying on Colchester Borough Council v Smith and the long-standing commercial
practice of inserting non-reliance clauses into contracts, Lord Justice Moore-Bick (with
whom the rest of the Court of Appeal agreed and which formed part of the ratio of the
case)45 created a new form of estoppel.46 If the parties had declared X to be the case in the
contract then they would be estopped from denying that X was the case. This, as has been
recognised,47 undoubtedly made commercial sense.
(2) Subsequent consideration
13.19 Peekay has been relied on numerous times at first instance48 in all cases save one49 without
difficulty as if it were a recognised form of estoppel. Peekay has also been reconsidered by
the Court of Appeal in Springwell Navigation Corporation v JP Morgan Chase Bank.50
There Lord Justice Aikens held:
143.… I will try and analyse the matter from principle. If A and B enter into a
contract then, unless there is some principle of law or statute to the contrary, they
are entitled to agree what they like… there is no legal principle that states that
parties cannot agree to assume that a certain state of affairs is the case at the time
the contract is concluded or has been so in the past, even if that is not the case, so
that the contract is made upon the basis that the present or past facts are as stated
and agreed by the parties. It is, after all, common in marine insurance contracts for
an assured to ‘warrant’ that a certain state of affairs has existed in the past and is
still existing at the time the insurance contract is concluded or will continue, eg
that the nationality of a ship was and is British; or that a ship was and is ‘in Class’
with her Classification Society. The shipowner may know that those things are not
the case; the insurer may have his suspicions that they are not the case. The parties
agree that for the purposes of the insurance contract, the facts as ‘warranted’ by the
assured are as he has stated them to be. A ‘conclusive evidence’ clause in a sale
contract, viz. that a report on eg the amount or condition of a commodity sold
under a contract between A and B shall be ‘conclusive evidence’ of the matters
stated in the report is to the same effect. The parties are agreeing that the
statements in the report shall be the case for the purposes of the contract of sale
and the parties cannot go behind that agreement.
144. So, in principle and always depending on the precise construction of the
contractual wording, I would say that A and B can agree that A has made no pre-
contract representations to B about the quality or nature of a financial instrument
that A is selling to B. Should it make any difference that both A and B know at and
before making the contract, that A did, in fact, make representations, so that the
statement that A had not is contrary to what each side knows is the case? Apart
from the remarks of Diplock J in Lowe v Lombank, Mr Brindle did not show us any
case that might support the proposition that parties cannot agree that X is the case
even if both know that is not so. I am unaware of any legal principle to that effect.
The only possible exception might be if the particular agreement between A and B
on the certain state of affairs concerned contradicts some other specific or more
general rule of English public policy. Like Moore-Bick LJ in Peekay I see
 commercial utility in such clauses being enforceable, so that parties know
precisely the basis on which they are entering into their contractual relationship.
169.… In my view the statements of Moore-Bick LJ are consistent with principle
and authority… I respectfully regard the principles stated in Peekay as good law.
That case has now been followed in a large number of first instance cases which
need not be analysed in any detail.
13.20 A specific issue in Springwell was the relationship between this contractual estoppel and
estoppel by convention—in particular whether unconscionability was required. In
considering that issue, Lord Justice Aikens held:
177.… Does Chase have to establish that it would be ‘unconscionable’ for
Springwell to resile from the contractual estoppel before it can rely on either
Sections 5(e), 5(f) and 6(c) of the GKO LN Terms and Conditions or clauses 4 and
6 of the DDCS letters? I have, effectively, rejected Mr Brindle’s argument that
there is no juristic concept of ‘contractual estoppel’ which is distinct from the
doctrine of ‘estoppel by convention’. To my mind, once it is accepted that there is
a separate doctrine of ‘contractual estoppel’ then there is no room for a
requirement that the party which wishes to rely on that estoppel must demonstrate
that it would be unconscionable for the other party to resile from the conventional
state of affairs that the parties have assumed. The reason why that is a requirement
in the case of ‘estoppel by convention’ is precisely because there is no contract
between the parties. Therefore some other mechanism has to come into play to
make the non-contractual ‘convention’ enforceable.
178. Mr Brindle relied on the statement of Peter Gibson J in Hamel-Smith v Pycroft
and Jetsave that the ability to rely on an estoppel by convention is governed by
‘considerations of justice and equity’. Therefore, before an estoppel by convention
can be enforced it is necessary to demonstrate that it would be unjust or
unconscionable for one of the parties (against whom it is sought to enforce the
convention) to resile from it. That statement was part of a long passage of Peter
Gibson J’s judgment that was approved by the Court of Appeal in The ‘Vistafjord.’
But, in my view, it is irrelevant to the doctrine of ‘contractual estoppel’ for the
reasons that I have given.
13.21 As authority, Springwell could not be more clear.51 The contractual ‘estoppel’ (a) is new; (b)
is not linked to any established category of estoppel; (c) does not depend on
unconscionability and (d) merely arises from the parties’ recitation of particular facts in the
contract. Further, there is obvious commercial benefit to having such a doctrine and there is
no reason (given the protection offered by consideration, economic duress and the unfair
contract terms legislation) why commercial parties should not be able to agree, by their
contract, a state of affairs.
(3) True nature of the doctrine
13.22 The difficulty, however, is that the contractual ‘estoppel’ is not an estoppel.52 As indicated
throughout this text, estoppels at root require detriment.53 Albeit the forms detriment may
take and the results that flow may vary, detriment is a theme common to all estoppels—all
save for this contractual estoppel. Further, if the contractual estoppel were an estoppel,
there would be no need for estoppel by deed. This contractual estoppel would replace the
more narrowly formulated estoppel by deed completely.54 Yet, at no stage did the Court of
Appeal state that it was abolishing or replacing the long-established doctrine of estoppel by
 deed or overruling (if it could) the numerous authorities that support it or, the third logical
possibility, contending that estoppel by deed should now be treated as nothing more than a
contractual estoppel.55 The above, it is submitted, must mean that on the law as it currently
stands the Peekay doctrine is not an estoppel.
13.23 Further, the only authority relied on in Peekay was Colchester BC v Smith.56 In Colchester,
the relevant passage was as follows:
In my judgment this was a bona fide compromise of a dispute and Mr Tillson, who
had the advice of his solicitors and signed the Agreement through them, is
estopped by the terms of the agreement he made from going behind it and litigating
the antecedent dispute. That is as the judge held and whether it be labelled estoppel
by agreement or estoppel by convention is a matter of indifference. Mr Lewison’s
primary contention therefore fails and it is unnecessary to express any opinion on
his second submission about the French Kier land.57
Thus, Colchester BC on one view was an estoppel by convention case (it mattering not whether
the estoppel at issue was convention or otherwise) and on another view cannot be regarded as a
reasoned explication of a new form of estoppel. It is therefore submitted that Colchester BC
can only be authority for the proposition that the parties can by a convention agree a certain
state of affairs to be the case from which they will not be permitted to resile if so doing were
unconscionable. As such, there would be no warrant in Colchester BC for the Peekay
contractual estoppel.
13.24 It follows from the above that there is no basis in principle or in authority for the Peekay
contractual estoppel being an estoppel. Two results flow. First, Peekay, if it cannot be
justified by recourse to an estoppel, has to be justified by other means. The most obvious
means is contractual. Since the parties have agreed X to be the case, then the party which
denies that X is in fact the case is in breach of contract. The Courts will not permit a party
to benefit from its own wrong—including its own breach of contract.58 The Peekay
contractual estoppel would be a reflection of that principle. Second, as indicated at the
outset, Peekay is the most recent demonstration of the difficulties associated with these
doctrines.
 14
PROCEDURAL DOCTRINES—RES JUDICATA, ISSUE
ESTOPPEL, AND ABUSE OF PROCESS
A. Introduction 14.01
B. Root Distinctions 14.02
C. Constituent Differences 14.07
(1) Elements of the procedural doctrines 14.08
A. Introduction
14.01 Sir Edward Coke’s threefold categorisation of estoppel included, as its first limb, the
doctrine of ‘estoppel by record’.1 Estoppel by record has developed into a number of related
doctrines: res judicata (comprising issue estoppel and cause of action estoppel), transit in
rem judicatam and abuse of process. The nature of the relationship between these doctrines
is unclear.2 It is also unclear whether the principles under discussion still emanate from a
single ‘root’ doctrine and, if so, whether that doctrine is founded on res judicata3 or on
abuse of process.4 What is clear is that, however these doctrines are formulated, their
relationship with the modern law of estoppel is at best tenuous.5 The connections between
these doctrines and estoppel are now matters of linguistic semantics6 and legal history7.
B. Root Distinctions
14.02 The root distinction between these procedural doctrines and estoppel can be expressed in two
ways. The first is that none of these doctrines arise from actions as between the parties but
from the intervention of a third party into bilateral relations. Further, that intervention is
not participatory, in the sense of being a party to future agreements, but adjudicative. The
third party does not participate in new agreements or representations between the parties
but states the meaning of that which has passed already. It follows that the involvement of
the third party is of a wholly different order to the actions which take place between the
parties.
14.03 This base distinction is obvious from a summary formulation of res judicata and abuse of
process. In Specialist Group International v Deakin,8 Lord Justice May summarised res
judicata as follows:
If a claim has been explicitly determined in previous concluded proceedings
between the same parties, that claim cannot be raised again, other than on an
appeal, unless there is fraud or collusion. If a necessary element of a claim has
been explicitly determined in previous concluded proceedings between the same
parties, that issue cannot be raised again, if, as is likely but not inevitable, it would
be an abuse to raise that issue again. This may also extend to an implicitly
necessary element of the previous determination. The previous determination may
include a settlement. If a claim or issue has not been determined in previous
concluded proceedings between the same parties, there may nevertheless be
circumstances in which, as a matter of public and private interest on a broad
merits-based procedural judgment, it would be an abuse for a party to raise that
claim or issue. Such circumstances may, depending on the facts, exist where the
litigant could and should have raised the matter in question in earlier concluded
proceedings. There may in particular cases be other elements of abuse, including
oppression of another party; but abuse of process is a concept which defies precise
 definition in the abstract. The court will only stop a claim as an abuse after the
most careful consideration.9
14.04 Similarly, in Johnson v Gore Wood & Co,10 Lord Bingham MR summarised the abuse of
process jurisdiction as follows:
Henderson v Henderson abuse of process, as now understood, although separate
and distinct from cause of action estoppel and issue estoppel, has much in common
with them. The underlying public interest is the same; there should be finality in
litigation and a party should not be twice vexed in the same matter… The bringing
of a claim or the raising of a defence in later proceedings may, without more,
amount to an abuse if the court is satisfied (the onus being on the party alleging
abuse) that the claim or defence should have been raised in the earlier proceedings
if it was to be raised at all… [the approach should be] a broad merits based
judgment which takes account of the public and private interests involved and also
takes account of all the facts of the case, focusing attention on the crucial question
whether, in all the circumstances, a party is misusing or abusing the process of the
court by seeking to raise before it the issue which could have been raised before.11
14.05 Both these doctrines address the question of whether or not a party can raise a particular
issue, as to its rights, before a Court or tribunal. In that sense, they are procedural,
governing the conduct of the litigation in which the issue was raised. In no way are the
obligations between the parties altered. All other doctrines in this work address the question
of whether or not the party has those rights.
14.06 The second root distinction concerns the doctrine of consideration. The theme underlying the
discussion of waiver and estoppel in this work is the modification of obligations in the
absence of consideration. These doctrines prescribe and circumscribe the situations in
which promises and representations have force despite lacking consideration. Their various
elements are the means by which the total abrogation of consideration is prevented. The
question of consideration, its absence and abrogation is wholly irrelevant to these
procedural doctrines.
C. Constituent Differences
14.07 The root distinction between these procedural doctrines and true estoppel is apparent from a
summary consideration of their elements. A cursory explanation demonstrates that there is
no overlap between the two. In the procedural doctrines, there is no reference to detriment,
representation, assurance or promise. The Courts are simply examining what has been
decided, between whom and on what bases.
(1) Elements of the procedural doctrines
Cause of action and issue estoppel
14.08 Both prevent the parties from re-litigating a question that has been determined by a Court of
competent jurisdiction, between the same parties or their privies, in a previous action. Once
those elements have been made out, and unless there are special circumstances, the parties
are precluded from raising the issues.12 The special circumstances which would permit the
issue to be raised again include the discovery of further material relevant to issues in the
first set of proceedings13 or fraud.14
14.09 The distinction between cause of action and issue estoppel is one of specificity. Both flow
from the principle that a judicial decision resolving a question of fact or law is
dispositive.15 The distinction is that issue estoppel bites on the facts and issues required to
establish the cause of action whereas cause of action estoppel looks only at the cause of
 action. In the latter, an examination of the Court record and the pleadings should suffice. In
the former, the material leading up to the decision must be considered.16
Transit in rem judicatam
14.10 When a Court of competent jurisdiction gives judgment on a claim, the cause of action
passes into and merges with the judgment.17 As a result, there is no extant cause of action
post judgment and nothing on which a party can subsequently litigate. A party that seeks to
recover, under a second judgment, the same relief as was sought and obtained under the
first judgment will be precluded from doing so.18 It is this merger and subsequent
preclusion that founds the doctrine.19
Abuse of process20
14.11 This is the widest of the doctrines, most usually known as the rule in Henderson v
Henderson.21 It derives, not from any overarching legal principle, but from the Court’s
inherent power to regulate its own procedure22 or from general considerations of public
policy.23 As set out above, this doctrine will preclude parties from raising claims and
issues, which could have been raised in a first set of proceedings, in any subsequent
litigation. The doctrine certainly binds those that are the privies of the claimants24 in the
first litigation,25 those that have a ‘degree of identity’ with the parties to the first
litigation26 and may extend so far as to preclude those that were not directly involved in the
first litigation.27 Further, as the doctrine bites on the fact that there has been previous
litigation, there need not have been a judgment. A second claim that runs contrary to a
previous settlement will be caught.28
14.12 In common with issue estoppel and cause of action estoppel, the rule is subject to exclusions.
As the rule derives from the Court’s inherent jurisdiction and public policy, the question of
whether or not it will apply is subject to an extremely wide and open-textured discretion. As
Lord Bingham MR pointed out in Johnson,29 the Courts will not adopt an approach which is
‘too dogmatic’; they are tasked with making ‘a broad merits-based judgment’ in which the
categories of abuse are not closed and all the circumstances are to be taken into account.30
 15
COMMERCIAL LAW1
15.01 The need for commercial organisations to react to and take advantage of changing market
conditions inevitably results in frequent changes, or the desire to make frequent changes, to
the obligations assumed by those parties. The doctrines discussed in this book are
mechanisms by which those obligations are altered2 and by which the Courts attempt to
reconcile the tensions between market conditions with the need for legal certainty in
parties’ relations. The reconciliation has not been without difficulty, a fact reflected by the
confusion as to the meaning and application of the doctrines outlined and the extent to
which these doctrines form an important and difficult part of commercial law.
15.02 The close relationship between commercial transactions and these doctrines is apparent from
the number of cases in which they have been argued and hence the reliance on commercial
cases in the theoretical analysis of these doctrines.3 It is a relationship reflected in that
which follows—a consideration of the application of these doctrines to business
transactions in areas of law which are traditionally viewed as ‘commercial’4—banking,
insurance, shipping, sale of goods—but also to agency, company, construction, employment
law and commercial property. In each case, the doctrine is considered either when it raises
difficulties particular to that area or when it is frequently litigated in that area. So, for
example, variation generates particular difficulty in contracts of guarantee5 and
construction6 law. Conversely, the consideration does not extend to the unproblematic
application of the doctrines. As a result, certain doctrines may appear to have particular
emphasis in particular areas. It must be borne in mind that that may not necessarily be the
case in practice.
15.03 The approach has been affected by three other general considerations. First, due to the
frequency with which the point has been argued, much of the general analysis has been
drawn from shipping cases. That general analysis is not repeated in this section other than
in outline terms. Second, the area of commercial law in which the most issues raised by the
doctrines have been considered most frequently is insurance law. Thus, where a particular
issue has not been considered in a particular context, and general principles do not apply,
analogies are drawn, where appropriate,7 from insurance cases to ascertain the result that
the Courts might reach. Third, any consideration of ‘estoppel’ in the following chapters is
limited to those cases of estoppel by representation, equitable forbearance and estoppel by
convention. Given its unique nature in English law, proprietary estoppel rarely arises and is
rarely argued in the commercial context. To the extent that proprietary estoppel does arise
in commercial law, the issues arising have been dealt with in the chapter devoted to
proprietary estoppel.
 16
AGENCY
A. Waiver 16.01
(1) Agent’s authority to make unequivocal representations 16.03
(2) Imputation of agent’s knowledge to the principal 16.04
B. Estoppel 16.10
(1) Estoppel and ostensible authority 16.11
(2) Estoppel and the relationship between principal, agent,
16.20
and third party
(3) Estoppel and third parties 16.26
A. Waiver
16.01 There are two ways in which waiver interacts with the law of agency. The first, the waiver of
breaches of the contract of agency between agent and principal, is governed by the general
law of waiver1 and does not, therefore, require further analysis.2 The second—the ability of
an agent to waive the principal’s rights under contracts with third parties—is ‘not easy’3
and has generated a considerable amount of confusion and difficulty.
16.02 Waiver requires an unequivocal representation made with the requisite knowledge. A litigant
seeking to establish a waiver must plead and prove both.4 If one element is absent, there can
be no waiver. In the agency context, however, not only must there be a waiver per se but
that waiver must be permitted by the relationship between principal and agent. Thus, the
agent must have authority to make the representations relied upon and the agent’s
knowledge in so doing must bind the principal. These additional parameters are the source
of the complexity. If either of the latter two elements is not established, the agent’s actions
are outwith the agency and there can be no waiver. It follows that the scope of an agent’s
ability to waive its principal’s rights is dependent on whichever of those two elements is
most rigidly circumscribed.
(1) Agent’s authority to make unequivocal representations
16.03 Whether or not a representation made by an agent binds its principal is a question of the
agent’s actual or ostensible authority.5 The agent’s actual authority will depend on the
agreement between it and the principal.6 The agent’s ostensible authority7 will depend on
the manifestation or representation8 either expressly or impliedly made by the principal as
to the agent’s authority.9 It follows that whether these elements are satisfied must be a
question of fact and degree in every case, a detailed examination of which is a matter of
agency law proper10 and lies outside this work.11
(2) Imputation of agent’s knowledge to the principal
16.04 The circumstances in which English law will impute an agent’s knowledge to the principal
are poorly defined. This lack of definition arises in part from inconsistent authorities on
point,12 in part from English law’s failure to draw distinctions between the imputation of
notice and the imputation of knowledge to the principal13 and in part from the fact that any
attempts to codify the law in this area are relatively recent.14 It follows that any attempts to
clarify this point must be, at best, tentative.
16.05 That said, there are two ways in which some guidance can be distilled from the authorities—
by derivation of general principles and by delineation of broad factual categories in which
imputation will occur. In so doing it is important to note that the key issue for waiver is the
 imputation of knowledge not of notice. Although there may be substantial overlap between
the two,15 notice must be a more restrictive requirement or category than that of
knowledge. Thus, where a principal has notice imputed to it, it will then possess the
appropriate knowledge16 but not vice versa.
General principles17
16.06 Statements of supposed general principle can be derived from the cases. These embrace both
the circumstances in which knowledge will be imputed and when it will not be. Thus,
knowledge will be imputed where the agent is authorised to enter into a transaction in
which the agent’s own knowledge is material,18 for example, a broker entering into
insurance contracts on behalf of its principal.19 It has been suggested that this category of
case is one in which ‘the agent’s knowledge affects the terms or performance of the
contract which he concludes on behalf of his principal’.20 On that analysis, the issue is not
one of knowledge but of authority—the issue being the type of contract into which the agent
is authorised to enter. Logically, the distinction is valid. For present purposes, however, the
practical point remains that the principal is affected by the agent’s knowledge and
knowledge is de facto imputed. Similarly, knowledge will be imputed where the principal is
under a personal duty to investigate and make disclosure and uses an agent for that
purpose.21 Again this situation will arise in the broking context. Finally, knowledge will be
imputed where the agent has authority to receive22 or may be reasonably presumed to have
authority to receive23 communications from third parties.24
16.07 Knowledge of the agent’s dishonesty25 or of facts relevant to the commission of a fraud
against the principal by the agent26 will probably27 not be imputed.
Difficulties with the general analysis
16.08 The obvious objection to these supposed general principles is that they are not principles at
all but statements of the outcomes of various factual scenarios. They are rules of the order
of ‘if X then Y’ and tell us nothing of why Y follows X or of the interrelationship between
Y and X. This absence of general guidance is compounded by the weight and inconsistency
of the case law28 and the considerable overlap between the general categories. There is little
difference between a case in which the agent’s own knowledge is relevant and one in which
the principal has delegated investigation to the agent. On one view, the question of
imputation can be reduced to the Blackburn Lowe & Co v Vigors29 test30 that knowledge
will be imputed where, for all intents and purposes, the agent is the principal.31 On another,
the issue is the extent to which the principal has delegated the conduct of a particular
transaction to the agent. On either approach, imputation becomes a question of delegation
which is, in turn, a question of fact and degree in each case.32 Two logically distinct
questions—authorisation and imputation—are therefore compounded into one. That may
make for easy practical application enabling the Court to apply one test, but it does not
assist in deciding individual cases. It follows that one is inevitably driven from a
codification of general principles to attempting to generate broad categories of fact in
which knowledge has been imputed.
Broad categories of fact in which knowledge has been imputed
16.09 At a high level of generality, knowledge will be imputed in two situations. First, where the
agent has a broad wide-ranging authority to enter into transactions on behalf of the
principal,33 it is relatively likely that the principal will be fixed with the agent’s
knowledge.34 Second, on company law principles,35 where the agent is a senior employee of
 the principal,36 it is relatively likely that knowledge will be imputed37 unless it can be
shown that the employee was not a guiding mind,38 had no involvement with the principal’s
affairs in that regard,39 the transaction occurred when the employee/director was acting in
another capacity,40 the information was received by the employee or director in another
capacity,41 the agent was acting dishonestly42 or the agent was committing a fraud against
the principal.43
B. Estoppel
16.10 The role of estoppel44 in the law of agency is complex and uncertain. The detailed discussion
of it falls outwith this work.45 Further, as much of the law of agency was developed in the
nineteenth century, there is a corresponding difficulty in applying Victorian principles and
terminology to modern commercial practice. With those caveats, and for present purposes,
estoppel is relevant to the law of agency in three ways: the relationship between estoppel
and ostensible authority; the additional46 effect that estoppel may have on relations
between the principal, agent and third parties; and the circumstances in which an estoppel
can arise against a third party.
(1) Estoppel and ostensible authority
16.11 Where a principal ‘holds out’ X as its agent having authority to carry out a particular
function, the principal may be unable to argue, against third parties that have relied on that
holding out, that X is not its agent. This ‘ostensible authority’ is therefore:
a legal relationship between the principal and the contractor created by a
representation, made by the principal to the contractor, intended to be and in fact
acted upon by the contractor, that the agent has authority to enter on behalf of the
principal into a contract of a kind within the scope of the ‘apparent’ authority, so as
to render the principal liable to perform any obligations imposed upon him by such
a contract.47
16.12 Expressed in those terms, ostensible authority has much in common with estoppel. The
ostensible authority can arise from either an express oral or written representation48 or by
the principal’s conduct49 on which the third party must have relied or have been induced to
act to its detriment.50 Additionally, and subject to one caveat,51 ostensible authority will
not alter the substantive relations between the parties. Like estoppel,52 ostensible authority
cannot be used, for example, to bypass the ultra vires doctrine: the fact that an agent
represents that a particular act is within its principal’s power does not render the act intra
vires.53 Further, as with an estoppel, detriment may be equated to change of position;
provided that the third party has acted in a way which it would not otherwise have done,54
the requirement of detriment will be satisfied.55
16.13 These similarities permit three conclusions to be drawn: that ostensible authority is nothing
more than an estoppel;56 that ostensible authority arises as a result of an estoppel: the
principal is by its conduct estopped from denying that X is his agent and therefore an
agency relationship arises;57 and that any debate as to the difference between estoppel and
ostensible authority is ‘academic’.58
16.14 Although those conclusions are superficially valid, there are important differences between
estoppel and ostensible authority. Those differences suggest that the basis for such
conclusions is, at best, tenuous.59 What is also apparent is that reasoning premised on
agency concepts—ostensible authority—is applied when the law has reached the acceptable
parameters of estoppel-based reasoning and vice versa. Those contentions are supported by
 analysis of: the circumstances which give rise to ostensible authority; the relationship
between ostensible authority and agency by estoppel; and the effect that ostensible
authority can have on title.
The circumstances creating ostensible authority
16.15 Three particular circumstances are indicative. First, ostensible authority may arise where
there has been no representation other than the fact that X occupies a particular office60 or
carries out a particular role.61 Second, a principal may expressly represent that X is its
agent for a particular purpose.62 In such cases, the boundaries of X’s authority will be
dependent on the terms of the representation. That contrasts with X being clothed with the
trappings of authority when X will possess the concomitant usual authority.63 Third,
ostensible authority cannot arise from any statements made by X64 but can only arise from
statements made by the principal or a person authorised by the principal to make statements
of that kind.65
16.16 In each case, there is one common theme and a clear particular difference between the two
doctrines. The common theme is that equity has no role in ostensible authority. The
particular differences are as follows. In the first, if there is a representation, it is only such
in the broadest sense of the word. It is also a continuing, non-specific representation lacking
the precision usually required for an estoppel.66 In the second, the very distinction between
limited authority resting on an express representation and the more nebulous usual
authority resting on the principal’s general holding out of the agent shows that two
doctrines are in play. As far as the third is concerned, the limitation arises not from
considerations of equity but from those of authority. Put another way, the limitation derives
from the mercantile relationship between X and its principal as opposed to any obvious
inequity to a third party. If estoppel and ostensible authority were the same doctrine, it
would be reasonable to expect that any limitation would arise from the considerations of
equity and not from the need for authorisation.
Ostensible authority and agency by estoppel
16.17 Further complexities arise from the purported existence of the doctrine of ‘agency by
estoppel’. An agency by estoppel was thought to arise where the principal, because of its
representations or conduct, cannot deny that X is its agent.67 That, at first sight, would
appear to be nothing more than an occasion when estoppel and ostensible authority were
one and the same.68 That cannot, however, be correct given the clear statements that an
agency by estoppel is not agency.69 By way of contrast and axiomatically, ostensible
authority is agency. As a matter of logic, if ostensible authority is agency and agency by
estoppel is not, the two doctrines cannot be the same. It follows that if there are two
differing doctrines, one estoppel based and one agency based, ostensible authority is not
estoppel based.70
Ostensible authority and title
16.18 Where the principal clearly represents71 to a third party that X has the principal’s authority
to sell the goods, and the third party relies on that representation,72 the principal will be
precluded from denying the third party’s title to those goods. That result would appear to be
based on traditional estoppel principles. However, in contrast to ‘traditional’ estoppel,73 the
effect of the estoppel in this context is to transmit title enabling the third party to sell on the
goods.74 This anomaly can be explained in two ways. First, title passes as a result not of an
estoppel but under the doctrine of ostensible authority. A further distinction is therefore
drawn between the two doctrines. Under estoppel, title cannot pass whilst under ostensible
 authority, title does pass. Second, ostensible authority is used to provide an exception to the
nemo dat principle; that is, commercial expediency requires title to pass where an agent has
been given authority to sell.75
16.19 Three points flow from the above analysis. First, as a matter of theory, ostensible authority is
not an estoppel-based doctrine.76 Second, in the vast number of cases, this fact and the
concomitant distinction will be of academic interest at best. Third, the distinction will be
important where the facts lack the specificity required of an estoppel, where detriment is
missing and where it is sought to give any conduct complained of irrevocable77 effect.
(2) Estoppel and the relationship between principal, agent, and third party78
16.20 Provided that the elements of an estoppel are established, an estoppel will have the same
effect on the relationships between principal, agent and third parties as it does elsewhere.
Thus, for example, a principal can be estopped from ratifying its agent’s acts or estopped
from denying that it has ratified its agent’s acts.79 On standard principles, the estoppel will
arise where the principal makes an express representation80 or where the principal was
aware81 that the third party believed that there had been ratification and did nothing to
correct that belief.82 Similarly, an estoppel may arise against an agent.83 In such cases, the
fact that the estoppel has arisen in an agency context creates no particular difficulties.
Anomalous cases
16.21 Given the unsatisfactory interrelationship between estoppel and agency touched on above, it
is unsurprising to find that there are four significant and anomalous departures from the
standard principles set out above. In each case, the Courts have allegedly relied on an
estoppel, yet the requisite elements are absent. In each case, the Courts are using the label
of estoppel as a means of defining those adjuncts of the agency relationship necessary to
preserve its commercial efficacy.
16.22 Estoppel and election between suing the principal or agent Except where the agent is
acting solely as the principal’s disclosed agent,84 a third party will be able to choose
whether to sue the principal or the agent for the loss and damage it has suffered. If,
however, the third party represents that it will sue, for example, only the principal, and the
agent relies on that representation, the third party will be estopped from then suing the
agent. The same result will flow if the third party initially represents that it will only sue
the agent. Although this appears to be an estoppel, in the vast majority of cases85 the third
party has first and foremost elected to sue the principal and its cause of action against the
agent has merged in the judgment obtained against the principal.86 Thus, before an estoppel
can arise, the third party must make the informed choice required for an election.87
16.23 Estoppel and the principal’s title to goods or funds The Courts have held that an agent is
‘estopped’ from alleging that it has better title to the principal’s goods than the principal
and from alleging that the third party has a better title to funds held by the agent on the
principal’s behalf.88 As with certain cases of ostensible authority, the express
representation necessary to found an estoppel is frequently missing in these cases.89
Further, as the agent-bailee will not be estopped from denying the principal’s title in an
action to recover the goods, we would suggest that the Courts are in fact using estoppel to
cloak policy decisions.90
16.24 Estoppel and forgery As discussed elsewhere,91 the doctrine of ‘estoppel by negligence’
will in certain circumstances preclude a person from alleging that a particular document has
been forged.92 Thus, the holder of a bank account which carelessly presents a forged cheque
 or allows a series of fraudulent cheques to be cashed will be estopped as against the bank
which cashes the cheque from denying that the cheques are forged or fraudulent. This
doctrine also applies in the sphere of agency.93 Therefore, a principal can be estopped from
denying the forgeries of its agent where the principal represents to a third party that the
forgeries are genuine and the third party relies on that representation.94
16.25 Estoppel and undisclosed principals An undisclosed principal directly suing the third party
with which its agent contracted can be bound by any defences which the third party may
have had against the agent.95 This limitation on the undisclosed principal’s ability to sue
has been described as an estoppel preventing the undisclosed principal from asserting that it
was, in fact, the principal.96 The commercial logic supporting the limitation is clear. A
third party may have deliberately chosen to contract with the agent as opposed to the
principal because, for example, the third party wished to exercise a right of set-off against
the agent, there being no similar right against the undisclosed principal. The third party
should therefore not be deprived of that benefit by being sued by the undisclosed principal.
The legal logic (so far as estoppel-based reasoning is concerned), however, supporting the
limitation is less clear. An undisclosed principal is, by its very nature, undisclosed; it does
not play a part in the transaction between the third party and the agent. Therefore, it is
difficult to see how the undisclosed principal can make any representation on which the
third party could rely. It follows that the status of this limitation is uncertain. On one view,
it is arguable that the cases in which the undisclosed principal was bound were extreme
ones and the limitation should be confined to the facts of those cases. The alternative, and
far more difficult view, is to suggest that the term ‘estoppel’ is again being used as a shield
for policy decisions.97
(3) Estoppel and third parties
16.26 An estoppel will arise as against third parties98 where the requisite elements are established.
Save for two discrete factual scenarios, the relevant principles are as set out elsewhere. The
first scenario is where the third party requests payment from a disclosed principal’s agent
and the principal settles its account with the agent on the basis of that request.99 The second
scenario is where the third party leads the principal to believe that the agent has paid for
goods and the principal again settles its account with the agent on the basis of that belief.100
In both cases, the third party will be precluded from suing the principal. Neither scenario
presents any conceptual difficulty—there is a clear representation by the third party that is
acted on by the principal to its detriment.
 17
BANKING LAW1
A. Variation 17.01
(1) Variation of the guarantee 17.02
(2) Variation of the facility 17.04
B. Waiver 17.06
(1) The operation of loan facilities 17.07
(2) The maintenance of security 17.21
(3) Syndication 17.27
(4) Bills of exchange 17.28
(5) Documentary credits 17.39
C. Estoppel 17.52
(1) The mandate 17.53
(2) Guarantees 17.60
(3) Syndication 17.61
(4) Bills of exchange and securities 17.62
(5) Documentary credits 17.66
(6) Restitutionary claims 17.67
A. Variation
17.01 In the main, the variation of contracts in the banking context will be uncontroversial.2 The
only difficulties are associated with variation of the terms of a guarantee or of the terms of
the facility being guaranteed.3
(1) Variation of the guarantee
17.02 A contract of guarantee falls within section 4 of the Statute of Frauds and therefore must be
in writing to be enforceable. Similarly, all consensual variations4 to that contract must be in
writing if they are to be enforceable. Three points flow. First, if the contract of guarantee is
orally varied, the creditor will be unable to sue on the contract as varied.5 However, the
guarantor will be permitted to rely on the terms of the variation to defeat any claim by the
creditor on the unvaried contract.6 Second, a waiver of the terms of the guarantee does not
have to be in writing.7 Third, the Courts have adopted two mechanisms to bypass the formal
requirements: drawing a distinction between a concession which merely alters one
particular aspect of the guarantee and an alteration which goes to the root of the contract;8
and deciding that the effect of some changes is to create a new contract superseding the
guarantee and which can be relied on.9 Either mechanism creates uncertainty, with it being
open to the Court to decide that there is a new contract, a subsisting contract of guarantee
with immaterial alterations or no contractual relationship between the parties. As pointed
out elsewhere,10 one resolution to such difficulties is to suggest that any enforceable
variation will serve to discharge the contract in its entirety and replace it with the contract
as varied. It follows that any variation to a guarantee which is not in writing will have no
effect11 other than to generate an estoppel preventing the creditor from suing on the altered
contract.
17.03 Naturally, a distinction is to be drawn between variation and waiver. It is submitted that any
 waiver of the terms of the guarantee should have effect as there can be no difficulty with
section 4 of the Statute of Frauds.12 It should also be stressed that the above analysis only
applies to consensual variations of the terms of the guarantee which are supported by
consideration.13 It is important to note that none of the above applies to a material,
unilateral alteration of the document containing the contract of guarantee. Such a material14
and unilateral alteration of the document will automatically discharge the surety.15
(2) Variation of the facility
17.04 A material variation to the facility will discharge the guarantee unless it is apparent, without
inquiry, that the alteration is unsubstantial and/or cannot be otherwise than of benefit to the
guarantor.16 The guarantor itself will be the sole judge of whether it will consent to
remaining liable notwithstanding the alteration.17 The reason for the rule is that if the
guarantor pays any sums due and owing under the facility, it will be able to recoup those
sums against the borrower. That right is a valuable right which may be destroyed or reduced
in value by alterations to that facility.18 It follows from the above that an alteration may be
material even if it is not, in fact, prejudicial to the guarantor.19 It will be sufficient if, as at
the date of the variation,20 it appeared to the guarantor that its rights might be affected.
17.05 The guarantor’s right to be discharged is circumscribed in two important ways. First, if the
variation to the facility is unenforceable or void, the guarantor will not be discharged21—a
variation in that form cannot affect the guarantor’s rights against the borrower. Second, if
the guarantor authorises the variation or consents to it, the guarantee will not be
discharged.22 Therefore the prudent bank will23 include in the terms of the guarantee a
provision that the guarantor authorises in advance all alterations, whether they be variations
or concessions, made to the terms or the operation of the guarantee. A clause of that nature
will protect the bank from the guarantee being discharged if it is enforceable,24 and, on its
proper construction, covers the events which have taken place.25
B. Waiver
17.06 The doctrine of waiver has particular relevance to five areas of banking law and practice: the
operation of loan facilities; the maintenance of security for those facilities; the syndication
of such loan facilities; the use of bills of exchange and cheques and the use of documentary
credits.
(1) The operation of loan facilities
17.07 The offer and subsequent operation of a loan facility will, axiomatically, necessitate a close
and continuing relationship between the lending bank and the borrower. If the facility is
large, the prudent banker will have carried out due diligence checks on the borrower; the
grant of the facility will probably entail the opening and operation of other accounts;
operating accounts will require the bank to decide whether or not to honour cheques or bills
on presentation; interest repayments will be staggered over a period of time and more than
one drawdown may be permitted. The result is that the lending bank and borrower will be
engaged in a continuing relationship in which the lending bank will, as a matter of
prudence, know both the financial stability of the borrower and whether the borrower is
complying with the terms of the facility. Therefore it may well be relatively straightforward
to establish that the lending bank has waived its rights; the bank has numerous occasions on
which it can make an unequivocal representation—for example, by accepting payment
under the facility—and will also, in the normal course of events, possess the appropriate
knowledge to found a waiver.26
 Pure and unilateral waiver
17.08 The doctrines of pure and unilateral waiver apply to loan facilities in the same manner as
they do to any other contract. As the borrower’s obligations under a loan facility will
usually be to repay the principal and interest, it will normally be the provisions in the
facility as to mechanism27 or place28 of repayment which are waived. Those terms will
usually be waived by the lending bank accepting a repayment which does not conform to
the provisions of the facility. Further, as the non-conforming payment will be, on its face,
contrary to the terms of the lending bank’s own facility, the bank will have the necessary
knowledge.29 However, a distinction must be drawn between an offer to pay by the
borrower, which does not conform with the terms of the facility, and payment in a non-
conforming manner. In the former case, acceptance of the offer by the lending bank may
constitute either a variation30 or a unilateral or a pure waiver by the bank. In the latter case,
as the borrower will have already performed its obligations, there will be no consideration
to support a variation and no future performance under the contract which the lending bank
can waive. Thus, the lending bank will be waiving rights arising from a breach of the terms
of the loan; that is, there will be a waiver by election.31
Waiver by election
17.09 Waiver by election most commonly arises where a borrower who has defaulted in the
repayment of interest or principal, or who has committed an event of default under the
facility, attempts to argue that the lending bank has waived the breach.32 The borrower will
succeed in that contention if the lending bank has made an unequivocal representation to
that effect whilst possessing the appropriate knowledge.
17.10 Unequivocal representation Three areas must be considered: the acceptance of payments
under the facility; whether silence or inaction is sufficient and whether the lending bank can
reserve its rights so as to prevent a waiver from taking place.
17.11 Accepting payment under the facility The most likely form of unequivocal representation
by the lending bank will be the acceptance of payments under the facility. It follows that the
acceptance of interest payments by the lending bank may be evidence that it has waived its
rights.33 However, it must be remembered that the lending bank will be responding to a
breach that would entitle it to call in and determine the facility. Calling in the facility
accelerates the repayment of interest and principal by the borrower but will have no effect
on obligations of the borrower which have already accrued. It follows that, as the lending
bank is waiving its rights to call in the facility, the unequivocal representation must relate
to the future obligations of the borrower. Therefore, the acceptance of accrued interest will
not, without more,34 found a waiver35 nor will the acceptance of interest payments after the
facility has been called in.36 It is only if the lending bank accepts interest payments in
advance, or as confirmation of a continuing, future relationship between itself and the
borrower, that a waiver will definitely occur.37
17.12 Silence or inaction As with other areas of law, silence or inaction will not be sufficient to
found a waiver.38 However, the lending bank should not delay in either calling in the
facility or reserving its rights. If it does so delay and the borrower suffers prejudice as a
result, there is a risk that the Court will find that the bank has lost its rights.39
17.13 Reservation of rights A lending bank faced with an event of default by the borrower may
seek to reserve its rights. In such cases, the lending bank should do so clearly but need not
state in terms that it is ‘reserving its rights’.40 A reservation of rights should, in theory, be
effective to protect the bank’s position should it later wish to call in the facility. The
 reservation of rights will have the effect of making any unequivocal representation by the
bank as to its future conduct equivocal.41
17.14 However, as with an insurer42 or shipowner,43 the lending bank must not act inconsistently
with that reservation of rights. If the bank does so, the general rule will apply and the
reservation will have no effect.44 It is submitted that banks must exercise particular caution
in this respect. A bank will normally have close contact with the borrower and the more
contact the bank has with the borrower, the more opportunity it will have for acting
inconsistently with the reservation of rights and, therefore, the less protection that
reservation of rights will offer. Further, the lending bank will usually be faced with a stark
choice—to accept the breach or call in the facility. Where the bank does not call in the
facility, it will be difficult to avoid the bank’s subsequent actions being construed as some
form of unequivocal representation that it has waived its rights.45 Therefore, it is submitted
that a reservation of rights may only offer the bank temporary protection and the prudent
bank should decide what action it wishes to take as soon as may be practicable.
17.15 Knowledge The borrower will have to prove that the lending bank had knowledge of the
breach46 and of its rights.47 In the main that requirement will create two difficulties for the
borrower. First, the borrower will have to establish that the lending bank, as principal, is
fixed with the knowledge of its employees or agents.48 Second, in syndicated loan facilities,
the borrower may have to establish that the syndicate was fixed with the agent bank’s
knowledge.49
17.16 Imputing knowledge As pointed out elsewhere,50 the question of when, and in what
circumstances, the knowledge of an agent or employee will be imputed to the principal/
employer is a difficult one. The Court will in each case seek to ascertain whether the agent
is under a duty to transmit the information to the principal. If it is, then the principal will be
fixed with knowledge. However, as the authorities are expressly confined to the facts of the
individual case, it is difficult to distil the general principles governing the decisions.51
17.17 In the banking context, a number of points should be considered. In a complex transaction,
the lending bank will deal with the borrower through an authorised loan officer or loan
review committee. In most cases, the authorised loan officer or committee will be expressly
authorised to waive breaches of the facility and therefore the knowledge of the officer or
the committee will be that of the bank. By parity of reasoning, there will be no waiver
where the officer does not have the requisite express authorisation.52 Further, absent fraud,
the loan officer will be the bank’s delegated agent for dealing with the facility, and the bank
will be fixed with that officer’s knowledge even if there was no express authorisation.53
Irrespective of the role of the loan officer, if knowledge was passed on to a senior director
or employee of the bank, then the bank will be fixed with that director’s or employee’s
knowledge54 unless the bank can show that: the director or employee had no involvement
with the bank’s affairs in that regard;55 the director or employee had no involvement or
awareness of that particular transaction;56 or the information was received by the employee
or director in another capacity.57 The question of a delegated loan officer or seniority is
irrelevant, however, where the bank’s employees have represented that they are authorised
to take messages and pass them on to the loan officer or senior management; the bank will
be fixed with the knowledge given to those employees58—the bank will not be able to rely
on the breakdown of its internal communications to defeat the allegation that it was aware
of the breach. The exception to the above is where the director or employee is perpetrating a
 fraud on the bank; the bank will not be fixed with that director’s or employee’s knowledge
if the bank’s possession of that knowledge would mean that it was also aware of the fraud.59
Effect of the waiver
17.18 In accord with standard principles, and subject to one caveat, waiver by election is
irrevocable; pure and unilateral waivers are suspensory unless and until acted upon.
17.19 The caveat to the above is that the lending bank cannot waive part of a debt; that is, the
lending bank cannot by making an unequivocal representation waive its rights to claim the
full amount due and owing under the facility. This accords with the rule in Pinnel’s Case60
and is therefore subject to the same exceptions. Therefore, a waiver of part of the amounts
due under the loan facility may be permissible where: the borrower has offered additional
nonmonetary consideration;61 there has been an alteration in the place or mechanism of
payment under the facility;62 a third party promise to pay some of the debt has been
accepted;63 there has been a composition of creditors; and, in cases where the facility is
being paid by means of a bill of exchange, there has been a renunciation of the bill under
section 62 of the Bills of Exchange Act 1882.64
Practical responses
17.20 There are means by which the prudent bank can protect itself. A ‘non-waiver’ clause can be
inserted into the facility. That clause will offer some protection but will be strictly
construed against the bank.65 In any event, the bank should react to all defaults by the
borrower as quickly as possible, reaching a conclusion as to whether to call in the facility or
continue with the transaction. If the bank decides to accept repayments under the facility,
then, unless it has taken unusual steps to protect its position, it should be prepared to be
held to have waived its rights.
(2) The maintenance of security
17.21 Where the principal security backing the loan is a contract of guarantee, that contract can be
affected in three ways by waiver: a waiver of the terms of the guarantee itself; a waiver of
the terms of the facility on the guarantee; and a waiver of the guarantor’s rights of
subrogation against the borrower.
Waiver of the terms of the guarantee
17.22 The Courts have used waiver as a mechanism for bypassing the complexities arising from
section 4 of the Statute of Frauds.66 As a result, it is now clear that the provisions of the
guarantee can be waived without difficulty and without attracting the formal requirements
laid down by section 4. If there is to be a waiver of the provisions of the guarantee, the
requirements set out elsewhere will have to be complied with.67
Waiver of the terms of the principal contract
17.23 In contrast to the established view that a material variation of the principal contract
discharges the guarantor,68 it is unclear whether a waiver of the terms of the principal
contract has the same effect. It might be said that, as both variation and waiver modify the
obligations set out in the principal contract, the guarantor should be discharged in either
event. Thus, where the effect of the waiver has been to alter substantially the day-to-day
operation of the guarantee, the Courts have held that the alteration is tantamount to being a
variation of the contract and has the effect of discharging the guarantor.69 This approach
makes practical sense but, first, avoids the issue and, second, tends to confuse the doctrines
of waiver and variation.
17.24 The alternative approach is to consider the nature of the bargain entered into by the
guarantor. Here the guarantor assumes the risk that it will become liable as a result of the
 lending bank’s business practices. Therefore, as a waiver arguably is no more than an
example of those business practices,70 the guarantor has assumed the risks associated with
waiver and should not be discharged.71 On this analysis, a variation is to be distinguished
from a waiver on the basis that variation is a bilateral, permanent alteration of the principal
contract, and waiver may not be. The guarantor does not accept the risks associated with the
variation because the permanent nature of the alteration and the involvement of the
borrower increase the risk of prejudice to the guarantor. Thus the guarantor will be
discharged by the variation and not by the waiver. This approach may make commercial
sense in ensuring that concessions granted in the ordinary course of business do not vitiate
the contract. However, the approach fails to take into account the similar practical effect
that waiver and variation may have on the principal contract—both may alter the future
performance of the principal contract and do so irrevocably.
17.25 It is tentatively submitted that the proper approach is the former. One should therefore
consider the practical similarities between waiver and variation. If, as is often the case, the
application of the two doctrines has similar results, then there is no reason why the two
doctrines should be treated differently. Further, the historical reason for the guarantor being
discharged—that it is being deprived of its rights against the borrower or that the risk it is
guaranteeing has substantially altered—holds good in either case. It follows that the
guarantor should be discharged whenever there is a material modification to the terms or
operation of the principal contract, whether that modification is effected either by a waiver
or by a variation.
Waiver of the right to subrogate
17.26 In the normal course of events, the guarantor will be able, after it has paid on the guarantee,
to subrogate against the borrower to recoup monies paid to the lending bank. As with all
rights, the right to subrogate can be waived. However, given that the right to subrogate
represents a valuable benefit to the guarantor, the Court will be reluctant to find that the
guarantor has forgone its rights. Thus, the Court will find that the right was waived only in
the clearest cases, not by a mere course of dealings between the parties;72 or when it can be
shown that the guarantor, with full knowledge of the right that it is losing,73 has received a
comparable benefit in lieu of that right—for example, an indemnity from the lending
bank.74
(3) Syndication
17.27 The syndication of large or high-risk loan facilities will inevitably create an agency
relationship between the lead or agent bank and the members of the syndicate. In most
cases, the syndication agreement will set out the agent’s powers including the
circumstances in which the agent bank can waive breaches of the facility.75 If the
syndication agreement makes no provision for waiver whatsoever, whether or not the agent
bank can waive breaches will be decided on normal agency principles; namely whether its
knowledge will be imputed to the syndicate.76 If the syndicate has delegated the running of
the facility to the agent bank, it is likely that the agent will have authority to waive breaches
of the loan facility.
(4) Bills of exchange77
17.28 The interaction between waiver and bills of exchange is complex, a complexity which arose
from the status of bills of exchange under the law merchant and which is now reflected in
the provisions of the Bills of Exchange Act 1882. The result is that a distinction must be
drawn between a waiver of the terms of the bill itself, renunciation,78 and a waiver of the
 formalities associated with payment of the bill, namely waiver of notice of dishonour and
presentment.
Renunciation
17.29 Bills of exchange traditionally formed an exception to the common law doctrine that whilst a
contract could be mutually discharged prior to breach,79 discharge after breach could only
be by way of accord and satisfaction.80 A bill, in contrast, could be discharged at any time81
for two reasons. First, a bill, being an internationally recognised instrument, was used in
countries where there was no need for accord and satisfaction post breach; and second, a
party informed of a renunciation would either act to its detriment or would change its
position giving it a cast-iron estoppel or restitutionary defence to an action on the bill.82
The Bills of Exchange Act reflected this state of affairs by allowing for the renunciation of
a bill.
17.30 Section 62 of the Act provides:
(1) Where the holder of a bill on or after its maturity absolutely and unconditionally
renounces his rights against the acceptor the bill is discharged. The renunciation
must be in writing, unless the bill is delivered up to the acceptor.
(2) The liabilities of any party to a bill may in like manner be renounced by the holder,
before, at, or after its maturity; but nothing in this section shall affect the rights of a
holder in due course without notice of the renunciation.
17.31 The effect of the renunciation is first, to release the acceptor of the bill from the obligations
accrued under the bill and, second, to release all parties to the bill.83 The act of
renunciation therefore operates as a pure or unilateral waiver of the holder’s rights84 under
the bill, the unequivocal representation being made by the written communication of the
renunciation to other parties. The renunciation is unconditional.85 However, the act of
renunciation is potentially more wide ranging than a pure or unilateral waiver; parties other
than the holder and acceptor can be affected by it. Therefore limits are imposed on the
circumstances in which a bill can be renounced. Thus, as between holder and acceptor, the
bill can only be renounced after maturity;86 the renunciation must be in writing—written
evidence will not suffice87 although the renunciation may be spelt out from more than one
document.88 It follows that mere delivery of the bill is insufficient to constitute a
renunciation,89 some additional act will be required.
Waiver of formalities
17.32 It is important to note that whilst renunciation is a specialised form of waiver, other rights
accruing under the bill are also subject to the doctrine. Thus, the formalities required for
payment on the bill are capable of being waived. Further, unlike a renunciation, a waiver of
these formalities90 does not have to be communicated to a particular party to the bill or
indeed to any party to the bill.91
17.33 The Bills of Exchange Act provides that the formalities of entitlement to a notice of
dishonour and to presentation of the bill92 can be waived. A notice of dishonour93 can be
waived by any unequivocal act;94 the presentation of the bill for payment can either be
waived expressly or impliedly.95 In the main, those provisions will bite as between the
holder of the bill requesting payment and the payer. However, any indorsor of the bill can,
by indorsing, waive any of the holder in due course’s duties under it.96 Those duties include
presentation and the giving of a notice of dishonour. Although the wording adopted by the
Bills of Exchange Act does vary, it is submitted that a waiver of formalities to a bill may
 either be a waiver by election (where the formalities have not been met and the waivor pays
on the bill) or a pure waiver (where the waivor excuses the future performance of the
formalities). In either event, the elements of an unequivocal representation with requisite
knowledge will be required.
17.34 Unequivocal representation The clearest form of unequivocal representation will either be a
promise by the waivor that it will pay on the bill in any event or the waivor meeting any
obligation to pay imposed by the bill. Such a promise will act as a waiver of any
entitlement to notice of dishonour97 (even if the time for giving the notice has expired)98
and of any entitlement to presentation of the bill.99 It also appears that an entitlement to a
notice of dishonour can be waived by the waivor assuming the burden of discovering if the
bill has been dishonoured,100 or intimating that it is aware that the bill will be dishonoured
and that he will therefore be liable on it.
17.35 However, care must be taken to define exactly the representation made and whether any
rights have in fact been waived.101 If, on analysis, the promise to pay is conditional upon
the giving of notice or presentment, there will be no waiver.102 Further, it may well be that
the waivor has in fact only waived part of its rights and therefore will only be liable for
some of the monies covered by the bill.103
17.36 Knowledge Four points arise. First, it may well be that knowledge of the facts104 giving rise
to the right to avoid payment is sufficient to found the waiver.105 It would follow that bills
of exchange would be anomalous in this respect. However, it is submitted that, in line with
the more modern approach to waiver,106 knowledge of the relevant legal rights will be
required to found a waiver but, in most cases, the Court will be extremely willing to find
that the waivor had the requisite knowledge. The Court will do so either on the basis that a
party using a bill of exchange will be familiar with its rights or as a result of the Court’s
willingess to find that the technical formalities in this area have been waived.107 Second,
the requisite knowledge will be imputed to the waivor in accordance with the rules of
agency.108 Thus, for example, an attorney or clerk who has management of the case can
make a promise to pay on the bill and that promise will be an effective waiver of the
formalities.109 Third, it is important to note that it is knowledge that is required not
notice.110 It follows that the principles to be applied are not those which govern the
transmission of the notice of dishonour to the principal but those which govern imputation
of knowledge.111 Fourth, once a prima facie case of an unequivocal act coupled with
knowledge is made out, the waivor will be required to show that it was ignorant of its
rights112 or that the unequivocal act was made as a result of a mistake of fact113 or that
there was inexcusable delay in presenting the bill114 to avoid liability.
Effect of the waiver
17.37 The waiver will usually have the same effect as in the general law. However, two particular
issues arise in relation to bills of exchange. These issues arise from the fact that bills of
exchange are negotiable instruments and will therefore be passed down a chain from holder
to holder or from indorsee to indorsee. First, where the entitlement which has been waived
is the entitlement to service of a notice, all subsequent holders of the bill will be entitled to
rely on the waiver and claim monies on the bill,115 the reason being that, if that were not
the case, the obligation to provide a notice of dishonour may change from holder to holder
as the bill is negotiated depending on their relationship with the waivor. Similarly, where a
defence to a claim on the bill, for example, laches, is waived by a party to the bill paying
 the holder, the waivor cannot sue those who negotiated the bill prior to him;116 they are
entitled to be discharged.117
17.38 Second, any waiver by the claimant of execution against one party to the bill will not prevent
the claimant from executing against another party to the bill. Therefore, a waiver of a writ
of fieri facias against the acceptor is no bar to execution against the drawer of the bill.118
(5) Documentary credits
17.39 The accepted course of business in international transactions is that the goods or services will
be paid for by a banker’s documentary credit.119 The result of that practice is the creation
of four autonomous120 and interrelated contracts: the underlying contract (usually a
contract of sale between buyer and seller);121 the contract between the buyer and the issuing
bank for the issue of the documentary credit; the contract/agency relationship122 between
the issuing bank and the confirming bank for the transmission of documents and funds
against those documents; and the contract between the confirming bank and the seller for
the provision of the documents by the seller and transmission of the funds to the seller.123
A ‘paper transaction’124 is created in which payment is made against documents of sale by
means of the documentary credits.125 It follows that the actual condition of the goods is
irrelevant as far as the banks are concerned. Therefore, in this area, the sole concern is with
the application of waiver to the documentary elements of the contracts.126
17.40 As the transaction is based purely on the presentation and transfer of the documents,127 a
party to the transaction will only be able to refuse payment or refuse to accept payment if
the documents128 presented are defective or do not conform with the contractual
provisions.129 If the documents are defective,130 then the party has the right to reject the
documents and to proceed no further with the transaction. It follows that the doctrine of
waiver will be invoked where it appears that a party has not rejected defective or non-
conforming documents. It also follows that, subject to one possible exception,131 the
relevant form of waiver is waiver by election.
Unilateral waiver by the bank?
17.41 The exception relates to the relationship between the issuing bank and the buyers. The
provision or acceptance of the documentary credit may be linked into a long-standing loan
facility offered by the issuing bank and supporting the buyers’ trading activities. If so, the
bank may require the loan facility to be secured by the bank having the documents of sale
made out to its order enabling it to have first recourse to those goods. It is arguable that
such a provision operates solely for the issuing bank’s benefit and therefore could be
subject to a unilateral waiver.132 However, as suggested elsewhere, there are conceptual
difficulties with any unilateral waiver, difficulties which are increased in this context for
three reasons. First, all obligations under the loan facility will be bilateral, the provision of
adequate and enforceable security by the buyers being, in most cases, a condition precedent
to drawdown. Therefore the existence of adequate security is for both parties’ benefit.
Second, a unilateral waiver of the banks’ rights would undermine the buyers’ ability to
demand a specific set of documents, a demand to which the bank has agreed.133 Third, any
change to the documents of sale may affect the last three contracts referred to above. The
UCP 600 and the relationships between the banks and the buyers/sellers are structured to
prevent unilateral changes from happening.134 If a bank were able to alter unilaterally in
advance the documents of sale elements of the transaction, uncertainty would be introduced
into the transaction. As one of the main practical reasons for this type of transaction is
 commercial certainty, anything which erodes that certainty would run counter to the UCP
600, the banking relationships between the banks and the buyers/sellers and the rationale of
the transaction.
17.42 It is therefore suggested that there can be no unilateral waiver by the bank. It follows that a
bank can only waive the rights arising from defects in the documents after non-conforming
or defective documents have been presented to it, and it follows that with documentary
credits there can only ever be a waiver by election by the bank which is subject to the rules
and practices set out below.
Waiver by election
17.43 Unequivocal representation The requirements to found this type of waiver are the same as
those under the general law. Thus a party will make an unequivocal representation by the
acceptance of the non-conforming or defective documents or by shipping the goods135 or
asking for an extension of time for delivering the goods.136 However, a party may also lose
the right to reject by delay in checking the documents and giving its grounds for its
rejection.137 If that process were a waiver, it would appear to be inconsistent with the
general law. It is submitted, however, that the principle is consistent with the rule that delay
may lead to loss of rights if the other party suffers prejudice.138 In commercial transactions
of this nature ‘time is of the essence’ and any unnecessary delay will almost automatically
therefore be to the prejudice of the other party.
17.44 Knowledge The requisite knowledge again is that which is required under the general law.139
However, it is important to note that a Court may well be willing to presume that the parties
to the transaction have knowledge of the facts, having been provided with the documents
which will be either good or bad on their face, and of their rights, being experienced
commercial parties. Where an agency relationship is involved, knowledge will be imputed
in accordance with the rules of agency. Thus, for example, the parties are entitled to assume
that another party’s representatives will pass on information to the relevant person.140
17.45 The one difficulty which arises in this area relates to the loss of rights as between the issuing
and confirming banks. The relationship between those banks is that of principal and
agent141 and it has been said that any loss of rights to reject as between those banks arises
by way of the defects being ratified not by any waiver of rights.142 If the test for knowledge
in the case of ratification is different to that applicable in cases of waiver, then the
knowledge required will vary according to the parties involved. However, it is suggested143
that the Courts will apply the same test whether ratification or waiver is at issue. It follows
that there is, at most, a semantic difference between the loss of rights as between the
issuing and confirming banks and the loss of rights as between the other parties to the
transaction.
Relevance of waiver to documentary credits
17.46 Three issues arise in relation to application of waiver to the transaction: the defects capable
of founding a waiver of a party’s rights; the interaction between waiver and the UCP 600;
and the effect of the waiver on the relationships between the parties.
17.47 Defects capable of founding a waiver It is now clear that any defect in the documents is
capable of creating a waiver of a party’s rights. Thus, for example, requirements that the
documentary credit be confirmed and irrevocable144 or be in a particular currency145 or that
the documentary credit be opened at a particular time can all be waived. However, it is
important to note the acceptance of a defective documentary credit on one occasion does
not necessarily mean that future defective documentary credits will also be accepted.146
 The Courts will only infer such a waiver of future obligations if there is a repeated
acceptance of defective documentary credits, so as to spell out a course of dealing147 which
can only be resiled from if appropriate notice is given to the other parties to the
transaction148 or if there is a variation of the contract.149
17.48 Relationship with the UCP 600 Article 16(b) of the UCP 600 provides:
When an issuing bank determines that a presentation does not comply, it may in its
sole judgement approach the applicant for a waiver of the discrepancies.
The article has importance in two respects. First, the numbers of transactions where the
documents of sale do not comply is very high. Therefore some mechanism must be in place
for obtaining the buyer’s consent.150 Second, the issuing bank will need to recoup the
monies expended by and under the documentary credit from the buyer. The bank will
usually do so under an indemnity given to it by the buyer. If the buyer felt that the issuing
bank had wrongly waived its rights arising from a discrepancy, it might refuse to pay on the
indemnity. Article 16(b) provides a mechanism for legitimising the bank’s actions and
avoiding such difficulties.
17.49 Article 16(b) does not mean, however, that the banks are absolved from responsibility for
examining the documents of sale and deciding whether or not to waive rights arising from
any defects found on examination. As far as the issuing bank is concerned, it must still
examine the documents of sale subject to passing them to the buyer for it to make a
commercial decision as to whether to accept or reject the documents of sale.151 Further, the
buyer will not be permitted to carry out the bank’s examination for it, nor will it be
appropriate for the buyer to search through the documents of sale searching for
discrepancies.152 The distinction between the buyer and the issuing bank in this regard is
made clear by the fact that the buyer can unilaterally waive its rights (usually a waiver
relating to the underlying contract which triggers payment via the documentary credit);153
the bank may not.154
17.50 To ensure that the transaction is not stultified by the referral back to the buyers, the issuing
bank must identify the defects on which it will rely within a reasonable time; if it does not,
the right to reject will be lost either under UCP 500 article 16(f)155 or by lapse of time.156
Further, under the UCP 600,157 if the issuing bank fails to state all the defects on which it
will rely, it will lose the right to rely on any further defects at a later date.158 By way of
contrast, under the English common law and as with the general law of waiver, the issuing
bank will be able to rely on additional grounds of rejection even if it fails to raise those
grounds first time around.159 The position will be different if the issuing bank requests the
confirming bank to remedy certain defects, a request which will generate an estoppel
preventing the issuing bank from relying on additional grounds at a later date.160
17.51 Effect of waiver on the relationship between the parties The UCP 600 is narrowly worded
and will bite only on the waiver of defects as between the issuing bank and the buyer.
Where the UCP 600 does not apply, the general law applies.161 Three particular points
arise. First, as a matter of practice, a waiver by a confirming bank will be rare. Second, the
issuing bank examining the documents must take care that the result of any waiver which it
might give is not the discharge of the indemnity given by the buyer.162 Therefore, the
issuing bank should ensure that the indemnity will apply even if it does not refer the
documents back to the buyer under article 16(b) of the UCP 600. By way of contrast, the
buyer will wish to ensure that the indemnity will only apply if there is reference back.
Third, where the issuing bank has acted outwith its mandate in waiving defective
 documents, the buyer may waive the issuing bank’s breach of mandate.163 The effect of that
waiver will be, subject to the drafting of the indemnity, to waive any rights which the buyer
may have to avoid the indemnity or to treat itself as discharged from liability thereunder.
C. Estoppel
17.52 The same principles apply to estoppel in the sphere of banking law as elsewhere, there being
no mitigation in this sphere164 of the requirement that the party seeking to rely on an
estoppel must establish that there was a representation on which it relied to its detriment.165
A party will therefore seek to rely on estoppel principles in the banking context where it
cannot establish that the bank had the appropriate knowledge to found a waiver or that the
person making the representation relied on was not the bank’s agent for the purposes of
waiver.166 In addition, the new doctrine of ‘contractual estoppel’, which is better explained
as an application of the principles of the law of contract rather than a true estoppel, is
increasingly relevant to the question of whether there has been a misrepresentation.
Estoppel therefore arises in many contexts: the mandate between customer and bank;
guarantees; syndication; bills of exchange and securities; documentary credits and
restitutionary claims brought by the bank.
(1) The mandate
17.53 Apart from the estoppels which may arise on the facts of individual cases as a result of
representations made by the bank, the role of estoppel in the operation of the mandate gives
rise to two specific issues: whether an estoppel can be created by documents issued by the
banks and the role of the so-called estoppel by negligence.
Estoppel and bank documents
17.54 Where the bank issues the customer with a passbook or statement of account, the bank may
be estopped by the representations it makes in and by the passbook or statement provided
that the other elements necessary for an estoppel are present.167 Whether or not the bank is
estopped will primarily depend on exactly what representation the bank has made. Thus, for
example, where the bank credits an account with the sums due under a forged cheque, if that
forgery was not detectable on a reasonable inspection, there will be no estoppel. The
representation that the bank made in crediting the account was not that the customer was
entitled to the sums but that the bank believed that the cheque was good after a reasonable
inspection; a representation from which the bank can resile.168
Estoppel by negligence
17.55 Under the mandate, the bank is required to debit the customer’s bank account on receipt of a
payment instruction169 from the customer, provided that the instruction is valid and the
account is in credit. Where the bank debits the account as a result of a false or forged
instruction, the customer may sue the bank for breach of the mandate. In such a claim, the
bank can, in limited circumstances, argue that the customer should not succeed, the
customer being precluded from denying that the instruction was valid and an essential
element of the customer’s cause of action being missing.170 The alleged basis of the
preclusion is an ‘estoppel by negligence’. This ‘estoppel’ will arise where the customer171
owes the bank a duty in presenting the instruction, the customer is in breach of that duty in
presenting the instruction, the bank relies on the presentation and acts to its detriment. It is
an ‘estoppel’ which can be both prospective and retrospective172 and gives rise to two
issues: what is the basis of estoppel by negligence and what duty gives rise to the
‘estoppel’?
17.56 The basis of estoppel by negligence In London Joint Stock Bank v Macmillan,173 the House
 of Lords articulated two bases for the doctrine. In presenting the instruction in
circumstances in which the customer should have known that the instruction was invalid,
the customer owed a duty to the bank to inform it of that fact. Therefore, in not so
informing the bank, the customer made a representation that the instruction was valid. The
bank relied on that representation by paying under the instruction and suffered a detriment
when the customer sought to recover the monies wrongly paid out.174 The other basis was
that the presentation of the instruction constituted a breach of the customer’s duty. The
bank suffered loss as a result of that breach—namely paying out under the instruction to
exactly the same extent as the customer sought to recover from the bank. The customer’s
claim therefore failed for circuity of action.175
17.57 There is authority to support both approaches;176 however, it is suggested that the better view
is that in most cases the customer’s claim fails for circuity rather than as a result of an
estoppel for four reasons. First, spelling out the appropriate representation to found the
‘estoppel by negligence’ is extremely tortuous.177 Apart from the difficulties in showing
that silence on the part of the customer amounts to a representation, there are the
difficulties in establishing exactly what representation is made. Further, given the supposed
estoppel may apply to bank customers and the holders of bills178 or presentors of
promissory notes,179 it is difficult to spell out a common representation made by all three
categories of person. Second, it appears that the bank must show that the customer caused
the bank to pay on the false instrument as a result of some element of misleading
conduct.180 Put another way, the bank must establish a causative link between the conduct
and the loss.181 That requirement suggests that the proper approach is circuity, arising as it
does from a duty/breach/damage analysis not an estoppel analysis. Third, under the
mandate, the bank is entitled to an indemnity from the customer where the customer has
caused the bank loss. Where the customer’s breach of duty causes the bank to pay on an
invalid instruction, the indemnity would operate. That indemnity would, of course, equal
and defeat the customer’s claim.182 Fourth, given the existence of the mandate and the
reciprocal obligations owed by the parties to it, the most natural and simplest analysis
would be to argue that there has been a breach of that mandate rather than to search for an
estoppel.183
17.58 There are counter arguments to the above. Clearly an estoppel could apply where the
customer made an express oral or written representation at the time of giving the
instruction that the instruction was valid.184 However, such an estoppel would be simple
estoppel by representation rather than the more complicated estoppel by negligence.
Further, the effect that the estoppel had would depend on the terms of the representation
made.185 In addition, there is authority to suggest that the English Courts adopt a more
limited view of the banking mandate than those of the Commonwealth.186 On such a
restrictive view, it is difficult to imply terms into the mandate which oblige the customer to
check instructions.187 However, any difficulty that there may be in establishing such
implied terms would not affect the crossindemnity nor the implied and recognised duties in
tort, both of which would also create circuity of action and defeat the claim. Finally, it
could be said that the bank merely has to suffer detriment not establish that it has suffered
loss and damage. If there was only detriment and no loss, then the bank would be relying on
an estoppel not circuity. The difficulty with that approach is that the bank must clearly
establish some injury in the sense of loss and damage to itself,188 including the loss of a
 right to reclaim the monies from the forger or of the right to take steps to protect itself.189
17.59 The extent of the duty The duty on the customer was clearly set out in Tai Hing Cotton Mill
v Liu Chong Hing Bank Ltd.190 The duty extends to (i) conducting the mandate so that fraud
might not occur; and (ii) notifying the bank as and when suspicious circumstances arise.191
That duty can be extended by the express wording of the mandate provided that such
wording is sufficiently clear.192 Limb 1 of the duty will therefore include: avoiding the
insertion of unusual blank spaces in the cheque as to prevent interpolation;193 and assisting
the bank to recover against a forger.194 However, the duty will not extend to: ensuring that
there are no blanks in the cheque;195 ruling lines on both sides of payee’s name to prevent
further names from being added;196 monitoring the activities of the joint account holder
unless there is something to suggest that the joint account holder is forging cheque;197
avoiding employing particular persons as the customer’s agent;198 exercising general care
in conduct of its business;199 or to checking and verifying all bank statements.200
(2) Guarantees
17.60 As discussed above, one effect of the Statute of Frauds is to make the alteration of guarantees
difficult. That difficulty is reflected in the fact that the Court will be unwilling to allow a
plea of estoppel201 to be used as a mechanism for bypassing the Statute of Frauds.202
Therefore, although there is no absolute bar on an estoppel being used in that fashion, the
circumstances in which the Court will permit such an exercise will be limited to those
where denying one party the benefit of the estoppel would be manifestly unjust.203
(3) Syndication
17.61 It is common practice for the agent bank in a syndication to insert into the syndication bible
non-reliance clauses. These clauses constitute statements by the members of the
syndication that in entering into the arrangement they were not induced by any
representation by the agent bank. A clause of this nature maybe enforceable because it
generates an estoppel by representation. To rely on estoppel by representation, the clause
must be clear and the agent must have relied on the clause to its detriment.204 The clause
may also be enforceable because it gives rise to a ‘contractual estoppel’.205 This relatively
new doctrine206 is best explained as a relaxation of the previously restrictive207 approach to
whether a statement of fact could form a contractual obligation. ‘Contractual estoppel’ is
not an estoppel: no detrimental reliance is required; the contract specifies the mutually
agreed factual basis of the transaction entered into by the parties and the law of contract
gives effect to that agreement. Whilst it remains open to the agent bank to seek to enforce a
non-reliance clause through estoppel by representation, there appears to be no practical
reason to invoke a doctrine which requires detrimental reliance now that the Court is
prepared to enforce such terms as contractual obligations.
(4) Bills of exchange and securities
17.62 As with waiver, estoppels may arise under statute or at common law. Under statute the
estoppel is created by the express wording of the Bills of Exchange Act 1882 and is, by and
large, unproblematic. At common law, the doctrine has given rise to the idea that a bill or
security can become negotiable by estoppel. Under either head it is important to note that,
in modern commercial practice, these estoppels are rare and that, where cheques are
concerned, it is very unlikely that an estoppel will arise.208
Under statute
17.63 The Bills of Exchange Act 1882 creates three ‘statutory estoppels’. First, the acceptor is
 precluded from denying to a holder in due course that the drawer’s signature is valid;209
second, an indorser is precluded from denying to the holder in due course that the drawer’s
signature and all previous indorsements are valid;210 third, the acceptor for honour is
precluded from denying that he is liable on the bill where he has accepted the bill for
payment and the bill has been protested for non-payment.211 In each case, although all the
elements required for an estoppel at common law are missing, an estoppel arises by virtue
of the statute.
At common law
17.64 There is authority to suggest that a bill or security can become negotiable as a result of an
estoppel212 and that title to the bill or security passes to third parties as a result of an
estoppel.213 This estoppel arises when a principal gives a completed or signed bill214 or
security to its agent with the express purpose of allowing the agent to sell or negotiate the
bill or security. There are two possible bases to the estoppel. First, as discussed
elsewhere,215 this is an anomalous estoppel arising out of the agency relationship and is a
means of bypassing the nemo dat principle. Therefore, whether or not title is created will
depend on whether or not the principal authorised the agent to deal with the bill or
security216 and, because the rule applies to preserve the commercial efficacy of the agency
relationship, the rule only applies to negotiable instruments.217 Second, that a
representation is created by the handing over of the bill which is repeated each time the bill
or security is sold.218 This representation creates a purely personal estoppel preventing the
principal and subsequent vendors from denying the agent’s authority to negotiate the bill.
17.65 Of the two bases, it is submitted that the former is the better explanation of the principle.
There is authority to suggest that the mere negotiation and handing over of the bill or
security cannot create an estoppel.219 If that is correct, then there is no repeated personal
representation such as to estop the subsequent vendors from denying that title has passed.
Further, it is difficult to spell out the repeated representation necessary to generate the
personal estoppel. Given that a personal estoppel cannot create title,220 it is possible that at
a particular stage in the on-selling of the bill or security the requisite representation would
be missing and title would pass no further. The commercial purpose of the agency
relationship and of negotiable instruments would therefore be frustrated.
(5) Documentary credits
17.66 As discussed above,221 article 16(f) of the UCP 600 determines the circumstances in which
an issuing bank will be deemed to have lost the right to reject defective documents in a
documentary credit transaction. That loss of rights covers both waiver and estoppel. Where
the UCP 600 does not apply, questions of estoppel will be decided under the common law.
There, the issuing bank does not lose its rights to rely on other grounds for rejecting the
documentation by initially stating that it wished to rely on one particular ground.222
(6) Restitutionary claims
The development of change of position
17.67 Where a bank has paid out monies by mistake, it will be able to bring a claim in restitution to
recoup those monies.223 The Courts have long recognised that the party that received those
monies can rely on estoppel as a defence to such a claim.224 This estoppel was based on
estoppel by negligence principles225 and therefore suffered from the complexities
associated with that doctrine. Further, the application of estoppel by negligence principles
to the restitutionary context created three particularly acute difficulties. First, estoppel by
 negligence is probably based on circuity of action226 and, consequently, was believed to
operate as a complete defence to the claim.227 The obvious difficulty that arose was that in
certain circumstances it would be inequitable for the defendant to retain all the monies paid
to him. Therefore, what purported to be an equitable doctrine had an inequitable result.
Second, particular care had to be taken in determining what representation had been made
to the defendant. Thus, unless the bank had clearly stated to the defendant that it was
entitled to treat the monies as its own,228 the defendant might be in difficulties in
establishing its defence.229 Third, different results could emerge depending on whether the
Court examined the case from the perspective of which duty was owed to whom or from the
perspective of which party was at fault.230
17.68 These difficulties were removed, at least as far as the law of restitution is concerned, by the
House of Lords’ decision in Lipkin Gorman v Karpnale Ltd,231 which recognised that there
were two defences to such restitutionary claims: estoppel and a separate and additional
defence of change of position.232 A party will be said to have changed its position where, as
a result of the receipt of the monies, the defendant has done something which it would not
have otherwise done,233 rendering it unjust to require the defendant to repay the monies.234
Mere receipt of the monies will not suffice.235
17.69 The recognition of a change of position defence has a number of benefits.236 Quite apart
from the imposition of greater coherence within the law of restitution there is the obvious
benefit that change of position permits a flexible remedial approach in the recovery of
mistaken payments.237 The Courts now consider whether or not it would be unjust to
compel the defendant to repay all or part of the monies,238 balancing the comparative
injustice of depriving the bank of its monies and of requiring the defendant to repay.239
This balancing exercise is undertaken on a case-by-case basis.240 The recognition of change
of position also avoids necessary recourse to estoppel by negligence principles and the
consequential confusion between considerations of blame241 and considerations of duty,242
a confusion which has led to conflicting cases.243 Considerations of duty are no longer
relevant.
Difficulties inherent in the relationship between change of position and estoppel
17.70 Although Lipkin Gorman resolved the difficulties arising from so-called estoppel by
negligence, further difficulties arise from the interrelationship between restitutionary and
estoppel theories, in particular, from the relationship between estoppel by representation
and restitution. Whilst change of position will provide a solution in many cases, estoppel
may still be relevant when a change of position cannot be made out244 or where both
estoppel and change of position arise on the facts. In two cases, Scottish Equitable Plc v
Derby245 and National Westminster Bank Plc v Somer International Ltd,246 differently
constituted Courts of Appeal grappled with the latter situation of an estoppel by
representation and change of position arising on the same facts.
17.71 In both cases, the recipient contended that the payer was estopped from recovering the
amount paid. The argument was that the payer had represented that the monies were
properly payable to the recipient and was therefore estopped. Further, estoppel by
representation precludes the representor from contending against a certain set of facts. Once
so precluded, the legal consequences of those facts flow without any remedial alteration by
the Court. Thus, once the representor/payer was precluded from denying that the monies
were legitimately paid out, it could not recover any of the sums paid. Estoppel by
 representation, therefore, was an ‘all or nothing’ doctrine so that there could be no pro tanto
recovery of the monies.247 Further, once pro tanto recovery had been excluded under the
estoppel, the change of position analysis was irrelevant, Avon CC being binding authority
that recovery would not be permitted. It follows, that in both cases, there was a direct
conflict between estoppel and restitutionary principles. Under the former, recovery—other
than in absolute amounts—was barred and, under the latter, recovery would be permitted to
the extent permitted by a change of position defence.
17.72 The Courts tackled the conflict in differing ways. In Scottish Equitable Plc, Robert Walker
LJ decided that Avon CC was not as stark an authority as contended for by the respondents,
the judges in that case recognising: (i) its own inadequacy as an authority; and (ii) the
possibility that estoppel might not operate as an all or nothing doctrine.248 It is submitted
that this decision, as set out in full elsewhere,249 was correct. Robert Walker LJ then went
on to consider the more fundamental issues of the direct conflict between restitution and
estoppel with the express caveat that his views were tentative.250 The first route adopted
was that of a detriment-based analysis of both estoppel by representation and change of
position. Both doctrines remedy detriment. It follows that if the detriment has been
remedied by restitutionary principles, there is nothing for estoppel to remedy. Estoppel is
therefore disabled or redundant.251 Similarly, where the detriment is not remedied, the
estoppel will still arise. As submitted elsewhere,252 despite the complexity, this analysis
must be correct.
17.73 The second route was to posit a unified doctrine of estoppel based on a minimum equity
analysis. This, in a slightly reformulated fashion, was the approach also adopted in National
Westminster Bank Plc v Somer International Plc.253 There, the Court decided that there
was, underlying estoppel by representation, a general principle of
equity/unconscionability.254 Despite the reformulation, this reasoning points towards a
unified theory for estoppel. Such a theory is not without considerable difficulty,255 not least
because it must bridge not only the obstacles presented by the doctrine of consideration but
also the issues raised by the substantive effect of proprietary estoppel as opposed to the
weaker doctrines of equitable forbearance and estoppels by representation and
convention.256 It is therefore suggested that the better analysis is the remedying of
detriment approach advocated by Robert Walker LJ. Again, as contended in Chapter 9
above,257 it is arguable that in such circumstances there is no conflict between
restitutionary and estoppel-based theory. If there is such a conflict, so to contend does not
translate estoppel by representation from an evidential to a substantial doctrine. The
evidential nature remains; the remedy flowing is, however, circumscribed by equity so as to
reverse the detriment suffered and no more.
 18
COMPANY LAW
A. Waiver 18.01
(1) Voluntarily relinquishing a right 18.02
(2) Bypassing statutory requirements 18.04
B. Estoppel 18.05
(1) Estoppel and company agents 18.07
(2) The issue of shares and securities 18.09
A. Waiver
18.01 Waiver is used in two senses in company law: the voluntary relinquishment of a right or the
bypassing of the statutory requirements applicable to companies.
(1) Voluntarily relinquishing a right
18.02 The same principles1 apply in company law as they do elsewhere. Thus a waiver can arise
between the company and its shareholders2 or directors3 or other third parties4 and can
affect both substantive and procedural5 rights. Similarly, the shareholders to a company can
waive the directors’ breaches of its articles6 or can, or by prior agreement,7 waive
restrictions on the directors acting for other companies or in their own interest. Any waiver
will be subject to the same limitations as apply elsewhere. Thus, an unequivocal
representation8 made with the requisite knowledge9 must be pleaded and proved. Further,
any waiver will be case specific, limited to those party to the unequivocal representation at
issue.10
18.03 Particular difficulties result, however, from the fact that a company can only act via its
agents. Thus issues may arise as to when and in what circumstances the knowledge or
actions11 of its agents will be attributed to the company;12 the company seeking to avoid
the loss of its rights arguing that there was no attribution of knowledge or that the relevant
acts were unauthorised. As discussed in detail elsewhere, it is difficult to draw out any
precise guidance from the case law as to when the company will succeed on such an
argument; attribution and authorisation being a question of fact in each case.13
(2) Bypassing statutory requirements14
18.04 The Companies Act 2006 lays down a comprehensive code governing the giving of notice,
where required at all,15 of company meetings to all shareholders. Thus, in a public company
21 days’ notice must be given of an annual general meeting and 14 days’ notice of any other
meeting.16 In a private company, 14 days’ written notice must be given of a general
meeting.17 However, those requirements can be waived.18 Thus, 95 per cent (in a public
company) and 90 per cent (in a private company) of those entitled to vote can curtail the
notice periods.19
B. Estoppel
18.05 As with agency, many of the cases concerning the operation of estoppel20 in the context of
company law originate in the nineteenth century. Two points follow. First, there is the
difficulty of applying Victorian principles to modern commercial situations. Second, the
principles underlying many of the authorities are unclear. Coherence may be achieved,
however, by confining estoppel in the true sense of the word to those cases in which the
substantive position between the parties is not altered. In the context of company law,
 therefore, an estoppel in its true sense will not vest title in a third party;21 will not bypass
the doctrine of ultra vires;22 will not undermine the effect of a statute23 and will not render
a forged24 document valid.25 Similarly, an estoppel cannot bind a company where the facts
relied on occurred before the company came into existence26 and cannot usually bind the
liquidator of the company unless the liquidator made the statement allegedly giving rise to
the estoppel.27
18.06 With those limitations in mind, estoppel has appeared to play a role in the following areas:
the power of the company’s agents to bind the company; and the issue of securities and
shares by the company.28
(1) Estoppel and company agents
18.07 Many of the difficulties associated with estoppel and the agents’ authority to bind the
company arise from the interrelationship of estoppel and ostensible authority discussed
elsewhere.29 However, two points, specific to the company law context, should be noted.
First, a common occurrence in company law is the de facto ‘appointment’ of a Managing
Director without the requisite compliance with procedures for appointment laid down in the
company’s Memorandum and Articles of Association. Where there are no procedures for
delegating to the Managing Director, the Managing Director cannot bind the company,30
the delegation being ultra vires the company.31 Further, there is authority to suggest that
where the third party does not know whether or not there is a power to delegate in the
company’s Memorandum and Articles of Association, there can be no ostensible
authority,32 it then being presumably unreasonable to rely on any representation as to the
director’s powers without inquiry. However, given that the Companies Act now relieves
parties dealing with the company from any obligation to enquire as to the company’s vires
to act,33 it is submitted that the circumstances in which it will be unreasonable for a third
party to rely on any representation as to the director’s powers will be very limited.34
18.08 Second, as pointed out elsewhere,35 the representation as to the director’s powers to act must
be made by the company—there being no such thing as a self-authorising agent.36 As the
company can only act via its agent, the representation must be made by another agent of the
company authorised to make that particular representation.37 Thus, there can be a chain of
authorisations such that the principal company can authorise an agent to make
representations who can in turn authorise another agent to make representations.38 That
authorisation can either be explicit (the other agent is expressly appointed to manage the
affairs of the company in that respect) or arise as a result of the company’s Memorandum
and Articles of Association.
(2) The issue of shares and securities
The issue of shares
18.09 In and by the share certificate,39 the company makes a representation—either that the shares
are fully paid up or that a particular person is entitled to the shares. As far as entitlement is
concerned, where a company refuses to register X, a purchaser of the shares, on its register
of members because the shares which X has allegedly purchased were subject at some time
to a forged transfer, the company will be estopped from denying that X is entitled to the
shares as set out in the certificate.40 This will be the case provided that X is named as the
holder of the shares on the certificate even if X only actually becomes the holder at some
later date.41 This representation is continuing and, arguably, will be adopted by subsequent
agents of the company. Therefore, a liquidator may well be bound by this type of estoppel
 notwithstanding that the estoppel arose prior to the liquidator’s appointment.42
18.10 It is important to note, however, the limitations on X’s rights. Tritely, X must have suffered
some detriment—whether that be the loss of the right to sue the broker43 or the loss of the
ability to sell on the shares. Similarly, as X seeks to invoke equity, X must have acted
equitably. X will not have done so where X knew that it was not entitled to the shares44 or
there were facts that would have put X on inquiry as to its entitlement to the shares,45 and
no estoppel will arise.46 The principle goes further if X is the person that presented the
forged transfer. There, no estoppel will arise and X will be liable to compensate the
company for any loss it suffers.47 Further, as the estoppel cannot convey title, X does not
obtain the shares48 but compensation from the company49 or an indemnity in respect of loss
and damage arising from the on-sale of the shares.50
18.11 A similar principle will arise where the company represents that the shares are fully paid
up.51 It must be noted, however, that the original recipient may find it hard to establish an
estoppel, the recipient either knowing the true position or lacking the necessary reliance
having already agreed to purchase the shares before the representation was made.52 In any
event, where the alleged representation is not made in and by the certificate, an estoppel
may not arise because the representee fails to establish that the appropriate representation
was made.53
18.12 Although the principles governing both estoppels are, in essence, the same, a distinction may
have to be drawn between them. Where there is a representation that the shares are fully
paid up, there is authority to suggest that the estoppel will operate for the benefit of X, a
purchaser for value, even where X knows that the shares are in fact not fully paid up.54 X is
not acting equitably and should not be entitled to invoke an estoppel. There are three
possible explanations for this anomaly. The first is that X is entitled to relief at law, under a
contract, and not in equity. X paid for shares, it being a term of the contract that they were
fully paid up. Therefore X had a contractual and legal right to the shares as if they were
fully paid up notwithstanding the fact that equity would not intervene to protect X.55 The
second draws an analogy to the conferring of title by ostensible authority56 where
substantive rights are granted as a means of bypassing the nemo dat principle. The
difficulty with that is that X has title to the shares but is aware that he is liable to calls for
further contributions from the company. There is no question of nemo dat, X possessing the
chattel, the chattel merely carrying within it financial obligations. The analogy is
inappropriate. The third is that the principle is at odds with the modern approach to
estoppel57 and therefore is no longer good law.58 Adopting any of the above, Re Stapleford
Colliery Co, Barrow’s Case59 is to be confined to its particular facts. The better view is
therefore that no distinction is therefore to be drawn between the two estoppels.
The issue of securities
18.13 The Courts have purported to deploy estoppel in three ways where the issue of securities is
concerned. First, as discussed elsewhere,60 the company may be ‘estopped’ from asserting
title to particular securities where it permits an agent to deal with those securities.61 The
result is that good title to the world is vested in any third party receiving the shares.62 This
is a plain contravention of the basic principle that estoppel cannot confer substantive rights.
It follows that the doctrine at issue cannot be estoppel as currently defined. The obvious
alternative candidate doctrine is an exception to nemo dat and the cases should be so
categorised. Similar difficulties arise with the second and third categories. Where a
company acts ultra vires in issuing a security, there is authority that the company can be
‘estopped’ from denying that it was acting ultra vires.63 The authority is doubtful not only
because the cases relied on in support of its decision were not ones in which ‘estoppel’
overrode ultra vires but also because of the evidentiary nature of the doctrine. An
evidentiary doctrine cannot make good the absolute want of power inherent within an ultra
vires act.64 Similarly, if a borrower or transferor represents that the security is negotiable
(even though it is not), an estoppel can arise allowing the security to be treated as
substantively negotiable65—again giving an evidentiary doctrine substantive force. It
follows that the second and third categories are, at the highest, anomalous.
 19
CONSTRUCTION LAW
A. Introduction 19.01
B. Variation 19.02
(1) The meaning of variation 19.03
(2) The requirements for variation 19.05
(3) Mechanisms for variation 19.07
C. Waiver 19.13
(1) Waiver of defects 19.14
(2) Continuing breaches 19.17
D. Estoppel 19.18
A. Introduction
19.01 Many of the cases in this area turn on the terms of the standard form contracts widely used
by the industry and do not raise points of general principle. A consideration of the terms of
the standard form contracts falls outwith the scope of the present work.1
B. Variation
19.02 The issues raised in and by the construction cases are threefold: the meaning to be given to
‘variation’; the necessary elements of any variation; and the mechanisms by which any
variation takes place.
(1) The meaning of variation
19.03 Two categories of obligation may be identified in construction contracts. The contractor
accepts a general obligation to carry out ‘the works’ in a given period and to a given
standard. This obligation will usually be set out in the main body of the contract and will be
subject to the standard process of agreement between the contractor and the employer. The
contractor is further subject to an obligation to carry out the works in a particular way or
using particular materials. These detailed, technical obligations are usually contained in the
specification or Employer’s Requirements,2 drafted by an architect or engineer, and
incorporated into the contract. The specification may be agreed at a different date and may
not be subject to the standard process of agreement. Further, alterations to the specification,
and thus to the second level or category of obligations, will usually be expressly governed
by clauses in the main body of the contract.3 Such clauses will contain the manner in which
the specification may be altered and the extent to which the contractor will be remunerated
for carrying out the altered obligation. These differences between alteration of the main
contract and alteration of the specification have led some commentators4 to suggest that the
modification of the two categories of obligation is to be treated differently.
19.04 However, it is submitted that this distinction is incorrect for a number of reasons. First, and
axiomatically, both sets of obligations will be contractually binding, the contractor being
liable for breach if, for example, he delivers late or he does not carry out the works as per
the specification.5 Second, on analysis, the requirements for the modification of either
category of obligation match those required for a variation. Third, the distinction is in fact
between a variation of a particular element of the contract, an item in the specification, said
variation being governed by the terms of that contract,6 and a variation of the terms of the
contract for which no advance contractual provision has been made. Therefore, useful
 though the distinction drawn may be for practical purposes,7 it is submitted that the
distinction is one without a difference. Thus, for the purposes of the following discussion,
the term ‘variation’ is used to describe the modification of either category of obligation.
(2) The requirements for variation
19.05 For all purposes relating to construction contracts, the requirements are:
(i) the variation must alter the obligations of the parties. Therefore, where the scope of
the works is concerned, the variation must increase or decrease the actual or implied
obligations8 of the contractor to carry out the works;
(ii) the work should have been at the employer’s request;
(iii) the contractor should have agreed to carry out the work, that is, accepted the
employer’s request;
(iv) consideration should be provided for the work. That consideration can take two
forms: either an express or implied acceptance by the contractor that it will carry out
the work and an express or implied acceptance by the employer that it will pay for
the work9 or the receipt of a benefit by one of the parties.10
19.06 It follows that, absent any agreement allowing subsequent variation of the scope of the
works, each and every variation will have to be agreed by the parties or their agents. By
parity of reasoning, as each change will itself be a variation, on the analysis set out above,
each change discharges the performance of the old contract and substitutes a new in its
place. Therefore, where a variation to the scope of the works takes place, the parties will be
required to ascertain in what way the contract price has altered as a result of that particular
variation. It follows that where there are multiple variations, it is not appropriate to
compare the initial price under the unvaried contract with the price under the multiply
varied contract and generate a ‘global’ or ‘total cost’ claim.11 The effect on price, reflecting
each new bargain, should ideally be ascertained at each stage.12
(3) Mechanisms for variation
19.07 In practice, the parties bypass the requirements of variation by agreeing a contractual
mechanism by which variations to the scope of the works will take place. This mechanism
is an agreement permitting variation13 and has two main benefits: the theoretical, avoiding
any difficulties with consideration; and the practical, allowing the employer to delegate the
technical management of the works to the architect or engineer that prepared the
specification. However, the disadvantage of such a mechanism is that the parties may fail to
comply with it. Thus, for example, in Russell v Viscount SA da Bandiera,14 the claimant had
contracted with the defendant to construct a warship, as per the then English design, and to
be ready to sail on completion for a fixed sum. Variations to the design of the warship were
to be agreed in writing. However, during construction, the design of the warship was altered
without written agreement and recovery of the associated costs was sought. The claimant
sued for its costs incurred as a result of the alteration and failed, the Court holding:
The contractor has no right to complain if he loses the price of extras and additions
which, in disregard of the stipulation which he has entered into, he furnishes
without authority.15
19.08 Whilst it is submitted that Russell is correct as a matter of black letter analysis, that
analytical rigour does create difficulty in the face of the day-to-day reality on construction
sites where instructions may be given without regard to the formalities laid down. The
Courts have attempted to resolve this difficulty by three main routes.16 The Court may
imply that there has been offer and acceptance by reason of the employer’s awareness that
 the works were being carried out and a subsequent failure to order the contractor to cease
carrying out those works.17 Alternatively, the Court may find that the parties have in fact
entered into two contracts running concurrently, a contract for the works and a contract for
extra work.18 Finally, the Court may find that the employer has been unjustly enriched by
the receipt of the benefit of the work and therefore should make restitution to the contractor
on a quantum meruit basis.
19.09 Each of these paths has had difficulties identified with it. Allowing further offer and
acceptance in differing terms to the written agreement may present complications under the
parole evidence rule. It may also require the overriding of an express written agreement by
an implied contract (whatever that might be).19 The two-contract theorem seems over-
complex and having two co-existent parallel contracts raises the potential for conflict. As
far as restitution is concerned, there are difficulties in permitting a quantum meruit claim
alongside the main contract;20 or of having any restitutionary claim at all.21 It may be,
however, that it is not necessary to resort to such paths and their concomitant difficulties. If
any variation constitutes a discharge by agreement of the previous contract and an entry
into a new contract in similar terms, the variation must affect the scope of the works and
the agreement permitting variation. It may well be that the intention of the parties was such
that the formalities of the original agreement permitting variation have been dispensed with
and the contractor is therefore entitled to be paid.
19.10 This analysis also resolves two other problems which have arisen in the area. First, the
clauses permitting variation in the main contract will provide for the amounts to be paid to
the contractor in respect of modifications to the scope of the works. In changing markets,
the contractor may wish to claim higher prices than those allowed for in those clauses and
will therefore argue that the works carried out were not ‘modifications’ but extra work
outwith the contract. To resolve that issue, the Court must commence a detailed analysis of
the works undertaken, comparing them with the specification, and then apply a subjective
judgment as to whether the two are comparable.22 Further, where there is a chain of
contracts by which the main contractor has hived off its obligations to subcontractors,
differences will occur depending on the obligation hived off and the work undertaken.23
The simpler task is to examine the parties’ intent (whether actual or deemed) to see whether
in fact the parties were agreeing to enter into a different kind of agreement permitting
variation.24
19.11 Second, the analysis sheds some light on ‘multiple variations’. The Courts have held that the
repeated consensual25 variation can repudiate the bargain between the parties allowing each
to sue on a quantum meruit basis as if no contract existed. Thus, in Pepper v Burland,26
Lord Kenyon held:
… if a man contracts to work to a certain plan, and that plan is so entirely
abandoned that it is impossible to trace the contract, and to what part of it the work
shall be applied, in such a case the workman shall be permitted to charge for the
whole work done by measure and value, as if no contract at all had been made…
19.12 Evidential and conceptual difficulties arise. Evidentially, it appears that the Court in Pepper
compared the performance of the parties before and after the alteration and deduced from
the difference that the parties no longer intended to be bound by the original or any
contract. Such a process of comparison generates confusion between qualitative changes27
with quantative changes.28 Thus, for example, Pepper does not assist the Court in deciding
whether or not a given change abnegates the contract. Conceptually, it is difficult to see
 how a consensual variation, which constitutes a new agreement,29 can destroy all
contractual relations between the parties. The better approach would be for the Court to
consider whether the elements of variation set out above have been complied with and then
ascertain which terms of the contract have been moderated and to what extent. If, on
analysis, the new agreement operated as a consensual discharge of all obligations under the
contract with one party continuing to perform, then it would be appropriate to adopt
restitutionary principles to ascertain the extent of that party’s recovery.
C. Waiver
19.13 In considering waiver in this context, care must be taken as it is common for standard form
construction contracts to contain express provisions as to when and in what circumstances a
party will be taken to have waived its rights.30 However, absent express provision, the
various types of waiver, as defined above,31 apply equally to construction law.32 Thus,
rights accruing from a non-compliance with agreed mechanisms governing the formation of
contracts33 or the approval or certification of variations34 are capable of being waived. In
the former case, the waivor loses the right to argue that there was no concluded contract and
in the latter the right to contest payment where the works had not been certified as per the
contract.35 Similarly, the employer can waive its rights to treat the contract as repudiated
for late completion of the works36 and, in extreme cases, its right to claim liquidated
damages for the late completion of the works.37 All such waivers can be categorised either
as pure waivers or waivers by election. In each case the elements of an unequivocal
representation coupled with knowledge must be made out.38 However, care must be taken in
two respects: whether rights accruing from defective works can be waived by mere
inspection on the part of the employer’s architect or engineer; and whether a particular
breach of contract is continuing.
(1) Waiver of defects
19.14 It is standard practice for the works to be inspected and certified by the employer’s architect
or engineer. That process of inspection has led defaulting contractors (or their sureties and
bondsmen) to argue that any defective works are waived by that inspection. Whilst there
can be little doubt39 that the act of certification would count as the necessary unequivocal
representation,40 whether or not the architect or engineer has the authority to waive defects
or the requisite knowledge are more difficult. It is suggested that they have neither.
19.15 As far as authority is concerned, it is clear that the architect or engineer is appointed to
supervise the works on the employer’s behalf. Although it is possible that an employer
could expressly authorise its architect or engineer to waive defects on its behalf, such a
widely ranging express authority is unlikely. If there is no express authority, the contractor
will be forced to argue that the architect or engineer had ostensible authority to waive
defects in the works. The weakness of that argument is that the architect or engineer is
appointed to ensure that only the employer’s interests are protected. The architect or
engineer cannot instruct the builder how to carry out its works,41 nor does it owe an
obligation to the contractor to inform it that its works are defective.42 Thus, by parity of
reasoning, the architect’s or engineer’s authority is limited and does not extend to confer
the benefit of its expertise on the contractor.43 The builder will normally be aware of that
fact. Thus any representation as to the nature of the works which confers the benefit of that
expertise on the contractor will not be supported by ostensible authority so as to confer the
benefit of waiving rights accruing from defective works.44
19.16 Further difficulties arise as far as knowledge is concerned. As pointed out above, knowledge
of the facts and of the rights consequent on those facts is necessary for there to be a
waiver.45 Further, any waiver will be limited to the rights accruing from the facts which
were known at the time of the alleged waiver. Thus, a successful plea of waiver will not
preclude the waivor from relying on its rights accruing from unknown breaches of
contract.46 It will be an unusual case where the architect or engineer certifying is aware of
all of the alleged defects, particularly so where there are hidden defects. If so, either there
will be no waiver, the loss of the employer’s rights being dependent on all the facts being
known, or there will only be a limited waiver in relation to those patent breaches or defects.
(2) Continuing breaches
19.17 A distinction is to be drawn between a breach which occurs once and a breach which is
continuing. Thus, a failure to complete the works47 on time will be a breach which occurs
once48 whereas a failure to exercise due diligence during the currency of the works may
well be a continuing breach.49 A breach which occurs once can be waived by, for example,
the employer continuing to act as if the contract remained on foot whilst possessing the
requisite knowledge.50 However, where the breach is continuing, the employer will be able
to rely on the continued failure to remedy the breach as grounds for repudiating the contract
even if it has previously acted as if the contract remained on foot. Thus, where there is a
continuing failure to remedy defective works, the employer will not be taken to have
waived its rights even if, for example, it makes payments under the terms of the contract.51
Similarly, where the employer gives notice under the contract requiring the contractor to
remedy its defective performance and the contractor does not remedy its performance, the
employer will, subject to the terms of the agreement being to the contrary,52 be able to treat
the contract as repudiated.
D. Estoppel
19.18 Given the strong contractual basis of construction law, it would be reasonable to expect that
contractors and employers would frequently rely on the doctrine. That is indeed the case.
However, subject to two caveats,53 it is the relatively rare case in which a plea of estoppel54
will succeed. This arises, not because the elements of estoppel differ in construction law,
but because in this area there are two particular obstacles to establishing that the requisite
elements are present.
19.19 The first difficulty in establishing an estoppel is that it is of the nature of construction
projects that the works are ongoing and that defects in those works may not be immediately
noticeable. Therefore it is unlikely that defects will be specifically drawn to the attention of
the architect/engineer enabling the architect/engineer to represent that those specific
defects have been approved.55 Further, the fact that the architect/engineer approves certain
defective items of construction does not preclude the employer from arguing that items
constructed later, to the same standard, are defective.56 This conclusion flows from the fact
that no representation was made as to the later items of construction. Similarly, any
representation made will not preclude the employer from arguing that there were hidden
defects in the construction, the presence of which entitles it to damages.57
19.20 The second is that it will be relatively difficult for the contractor to establish that it had acted
to its detriment. Thus, where the alleged estoppel relates to defective work, the contractor
will either have done nothing (not remedied the defective work) or will have continued to
provide defective work. In the former case, there is no detriment, in the latter case, the
alleged detriment was that the contractor continued to act in breach of its contractual
 obligations. That cannot be a detriment such as to attract the intervention of equity.
19.21 Notwithstanding the above caveats, an estoppel will arise and will be particularly powerful in
two types of case. First, parties may be estopped from denying that a particular term
applies, or has been incorporated into the contract, where they have represented otherwise
or there has been an assumption to contrary effect.58 Second, again where representation
and detriment are established, an estoppel may be made out in respect of defective works59
and non-compliance with contractual notification provisions.60
19.22 Despite suggestions to the contrary in Mitsui Babcock Energy Ltd v John Brown Engineering
Ltd,61 the current trend in the authorities is that where an essential term has not been
agreed, a party will not be estopped from denying the existence of a concluded contract.62
On the law as it now stands, and subject to further review by the Supreme Court, the Court
cannot fill the gap by an estoppel.
 20
INSURANCE LAW
A. Introduction 20.01
B. Waiver 20.03
(1) The meaning of waiver 20.04
(2) When will there be a waiver by election? 20.14
(3) Particular difficulties which arise from the application
20.44
of waiver to insurance law
(4) The effect of a waiver 20.53
C. Election 20.56
(1) Modification by the policy 20.57
(2) Means by which the election can be made 20.58
(3) The effect of the election 20.59
D. Estoppel 20.60
(1) The role of equitable forbearance 20.61
(2) Greater flexibility of estoppel 20.75
(3) Representations triggering an estoppel 20.76
(4) Reliance/detriment necessary 20.77
(5) Rights lost as a result of an estoppel 20.78
E. Practical Responses to the Issues Raised by these
20.79
Doctrines in Insurance Law
(1) Prior to litigation 20.79
(2) After the commencement of litigation 20.85
A. Introduction
20.01 The result of a successful plea of waiver or estoppel will be to bar another party from relying
on its rights under a contract or common law. Therefore, although the plea is a ‘serious
step’,1 it is one frequently made in response to an insurer’s denial of liability on the basis of
material non-disclosure, a breach of warranty by the insured, failure of condition precedent
or breach of other terms of the policy. As a result, waiver2 and estoppel and the issues
raised by them are considered as a matter of common practice in insurance litigation.
20.02 Despite, or cynically, because of, that repeated deployment of the doctrines, the uncertainties
analysed throughout this book historically recurred throughout insurance law. There were
conflicting and confused decisions, terminological confusions and inappropriate reliance on
the doctrines as elsewhere in the general common law. Although greater clarity has
followed decisions like Kosmar Villa Holidays Plc v Trustees of Syndicate 1243,3 any
substantive consideration of the doctrines must be preceded by their simplification and
clarification along principled lines.
B. Waiver
20.03 The issues are considered by reference to four questions: what is the meaning of waiver as
applied to insurance law? When and in what circumstances will an insured succeed in
arguing that the insurer has waived its rights? What are the particular difficulties that arise
when considering waiver in this context? What is the effect of an allegation that the insurer
 has waived its rights?
(1) The meaning of waiver
Generally
20.04 The common law recognises only a law of contract and not one of contracts. It follows that
waiver should have here the same meaning as it does in the general law of contract.4
Logically, the analysis of the meaning of waiver set out in Chapters 3 and following will
apply. Thus, waiver is distinguishable from estoppel and can broadly be defined as the
voluntary relinquishment of a right.5 In insurance law, a waiver will be based on ‘the
insurer’s unequivocal conduct, knowingly contrary to the claim provisions of the contract,
that betrays the insurer’s purpose to relinquish its right to rely on the contractual
language’.6 Further, the insurer’s conduct must be so unequivocal that it cannot be
consistent with any other interpretation than that the insurer is forgoing its legal rights.7 An
estoppel on the other hand, relates to the conduct of both parties and will be made out where
there is a representation on the part of the insurer which is inconsistent with its strict legal
rights and detrimental reliance on the part of the insured.8
20.05 Despite that clarity, it is apparent that the taxonomic confusions of the common law recur9 in
insurance law. Quite apart from the confusion associated with ‘waiver’ of non-disclosure10
(where there is authority to suggest that waiver in insurance law has a wider meaning than it
does in the common law),11 there are the comments to the effect that: an insured which has
been ‘misled’ by the insurer can rely on waiver;12 that ‘waiver is a branch of estoppel’;13
that a waiver only has any relevance as and when it becomes an estoppel;14 that a party can
fail to establish a waiver but, possibly, succeed on a ‘waiver by estoppel’;15 and that waiver
is in fact nothing more than estoppel.16 Further, as in the general law of contract, the Courts
have adopted a broad-brush approach looking at the merits of the case and articulating
broad policy-based arguments. Thus, in the United States, the Courts are generally reluctant
to allow the insurer to avoid, or in American terms forfeit, the policy as:
Our well established general rule… is ‘Forfeitures are not favoured in law’ and that
‘courts are always prompt to seize hold of any circumstances that indicate an
election to waive a forfeiture, or an agreement to do so on which the party has
relied and acted.’ Any agreement, declaration, or course of action on the part of an
insurance company which leads a party insured honestly to believe that, by
conformity thereto, a forefeiture of his policy will not be incurred, followed by due
conformity on his part, will estop, and ought to estop, the company from insisting
on a forfeiture, though it might be claimed under the express letter of the
contract.17
The result is that the Courts, on occasion, look to the end to be achieved—preventing
insurers from approbating and reprobating the policy—and view the means—waiver and
estoppel—as synonymous.
20.06 Fusing waiver and estoppel is, however, an error that only leads to further confusion. The
correct (and more recent) approach of the Courts is to view waiver and estoppel as
‘different legal doctrines’18 and to formulate ‘clear definitions’ to ‘lift’ the ‘mist of
confusion’ which has haunted insurance law in this regard.19
20.07 It is now further clear that the distinction between estoppel and waiver is founded on the
question of knowledge20 and the absence of detriment. This is apparent from the
circumstances in which a waiver cannot apply but an estoppel can. Thus, as discussed
 below, it is strongly arguable that a waiver by election cannot arise where there has been a
breach of the duty of utmost good faith—but an equitable forbearance can. Thus, in two
cases,21 the Courts have held (albeit using the old terminology of waiver or affirmation),
that the insurer will lose the right to avoid for a material non-disclosure where the insurer
makes an unequivocal representation on which the insured relies to its detriment22—both of
which are the elements of equitable forbearance.23
20.08 It follows that, in the majority of those cases where a waiver can arise, the insurer will be
responding to a breach by the insured and the Courts will be considering ‘waiver by
election’.24 Thus, save for one example of pure and unilateral waiver, the focus, as far as
waiver is concerned, must be on the application of waiver by election to insurance law.
Pure waiver and unilateral waiver
20.09 As discussed above,25 pure waiver, and usually unilateral waiver, will take place where X,
the party alleged to have waived its rights, has indicated that it would not require the future
performance of some of Y’s, the other party to the contract, obligations. An insurer can
waive Y’s in futuro performance by representing that the formalities or traditional methods
of contract formation need not be complied with in the particular case, thereby waiving its
rights to argue that there is no concluded contract of insurance at a later date. There is no
breach of contract by the insured and therefore no waiver by election. The waiver is either a
unilateral waiver26 of obligations which solely benefit the insurer, or the pure waiver27 by
which the insurer divests itself of its rights. In either event the elements required to found
the waiver will be the same as discussed above; namely an unequivocal act by the insurer
possessing the appropriate knowledge.
20.10 The means by which the contract of insurance is formed Most insurance contracts will be
formed by a traditional process of offer and acceptance. Thus, on the Lloyd’s market, the
insurer by its scratch on the slip agrees to insure, the slip containing the material terms of
the contract. In home and motor insurance, the insurer will accept the risk by sending a
cover note to the insured. In either event it is necessary to show some exchange leading to a
consensus ad idem, both parties being taken to be aware of the terms of the policy. That
practice can alter in three ways.
20.11 First:
Where the circumstances are such that it must have been within the contemplation
of the parties that, according to the ordinary uses of mankind, the post might be
used as a means of communicating the acceptance of an offer, the acceptance is
complete as soon as it is posted.28
Here the insurer will be taken to have waived its right to receive the acceptance prior to
conclusion of the contract. The requisite knowledge to found the waiver will be taken from
the insurer’s traditional conduct of its business or market practice. The waiver will also
mean that the insurer has waived its rights to contend at some future date that there is no
concluded contract.
20.12 Second, in motor insurance, dependent on the particular facts, the receipt of a temporary
cover note may be construed as an offer to insure for the future. If so, that is an offer which
can be accepted by conduct. The insured will be taken to have so accepted the offer by
taking a car out on the roads relying on the temporary cover note.29 The unequivocal act of
sending the cover note therefore acts as a waiver of the insurer’s right to argue that there
was no concluded contract.30
20.13 Third, there may be occasions in which the slip as scratched is insufficiently clear or precise
 to form a concluded contract31 or the slip constitutes nothing more than an agreement to
agree the eventual terms of the policy.32 In those limited circumstances, the contract of
insurance will only come into being on signing of the policy wording by the insurer.
Therefore, if the policy wording is not issued, the insurer will be free to disclaim liability
on the slip. However, the insurer will be precluded from so doing if it has waived the point.
In the Lloyd’s market, it is standard practice for subscribers to a line led by another
underwriter to mark the policy ‘TBA L/U’. In so doing, the subscribers unequivocally state
that they will be bound by the Lead Underwriter’s wording. As the subscriber will be
deemed to have knowledge of the practice of the Lloyd’s market, the subscriber will be
taken to have waived its rights to object to the terms of the policy as and when the Lead
Underwriter agrees those terms.
(2) When will there be a waiver by election?
20.14 The previous edition considered whether an insurer could by a waiver lose its rights to rely
on breaches of condition, of the duty of utmost good faith and, more tentatively of
warranty. In each case, on the law as it then stood, the view was taken that a waiver could
apply.33 The position has now directly34 been considered, at least in relation to a waiver by
election and breach of warranty, by the Court of Appeal in Kosmar Villa Holidays Plc v
Trustees of Syndicate 124335 and, in relation to waiver and breach of condition precedent by
the Commercial Court in Lexington Insurance Co v Multinacional de Seguros.36 In both
cases, the Court held from first principles reasoning that waiver by election could not
apply.37 The Courts came to that conclusion because in both cases the breach automatically
discharged the insurer. Thus, the breach of condition precedent automatically discharged
the insurer.38 Similarly, applying The Good Luck,39 a breach of warranty automatically
discharged the insurer from the policy.40 In each case, as there was automatic discharge, the
result was that there could be no election—there was no choice to be made.41
20.15 If there can be no election, does it also follow that there is no room for affirmation of the
policy? As set out elsewhere,42 the tests for the two are identical. It is therefore difficult to
see how there could not, from first principles, be one without there also being the other. In
State Trading Corpn of India Ltd v M Golodetz Ltd,43 however, Lord Justice Kerr suggested
as follows:
the correct analysis of a breach of warranty in an insurance contract may be that,
upon the true construction of the contract, the consequence of the breach is that the
cover ceases to be applicable unless the insurer subsequently affirms the contract,
rather than to treat the occurrence as a breach of contract by the insured which the
insurer subsequently accepts as a wrongful repudiation.44
The insurer will thus lose its rights to argue at a later date that it was discharged from
liability by the particular breach of warranty at issue. The difficulty with that is if the
discharge is automatic, then the insurer is discharged and there is nothing subsequently to
affirm. If, therefore, Kosmar is correct, this albeit tentative suggestion must also be
incorrect and there can be no affirmation.45
20.16 There are similar doubts over whether the so-called waiver of non-disclosure should now be
treated as a waiver. As the Court of Appeal emphasised in Wise (Underwriting Agency) Ltd
v Grupo Nacional Provincial SA,46 waiver of a non-disclosure47 relates to the overall
presentation of the risk and as such is inevitably linked to the overall question of fairness—
was the presentation of the risk fair?48 Thus, although section 18(3)(c) of the Marine
Insurance Act makes it clear that the non-disclosure can be waived, the Act is not referring
 to a waiver by election but a doctrine linked to questions of fairness which would be more
properly analysed as an equitable forbearance.
20.17 The result of this is that the scope for waiver by election (and indeed waiver properly so
called) in relation to insurance law is significantly reduced. In each of these cases, if rights
are lost, they are lost as a result of equitable forbearance.49 It would appear therefore that a
waiver by election can only arise in cases other than breaches of warranty, condition
precedent and the duty of utmost good faith.50 Further, authority which suggested that these
breaches, in particular breaches of warranty, could be waived51 must now be treated with
some caution.
20.18 In other cases and in summary, and applying the principles set out in Chapter 4,52 for a
waiver by election there must be a breach by the insured of its obligations. Additionally,
there must be an unequivocal act by the insurer or its agent,53 that act being committed
when the insurer or its agent had the appropriate knowledge54 and after the insurer had been
given a reasonable time to consider its position in light of its knowledge.55 It is important
to note that all the elements must be present; thus even if there is a representation of the
most unequivocal kind—the issue of the policy—if there is nothing to suggest that the
insurer possessed the appropriate knowledge and was making an informed choice,56 there
will be no waiver.57 It is also important to note that there must be some unequivocal act by
the insurer—silence, without the intervention of statute58 or estoppel,59 will not usually60
suffice.61
Breach by the insured of its obligations
20.19 Although there are in theory three ways in which an insured may be said to be in breach of its
obligations: breach of condition or other terms, breach of the duty of good faith and breach
of warranty, waiver by election as discussed above, can only apply to a breach of condition
subsequent (that is, a condition which is not a condition precedent) or other terms. The
burden of proving breach will lie on the insurer. In cases of plain breach, however, the
insured may admit the breach and concentrate on allegations of waiver and estoppel. In that
case the burden will pass to the insured.62
20.20 Was there a breach of condition subsequent? Whether or not there has been a breach of a
condition of the policy will be a question of construing the policy using the standard canons
of construction to establish that the term is a condition and then adducing evidence of
breach. In deciding whether or not the term of the policy at issue is a condition, the Court
will have the commercial purpose of the clause firmly in mind.63 Thus, in financial risk
insurance, the insurer will usually require some form of due diligence on the part of the
insured before entry into the transaction being insured. The Court will consider that
transaction, the nature of the risk and the market practice in deciding whether the term is a
condition and, if so, the precise nature of the due diligence required by the term.64
Unequivocal representation by the insurer
20.21 There must be an unequivocal representation. The nature of that unequivocal representation
may vary as a result of both the relationship between the parties and the nature of the
breach. As to the former, where the parties are broker and insurer, the requirement that
there be an unequivocal representation is more stringent. Where the broker has failed to
comply with his instructions, a representation that the insurer is satisfied with the policy as
broked is insufficient to excuse the broker’s breach.65 As to the latter, the types of
unequivocal acts which will suffice to give rise to a waiver can be divided as follows: those
relating to the premium; those relating to the issue of the policy; those relating to the
 investigation of claims and those relating to the conduct of litigation by the insurer.
20.22 Premium Assessing the premium payable,66 accepting the premium,67 failing to give notice
of late payment of the premium,68 issuing a receipt stating that the premium has been
received69 and demanding payment of premium from the insured and payment being
tendered by the insured70 will all be sufficiently unequivocal to found a waiver. However,
the fact that the insurer has accepted late payment in the past will not be sufficiently
unequivocal to waive the insured’s future obligations to make prompt payment of the
premium, especially if the insurer has given notice to the insured that it will in future
require prompt payment.71 Further, receipt of the premium relating to a past period of cover
may not constitute a waiver. So where the policy contains a clause which accelerates the
payment of all of the premium on default/maturity, on default, all the premium under the
policy becomes due and owing and relates to past cover. Acceptance of that premium may
not constitute waiver.72
20.23 Issue of the policy Whether or not issue of the policy will constitute a waiver of any breach
is unclear. If the issue of the policy was a purely ministerial act, then it is possible that
there would be no waiver. Thus, in Morrison v The Universal Marine Insurance Co,73
between the scratch and issue of the policy the insurer discovered that the insured had failed
to disclose material facts. The insurer then issued the policy. The judge allowed the
question of whether the issue of the policy constituted a waiver by election to go to the jury.
However, the judge stated that he attached no weight to the stamping and issue of the
policy, that is that it did not in his view constitute an unequivocal act. On appeal, it was
contended that the statement that stamping/issue of the policy did not amount to an
unequivocal act constituted a misdirection. That contention failed.74
20.24 However, Morrison is an unusual case that revolves, in part, around the function of the
jury.75 It is submitted that the issue or reissue of the policy will in many circumstances be
an unequivocal act sufficient to found a waiver.76 That will certainly be the case if the issue
of the policy also coincides with the tender and acceptance of premium.77 Further, the issue
of a policy by deed may be representation as to a certain state of facts that the insurer will
not be allowed to controvert. Thus, if the policy is by deed and recites that the premium has
been paid, the insurer will be prevented either by waiver or estoppel by deed from avoiding
on the basis of non-payment of premium.78
20.25 The prudent insurer will, therefore, on discovery of a breach of duty by the insured, put a halt
to any further action on the slip or policy. Further, if, for example, the insurer wishes to
ensure that cover will not commence until the premium is paid, as well as inserting the
standard term that cover will not incept until the premium is paid,79 the insurer should not
issue any policy by deed nor contain in its policy wording any recital that the premium has
been paid.80 Finally, the prudent insurer must take care that there are no terms in the issued
policy which it knows the insured cannot comply with. If it does issue the policy with that
knowledge it may be taken to have waived compliance with those terms.81
20.26 Investigation Investigating the claim may constitute a waiver of the breach of any
requirement in the policy that the insured notify the insurer of any claims or potential
claims as soon as possible. That will be so where the insurer appears to represent that it has
decided that nothing more will be required of the insured to prove its claim.82 The rule
appears to be that the more extensive the investigation is by the insurer, the more likely it is
that the insurer has waived its rights. Thus, carrying out a postmortem of the insured83 and
 extensively investigating the claim84 will operate as a waiver of any notification
requirements in the policy. However, in general terms merely requesting the insured to fill
out a claim form will not constitute any form of waiver.85 Further, if the insurer is required
to carry out detailed investigations, for example into fraudulent conduct, a more protracted
period of investigation will be permitted before the insurer will be held to have waived its
rights.86
20.27 Negotiation Under English law,87 negotiating with an insured will not, without more, be a
necessary unequivocal representation.88 If, however, there is negotiation coupled with other
conduct—discussing future tactics and seeking further information—there may be a
sufficiently unequivocal representation.89
20.28 The conduct of litigation The conduct of litigation may be relevant to waiver in two ways.
First, the insurer may rely on a term in the policy giving it the right to assume control of
any litigation arising in relation to an insured peril or risk. Second, the insurer and insured
may enter into litigation as to whether a claim will be met by the insurer. In either event,
the insurer may make unequivocal representations as to its view of the policy and/or the
insured’s compliance with its obligations.
20.29 Assuming control of litigation In Soole v Royal Insurance Co Ltd,90 the insurer defended a
claim made against the insured relying on a term of the policy which provided:
in the event of any claim being made against the Insured which is covered by this
Policy the Company shall be entitled at its own expense and in the name of the
Insured to take or defend legal proceedings…
In a subsequent coverage dispute the insured contended that if the insurer undertakes the
defence of an action on behalf of the insured, the insurer waives its rights against that
insured to avoid the policy.91 Mr Justice Shaw held that the insured’s contention was too
widely drawn.92 He held that if the claim against the insured was defeated there never was a
claim under the policy and that the policy wording must be construed in light of that fact.
Therefore the policy wording covered both claims made against the insured which were
covered by the policy and claims made against the insured which might be covered by the
policy. It followed that in defending the litigation against the insured, the insurer was
representing that there might be a claim under the policy which it might meet. There was no
unequivocal representation that the insurer regarded:
the claim which [was]… the subject matter of the proceedings as one which must
give rise to a liability to indemnify the insured only a representation that the claim
may give rise to such liability. It followed that there was no unequivocal
representation and no waiver.93
20.30 Although as a matter of generality, the insurer may not lose its rights—either as a result of
the policy wording or as a result of the fact that the only representation the insurer is
making is that there might be a claim under the policy (as opposed to acknowledging
liability)94—care must be taken that, as a result of particular facts, the insurer does not
forego its rights. Thus, an insurer might waive its rights if, during its conduct of litigation
on behalf of the insured, it becomes aware of facts which would entitle it to avoid the policy
or would discharge it from liability. It is relatively clear that the insurer will have a
reasonable time upon discovery to decide whether or not it should cease to defend on the
insured’s behalf.95 It is also relatively strongly arguable that the insurer is entitled to
continue the litigation to a conclusion so as to ascertain whether there is a claim under the
policy.96 That would accord with the logic of Soole and would make practical and
 commercial sense; there would be little point in souring relations with the insured if the
dispute as to whether a claim could be made against the insurer by the insured was
academic.
20.31 It is therefore submitted that, in English law, an insurer will not waive its rights in defending
litigation on behalf of the insured either as a result of the appropriate policy wording or
because, as a matter of analysis, the insurer is only recognising the potential for a claim as
opposed to the actual liability under the policy.97 However, on either approach, prudence
would dictate that the insurer act with caution if it decides to conduct litigation on the
insured’s behalf particularly if facts come to light that suggest that there is or may be a
coverage dispute. It follows that the insurer should be astute to reserve its position either at
the outset or as soon as potentially damaging facts come to light.
20.32 Litigation against the insured In English law, the insurer that resists the claim by the
insured under the policy on a particular ground will not generally98 waive its rights to resist
the insured’s claim on other grounds. Therefore, if an insurer objects to the claim on the
basis of fraud but fails on that allegation at trial, it will be permitted to resist the insured’s
claim on the basis of breach of condition99 or if an insurer initially resists the claim on the
basis that there is no cover, it will be permitted later to rely on a breach of condition.100
Similarly, an insurer that generally reserves its rights cannot be said to have waived its
rights to resist the claim on a particular ground.101 In America and Canada, by contrast, the
insurer must act with more caution, since resisting the claim on one ground may constitute
a waiver of other grounds.102
20.33 The above position will change, however, if the insurer takes a positive step in the action
which indicates that it will rely on only one ground. Thus, where there has been a breach of
procedural conditions, for instance the claim being brought too soon, and the insurer makes
an unconditional payment in without allocation between those elements of the claim which
had been brought at the correct time and those which had not, the insurer was taken to have
waived its rights to rely on the procedural conditions.103 Similarly, if the insurer enters into
without prejudice agreements with the insured that define the matters in dispute, the insurer
may be taken to have waived its rights to rely on matters not contained in the without
prejudice agreements.104 Finally, where the insurer actively disputes the rights under the
policy, the insurer may lose the right to argue that there is in fact no policy—that is, lose
the right to avoid.105
20.34 Silence or delay As pointed out elsewhere,106 silence will not generally107 constitute an
unequivocal representation sufficient to found a waiver. However, there is authority that
suggests that silence, accompanied by a delay that prejudices the insured, may found a
‘waiver’.108 Given the basic principles set out above, it is submitted that the reference to
the insured suffering ‘prejudice’ as a result of the inaction suggests that the better
analytical109 view is that by delay the insurer be estopped from denying liability.110 It
appears that the Courts will be willing to find evidence that the insured was prejudiced by
the delay on very slight grounds.111
Appropriate knowledge
20.35 For any of the unequivocal acts considered above to constitute a waiver, the insurer must
have the appropriate level of knowledge.112 The requirement of knowledge is separate and
distinct from the need for an unequivocal representation and even the most unequivocal
representation will not allow the Court to find that there was a waiver by the insurer absent
the requisite knowledge.113 Establishing that the insurer had the requisite knowledge at the
 time of the unequivocal act will be one of the more difficult evidential hurdles for the
insured to overcome.114 However, the more unequivocal the representation is, the more
likely it is that the insurer will be estopped from asserting its rights, there being no need to
establish knowledge to found an estoppel.115 Two issues arise: what type of knowledge is
required and who must possess that knowledge?
20.36 Type of knowledge required As per general contractual principles, the insurer will normally
have to be aware of the facts and the rights arising from those facts. Put another way, the
insurer must be aware that there has been a breach and that, as a result, certain rights have
become vested in the insurer.116 Similarly, the knowledge must be knowledge in the mind
of the insurer at the appropriate time. If the insurer has been told of the relevant facts at
some time previously, there will be no waiver if the insurer has since forgotten those
facts.117 However, it is important to note that, in certain cases, the insurer will be deemed
to possess the appropriate knowledge. Thus, the insurer does not have to be actually aware
of the insured’s breach but will be deemed to have the appropriate knowledge if it has
information which if investigated would lead to discovery of the breach.118 By parity of
reasoning, in reinsurance, if the reinsurer is aware that an insured syndicate has carried out
investigations and that the syndicate is therefore aware of its rights, that reinsurer will have
the knowledge necessary to found a waiver even if it has no actual knowledge of the
facts.119
20.37 Whatever the position may be in the United States,120 there is no requirement in English
law121 that the insurer, in making the unequivocal representation, must intend to waive its
rights.122 This position undoubtedly arises from the fact that English civil law rarely relies
on a party’s subjective intent, preferring instead to extrapolate any intent from the party’s
actions as viewed by an objective, reasonable third party observer.123
20.38 Finally, in this context, it is extremely important to note that knowledge is only required to
establish a waiver. Therefore, in cases of estoppel, the Courts will be less concerned in
establishing what the insurer knew. Thus, in Re Economic Fire Office Limited,124 the Court
held that provided that the insured acted on what appeared to be a legitimate representation
by the insurer then the insurer would be precluded from resiling from that
representation.125 In doing so, the Court expressly distinguished those cases in which the
agent’s authority was considered as not being cases of estoppel.126
20.39 Whose knowledge? The knowledge127 must be that of the insurer.128 Where an agent
receives knowledge as agent of the insured, that knowledge will not, without more, be
imputed to the insurer.129 As the insurer will usually be a corporation, it will only be fixed
with knowledge if the information is passed on to the appropriate natural person—one
expressly or impliedly authorised by the insurer to waive breaches and therefore possessing
sufficient authority to fix the insurer with knowledge. Cases of an insurer giving an agent
express authority to waive breaches will be extremely rare.130 Therefore, the Courts are
faced with the difficult task of spelling out the appropriate authority from the facts of the
case; the difficulty of the task being demonstrated by the confused and contradictory
authorities on point.131 Thus, although there is authority to suggest that the knowledge
possessed by a loss adjustor132 or by a soliciting agent133 will also be the insurer’s
knowledge, there is also authority to suggest that the knowledge of an agent authorised to
make the original contract will not be that of the insurer.134 It follows that this issue cannot
be resolved by the application of previous authority but by the loose application of general
 principles to the facts of each case. The immediate difficulty that arises is that of
identifying the operative general principles.135 All that can be done is to outline general
guidelines which may be applied to particular cases.
20.40 The applicable principles were summarised in Blackburn Lowe & Co v Vigors.136
Where a person is the agent to know his knowledge does bind the principal… Some
agents so far represent the principal that in all respects their acts and intention and
their knowledge may truly be said to be the intentions and knowledge of the
principal. Other agents may have so limited and narrow an authority both in fact
and in the common understanding of the form of their employment that it would be
quite inaccurate to say that such an agent’s knowledge or intentions are the
knowledge and intentions of his principal…137
Two points flow from Blackburn. First, the general law of agency will apply in deciding
whether or not the insurer is fixed with knowledge.138 Therefore, the issue is whether the
insurer is fixed with knowledge. Once the appropriate person has fixed the insurer with
knowledge, a subsequent breakdown in communication will not prevent the insurer from
being held to have waived its rights.139 Second, the Court will examine the actual and
intended relationship between the insurer and agent to ascertain whether the agent is the
insurer when making the unequivocal representation. Any consideration of the actual and
intended relationship between insurer and agent will centre on the tasks which the agent is
authorised to perform and its role in the insurer’s organisation.
20.41 Considering the acts which the agent is authorised to perform In considering the tasks
which the agent is authorised to perform, the fewer tasks that the agent is authorised to
perform, the less likely it is that the insurer will be fixed with the agent’s knowledge. Put
another way, the greater general authority that the agent has, the more likely it is that the
authority to waive breaches will be ancillary to or a corollary of that authority. Therefore, if
the agent did not have authority ‘to grant or contract to grant, policies’140 or if the agent
was authorised to accept premiums on extremely limited terms,141 the insurer will not be
fixed with the agent’s knowledge. By way of contrast, where the agent is the district
manager and is entitled to accept premiums, enter into contracts142 and run the branch, the
insurer may well be fixed with the agent’s knowledge.143
20.42 The agent’s role and status in the insurer’s organisation In a direct analogy with company
law,144 the Court will also consider how important the agent was. Thus, if important
information is passed on to the insurer’s clerks145 or to someone who is unable to
‘appreciate its significance’146 then the insurer will not be fixed with that person’s
knowledge. However, if the information is passed to an agent delegated to investigate the
risk147 or claim;148 or to an agent who, as part and parcel of the normal working practice of
the insurer, would, or it was reasonable to presume would, pass the information on to the
relevant person;149 or to the sole representative of the insurer in a particular area;150 then
the insurer will be fixed with that person’s knowledge.
20.43 On either approach, it is important to note that the insurer will not be fixed with its agent’s
knowledge in two circumstances. First, any collusion between the agent and insured, or
knowledge on the part of the insured that the agent does not have authority to waive the
insurer’s rights, will prevent there being a waiver.151 Second, the insurer will not be fixed
with knowledge of the agent’s own dishonesty152 nor will the insurer be fixed with any
knowledge of the agent relevant to the commission of a fraud against the insurer by that
 agent.153
(3) Particular difficulties which arise from the application of waiver to insurance law
20.44 There are two particular difficulties that arise from the application of waiver to insurance
law: can cover under the policy ever be extended by the operation of a waiver; and can an
insurer protect its position by entering into a ‘non-waiver’ agreement with the insured?
Waiver and extension of cover
20.45 Explicit in the definition of waiver is that waiver is not a modification of the terms of the
contract.154 It follows that whilst waiver can prevent a party from relying on the terms of a
bargain, it cannot alter the bargain. In most cases, that distinction will have little practical
effect. However, in insurance law, the position would appear to be more complex.
20.46 The complexity arises from the relationship between exclusions, the other terms of the policy
and waiver. Applying basic principles, the effect of a contractual exclusion is that the
parties agree that the insurer will never be liable in respect of a particular category of risk.
By contrast, the terms of the policy are to the effect that the insurer agrees to be liable if
certain conditions are met. It follows that an insurer can agree to waive the terms.155
However, an insurer cannot waive an exclusion to the policy as the insurer would thereby be
extending cover and altering the scope of the parties’ bargain.156 Put another way, the
insurer would be extending cover when it had not received a premium for that extended
cover.157 It follows that in analysing whether a particular term can be waived, the Court
must decide whether the term is, on its proper construction, an exclusion to liability under
the policy.158 If the term is an exclusion clause, then the term cannot be waived.
20.47 There are, however, numerous authorities which appear to suggest that cover under the policy
can be extended by waiver and therefore that exclusion clauses can be waived. However, on
close reading, we would suggest that authorities either relate to statutory exceptions to that
principle or fall within the general principle outlined above.
20.48 Statutory exceptions The statutory exceptions take two forms. First, several states159
require an insurer to raise all its defences to a claim on the policy ‘as soon as possible’. If
the insurer does not, then the insurer will be precluded from relying on any defences not so
raised.160 Thus, if the insurer wishes to argue that the policy does not cover the claim, it
must do so as soon as possible, if it is not to lose that right. The effect of the statutory rule
could be described as a waiver. However, the authorities themselves regard the principle as
one of ‘estoppel’161 and suggest that the effect of that rule is only to deprive the insurer of a
defence; there is no actual extension of cover.162 Second, other states provide that an
insurer’s defence of an action on behalf of the insured will operate to extend cover.
However, the rationale behind that extension is not that the cover is extended by a process
of waiver but that the statutory rules have modified the contract of insurance so as to extend
cover.163
20.49 Application of the general principle The remaining cases where the insurer’s unequivocal
act has apparently extended cover fall into two main categories. First, where the Courts
have drawn a fine distinction between a waiver that might extend cover and, for example,
one precluding the insurer from asserting that cover under the policy had been suspended
and have rejected the former.164 As with warranties, terms which suspend cover do not
extend the parties’ bargain to take in perils or risks which were never contracted for. As the
label suggests, such terms merely suspend cover until certain conditions are met. Therefore,
a suspension of cover can be waived without violating the general principle set out above.
Second, there are cases where the Courts have extended cover but have made it clear that
 they are applying the doctrine of estoppel not waiver.165 It is submitted that there is little
difficulty in suggesting that cover can be extended by means of an estoppel which is, unlike
waiver, not purely a contractual doctrine and which operates in a far broader range of
circumstances.166
A ‘non-waiver’ agreement or clause
20.50 In the United States, it is relatively common practice for an insurer to seek a ‘non-waiver’
agreement from the insured. The Courts will uphold such agreements and their effect,
subject to certain caveats, will be to preserve the status quo between the parties and all
conditions precedent to liability in the contract of insurance.167 Further, after entry into a
non-waiver agreement, the insured will be unable to rely on any waiver by the insurer168
provided that the waiver is caught by the terms of the agreement.169
20.51 It follows that a ‘non-waiver’ agreement provides a useful tool for regulating the parties’
arrangements whilst investigating a claim. However, even under US law, the use of non-
waiver agreements is subject to certain caveats. The agreement will be strictly construed
against the insurer.170 Therefore, care must be taken in drafting the clause to ensure that it
is clear which of the insurer’s acts are caught by it and which are not. A non-waiver
agreement will, in all probability, be an agreement which operates solely for the benefit of
the insurer and therefore can be subject to a unilateral waiver on the part of the insurer.171
Further, the entry into a non-waiver agreement or the request that the insured enter into a
non-waiver agreement will constitute an unequivocal act capable itself of amounting to a
waiver. Therefore, if the insurer seeks a non-waiver agreement after breach, the insurer will
waive its rights to be discharged from liability or avoid the policy as a result of that
breach.172 In any event, the agreement will only operate up to the moment at which the
insurer repudiates liability under the policy. The rationale for such a limitation is that the
non-waiver agreement will depend for its existence on the continuation of the policy. If the
policy is avoided, there will be nothing to continue. Further, once the insurer has
repudiated, there will be no commercial purpose for the continuation of the agreement.173
20.52 Some use of non-waiver agreements is made in the English market particularly in marine
insurance.174 Subject to caveats, we can see no reason why insurers should not make wider
use of non-waiver agreements. The most obvious caveat is that, as with entire agreement
clauses,175 the Court will permit the parties to circumvent the clause where it concludes
that their intention so to do is sufficiently clear.176 Further, in the same way an American
Court would, an English Court will construe the terms of such an agreement against the
insurer177 or will construe the agreement solely as evidence to be taken into account in
considering whether or not there was a waiver.178 Care must be taken therefore to avoid any
ambiguity which might attract the contra proferentem rule and deprive the agreement of
effect. Even if the agreement is sufficiently certain, if such clauses became part of the
insurer’s standard terms, they would attract scrutiny under the Unfair Contract Terms
Directive179 and Regulations.180 In any event, an English Court might well feel that the use
of such agreements in the non-commercial context would unnecessarily tilt the balance
between the parties in the insurer’s favour. In the commercial context, where the insurer is
dealing with experienced and astute financial organisations or traders, that imbalance would
not arise.181 Therefore, we would suggest that it would be appropriate to use such
agreements where they have been individually negotiated and in commercial insurance
contracts only.
 (4) The effect of a waiver
20.53 The effect of a waiver in insurance law will be similar to its effect in the general law of
contract.182 Thus, as set out above, a waiver by election will be an irrevocable waiver of the
right to be discharged from liability.183 By contrast, provided that notice is given before
performance of the relevant obligation, pure and unilateral waivers will be revocable
waivers of the performance of that obligation.184
20.54 Similarly, waiver is case specific.185 Care must be taken to ascertain which unequivocal acts
by the insurer constitute a waiver of which rights.186 Each case will depend on its facts.
However, for example, waiving the requirement that the insurer be notified of a claim by
investigating the claim will not be a waiver of a requirement that suits/claims be brought
within one year from the insured peril occurring;187 investigating the claim will not
constitute a waiver of a condition requiring the insured to provide an honest estimate of loss
or proof of loss;188 and waiving the requirement that notice of a claim be given within a
certain time will not waive a requirement that the insured must make an honest claim nor
will it operate as a general extension of time allowing claims to be brought some
considerable time after the event.189
20.55 Finally, in English law, the fact that the insurer has previously waived a breach of a
particular term does not mean that the insurer has waived any future breach of that term.190
The position is to be contrasted with that in the United States where the Courts are more
astute to spell a general course of dealing from the past waiver of breaches of particular
terms so as to hold that there is a waiver of the future breaches of those terms.191
C. Election
20.56 As with ‘waiver’ of non-disclosure,192 election has a particular meaning in insurance law.
Where a claim is made and the insurer has the ability under the terms of the policy to
reinstate the damaged property, in the normal course of events, the insurer will be put to its
election to reinstate or to indemnify; an election which must be made within a reasonable
time.193 Three issues arise: can the right to elect be modified by the policy; in what ways
can the election be made; and what is the effect of the election?
(1) Modification by the policy
20.57 A right to elect can be altered or curtailed by the terms of a contract.194 Therefore, an insurer
can by the wording of the policy grant itself the right to reinstate in part and indemnify in
part.195 This is the case even though the obligations assumed by the insurer form an entire
and unseverable contract, although in such cases there will be a presumption in favour of
the insurer having made an election between the two.196 It follows that if the insurer wishes
to preserve its right to both reinstate and indemnify it should do so by clear wording in the
policy and informing the insured that it is not electing by carrying out some reinstatement
or indemnifying to some extent.
(2) Means by which the election can be made
20.58 Where the terms of the policy do not provide otherwise,197 an election will usually be made
where the insurer states that it intends to reinstate and not indemnify or vice versa.198
However, where the offer to reinstate or indemnify is clearly made for an ulterior motive
(for example, as the first step in negotiations)199 and is refused, the insurer will then be left
to a free election.200 By way of contrast, an election occurs irrespective of any action on the
part of the insurer if reinstatement becomes impossible before the insurer elects.201
(3) The effect of the election
20.59 In Brown v Royal Insurance Co,202 the Court stated that the effect of the election was that the
insurer is ‘in the same position as if had originally contracted to do the act which he has
elected to do’203 a statement that has led to some confusion. Thus, in Canada, the Courts
have tended to give a wide meaning to that statement and hold that the effect of the election
is to replace the contract of indemnity with a contract for reinstatement in toto.204
Therefore, once election has taken place, it is not possible for the insurer or insured to resile
from that position and select the alternative mode of performance. However, in England,
the position appears to be that if, after election, reinstatement becomes impossible, the
obligation to indemnify revives.205 This position, it is submitted, can be justified by three
routes. First, if the insurer refuses to reinstate and cannot rely on frustration, the insurer’s
secondary obligation to pay damages accrues,206 and that obligation will be the same as the
obligation to indemnify. The obligation to indemnify is therefore effectively
resuscitated.207 Second, the election to indemnify or to reinstate is an election as to the
means by which the insurer will perform the contract. Under English law, where one means
of performance of the contract becomes impossible, the party must perform by the other
means208 as to do otherwise would be to deprive the parties of the full benefit of their
contract. Third, as pointed out elsewhere,209 an election may only suspend the right to be
indemnified in damages210 and in any event an election will not amount to a total waiver. In
either eventuality, the election to reinstate does not release the insurer from the obligation
to indemnify.
D. Estoppel
20.60 Estoppel211 operates in insurance law in the same way as it does elsewhere. Therefore, the
party seeking to establish an estoppel must show that there was a representation on which it
acted to its detriment212 so that equity may intervene on its behalf.213 Similarly, as
elsewhere, an estoppel may come into play where the party seeking to rely on waiver is
unable to show the level of knowledge required to establish any form of waiver.214 Five
particular areas require consideration: the role of equitable forbearance; the greater
flexibility of estoppel as opposed to waiver; the representations triggering an estoppel; the
reliance/detriment necessary; and rights that can be lost by an estoppel.
(1) The role of equitable forbearance
20.61 As set out above, on the law as it currently stands, there can be no waiver by election in
relation to a breach of warranty, a breach of the duty of utmost good faith or a breach of
condition precedent.215 If rights are lost, those rights are lost as a result of an equitable
forbearance. In addition, the application of equitable forbearance has particular results in
relation to warranties and non-disclosures.
Warranties
20.62 The insurer will have to establish that there was a warranty, its scope and that it has been
breached.216 In so doing, the terms of the warranty will affect whether or not their
particular rights have been lost. Thus in Mint Security Ltd v Blair,217 there was a breach of
the warranty that the facts stated in the proposal form were true, the warranty being a
condition precedent to the insured’s recovery under the policy. Although much of the
reasoning must be treated with caution (being based on waiver by election and the current
position being that a breach of warranty cannot be waived), one point should be noted. The
warranty at issue was expressed to be as a condition precedent to the insured’s recovery
under the policy. As such, the insurer’s actions on the policy will not generate the loss of its
 rights to repudiate liability.218 Whilst this analysis may offer an insurer some comfort, it
will only apply, if at all, in cases where the policy wording is the same as that in Blair and
that no general principle, other than that care should be taken to examine the wording of the
policy, can be extracted from the case.
Non-disclosure
20.63 An insurance contract is an uberrimae fides contract. As a result, the insured is under a duty
to disclose all facts which a reasonable businessman would have disclosed and which were
material to the insurer.219 The difficulty arises in deciding what is material for those
purposes, whether or not the insurer has foregone performance of the duty and therefore
whether the insurer has foregone its rights to avoid for material non-disclosure. That
difficulty manifests itself for present purposes in four main ways—the doctrine which is in
play; the effect of the proposal form; whether or not the insured has to disclose facts of
which the insurer is or should be aware; and the effect of the answers given by the insured.
20.64 The doctrine in play220 An insurer’s loss of rights is referred to as a ‘waiver’ although it is
recognised that the term is not being used in its normal fashion221 and what the Court is in
fact examining is ‘founded on the concept of fairness’.222 It is therefore obvious that the
waiver at issue is not the same doctrine as exists in the balance of the common law—yet
that is the word used in section 18(3)(c) of the Marine Insurance Act 1906. There are two
possibilities: (a) the use of the word in the Marine Insurance Act 1906 is a misnomer or (b)
what was intended was reference to a more broad-based doctrine (often formerly confused
with waiver). That doctrine—which would embrace fairness—would be equitable
forbearance. It is therefore submitted, following standard insurance practice, whilst the
term used (as it is below) is ‘waiver’ what the Court is actually doing is, against the
backdrop of overall fairness, utilising equitable forbearance with the elements of
unequivocal representation (by the proposal form or other conduct of the insurer) and
detriment (flowing from the loss of cover if the insurer seeks to avoid).
20.65 The effect of the proposal form Usually the insurer will request specific information
relating to the risk from the insured in the proposal form. The insurer will also make the
truth of the insured’s responses the basis of the policy and/or seek a warranty from the
insured as to the truth of the information given. On either basis, if the insured answers any
questions incorrectly, and absent waiver, the insurer will be entitled to avoid the policy. The
difficulty arises when the insurer requests specific information and the non-disclosure is in
relation to facts specific disclosure of which is not requested. In those circumstances, is the
insurer taken to have waived its rights to avoid the policy flowing from the non-disclosure?
In English law,223 except for cases of fraud and moral hazard where the insurer is taken
never to have waived its rights,224 there are two conflicting streams of authority.
20.66 General duty of disclosure On the one hand, the Courts have held that the insured owes a duty
to disclose all relevant facts. That duty cannot be limited or curtailed by action by the
insurer. Thus:
It does not matter whether [the insured]… is asked questions about [the facts]; he
must tell every material fact…225
The contents of the proposal form do not, therefore, release the insured from the duty to
disclose those facts that the reasonable businessman would have disclosed.226 Further,
where the proposal provides that the answers to certain questions will form the basis of the
contract of insurance, the Courts have concluded that such a provision does not relieve the
insured of its general obligation to disclose.227 On this approach
 it is only if… the insurers are put on enquiry about some particular matter that it
can be said that they have waived the obligation.228
20.67 Waiver by the insurer On the other hand, it appears that in certain cases the Courts have also
used the questions asked in the proposal form to curtail the insured’s duty of disclosure. In
Court v Martineau,229 the insured, based in Liverpool, was the part owner of a vessel which
salvaged a brig and ship off the coast of Ireland. Requiring insurance for the prize, the
insured sent a written request for insurance to its broker in London stating that the insured
was concerned that the salved ship might be a total loss. The broker took out insurance on
receipt of that letter disclosing the insured’s concerns, the premium being adjusted to
reflect the fact that the ship had not arrived and those concerns.230 However, subsequent to
the sending of the first letter, the insured discovered that the ship was a total loss and wrote
to the broker informing it of the fact. That letter did not arrive before the broker took out
the insurance. The insurer refused to pay, alleging that the broker had failed to disclose the
fact that the insured was communicating by letter and therefore there would be a delay in
receiving news of the ship. On those facts, Lord Mansfield found that there was a fair
presentation of the risk overall and then stated that:
If the underwriter had wished to know by what means the broker acquired his
information that the ship had not arrived, he should have made inquiry; but he
waived the inquiry by putting no questions to him, though they naturally arose
from the subject.231
20.68 The approach in Court v Martineau has been supported by subsequent authority. In Joel v
Law Union and Crown Insurance Company,232 Lord Justice Vaughan Williams stated that:
the insurance office may, by the requisitions for information of a specific sort
which it makes of the proposer, relieve him partially from the obligation to
disclose by an election to make inquiries as to certain facts material to the risk to
be insured against itself.
Further, in Hair v Prudential Assurance Co Ltd,233 Mr Justice Woolf, as he then was, stated
that if a reasonable reader would infer from the insurer’s questions that the insurer was only
concerned with the specific matters referred to in the form, then there would be a waiver of
materiality. Finally, the reasoning in Hair has since been explicitly approved both at first
instance234 and in the Court of Appeal in Doheny v New India Assurance.235 Therefore, if
the insurer wished to avoid the possibility of a waiver being found against it, the insurer
should state that it required disclosure of matters additional to those specifically referred to
in the proposal form.236
20.69 Difficulties and potential solutions There are difficulties with both approaches. The former
may be seen as imposing onerous obligations on the insured especially if that insured is not
an experienced commercial party but an inexperienced consumer. Thus the Insurance
Ombudsman has argued strongly in favour of the latter approach as a mechanism for
protecting the consumer. As to the latter, it is submitted that Court turns on the finding that
there was an overall fair presentation of the risk and Hair, in which the insured was a
consumer, was motivated by Mr Justice Woolf’s view that the inequality of bargaining
between the two parties was such that the insurer should not be permitted to rely on the
onerous duty of disclosure.237 Despite those qualifications, the decision in Doheny v New
India Assurance238 makes it clear that it is the latter approach which is the correct one—
albeit that if the proposal contains a general requirement that the insured disclose, the
Courts will give effect to that general requirement.
20.70 Disclosure of facts of which the insurer should be aware In certain types of risk,
irrespective of the contents of the proposal form,239 the insurer is deemed to know the facts
relating to the risk or is put on inquiry as to those facts. If the insurer fails to make further
inquiry as to those facts, it will be taken to have waived its rights to avoid the policy in the
event of non-disclosure. Frequently, the waiver will arise from the market practice240 or the
facts being ‘common notoriety or knowledge’.241 Thus, in marine insurance, if the insurer
agrees a ‘sea-worthiness admitted’ clause, it will be deemed to know whether the particular
vessel being insured is of a type which is seaworthy and the insured will only be required to
disclose defects which are particular to that particular vessel, such as corrosion or design
defects.242 Again, in hull insurance, the insurer will be taken to know of the particular
perils associated with a particular type of hull and be put on inquiry as to whether the
cargoes proposed are of such a type as to expose the hull to those particular perils.243 In
reinsurance, the reinsurer will be taken to be aware of the standard clauses in the insurance
policies which it is reinsuring.244 Finally, in the Lloyd’s market, a managing agent seeking
reinsurance is under an obligation to disclose all material facts as well as all those facts
which might possibly give the reinsurer cause to avoid the contract.245 It follows that if the
managing agent does so, and the reinsurer makes no further inquiry, the reinsurer, by virtue
of market practice, will be taken to have waived its rights to argue that there were
additional facts which the managing agent should have disclosed.
20.71 As well as market practice, the waiver can also arise from the Court taking a common-sense
view of the risk and the activities normally associated with that risk. Thus, where the
insured sought to insure its hotel, the Court held that the running of a discotheque was
ancillary to the running of the hotel and the insurer would be aware of that fact. If the
insurer then made no inquiry as to the existence of a discotheque, it would be taken to have
waived the materiality of the insured’s failure to disclose that it was running a discotheque.
Consequently, the insurer waived its rights to avoid the policy for non-disclosure.246
Similarly, where the broker/ insurer is informed that the risk to be insured is a particular
cargo which is by its very nature perilous but the insurer is not told, does not know and does
not ask whether the particular cargo is perilous, the insurer will be taken to have waived the
non-disclosure of the perilous nature of that cargo.247
20.72 There are important caveats to this rule. Most importantly, the category of facts that the
insurer is deemed to know is not open-ended. Thus, in marine insurance, the insurer will not
be deemed to know the specific facts relating to one particular charterer or line.248 Further,
the fact that an insurer is deemed to know certain facts cannot rewrite the fundamental
nature of a contract of insurance. The insurer cannot waive the insured’s failure to disclose
facts relating to a fraud on the insurer or to any moral hazard. The simple reason is that the
insurer cannot be taken to be aware of facts which are of their very nature abnormal. An
allied point is that there must have been an overall fair presentation of the risk.249 If there
was not overall fair presentation of the risk, the insurer would be entitled to avoid the
policy irrespective of any alleged waiver of materiality in and by the proposal form.
20.73 The effect of answers given by the insured An insured often responds to the proposal either
by leaving sections of it blank or partially completed or by supplying the insurer with
documents. Each creates its own difficulty for the insurer. Thus, if the insurer issues the
policy on the strength of partial or no answers to the questions in the proposal form, the
insurer will have waived the materiality of the facts left incomplete or blank250 unless it is
clear from the context251 or the proposal form expressly provides252 that the blank answers
 signify an assertion that the insured has nothing to disclose in relation to those questions,
said assertion potentially forming the basis of a non-disclosure.253
20.74 As for disclosure by documents, the rule appears to be that the insurer is put on inquiry as to
the contents of the documents and other events or documents referred to in them254
provided that there are ‘significant indications’ of the true position so that the insurer may
be fairly said to be put on inquiry255 and that the contents of the documents may fairly be
said to have put the insurer on notice.256 Thus, for example, if the insured refers to
admission to hospital, that will be sufficient to put the insurer on inquiry as to what
happened when the insured was admitted to hospital and to make a request for the relevant
hospital records.257
(2) Greater flexibility of estoppel
20.75 In addition to the warranty, breach of condition precedent and non-disclosure cases, estoppel
(provided that detriment can be established) will operate in three areas where a waiver will
not. Obviously, where there are difficulties in establishing that the other party or its agents
had the requisite knowledge or that the knowledge is to be imputed to the other party, an
estoppel may be deployed. Similarly, whilst waiver will not operate to extend or incept
cover,258 estoppel may do so. Thus, there is no bar in theory to the estoppel extending cover
by precluding an insurer from relying on exceptions to cover under the policy. The estoppel
will do so notwithstanding the fact that the estoppel is operating as a ‘variation under
another name’259 by extending cover beyond the terms originally agreed without the
support of consideration.260 However, this type of estoppel, because it modifies the extent
of cover without being supported by consideration, will only occur rarely. As far as
inception is concerned, an insurer may be estopped from alleging that the premium due
under the policy has not been paid.261 Put another way, an estoppel can be used to incept
cover where, in contract, cover cannot incept.
(3) Representations triggering an estoppel
20.76 The representations that give rise to an estoppel will be the same as those for a waiver.262
The representations must be clear and unequivocal; any ambiguity or absence of a specific
representation that rights will not be relied on will not suffice.263 Thus, for example,
issuing the policy264 or accepting further premiums265 will suffice. As with waiver, there is
some doubt as to whether the insurer conducting the insured’s defence will constitute a
sufficient representation. However, the position in English law266 rests on two principles:
that set out in Soole v Royal Insurance Co267 and a requirement that the requisite elements
for an estoppel must be present.
(4) Reliance/detriment necessary
20.77 For an estoppel to arise there must be reliance/detriment. As a matter of logic, there must be
reliance before there can be a detriment268 and this reliance must be reasonable.269
Reliance will not be established, for example, where the alleged representation was made
by an agent that lacked both ostensible and actual authority to make it. Reliance in those
circumstances would not be reasonable270 and would not be such as to attract the
intervention of equity. However, pure reliance is not sufficient, there must be detriment271
which may comprise the payment of further premiums,272 not seeking alternative cover,273
or losing the ability to settle an action brought by a third party against the insured.274 The
loss of a pure right (that is, without any harm being suffered) will probably not be sufficient
to establish detriment.275
 (5) Rights lost as a result of an estoppel
20.78 In general, the rights lost as a result of an estoppel will be the same as those lost by a waiver
—the right to repudiate, the right to avoid and the right to avoid liability as a result of a
failure of a condition precedent. However, five additional rights may be lost by an estoppel
which will not be lost by a waiver: the right to rely on the automatic discharge triggered by
a breach of warranty;276 the right to avoid for material non-disclosure;277 the right to rely
on a policy exclusion;278 the right to recover monies paid by the insurer under a mistake of
fact;279 and the right to subrogate.280
E. Practical Responses to the Issues Raised by these Doctrines in Insurance Law
(1) Prior to litigation
Both insurer and insured
20.79 Both insurer and insured should be aware at all times of the potential impact these doctrines
can have on their dealings. Further, a general rule for both parties would be that the greater
informality there is in their dealings, the more potential there will be for an allegation that
rights have been lost to be made out281 and the more difficult it will be to predict whether
or not those allegations will succeed. Both parties should therefore be astute to record their
acts, the reasons for their acts and the knowledge that they possessed at the time of making
those acts.
20.80 Insurer The best mechanism an insurer can adopt to avoid being held to have lost its rights is
to exercise caution at all stages of its relationship with the insured. Further, the insurer
should organise its affairs so that it and its employees are aware which of them is
authorised to forgive breaches and to ensure that information is always passed on to the
employees who are so authorised.
20.81 Issue of the policy The insurer should consider whether it wishes to adopt the clauses used in
Mint Security v Blair282 and Soole v Royal Insurance Co Ltd283 to afford it some measure
of protection. As issue of the policy is, in all probability, an unequivocal act, the insurer
must again consider any information that it may have as to the insured’s conduct and on
that basis reach a commercial decision as to whether it wishes to issue the policy, make
enquiries or refuse to proceed further.
20.82 During the life of the policy The insurer should consider what knowledge it has of the
insured’s conduct and, if necessary, reserve its rights before it takes any action or makes
any request of the insured284 if it appears that there has been a breach. Further, the insurer
should consider the representations that it has made to the insured in the past. If any of
those representations could be taken to be continuing representations, and if the insurer
becomes aware of facts the result of which is that the insurer wishes to resile from those
representations, it should so resile as soon as it becomes aware of those facts.285 In the
interests of both parties, the insurer should not wait until there is a claim before notifying
the insured that it considers that there has been a breach of the insured’s obligations. If at
any time the insurer is uncertain of its position and decides to investigate, it should reserve
its rights generally.286 If the insurer is unsure of its rights whilst investigating a claim,
again it can either reserve its rights or carry out only the standard enquiries which are
carried out on every claim irrespective of whether or not the insurer meets the claim at the
end of the day.287
20.83 Reservation of rights If the insurer reserves its rights, it must do so clearly. However, there
is no need for the insurer to state in terms that it is ‘reserving its rights’.288 Once there has
been a reservation of rights, the insurer must take care to ensure that any of its subsequent
 conduct is not inconsistent with its reservation of rights. Thus, if the insurer impliedly or
expressly accepts a claim under the policy, the fact that it has also reserved its rights will
not prevent it from being held to have lost its rights.289 By contrast, it appears that a mere
acceptance of a payment under the policy will not be inconsistent with the insurer’s
reservation of rights.290 Given that uncertainty, the prudent insurer will not accept
payments under the policy even if it has reserved its rights and in most cases the best course
of action will be for the insurer to decide swiftly whether it wishes to remain on risk and act
accordingly. If the insurer does decide to repudiate liability, the insurer should return the
premium.291
20.84 Insured The insured will wish to ensure that the insurer foregoes as many of its rights as
possible. However, the insured faces the pragmatic difficulty that if the insured attempts to
‘manufacture’ a loss of rights, the Court will react unfavourably.292 The most prudent
course of conduct that the insured can adopt will be to pass on in writing all information
relating to breaches of the policy, ensure that the information is communicated to the
appropriate underwriter/claims manager and request the insurer to state its position in
response. If the insurer fails to reserve its position or repudiate liability within a reasonable
time, the insured may well be able to argue that the insurer lost its rights. The insured
should also ensure that it answers all queries raised by the insurer after breach. If it does not
do so, or delays in so doing, it may prevent the insurer from possessing the knowledge to
found a waiver and lose the ability to argue that the insurer has waived its rights by that
route.293
(2) After the commencement of litigation
20.85 The burden of pleading and proving that there has been a loss of rights is on the insured.294
The plea is a ‘serious step’ and should only be made where there are good grounds for
supporting that plea.295 If there are such grounds, the plea should be made in the insured’s
reply to the insurer’s defence and counterclaim296 alleging that it has avoided the policy.
The plea should set out the alleged unequivocal representations made by the insurer and
particulars of knowledge possessed by the insurer at the time of making the representation
if relying on waiver297 or the requisite detriment for an estoppel.
20.86 To support a plea of waiver,298 the insured will in all probability be forced to rely on
crossexamining the insurer’s witnesses at trial as to the knowledge they possessed.
However, if the insured can establish a prima facie case of knowledge, the burden will be
reversed. Thus where the insurer sought to rely on a ‘no other insurance’ clause to repudiate
the policy and the other insurances had been at all material times taken out with that
insurer, there was a prima facie case that the insurer was aware of the other insurances and
waived the breach arising on their being taken out.299
20.87 The insurer facing allegations of waiver will, in all likelihood, allege that it did not have the
appropriate level of knowledge. Similarly, where facing an allegation of estoppel, the
insurer will contend that there was no unequivocal representation or detriment. However,
the insurer could adopt two other paths.
20.88 First, the insurer should check the information revealed on disclosure very carefully. It may
well be that new information arises which allows the insurer to avoid or be discharged on
other grounds or which suggests that any knowledge which the insurer possessed prior to
disclosure was incomplete and therefore was not sufficient to waive its rights.
Axiomatically, there cannot have been a waiver if the insurer’s knowledge arises on
disclosure. Similarly, in the case of an estoppel, any previous unequivocal representation
 may well have not applied to either the information revealed or the results of that
information. On that basis, the insurer will escape liability as a result of the information
revealed on disclosure.300
20.89 Second, in relation to waiver, the insurer may be able to argue that, whilst there was a waiver
by election, there was not a total waiver. Thus the insurer may have waived its rights to
avoid the policy but not waived any right to claim damages for breach of the terms. In every
case therefore, the insurer may be able to recover damages if it can establish that the breach
of the terms of the policy caused it loss. In most cases, the damage caused will be nominal.
However, if the breach of the term was directly related to the existence of the insurance
policy or to the claim, the damages caused would be the sums claimed. Therefore, the
insurer will be entitled to counterclaim the same amount of damages arising from breach of
the policy as the insured claims from it under the policy. The insured’s claim will therefore
be bad for circuity and must fail.301 The difficulty with such an argument will be that a
term which goes to the root of the policy will probably be a condition, breach of which
allows the insurer to be discharged and will rarely sound in damages as well. Therefore, the
waiver of that term may well be a waiver of a right to claim damages.
 21
INTERNATIONAL TRADE, SALE OF GOODS, AND SHIPPING
A. Introduction 21.01
(1) Terminological difficulties associated with waiver 21.02
B. Sale of Goods 21.07
(1) Waiver 21.07
(2) Estoppel 21.20
C. Shipping 21.29
(1) Waiver 21.30
(2) Election 21.40
(3) Estoppel 21.41
A. Introduction
21.01 Due to the close relationship between the sale of goods and shipping elements in
international trade contracts, similar issues arise in considering the application of waiver,
variation and estoppel in all of these areas. As a result principles applicable to one area can
and have been applied to the other.
(1) Terminological difficulties associated with waiver
21.02 As elsewhere a cursory reading of the authorities reveals considerable inconsistency. The
inconsistency revolves around the approach taken to the question of knowledge and its role
in waiver. The case law on ‘waiver’ must therefore be analysed with particular care.1 In
Bremer Handelsgesellschaft v Vanden Avenne-Izegem,2 there had been a ‘waiver’ where
there was an unequivocal representation which had been relied upon by the other party to its
detriment.3 Ostensibly the Court did not appear to find that knowledge was required.
However, in subsequent cases,4 a party relying on waiver in the Bremer sense, was met with
the successful argument that, absent knowledge, there could be no waiver. If the same
doctrine of ‘waiver’ was being deployed, there was an obvious inconsistency.
21.03 The inconsistency can be resolved in two ways. The first is based on the fact that in Bremer
and the subsequent cases the defects being waived were obvious—the documents were
defective on their faces.5 This is clear from Lord Salmon’s speech in Bremer where, having
pointed out that the relevant document—a force majeure notice as required by clause 22 of
GAFTA 1006—was defective and served out of time, his Lordship then went on to hold that
whether or not the buyers had any knowledge of their rights was irrelevant.7 It is submitted
that the buyers, a sophisticated commercial organisation, would have known, on receipt of
the notice, a standard form and common document, both of its patent defects and of their
rights. Therefore, the question of knowledge was de facto ‘irrelevant’ because, as a matter
of fact, there was no need to consider it; the buyers had the requisite knowledge. Bremer, on
this approach, is not heterodox, the question of knowledge not being one with which the
Court had to be troubled. If Bremer were so orthodox, however, it is difficult to see why
their Lordships also stated that detrimental reliance was an element of waiver. On the
approach elaborated in this text, this second element was irrelevant.
21.04 If Bremer cannot in its own terms be analytically justified, the obvious fall-back position is
to contend that the doctrine described as ‘waiver’ was not in fact such. Given the reference
to detrimental reliance, the obvious candidate doctrine is equitable forbearance which does
 not require knowledge but does require detrimental reliance.8 Bremer and the subsequent
cases become ones in which there was semantic as opposed to doctrinal confusion.
Analytically, this is the better view and mitigates the effects of the use of confused
terminology.
21.05 The practical effect of the above is to emphasise the distinction between equitable
forbearance and waiver in this context. Litigants have to consider, if they are to avoid the
consequences of Avimex,9 whether or not they can establish knowledge. If they can, the
obvious plea will be one of waiver by election, if they cannot, it will be safer to plead the
case in the alternative as one of equitable forbearance rather than waiver simpliciter. If the
latter option is adopted, Bremer and the subsequent cases can be relied on with some degree
of confidence in establishing equitable forbearance where there is no knowledge but there is
detriment.
21.06 There is a further and more controversial possible practical effect. As pointed out above,
Bremer concerned sophisticated commercial parties dealing with standard form notices
which were patently defective. In parallel circumstances it might be possible to deploy
Bremer in support of an argument that it is unnecessary to establish knowledge.
Forensically, the argument may have attractions, particularly so in cases where the defect is
strikingly obvious. Analytically, the approach is dangerous. The litigant may in fact be
adding to its burdens at trial, being required to establish both that the defect was so patent
that the parties obviously knew of its existence and their rights and, if Bremer is applied
wholesale, detrimental reliance. An allied danger is the risk of introducing further
confusion.
B. Sale of Goods
(1) Waiver
21.07 It is possible to identify cases of all four types of waiver in this area. However, as with
shipping law, and, it is submitted, for the same reasons,10 the majority of cases relate to
waiver by election and the focus is on that area.
Total waiver
21.08 Notwithstanding the theoretical complexities arising from the relationship between accord
and satisfaction and waiver,11 as suggested elsewhere12 a party can waive both the right to
reject goods13 and the right to claim damages in respect of those goods.14 However, apart
from a buyer’s waiving of late delivery of the goods15 or perhaps of a condition solely for
one party’s benefit,16 cases of total waiver will be rare.17
Pure and unilateral waiver
21.09 It is clear that any right solely possessed by one party to the contract can be waived.18
However, with the exception of the sellers’ lien, it is as difficult in this area as in others to
identify rights that belong solely to the buyers or the sellers. Thus, although there is
authority to suggest that conditions precedent are capable of being unilaterally waived,19 it
is submitted that the better view is that they are not; a condition precedent forms an
essential part of the bilateral bargain which must be complied with if there is to be
contractual performance. It follows that the more prudent classification of such cases would
be as ones of waiver by election or pure waiver.
21.10 Sellers’ lien That difficulty does not arise with the sellers’ lien over goods which have not
been paid for. That lien is a right existing for the sellers’ unique benefit and can be waived
as such.20 Thus, provided that there is the requisite knowledge, the lien can be waived by
giving credit;21 by the sellers seeking the buyers’ permission to retain the goods as a
 temporary loan;22 by refusing a tender of the price by the buyers;23 by refusing to deliver
the goods for reasons other than the buyers’ failure to pay the price of those goods;24 by
allowing the buyers to take delivery;25 or by acting in any manner inconsistent with the
continuation of the lien or with the buyers’ rights.26
Pure waiver
21.11 The best example of pure waiver is allowing the buyers time to pay. The sellers in such
circumstances permit the future obligations of the contract to alter. As a result, although the
right to call for payment at that time is lost,27 time will remain of the essence28 and the
sellers will remain free to fix a further time for payment on reasonable notice.29
Waiver by election
21.12 The cases where there has been a waiver by election can be broken down into those relating
to: late or incorrect delivery of the goods; a failure to tender proper documents; a failure to
give proper notice under the contract; and failure to pay in accord with the contract.
21.13 Defective delivery It is trite that time is of the essence in sale of goods contracts. It follows
that a late delivery of goods will amount to a repudiatory breach of the contract that can be
waived.30 Similarly, the delivery of incorrect goods, delivery in instalments where one
delivery was required31 and excessive delivery32 can be waived.
21.14 Tender of non-conforming documents International trade contracts normally contain three
elements—the payment by way of documentary credit,33 the shipping of the goods under a
charter party34 and the contract for the sale of the goods. The sale and banking contracts
normally proceed by and against documents; therefore in both cases there is the potential
for the tender of documents that do not conform to the contract. In the case of the banking
contract, a tender of non-conforming documents is the main form of defective
performance.35 By way of contrast, under the sale contract both the documents and the
goods themselves can be defective. A defect in either may give rise to a right to terminate
the contract by rejecting either the documents or the goods. A distinction must therefore be
drawn between the right to reject arising from defects in the goods and that arising from
defects in the documents.36 Thus, in theory, the acceptance by the buyers of non-
conforming documents will not necessarily waive any rights that they may have in respect
of the goods themselves. However, by and large, an acceptance of non-conforming
documents will waive the right to reject the goods either because it is the documents only
(and not the goods) that are defective37 or because the defect in the document is also the
defect in the goods. Thus, for example, where a bill of lading patently shows that the goods
were shipped late and therefore neither the bill nor the goods are as per contract, the buyers’
acceptance of the bill of lading will waive their rights to reject the bill and the goods
themselves.38
21.15 In considering the above, it is also important to note two points. First, the acceptance of non-
conforming documents could also be categorised as a variation of the terms of the contract
of sale. However, as the elements required for waiver and variation are quite distinct, care
must be taken to ascertain which doctrine applies39 and the case pleaded and proved
accordingly. Second, as pointed out above, there will be no waiver by election unless the
buyers have knowledge of the defects and their rights.40 The former may arise if the
documents are defective on their faces and the latter may be presumed when one is dealing
with an experienced commercial organisation. In this respect it is important to note that a
waiver of any rights arising from defective documents can take place if the buyers acquire
 knowledge of the defect after acceptance of the documents but before taking up the goods
and with that knowledge take up the goods.41
21.16 Failure to give proper notice under the contract Sale contracts may provide for notices to
be issued to the buyers and sellers; typical examples being notices appropriating goods to a
particular contract in the sale of generic/bulk goods or notices of supervening events under
a force majeure clause. Defects in the notices will be waived by acceptance of the notice42
after the recipient has had a reasonable time to consider its contents.43 Waiver will not arise
in the normal course of events, however, if the recipient has expressly reserved its rights.44
Further, a distinction must be drawn between notices which are patently defective, where
arguably there will be presumed or deemed knowledge, and less obvious defects where
explicit knowledge of the facts and rights will be required.
21.17 Incorrect payment or tender of payment A contract of sale will provide for the time,
manner and place of payment and each of those requirements may be waived. It is
submitted that, as a matter of practice, all such waivers are waivers by election as the
innocent party has, after the event, accepted performance which differs from that agreed
and which would therefore constitute breach. Thus the requirement that payment be made at
a particular time can be waived by accepting a late payment;45 and a requirement as to
place of payment can be waived by accepting payment elsewhere46 and arguably by
delivery of the goods.47 Both waivers are final.48 Similarly, a requirement for the tender of
the price can be waived by delivering the goods prior to tender and will be final.49
Elements common to all types of waiver
21.18 Common to all of the above is that there must be an unequivocal representation made with
the requisite knowledge.50 Both requirements may, however, be altered by commercial
practice in this area. Undoubtedly due to the presence of sophisticated commercial parties,
the representation relied on in all cases must be clearly unequivocal. The Courts will expect
sophisticated commercial parties to be aware of the consequences of their actions and to
protect their own interests. In blunt terms, a party will only be taken to have represented
that it is forgoing its rights on clear and compelling proof. Therefore, calling for proof of
force majeure will not waive defects in the notice as the proof should validate the notice.51
Further, any representation made with an obvious ulterior motive will not found a waiver of
rights.52 As far as the requirement of knowledge is concerned, the fact that there may be
little practical difference between these waivers and equitable forbearance, provided that
the elements of pleading and proof are satisfied, means that the demarcation between the
doctrines, knowledge, is of less pressing importance. This may be why the overlapping of
waiver and equitable forbearance, in this area, appears to have received the Courts’ tacit
approval.53
21.19 This presence of sophisticated parties repeatedly dealing with each other has two other
general consequences. First, care must be taken where the innocent party reserves its rights.
In most cases an express reservation of rights will protect the innocent party by rendering
subsequent communications equivocal.54 However, the Court may conclude that the
innocent party has waived its rights notwithstanding the express reservation if the innocent
party subsequently acts inconsistently with that reservation.55 Further, it appears that the
Courts are relatively willing to reach this conclusion in this context.56 In plain terms,
sophisticated parties will be deemed to have known what they were doing when they
reserved their position and when they subsequently acted inconsistently with it. Second, to
take account that the parties usually enter into multiple transactions for the sale of goods, a
 waiver will only apply in a limited fashion. Thus, the waiver will only operate to extinguish
rights arising in relation to a particular shipment or particular goods.57 There will be no
‘general waiver’ of non-specific rights.
(2) Estoppel
21.20 The view that estoppel is a vague doctrine incapable of juridical formulation58 has not
prevented it from being used in this area.59 When it is used, the same principles as outlined
above apply.60 Thus, as intimated above, an estoppel can be relied on where the requisite
knowledge cannot be established.61 More interestingly, ‘estoppel’ has been used as a
mechanism for passing title to goods.
Estoppel and title to goods
21.21 ‘Estoppel’ has been used as a mechanism for passing title in three ways; all of which are
exceptions to the nemo dat principle that exist for reasons of commercial expediency.62 All
run throughout commercial law.63 It is important to note that none are estoppels in the true
sense of the word, where title does not pass,64 and that a plea based on these exceptions will
rarely succeed65 not least because of the potential that they have for destroying
subsequently concluded bargains.66
Estoppel by representation
21.22 Where a seller expressly represents to a buyer that title to the goods has passed, the seller
will subsequently be ‘estopped’ from arguing that title has not passed. Further, the buyer
will be able to sell the goods on to third parties giving good title as it does so.
Axiomatically, therefore, this type of ‘estoppel by representation’ is not a true estoppel by
representation, good title being created. It is part of the exception to the nemo dat principle
that also permits title to be transmitted as a result of ostensible authority.67
21.23 Despite the fact this is not a true estoppel, the requirements of an estoppel by representation
are required.68 In particular, there must be an express representation as to title. Therefore,
delivery,69 handing over of a receipt or documents of title,70 acceptance of delivery or entry
of goods into the buyer’s books will not suffice to create the estoppel.71 Similarly, an
attornment, a promise to deliver, will not usually generate an estoppel;72 a mere promise
fails the basic Jordan v Money73 requirement that there be a representation of fact.74 To
establish the estoppel there must be a clear, additional representation that title has passed.75
21.24 There is one further limitation. The estoppel will not disenfranchise those who have acquired
title by standard means. Thus, the title created must relate to particular, ascertained goods
or an existing bulk that is sufficiently large to satisfy all relevant claims to title. The
estoppel will not create a title where there are insufficient extant goods.76
21.25 Estoppel and bailment Where goods are bailed, the bailee impliedly undertakes that it will
preserve those goods for the bailor as the bailor’s goods. The result of this implied
undertaking is that, with one caveat, a bailee cannot deny the bailor’s title to the bailed
goods,77 an inability being said to arise from an ‘estoppel’.78 The caveat is that there is no
estoppel, where the bailee resists the bailor’s claim79 at the request of the true owner.80 As
with the other alleged estoppels which pass title, this is not a true estoppel, not merely
because it substantively creates title but because there is no unequivocal representation. It
follows that this estoppel is creature of commercial policy.81 Further, as the ‘estoppel’
arises from an implied undertaking and can be easily defeated, it is of limited application.
21.26 Estoppel by negligence The true owner of goods can pass good title to those goods as a
result of an ‘estoppel by negligence’. The ‘estoppel’ will arise where the true owner sues a
 buyer for the return of the goods and the buyer establishes that the true owner owed the
buyer a duty of care, was negligent and that negligence was causative of the buyer
purchasing the goods.82
21.27 That this is not an estoppel is clear from its composite elements. The emphasis is on common
law negligence rather than any equitable doctrine. The buyer must establish the existence of
a duty of care83 and causation.84 Establishing a duty of care is an onerous burden—a failure
to take precautions to prevent theft,85 a merely careless loss,86 or a failure to report the
theft87 will not suffice.
21.28 The question then becomes, if this is not an estoppel, what type of doctrine is it? The most
immediate candidate is circuity of action.88 The buyer has an equal and opposite claim to
that of the true owner arising from the true owner’s breach of duty and buyer’s loss. The
alternative is that this is another example of the nemo dat exception.89 On balance, as title
can be passed as opposed to the generation of an equal and opposite claim for damages, the
latter view would appear to be correct. However, in either event, the Courts are not applying
the doctrine of estoppel in any proper sense of the word.
C. Shipping
21.29 As pointed out elsewhere,90 shipping law has been responsible for many of the developments
in the doctrines of waiver, election and estoppel.91 In part this is due to the historically high
volume of litigation. It is also due to the notification and documentary provisions which
attach to most forms of shipping transactions. The complexity and number of those
provisions offers parties more opportunities to make errors or to make the unequivocal
representations necessary to trigger the three doctrines.92
(1) Waiver
Pure and unilateral waiver—shipowners’ lien
21.30 The clearest example of pure and unilateral waiver is the waiver of the shipowners’ lien on
freight by the unequivocal acts of accepting the bill of lading93 or of requiring that the
freight be paid after delivery.94 In both cases, a right particular to the shipowner is lost95
and the future performance of the parties’ rights and obligations under the charter party are
altered without breach or consideration. The requirements of pure and unilateral waiver are
made out.
Total waiver
21.31 Total waivers may arise here as elsewhere. In Bottiglieri di Navigazione SpA v Cosco
Qingdao Ocean Shipping Company,96 it was held that the waivor lost the right to claim
damages (that is a total waiver) as a result of the unilateral waiver of a requirement in the
charter party that the vessel be clean to an appropriate standard. To the extent, however, the
Court suggested that there could be a total waiver because (or solely because) the
requirement of cleanliness was for the benefit of only one party, that, it is submitted, is too
narrow a reading of total waiver. This is for two reasons. First, as a matter of principle,
there is no reason why a total waiver can only be dependent on a unilateral waiver. Second,
whether there has been a total waiver is dependent on the facts of each case.97 As such,
although the cases in which a total waiver will occur will be rare, total waiver is not to be so
narrowly confined.
Waiver by election
21.32 The majority of the case law relates to waiver by election. This arises from the fact that the
shipowners or charterers will most frequently be reacting to a discovered breach rather than
altering the future performance of a charter party governed by standard terms. The focus
 therefore is on the breaches of shipping contracts that are capable of waiver, the manner in
which those breaches can be waived, and the effect of the waiver.
Breaches capable of waiver
21.33 The types of breach can be split into two categories: breaches of conditions of the charter
party, for example as to suitability of the ship,98 or as to the shippers’ inability to deviate
from the course,99 or as to the quantity or quality of goods shipped,100 and breaches which
trigger a particular right under the charter party, for example, late payment of hire for the
vessel which would normally trigger the right to withdraw the vessel,101 or as to the proper
form of a Notice of Readiness.102 Both types of breaches are capable of waiver.103
Therefore, a deviation from the allotted course can be waived104 as can the late payment of
hire.105
Manner in which the breaches can be waived
21.34 Unequivocal representation For there to be a waiver, the innocent party must make an
unequivocal representation whilst possessing the appropriate knowledge. The types of
unequivocal representation which will found the waiver are on one level unproblematic.
The representation must be ‘unequivocal, definite, clear, cogent and complete’.106
Examples include the right to withdraw being lost by either accepting a late tender of
hire107 or by allowing the ship to proceed to port108 or to discharge.109 Further, although
there is authority to suggest that a reference to arbitration may not be sufficiently
unequivocal to found a waiver,110 the better view is that a party facing a repudiatory breach
may, in limited circumstances,111 waive that breach by seeking a reference to arbitration.
However, on another level, this simple overview must be qualified by the presence of three
issues that require consideration.
21.35 First, where a breach has triggered a party’s rights under the charter party, that party will be
allowed time to investigate the breach.112 After investigation, the party’s rights must be
exercised within a reasonable time113 if they are not to be lost.114 It follows that mere
silence and delay under a charter party can ‘waive’ rights accruing under it; a conclusion
that is, at first sight, contrary to the general law. It is submitted, however, that the loss of
rights in such circumstances is consistent with the general law—the silence and delay with
the concomitant uncertainty as to the charterers’ rights and potential difficulties with the
practical organisation of the charter party inevitably result in the charterer suffering
prejudice. It is therefore submitted that the law is consistent with the rule laid down in
Allen v Robles115—equitable forbearance rather than waiver. It follows that the charterer
alleging that the owners have ‘waived’ the breach by silence or delay should in fact
formally plead and prove its case on equitable forbearance principles. Thus, the charterer
must show that it has suffered some detriment, albeit that the Court will readily infer that it
has.
21.36 Second, the Courts will place any allegedly unequivocal act in its context to ascertain
whether or not it is truly unequivocal. If the act is not sufficiently clear and unequivocal,
there will be no waiver.116 Thus, where the alleged act was the loading and sailing of the
vessel, the Court examined whether that act occurred on the instructions of the charterers
(the party in breach) or the owners. Where the act was on the instructions of the charterers,
acquiescence by the owners was not sufficient to found a waiver.117 Further, it is also
arguable that if the owners are acting with an ulterior motive, there will be no waiver.
Therefore, where there has been a deviation, allowing the ship to load and sail to prevent a
 further deviation118 or indorsing a bill of lading to obtain perishable freight,119 this may
not be sufficiently equivocal to found a waiver.
21.37 Third, the complexities arising from agency relationships apply here as elsewhere. As in the
general law of agency, if the person who made the representation did not have actual or
ostensible authority to waive any rights, there may well be no waiver.120 Thus, an
acceptance of a late tender of hire by the owners’ banks will not constitute a waiver if the
bank’s instructions are limited by a requirement for the owners’ approval of the
acceptance.121 Similarly, if the master of the vessel does not have authority to waive the
terms of the charter party, his actions will not waive the owners’ rights.122 By contrast,
however, a charterer’s agent appointed to receive Notices of Readiness and/or to instruct
discharge of the vessel has authority to waive defects in those Notices.123
21.38 Knowledge As pointed out above,124 the Courts have used the term ‘waiver’ to mean
‘equitable forbearance’.125 The reason for their doing so, it is submitted, has been the
difficulty of showing that the party alleged to have waived its rights possessed the requisite
knowledge as at the date of the unequivocal representation. A party considering whether the
right to terminate the contract has been lost must, as suggested above, analyse whether the
right has been waived or whether the party is precluded from taking the point as a result of
an equitable forbearance.
Effect of the waiver
21.39 The theoretical effect of the waiver does not differ from the general law. However, two
particular points should be noted. The first flows from the fact that, whilst a deviation
constitutes repudiatory breach releasing the parties from all unaccrued obligations under
the contract, the holder of a bill of lading will rarely be aware of the deviation until the
voyage is completed. If there is no waiver, all the terms of the contract will cease to have
force and effect.126 If there is a waiver, the parties will be held to their contract, the
innocent party only possessing a limited claim for damages arising from the deviation127
and being exposed to a claim for general average or freight.128 To protect the contract, the
Courts will require a clear election with knowledge to treat the deviation as repudiatory.129
Much therefore turns on the waiver and, given the usual state of ignorance, the knowledge
of the innocent party. Knowledge is crucial. The second arises from the fact that, in
common with the negotiation of bills of exchange,130 a cargo afloat may be on-sold many
times, sometimes with the bill of lading being indorsed to that effect. To ensure the
commercial efficacy of any on-selling, a waiver will only affect the parties to it. Any
waiver as between the sellers and shipowners or charterers, or original sellers and
purchasers in a string, will not affect subsequent purchasers and sellers in the string or
indorsees of the bill of lading.131
(2) Election
21.40 As pointed out above, certain breaches of a charter party will automatically give rise to the
right to terminate.132 Under the common law, the innocent party would therefore be forced
to its election. Whether or not the innocent party had so elected would be decided under the
normal rules.133 This position has been altered by ‘anti-technicality’ clauses in the charter
party. These clauses usually either provide that the charter party can only be terminated
after compliance with a notification process134 or that the charter party cannot be
terminated for merely formal breaches.135 As pointed out in Dalkia Utilities Services Plc v
Celtech International Ltd,136 these clauses137 alter the common law position such that
 using these clauses may, dependent on their precise terms, amount to an affirmation of the
contract or, if used improperly, a repudiation of the contract.138 Given that the terms of the
clause will vary from case to case and, manifestly, the facts on which the right to terminate
(whether under the contract or at common law) will also vary, the precise inter-relationship
between the clause and the common law will have to be considered in each case.139 It
follows that care must be taken in using an anti-technicality or termination clause to ensure
that valuable rights are not lost.140
(3) Estoppel
21.41 A party may have recourse to an estoppel where it is unable to establish knowledge. First and
foremost, recourse will be to equitable forbearance. Estoppel by representation and estoppel
by convention, however, may both apply. Thus for example, the charterers may be
precluded from arguing that a notice of readiness was premature.141 As pointed out above,
that preclusion can be categorised as waiver or equitable forbearance.142 This can lead to
controversy. In Transgrain Shipping BV v Global Transporte Oceanico SA (The Mexico
I),143 Lord Justice Mustill, as he then was, doubted whether the ‘elusive concept of waiver’
had any role to play in relation to notices of readiness144 deciding that the better analysis in
notice of readiness cases was estoppel by convention.145 By contrast, however, the Court of
Appeal in Flacker Shipping Ltd v Glencore Grain Ltd146 expressly considered the Mexico I
and the respective doctrines of waiver (unilateral and by election)147 and estoppel and
concluded (a) that Lord Justice Mustill’s comment was obiter; and (b) defects in a Notice
of Readiness can be waived148 and this is now settled law.149
21.42 Estoppel in this sense150 may arise in three particular situations: in relation to bills of lading;
in relation to salvage; and in relation to demurrage.
Bills of lading
21.43 Representations151 made in and by the bill of lading will create an estoppel provided that the
elements of an estoppel are established.152 Therefore, a statement that the goods are
shipped in good order will preclude the shipowner/carrier from arguing the contrary when
sued by an indorsee for value of the bill153 or the lawful holder of the bill on
presentation.154 A similar estoppel will arise from the description of the goods in the bill of
lading.155 As the bill of lading is passed from carrier to carrier, the bill will estop
successive carriers on a through carriage from arguing that the goods differ from the
description in the bill156 unless those successive carriers make some statement to the
contrary.
21.44 There are limits on the application of this estoppel. As a matter of basic principle, there will
be no estoppel where the representee is aware of the true facts (for example, the condition
of the goods) or where the representor had no authority to make the representation and the
representee is aware of that fact. In either case, there can be reliance or detriment. The main
example of this was the absence of an estoppel at common law, and before statutory
intervention,157 where the master made a representation as to goods which were not on
board ship158 or as to the commercial quality of the goods,159 the contention being that both
such representations were outwith his authority.160 Although, the specific limitation on the
master’s authority has now been removed, the examples are indicative of the possible
limitations on a representor’s authority.
21.45 If there is no unequivocal representation, there can be no estoppel. Therefore, a shipowner
can avoid creating an estoppel by making vague representations.161 Such representations
 will be insufficiently certain to amount to the requisite representation. The carrier’s
response in such circumstances would be to call for a bill which complies with article III
rule 3 of the Hague-Visby rules.162
21.46 Further limitations on the doctrine flow from the requirement of reliance. The argument is
that as the buyer is already bound to complete the sale, the buyer does not rely on the
representation as to the quality of the goods made in the bill. However, in reality, the effect
of the obligation to complete is to prevent any automatic presumption of reliance from
arising,163 reliance/detriment will still arise as the shipowner will be taken to have intended
that the representation be relied on and the buyer will either permit its bank to pay against
documents or pay for the goods itself.164 The absence of reliance may also be invoked
when, on the facts of any given case, the proper response to a defective bill would be to
seek expert advice and that advice was not sought, the representee relying on the bill
without more.165
21.47 As pointed out above, the common law rules governing estoppel have been superseded by
statute and the rules governing bills of lading. Section 4 of the Carriage of Goods by Sea
Act 1992 provides that a bill of lading, issued after the coming into force of the Act which
(i) represents goods have been shipped or received for shipment and (ii) is signed by the
master or person having authority of the carrier to sign the bill, is conclusive evidence in
favour of the lawful holder of the bill of the fact of shipment or receipt for shipment. A
similar effect is achieved by the rules which normally govern bills of lading.166
Salvage
21.48 During the negotiations for salvage, the shipowner may be estopped from denying that it is
liable to the salvor for the salvage due by representations that it makes. Thus, for example,
the appointment of arbitrators to determine what salvage is due or the deposit of monies to
pay salvage are both sufficient representations to generate an estoppel.167 As elsewhere, the
salvor must establish detriment.
Demurrage
21.49 The failure to place a demurrage indorsement on a bill prior to the signing of the bill will
preclude a claim for demurrage being made for the simple reason that the bill is clear
representation to the holder as to the status of the cargo at shipment. By parity of reasoning,
no estoppel will arise in a claim against the charterer because no representation is made by
the bill to the charterer.168 No estoppel will arise unless there is reliance/detriment.169
Once a claim for demurrage is made, the claimant may be estopped from altering that
claim.170
Limits on the estoppel
21.50 In all cases, it must be remembered that any estoppel created will not operate as a sword.
This has led to controversy as to whether the estoppel will operate to ‘create’ a cause of
action. At one stage, an estoppel could, whilst not specifically creating a cause of action,
however, prevent a party from denying that a particular set of facts were the case, the result
of which would be that the claimant’s cause of action—which would have failed on the
facts absent the estoppel—succeeded. On the current law, applying Baird Textile Holdings
Ltd v Marks & Spencer Plc,171 considerable caution must, however, be deployed in
adopting such an approach in any case other than one of proprietary estoppel.172
 22
LANDLORD AND TENANT
A. Waiver 22.01
(1) Waiver by election 22.01
B. Equitable Forbearance 22.28
(1) Rent 22.28
(2) Notice to repair 22.30
C. Estoppel 22.31
(1) Estoppel by convention 22.31
(2) Estoppel by representation 22.34
A. Waiver
(1) Waiver by election1
Waiver of the right to forfeit
22.01 By far the most common application of the doctrine of waiver by election is a landlord’s
waiver of his right to forfeit the lease. The landlord’s right to re-enter the premises, thereby
determining the lease, may arise by operation of law but is more usually defined in an
express proviso for re-entry. After the occurrence of the tenant’s breach of covenant, or
other event entitling the landlord to forfeit,2 the landlord is put on election to treat the lease
as at an end, either by physical re-entry or by bringing possession proceedings. If, however,
the landlord chooses to treat the lease as continuing, he is affirming the contract and is said
to have waived the forfeiture. Once the landlord has elected to treat the lease as forfeit,
subsequent actions by the landlord cannot constitute waiver.3
Elements of the waiver
22.02 The same elements as identified elsewhere in this work apply: (a) there must be an
unequivocal act recognising the continued existence of the lease; (b) the landlord must
know the facts which give rise to the right to re-enter; and (c) the act in question must be
communicated to the tenant.4
Unequivocal representation
22.03 Positive act Mere inaction in the face of a breach is insufficient. A positive act on the
landlord’s part is required.5 Although there is authority that suggests that prolonged
acquiescence in repeated breaches of covenant may amount to a waiver,6 the better view is
that, in common with the general law of waiver, silence and delay will not suffice. The
authority suggesting that acquiescence will suffice is better viewed as an example of
equitable forbearance.
22.04 Acceptance of rent The most common act of waiver is the acceptance of rent, which
amounts to an act of waiver even if it is accepted through clerical error,7 or is accepted on a
‘without prejudice’ basis.8 The demand or acceptance of rent clearly acknowledges the
existence of the tenancy. It carries within it a clear and unequivocal representation as to the
rights between the parties. Acceptance by an agent is sufficient even if the agent has been
instructed not to receive it.9 An unqualified demand for rent may have the same effect as
the acceptance of rent.10 Likewise, distraint for rent generally11 waives a prior breach.
22.05 As in the other areas discussed in this work, any potential for waiver will be qualified by the
terms of the agreement. Therefore, where the lease provides that the landlord may not
forfeit for non-payment of rent until he has attempted to distrain for rent, an act of distraint
 does not operate as waiver.12 Similarly, any sums received must be reserved as rent in the
lease if a waiver is to arise. Thus, insurance premiums which were not expressly reserved as
rent, but were expressed to be recoverable by distress ‘in the same way as rent’, were not
rent for the purposes of waiver.13
22.06 Given the case specificity of any given waiver,14 some care must be taken as to the date of
the alleged unequivocal act. Acceptance of rent which became due after the date on which
the right to forfeit arose will waive the right to forfeit for any breach of which the landlord
was aware on the date on which the rent fell due.15 Acceptance of rent is not, however,
waiver of a breach committed, or coming to the landlord’s attention, after the date on which
the rent fell due but before acceptance of the rent.16 Thus, during the currency of a notice
served under section 146 of the Law of Property Act 1925, acceptance of the rent does not
amount to a waiver, because, until notice has expired, the right to forfeit has not arisen.17
The same principle applies where the right to forfeit depends upon the tenant’s failure to
comply with a notice to repair. Acceptance of rent prior to expiry of the notice cannot
amount to waiver.18
22.07 Other acts The unequivocal representation by an acceptance or demand for rent appears to
‘fall into a special category’.19 As a result, the Courts are not entitled to take into account
the landlord’s explanation for accepting the payment, for example, clerical error. In other
cases, the Court is ‘free to look at all the circumstances of the case’ when considering
whether the landlord’s actions were so unequivocal as to be only consistent with the
continued existence of the tenancy.20
22.08 Service of a notice to quit necessarily recognises that there must be a lease for the notice to
determine.21 In contrast, service of a notice under section 146 of the Law of Property Act
1925 is not an act of waiver, as it is a preliminary to the exercise of a right of forfeiture.22
22.09 Negotiations between the parties may give rise to acts of waiver.23 An offer by the landlord
to buy the tenant’s interest, even though it was made ‘subject to contract’, amounts to a
waiver as the offer can only be made on the basis of the lease continuing.24 By contrast, the
mere fact that ‘without prejudice’ negotiations have taken place is not sufficient.25
22.10 The issue of Court proceedings may necessarily recognise the existence of the tenancy. For
example, a claim for an injunction restraining a breach of covenant has been held to
constitute an act of waiver.26 A landlord may, however, claim forfeiture and an injunction
in the alternative, because in doing so he makes no unequivocal election.27 A mere threat to
seek injunctive relief, for example to restrain unlawful alterations, does not amount to a
waiver.28 It has also been held that a landlord who issues proceedings for production of an
insurance policy under a tenant’s insurance covenant waives the right to forfeit by
peaceable reentry.29 A claim for rent falling due after the right to forfeit has arisen will
amount to waiver, unless the claim is coupled with a claim for possession.30
22.11 Knowledge of the landlord Although the landlord must have knowledge of his right to
forfeit, this requirement is invariably met. It has been said that common sense prevents
landlords from saying that they did not know of their right to retake possession for breach
of covenant.31 Given that the landlord is taken to know his rights, the issue is whether those
rights have arisen. The key question is therefore whether the landlord knew of the basic
facts constituting the tenant’s breach.32 The mere fact that the breach may have been
advertised in the press does not fix the landlord with knowledge.33
22.12 Mere suspicion does not amount to knowledge. This is of particular significance in the
 context of unlawful sub-letting, which is a once and for all breach. Accordingly, when
carrying out his investigations, the landlord has to make a careful judgement as to when to
forfeit the lease. Although he requires sufficient evidence to sustain the forfeiture
proceedings, delay in issuing proceedings may result in a finding of waiver. Where the
landlord suspected that the tenant had sub-let in breach of covenant, but was assured by the
tenant that this was not the case, the landlord did not have knowledge of the breach.34 The
landlord’s knowledge need not, however, extend to every detail of the breach concerned, for
example he need not know the identities of the subtenants.35
22.13 It is not necessary for the landlord personally to know of the breach. Agency principles
apply. It is therefore sufficient if the breach is known to the landlord’s managing agent, his
solicitor,36 or an employee where it is part of an employee’s duty to report the matter in
question to the landlord.37 Likewise, where an agent’s authority is limited so that he has no
duty to report a breach of covenant to the landlord, his knowledge will not be imputed to the
landlord.38
22.14 Intention to waive the breach is unnecessary.39 Indeed, many acts of waiver result from the
automatic sending out of rent demands. Waiver occurs, irrespective of the landlord’s
intention, if he acts in a way which is only consistent with the continued existence of the
tenancy.40
22.15 Communication of act to tenant In the general law of waiver, it is axiomatic that the
representee is aware of the representation (even though he has not relied on it); if the
representee was unaware, there would be no dispute between the parties. This feature,
implicit in the general law of waiver, has been given explicit consideration in the context of
landlord and tenant law. For an act to be effective as a waiver, it must be known to the
tenant.41 Given that most cases involve an acceptance of, or demand for, rent, this
requirement is commonly satisfied. Where the act relied on is contained in a document,
such as a rent demand, the waiver takes place only if and when the document is received.42
22.16 The point is clearly illustrated by London & County (A & D) v Wilfred Sportsman.43 The
landlord assigned the reversion of the lease. The conveyance was expressed to be ‘subject to
and with the benefit of the lease’ and the assignee took the reversion with knowledge of a
breach of covenant by the tenant, entitling forfeiture. The tenant was, however, unaware of
the terms of the conveyance. There was, as a result, no waiver.
Waiver of other rights
22.17 Waiver of defective notice The service of an invalid notice to quit is of no effect but either
party may elect to waive any defect in the notice.44 Where the tenancy is a joint tenancy,
however, all the tenants must consent to the waiver.45 If possession is delivered up
following the service of an invalid notice to quit, surrender takes place by operation of
law.46
22.18 ‘Waiver’ of valid notice to quit A more difficult issue arises where one party serves a
notice to quit which determines a periodic tenancy but, after the expiry of the notice to quit,
the relationship between the parties continues as if the tenancy had not been terminated.
This eventuality is often categorised as a ‘waiver’ of the notice to quit. The expression
‘waiver of a notice to quit’ is, however, inaccurate.47 A notice to quit cannot be withdrawn
or abandoned even by agreement between the parties.48 The effect of an agreement not to
enforce a notice to quit is to create a new tenancy between the parties because the old one is
at an end.49
22.19 Where there is no agreement but the landlord receives rent after the expiry of the notice to
quit, whether or not a new tenancy has been created will depend on all the circumstances of
the case, the key issue being the true intention of the parties.50 The common law
presumption of a tenancy from the payment and acceptance of money for the exclusive
possession of premises is no longer sound.51 A new tenancy will not be inferred where the
occupier has some other right to remain in the property, for example under a statutory right
to remain.52
22.20 Applications for new tenancies The machinery for the grant of a new business tenancy
under the Landlord and Tenant Act 1954 contains notorious pitfalls. Specific issues arise
from the form of notice required, for the landlord to terminate the tenancy53 and for the
tenant’s request for a new tenancy,54 and the statutory time limits for an application for a
new lease.55
22.21 Notices served under either section 25 or section 26 must be in the prescribed form.56 Certain
defects in the notice will not be fatal, however, as the regulations provide that a notice may
be in a form ‘substantially to the same effect’ as the prescribed form. Outwith the
parameters of acceptable error, obvious points as to waiver will arise.
22.22 By taking certain actions in the procedure, the parties may be held to be bound by a waiver
by election. In Bristol Cars Ltd v RKH Hotels Ltd (in liquidation),57 the tenant served an
invalid section 26 notice. The landlord did not serve a counter-notice and indicated that it
was willing to grant a new tenancy. Lengthy negotiations for a new lease ensued and the
tenant applied for a new tenancy. The landlord applied for an interim rent but subsequently
objected to the validity of the section 26 notice. The Court held that the landlord had had a
choice: either to challenge the validity of the notice or to treat it as valid and apply for an
interim rent. By issuing the application, the landlord had elected to waive any defect in the
notice.58 Where one party fails to establish the requisite elements of waiver,59 an estoppel
argument will be made. Thus, in Bristol Cars, Templeman LJ held that the landlord was in
any event estopped because during the course of the negotiations it had been made clear to
the tenant that, even if the new lease could not be agreed, the landlord would not oppose the
grant of a new lease.60
Case specificity of waiver
22.23 It is apparent from the foregoing discussion of the general principles applicable to waiver
that the doctrine is case specific. A waiver will be confined to the terms of the unequivocal
representation and to the rights at issue between the parties at that particular moment. A
waiver, unless there is an extremely broad unequivocal representation which would be
unusual, does not have general application.
22.24 This principle applies here. Waiver of a particular breach does not waive the benefit of the
covenant or condition61 so that the landlord’s right to forfeit arises on any subsequent
breach of the covenant. In this regard, an important distinction is drawn between
‘continuing’ and ‘once and for all’ breaches. Where the breach is a continuing one, if the
landlord waives the breach, he can still forfeit for any continuation of the breach after the
act of waiver. Common examples of continuing breaches are: (a) failure to keep the
premises in repair;62 (b) failure to comply with insurance obligations;63 and (c) using the
premises in a prohibited manner.64 This severely restricts the importance of waiver in
respect of continuing breaches. For example, where there has been a breach of a covenant to
keep the premises in repair, immediately after an act of waiver, if the premises remain out
of repair, the landlord remains entitled to forfeit.
22.25 Where the breach is a once and for all breach, once the breach has been waived the landlord
is precluded from relying on it and must wait until the next breach. Failure to pay rent is a
once and for all breach,65 as is unlawful assignment or sub-letting,66 or breach of covenant
not to carry out alterations to the premises,67 or failure to allow the landlord to inspect the
premises.68
22.26 Failure to comply with a covenant which specifies that an act must be performed within a
specified timescale is a once and for all breach. Examples of such breaches are: a failure to
comply with a covenant to erect buildings by a certain date69 (it is not necessary for the
covenant to specify a date) and a failure to lay out insurance payments for reinstatement
within a reasonable time.70
22.27 Some care must be taken in the categorisation of a particular breach as a once and for all
breach. Often a single act may constitute a breach of both kinds of covenant. Waiver of a
once and for all breach will also waive breaches of covenant which are integral to the
covenant which has been broken. In Downie v Turner,71 the lease contained a covenant
against sub-letting the premises or any part thereof and also a covenant to use them as a
private dwelling house only. The tenant in breach of covenant sub-let part of the premises
and the landlord, with knowledge of the breach, accepted rent. Despite the fact that the
covenant restricting user was a continuing covenant, the landlord was held to have waived
both breaches.
B. Equitable Forbearance
(1) Rent
22.28 One of the loci classici in the law of equitable forbearance arose in the field of landlord and
tenant. In Central London Property Trust Ltd v High Trees House Ltd,72 Lord Denning gave
effect to a promise to accept a reduced rent through equitable forbearance. High Trees was
applied in Smith v Lawson.73 The landlord inherited a property in which his aunt was a
sitting tenant. He promised her that she could remain in the property rent free for the
remainder of her life. No further rent was paid and subsequently the aunt claimed to have
acquired title to the property through adverse possession. It was held that the new
arrangement between the parties had replaced the existing tenancy with the effect that the
limitation period did not start to run. Here a promise (as opposed to a representation of fact)
was given effect. Equitable forbearance principles were, therefore, being applied.
22.29 In the context of commercial landlord and tenant litigation such issues rarely arise. An
example is Hazel v Akhtar74 where the landlord opposed the grant of a new lease under the
Landlord and Tenant Act 1954 on the ground that the tenant had been guilty of persistent
delay in paying rent.75 The landlord’s predecessor in title had allowed delays in payment
for significant periods of time. The Court of Appeal held that, although this did not amount
to a variation in the terms of the lease, the landlord was ‘estopped from insisting that the
appellant should revert to strict compliance with the lease, unless it gave him reasonable
notice to that effect’. The landlord, as an assignee of the reversion, was bound by that
‘estoppel’ (in reality an equitable forbearance). The Court of Appeal did not need, however,
to resort to equitable forbearance/estoppel in order to find for the tenant. The ground for
resisting the grant of a tenancy left the Court a discretion: where the Court is satisfied that
there is an explanation for the persistent delay and that it will not recur, it may properly
order a new tenancy.76 This remedial route is clearly simpler and more efficacious than
resort to the complexities of equitable forbearance/estoppel. As such, it is a route that can
and should be applied in the vast majority of cases.
 (2) Notice to repair
22.30 Hughes v Metropolitan Railway Co Ltd77 provides another classic enunciation of equitable
forbearance principles (as least as construed by Lord Denning MR in High Trees), drawn
from the landlord and tenant context. In Hughes the landlord served a notice to repair on the
tenant. The tenant responded by offering to sell his interest to the landlord. During the
ensuing negotiations, the tenant was led to believe that he would not be required to comply
with the notice while the negotiations were ongoing. In reliance on this, he took no steps to
comply with the notice. After the negotiations broke down, the landlord sought to forfeit the
lease for the tenant’s failure to comply with the notice. It was held that the effect of the
negotiations was to suspend the notice so that the landlord was not entitled to forfeit the
lease.
C. Estoppel
(1) Estoppel by convention
Voluntary execution of repair works
22.31 It is not unusual for one party to carry out repairs which are not his responsibility under the
lease, raising potential arguments that the terms of the lease have been varied, or that a
convention basis as to the obligations imposed by the lease has arisen. Those arguments do
not often succeed.
22.32 Thus, in London Hospital Board of Governors v Jacobs,78 the landlord carried out repairs to
the property for many years, despite the fact that the lease imposed the repairing
obligations on the tenant. The argument that the lease had been varied was rejected. The
Court of Appeal emphasised that it is not uncommon for landlords to carry out works
voluntarily in the interests of both parties and the voluntary assumption of the burden of
executing works could not of itself vary the terms of the agreement.79
22.33 In Credit Suisse v Beegas Nominees Ltd,80 the Court of Appeal considered an alternative
argument of estoppel by convention. The lease was of newly constructed premises, the
external walls of which were clad in aluminium and glass panels. The walls suffered from
serious water ingress and the landlord responded to the tenant’s complaints by indicating
that it would take action to remedy the defects. The tenant’s argument that the landlord was
estopped from denying that it was liable under the terms of the lease to remedy the defect
was unsuccessful. The Court of Appeal held that the landlord’s apparent willingness to do
works, or have them done, was not of itself material sufficient to show a convention as to
the effect of the lease.81 Notably, in the correspondence evincing a willingness to do the
works, the landlord did not indicate that it would be doing the works under the terms of the
lease. Furthermore, the fact that the tenant was aware that the landlord intended to recover
the costs of the work from the developer rendered its conduct equivocal.
(2) Estoppel by representation
Tenancy by estoppel
22.34 Although a tenancy is usually an interest in land that is created out of a superior estate, it is
primarily a contract between two parties under which one party grants another exclusive
possession of premises. If the effect of the contract is to create a tenancy, the fact that the
grantor lacks sufficient title to grant an estate in land does not prevent the agreement from
creating a tenancy. In such circumstances, the tenancy is referred to as a ‘tenancy by
estoppel’ and will bind the parties to the estoppel.
22.35 The basal principle in operation in such cases has been categorised as preventing a man from
invalidating his own solemn act.82 A number of types of estoppel will operate. Where the
 lease is created by deed,83 this is merely an example of the doctrine of estoppel by deed.84
In the context of landlord and tenant law, the doctrine has developed by analogy to
encompass all written and oral tenancies.85 The landlord is prevented from denying that his
grant has created an effective leasehold interest in the premises. Equally, the tenant is
prevented from disputing the landlord’s title in an action brought against him by the
landlord, even after possession has been delivered up.86 Most statutory provisions apply
equally to tenancies by estoppel so that a tenant by estoppel may be obliged to pay an
interim rent pending an application for a new tenancy under the Landlord and Tenant Act
195487 and a tenant of residential premises may rely on the implied repairing covenant
imposed on the landlord by section 11 of the Landlord and Tenant Act 1985.88
22.36 The doctrine is expansive. Tenancy by estoppel may well apply even where the landlord does
not purport to grant a tenancy and the tenant is aware that the landlord lacks sufficient
title.89
22.37 There are, however, limits on the principle. In common with other estoppels and waiver, the
representor/promisor cannot, by virtue of the representation/promise, give itself a power
that it otherwise does not have. A representation/promise cannot translate an ultra vires act
into an intra vires act. Therefore, where the landlord is a corporate body which lacks the
power to grant a tenancy, it is not estopped from denying the tenancy, because it cannot by
estoppel confer on itself a power which it does not have.90 Further, a tenancy by estoppel
does not clothe the tenant with title as against the true owner, who may claim possession by
title paramount.91 If the landlord subsequently acquires an estate in the property sufficient
to sustain the grant, the estoppel is said to be fed and the tenant obtains an interest which is
binding on third parties.92
Rent review
22.38 Most leases provide machinery for the periodic review of the rent at regular intervals during
the term. In commercial leases, commonly the rent review clause will provide for the rent
to be re-determined by reference to the open market value of the premises at the time of the
review. Normally, the review will be specified to be upwards-only with the consequence
that substantial case law has developed concerning the extent to which failure on the
landlord’s part to activate the rent review machinery can prevent him relying on the
provisions in the lease.
22.39 Inevitably, much turns on the precise wording of the rent review clause. Issues particularly
arise over whether the time for initiating the review process is made of the essence.93 Some
early authorities suggested that the landlord could lose the right to review merely through
unreasonable delay.94 In Amherst v James Walker Goldsmith & Silversmith Ltd,95 however,
the Court of Appeal held that unreasonable delay by the landlord, even if it occasions
hardship to the tenant,96 does not prevent the landlord from initiating or continuing with the
rent review. The right to review could only be lost if the landlord was estopped from relying
on it, that is, where ‘the tenants could have proved that by words or conduct [the landlord]
had represented that he did not intend to ask for a payment of a higher rent and in reliance
on that representation they had altered their position to their prejudice’.97
22.40 The landlord’s representation must be unequivocal. In James v Heim Gallery (London) Ltd,98
the landlords gave notice out of time and the tenant replied by asserting that the proposed
increase was accordingly invalid. The landlords, acting on the view of the law which
prevailed at the time, accepted the tenant’s argument and proceeded to serve regular
demands for the existing rent. Subsequently, the tenant incurred items of expenditure which
 it would not have incurred but for its belief that the review would not take place. Following
the House of Lords’ decision that the presumption is that time is not of the essence in rent
review clauses,99 the landlords sought to enforce the review. The Court of Appeal held that
there had been no representation that the review would not be enforced. Recognition that
the tenant had a valid argument, which at the time would have been unwise to contest, did
not amount to a promise not to pursue the review in the future.100 Furthermore, the tenant
could not show that the landlords could have contemplated that the tenant would have acted
in the way that it did on any such promise.101
Service charges
22.41 Leases commonly provide that the landlord is entitled to recover the costs of works from the
tenant by way of a service charge. In Brikom Investments Ltd v Carr,102 the roofs of a block
of flats were in serious disrepair. Prior to the grant of the leases of the individual flats, the
landlord’s managing agents represented that the landlord would bear the costs of the works
even though the costs would have been recoverable under the service charge provisions.
Subsequently, the landlord sought to recover the costs of the works from the tenant. This
case is discussed at greater length elsewhere.103 Although Lord Denning MR held that the
landlord was estopped from recovering the costs of the works as against both the original
tenants and their assignees,104 it is submitted that the better view is that the representation
constituted a collateral contract which negated the express term.105
Surrender by operation of law
22.42 Surrender is the termination of a tenancy by the yielding up of the tenant’s interest to his
immediate landlord. It may be effected either expressly or by operation of law. As a
surrender is a disposition of an estate in land, an express surrender must be by deed to be
effective at law106 but a surrender by operation of law is specifically exempt from these
formal requirements.107
22.43 Elements of surrender by operation of law Surrender by operation of law (often referred to
as ‘implied surrender’) is founded on the doctrine of estoppel;108 however, the applicable
principles have evolved along their own path. ‘In general, the case law in this area has not
involved a separate examination of questions such as reliance, or detriment, or change of
position, or unconscionability, or whether the effect of the estoppel is temporary or
permanent.’109 There must be ‘a change of possession, or something which is equivalent to
a change of possession’,110 that is, conduct preventing either party from disputing that the
tenancy is at an end. It is based on an objective analysis of the conduct of the parties and
may therefore take place irrespective of the subjective intentions of the parties.111 There
must be an act on the tenant’s part which is inconsistent with the continuance of the tenancy
coupled with actions on the part of the landlord which evidence acceptance that the tenancy
is at an end. Put another way, particular regard must be had to the nature of the
representation relied on.
22.44 The representation must be unequivocal.112 A substantial body of case law has developed as
to the effect of certain acts. During times of recession, tenants often seek to rely on the
doctrine to avoid onerous leases. Conversely, when market rents are increasing, landlords
often rely on the doctrine to gain vacant possession and relet at increased rents. Much of the
case law is difficult to reconcile because, in different contexts, both landlords and tenants
have relied on similar acts. Ultimately, each case necessarily turns on its own
circumstances. Facts which, in isolation, appear equivocal, may in context amount to a
surrender.113
22.45 The tenant’s actions must be inconsistent with the continuation of the tenancy. A mere
indication by the tenant that he intends to move and is looking for other accommodation is
not sufficient.114 Likewise, a mere oral agreement is insufficient.115 The tenant’s departure
does not necessarily show an unequivocal intention to end the tenancy,116 although if the
tenant’s absence is prolonged, possessions have been removed and there are substantial rent
arrears, an intention to end the tenancy may be inferred.117 The landlord must therefore
take care before treating the tenancy as being surrendered merely on the basis of the
tenant’s departure.118
22.46 Equally, the landlord must act in such a way as to show that he has treated the tenancy as
being at an end. Examples include: (a) where the landlord retakes possession after the
tenant has abandoned the premises; (b) where the tenant vacates at the request of the
landlord who afterwards demolishes the property;119 (c) where the landlord himself goes
into occupation;120 and (d) where the landlord closed the rent account after the tenant had
informed him of his departure.121
22.47 Landlords’ acts are often held to be equivocal because they are equally consistent with
protection of the premises in the absence of the tenant. It has been held that there was no
surrender where the landlord evicted squatters after abandonment by the tenant but did not
retake possession.122 Likewise, there was no surrender where the landlord changed the
locks of the premises in order to secure them against intruders, while maintaining a claim
against the tenant for rent,123 or where the landlord put a caretaker into the property in
order to prevent squatting.124
22.48 Most commonly, surrender by operation of law occurs when the tenant hands back the keys
to the landlord on the basis that possession is being delivered up. However, the handing
over of the keys in itself is not conclusive as the landlord’s acceptance of the keys may be
explicable on another basis. The landlord may merely have accepted the keys to carry out
repairs to the premises,125 or to secure them against squatters.126 He may be trying to assist
the tenant by attempting to find a new tenant.127 The issue is whether the landlord accepts
the keys as part of an agreement that possession is being delivered up and payment of the
rent shall cease. The key must be given to a person with authority to accept it.128
22.49 Surrender and regrant Surrender by operation of law may also occur without the landlord
regaining possession, where the parties enter into a new arrangement. Where the landlord
grants a new lease to the tenant that is expressed to begin during the currency of the term of
an existing lease, the existing lease is deemed to have been surrendered because the old
lease has to be determined before a new lease is granted.129 This is commonly referred to as
‘surrender and regrant’.
22.50 The operation of the doctrine of surrender and regrant is to be contrasted with the variation of
the existing lease. In most cases, it is possible to vary the terms of the lease without there
being a surrender and regrant.130 The main exceptions are where there is an increase in the
extent of the demise131 or the length of the term,132 which effect a change in the legal
estate.
22.51 A surrender may also take place where the parties agree to a change in the status of the
tenant. Where the tenant by his conduct asserts that a new arrangement exists which is
inconsistent with the existence of the tenancy, the tenant is prevented from denying that the
tenancy was determined.133
22.52 Similarly, where, at the tenant’s instigation, the landlord lets the property to a third party, the
 tenancy is surrendered at the time of the new letting. Clearly, for there to be a surrender, the
tenant must know of the new tenancy and give his consent.134 Consent, however, may be
inferred from prolonged acquiescence in the new tenancy.135
Applications for new business tenancies
22.53 As set out above,136 the machinery for applying for new tenancies under the Landlord and
Tenant Act 1954 is complex. Whilst the regime itself allows for some errors, outwith the
parameters of acceptable error, given the technicality of the regime,137 it is unsurprising
that frequent recourse is made to the doctrines outlined in this work.
22.54 The first recourse may be to waiver. If that fails, estoppel reasoning may be applied. The
prime example of this process is Kammins Ballrooms Co Ltd v Zenith Investments
(Torquay) Ltd.138 Kammins dealt with the time limits in which an application for a new
tenancy can be made. The tenant has a limited time in which to apply for a new tenancy and
the Court has no power to vary the time limits.139 The tenant therefore argued that there had
been a waiver by election. When that argument failed,140 the House of Lords went on to
consider whether the landlord could be estopped from relying on the time limit. As a matter
of theory, the House of Lords held that an estoppel could arise. On the facts, however, the
argument was unsuccessful. The representation relied on was insufficient to preclude the
course of action that the landlord wished to adopt. The tenant had served a section 26 notice
and the landlord had served a counter-notice that he would be opposing the application on
specified grounds. The tenant then applied to the Court prematurely. The landlord’s answer
opposed the application on statutory grounds but did not object to the application on the
ground that it was premature. It was held that there was no representation that the landlord
would not take the point. By stating in the answer that he would rely on certain grounds, the
landlord was not precluded from relying on other grounds at a later date.141
22.55 Kammins arguments were subsequently deployed in Stevens & Cutting Ltd v Anderson.142
The attempt to resurrect an argument based on waiver by election was dismissed.143
Further, although lengthy negotiations had ensued between the parties, it was held that the
landlord was not estopped because no representation had been made that the tenant would
obtain a new tenancy if the negotiations were unsuccessful. The arguments therefore failed
on the same basis as Kammins, namely the nature of the representation made.
22.56 Similar principles apply where the parties are likely to agree the terms of a new tenancy but
are unable to do so within the requisite time period for making an application. Akiens v
Salomon144 neatly illustrates the danger of failing to make an application even where it
seems very likely that negotiations will prove successful.145 The parties agreed to the grant
of a new lease in correspondence marked ‘subject to lease’. The landlord subsequently
chose not to grant a new lease and brought possession proceedings. The tenant’s defence
based on estoppel failed because either party remained entitled to withdraw before the
execution of the lease.
22.57 Two lessons may be gleaned from these authorities. First, there is the obvious need for any
representation relied on to be sufficiently clear and unequivocal. In each of the cases, the
conduct relied on was insufficiently clear to amount to a voluntary release of statutory
rights. There is also, however, the need to focus on the representation as compared with the
course of action that has been adopted. The representation must relate to the course that one
party is seeking to adopt. Put another way, the current course of action must be directly
contrary to the terms of the previous representation when the course and the representation
are properly analysed. In this context, and due to the complexity of the regime, the
 representation is rarely sufficient to preclude subsequent reliance on a differing set of
technical obstacles.
22.58 The force of the point is demonstrated in the limited number of cases in which the argument
has succeeded. Such cases usually involve defective section 25 and 26 notices and there is a
clear synergy between the defect, the representation and the subsequent course of action.146
In Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar
School of John Lyon v Mayhew,147 it was held that the tenant was estopped from
questioning the validity of the section 25 notice where he served a counter-notice indicating
unwillingness to give up possession and the landlord subsequently incurred the expense of
engaging a surveyor for the negotiation of a new lease.148
 BIBLIOGRAPHY
Standard works referred to:
Law of Guarantees, 5th edn (Sweet & Maxwell,
Andrews/Millett
London, 2008)
The Rise and Fall of the Freedom of Contract
Atiyah
(Clarendon Press, Oxford, 1985)
Atiyah’s Sale of Goods, 12th edn (Pearson
Atiyah/Adams/MacQueen
Education Limited, London, 2010)
Chitty on Contracts, 30th edn (Sweet & Maxwell,
Beale London, 2008) (and Second Cumulative
Supplement, 2011)
An Introduction to the Law of Restitution
Birks (Clarendon Press, Oxford, 1988, reprinted in
2003)
English Private Law, 2nd edn (Oxford University
Birks/Burrows
Press, Oxford, 2007)
Benjamin’s Sale of Goods, 8th edn (Sweet &
Bridge
Maxwell, London, 2010)
The Law of Insurance Contracts, 6th edn
Clarke
(Informa, London, 2009) (loose leaf)
Hudson’s Building and Engineering Contracts,
Dennys/Raeside/Clay
12th edn (Sweet & Maxwell, London, 2010)
Byles on Bills of Exchange and Cheques, 28th
Elliott/Odgers/Phillips
edn (Sweet & Maxwell, London, 2007)
The Law Relating to Estoppel by Representation,
Feltham/Hochberg/Leech
4th edn (Sweet & Maxwell, London, 2004)
Essays in Equity (The Law Book Co. Ltd,
Finn
Sydney, 1985)
Keating on Construction Contracts, 8th edn
Furst/Ramsey (Sweet & Maxwell, London, 2006) (and First
Supplement, 2008)
Elements of Land Law, 5th edn (Oxford
Gray/Gray
University Press, London, 2009)
Paget’s Law of Banking, 13th edn (Butterworths,
Hapgood
London, 2007)
Underhill and Hayton ‘Law of Trusts and
Hayton/Matthews/Mitchell
Trustees’, 18th edn (Butterworths, London, 2010)
The Law of Restitution, 7th edn (Sweet &
Jones Maxwell, London, 2009) (and First Supplement,
2009)
MacGillivray on Insurance Law, 11th edn (Sweet
Leigh-Jones/Birds/Owen & Maxwell, London, 2008) (and First
Supplement, 2010)
 Woodfall’s Law of Landlord and Tenant, 28th
Lewison
edn (Sweet & Maxwell, London, loose leaf)
Documentary Credits, 4th edn (Tottel Publishing
Malek/Quest
Ltd, Hayward’s Heath, 2009)
Modern Equity, 18th edn (Sweet & Maxwell,
Martin
London, 2009)
Snell’s Equity, 32nd edn (Sweet & Maxwell,
McGhee
London, 2010)
Equity Doctrines and Remedies, 4th edn
Meagher/Heydon/Leeming
(Butterworths, Australia, 2002)
Commentary and Cases on the Law of Trusts and
Mitchell Equitable Remedies, 13th edn (Sweet & Maxwell,
London, 2010)
The Doctrine of Proprietary Estoppel, 1st edn
Pawlowski
(Sweet & Maxwell, London, 1996)
The Law of Contract, 12th edn (Sweet &
Peel
Maxwell, London, 2007)
Harvey on Industrial Relations and Employment
Perrins
Law (Butterworths, London, loose leaf)
Ruoff and Roper on the Law and Practice of
Roper/West/Dixon/Fox/Coveney/Wheeler/Milne Registered Conveyancing (Sweet & Maxwell,
London, 2003) (loose leaf)
Frustration and Force Majeure, 2nd edn (Sweet
Treitel
& Maxwell, London, 2004)
Bowstead & Reynolds on Agency, 19th edn
Watts/Reynolds
(Sweet & Maxwell, London, 2010)
 INDEX
abandonment of rights 4.01, 4.24
abuse of process 14.01, 14.03–14.04, 14.11–14.12
acceptance see also offer and acceptance
insurance premiums 20.22–20.25, 20.41
loan facilities, payments for 17.11
rent 22.03–22.07, 22.27
accord and satisfaction 4.31, 17.29, 21.08
acquiescence
assurances 11.26, 11.52
delay 6.30
election 1.27, 6.02
election, waiver by 6.29–6.30
estoppel 6.30, 7.42
estoppel by representation 9.53, 9.57
knowledge 11.36–11.37
mistake 11.160
proprietary estoppel 11.17, 11.26, 11.52, 11.160
silence or inactivity 6.30, 7.42
speak/disclose, duty to 9.57
admissions of liability 9.31
affirmation 4.24, 6.02, 6.11, 6.20, 20.15, 22.01
after-acquired property 11.130
agency see also agency and estoppel; agency and waiver
actual authority 16.03
authority 16.03, 16.10–16.19, 16.23, 20.41
banking law 17.52, 17.61, 17.64–17.65
bills of exchange 17.36, 17.64–17.65
breach of contract 16.01
company law 18.03, 18.06–18.08
conduct 16.12–16.13
delegation 16.08, 20.42
detrimental reliance 11.38–11.42, 16.02, 16.12, 16.19, 16.26, 20.77
dishonesty 16.09
documentary credits 17.45
election between suing principal or agent 16.22
employees 16.09
forgery 16.24
fraud 16.07, 16.24
holding out 16.16
imputation of knowledge to principal 16.03–16.09
inducement 16.12
insurance 20.38–20.43, 20.77
knowledge 16.03–16.09, 17.27, 17.36, 17.44, 20.39, 22.13
loan facilities 17.16–17.17, 17.27
ostensible authority 16.03, 16.10–16.19, 16.23
 passing of title 9.144
ratification 16.20
role and status in organisation 20.42–20.43
syndication 17.27, 17.61
title 16.18–16.19, 16.23
ultra vires 16.12
undisclosed principals 16.25
agency and estoppel 16.10–16.26, 20.77
agency by estoppel doctrine 16.17
assurances 11.28
banking law 17.52, 17.61, 17.64–17.65
bills of exchange 17.64–17.65
company law 18.06–18.08
conduct 16.12–16.13
detrimental reliance 16.12, 16.19, 16.26
election between suing principal or agent 16.22
forgery 16.24
fraud 16.24
holding out 16.16
inducement 16.12
insurance 20.77
knowledge 11.43
negligence, estoppel by 16.24
ostensible authority 16.10–16.19, 16.23, 18.07
proprietary estoppel 11.28, 11.43
ratification 16.20
representation, estoppel by 9.07, 9.17–9.18, 9.144, 9.150
third parties 16.10–16.11, 16.20–16.26
title 16.18–16.19, 16.23
ultra vires 16.12
undisclosed principals 16.25
usual authority 16.15
agency and waiver
actual authority 16.03, 21.37
agents 17.52
banking law 17.52
breach of contract 16.01
categories of fact in which knowledge has been imputed 16.09
complexities of waiver 5.01, 5.13
delegation 16.08
detrimental reliance 16.02
directors 16.09
dishonesty, knowledge of 16.07
documentary credits 17.45
election, waiver by 20.38–20.43, 22.13
employees 16.09
fraud, knowledge of 16.07
 imputation of knowledge to principal 16.03–16.09
insurance 20.38–20.43
knowledge 16.02, 16.03–16.09, 20.38–20.43
landlord and tenant 22.13
loan facilities 17.16–17.17, 17.27
notice, imputation of 16.04–16.05
ostensible authority 16.03, 21.37
shipping 21.37
syndication 17.27
third parties 16.01
unequivocal representations 16.01, 16.03
anticipatory breach 2.41
architects, inspections by 19.13–19.16
assignment 5.16–5.20, 7.55, 8.83, 9.156, 22.16
assurances and proprietary estoppel 11.21–11.52
acquiescence 11.26, 11.52
agents, authority of 11.28
authority to act 11.28
causal link 11.53
clarity and certainty 11.27, 11.30–11.31, 11.50, 11.52
commercial relationships 11.34
common expectation cases 11.26–11.27
conduct 11.21–11.22, 11.35
constructive trusts 11.34, 11.146, 11.149, 11.157–11.158
contractual promises 11.23
detrimental reliance
benefits received 11.80–11.81
causal link 11.53
elements of estoppel 11.53–11.57, 11.60–11.61, 11.67–11.73
present and future rights 11.128
unconscionability 11.03, 11.21, 11.23, 11.33, 11.35
encouragement 11.29
enforcement 11.22, 11.52
formalities 11.44–11.49
future rights 11.128
inconsistent rights in rem 11.25
intent to create legal relations 11.30
knowledge 11.32, 11.36–11.43
Law of Property (Miscellaneous Provisions) Act 1989 11.44–11.49
mistake 11.22
present rights 11.128
public policy 11.21
refrain from certain conduct, duty to 11.21
remedies 11.35, 11.50, 11.52, 11.85, 11.88–11.89, 11.93–11.96, 11.106
specific property 11.132
third parties 11.113
unconscionability 11.03, 11.21–11.23, 11.33, 11.35, 11.52
bailment 21.25
banking law see also banking law and estoppel
agents 17.52, 17.61, 17.64–17.65
bills of exchange 9.162–9.163, 17.28–17.38, 17.62–17.65
causation 17.57
change of position 17.67–17.73
circuity of action 17.56–17.57, 17.67
defences 17.67–17.68
detrimental reliance 17.52, 17.56, 17.58, 17.61, 17.72–17.73
documentary credits 17.39–17.51, 17.66, 21.14
facility, variation of the 17.04–17.05
forgery 17.54–17.55, 17.58
fraud 17.59
guarantees 17.01–17.05, 17.21–17.25, 17.60
knowledge 17.52
loan facilities, operation of 17.07–17.20, 17.27
mandates between customers and banks 17.53–17.59
minimum equity concept 17.73
misrepresentation 17.52
mistake 17.67, 17.69
restitution 17.67–17.73
security, maintenance of 17.21–17.26
silence or inactivity 17.57
Statute of Frauds 17.02–17.03
syndication 17.15, 17.26, 17.61
unconscionability 17.73
variation 17.01–17.05
waiver 17.06–17.51
writing 17.02
banking law and estoppel
agents 17.52, 17.61, 17.64–17.65
bills of exchange 17.62–17.65
change of position 17.67–17.73
circuity of action 17.67
contractual estoppel 17.52
defences 17.67–17.68
detrimental reliance 17.52, 17.61, 17.72–17.73
documentary credits 17.66
guarantees 17.60
knowledge 17.52
mandates between customers and banks 17.53–17.59
minimum equity approach 17.73
misrepresentation 17.52
mistake 17.67, 17.69
negligence, estoppel by 17.53, 17.55–17.59, 17.67–17.70
representation, estoppel by 17.58, 17.70–17.73
restitution 17.67–17.73
 syndication 17.61
unconscionability 17.73
unified theory of estoppel 17.73
bankruptcy, trustees in 9.147–9.149
benefit
deed, estoppel by 12.55, 12.59
discretion 4.37
estoppel by representation 9.144–9.146
proprietary estoppel and third parties 11.122–11.123
super-added benefit, accrual of a 2.18
third parties 5.14–5.20
unilateral waiver 4.37–4.38
variation 2.20–2.23
waiver 5.14–5.20
bills of exchange
accord and satisfaction 17.29
agency 17.64–17.65
election, waiver by 17.33
estoppel 9.162–9.163, 17.62–17.65
formalities 17.28, 17.32–17.33
imputation of knowledge 17.36
knowledge 17.36
negligence, estoppel by 9.162–9.163
notice of dishonour 17.28, 17.33–17.37
presentment 17.28, 17.35
pure waiver 17.31
renunciation 17.28–17.32
securities 17.62–17.65
statutory estoppels, types of 17.63
unequivocal representations 17.34–17.35
unilateral waiver 17.31
waiver 17.28–17.38
bills of lading and estoppel 21.42–21.50
causes of action 21.50
common law 9.45, 21.47
defective bills 21.46
demurrage 21.49
detrimental reliance 21.44, 21.46, 21.49
estoppel by representation 9.41, 9.45
evidence 21.47
Hague-Visby rules 21.45
limits on estoppel 21.44, 21.50
masters, authority of 21.44
nature and condition of goods shipped 9.45, 21.43
quality 21.44–21.46
Panchaud Frères doctrine 13.03–13.04, 13.11
rejection 21.14
 salvage 21.48
shipowner’s liens 21.30
statutory estoppel 9.45
successive carriers 21.43
sword/shield dichotomy 21.50
unequivocal representations 21.45
waiver 21.30, 21.36
breach of contract
agency 16.01
anticipatory breach 2.41
building contracts 19.04, 19.13, 19.16–19.17
conditions 4.30, 21.33
election 6.09–6.28
election, waiver by 20.07, 20.14–20.34
estoppel 7.37
insurance and waiver by election 20.07, 20.14–20.34
notice 6.09–6.11
past breaches 4.06
repudiation 1.27, 6.02, 6.06, 6.09–6.10, 6.13–6.28
sale of goods 4.30
technical or formal breach 6.09
total waiver 4.30–4.33
unilateral waiver 4.36
variation 2.41, 19.04
waiver
agency 16.01
complexities 5.05, 5.09
construction contracts 19.13, 19.16–19.17
election, by 20.07, 20.14–20.34
insurance 20.07, 20.14–20.34
loss of rights 1.25
total waiver 4.30–4.33
unilateral waiver 4.36
warranties 20.14–20.15, 20.17, 20.19, 20.61–20.62
budget or expenditure, alteration of 8.60–8.61, 9.98–9.101
building contracts see construction contracts
burden
deed, estoppel by 12.56, 12.60–12.62
estoppel by representation 9.147–9.158
proprietary estoppel 11.113–11.121, 12.61
third parties 5.14–5.20, 11.113–11.121
waiver 5.14–5.20
burden of proof
change of position 8.42
detrimental reliance and estoppel by representation 9.85, 9.113
election, waiver by 20.19
equitable forbearance 7.47, 8.41–8.43
 estoppel by representation 9.37
insurance 20.19, 20.84, 20.86
loss of a chance 9.105
proprietary estoppel 9.85
business leases 22.38 see also new business tenancies
causation 7.47, 8.40–8.52, 9.84–9.85, 11.61, 17.57, 21.27
causes of action
cause of action estoppel 14.01, 14.08–14.09
deed, estoppel by 12.01
equitable forbearance 8.76
estoppel by convention 10.03, 10.15–10.16
estoppel by representation 9.04–9.12
proprietary estoppel 11.04, 11.83, 11.124
remedies 11.83
transit in rem judicatam 14.10
certainty see clarity and certainty
chance, loss of a 9.102–9.105
change of position and detrimental reliance
acted in reliance on representation, representee must have 9.82–9.83
burden of proof 8.42
constructive trusts 11.158
deed, estoppel by 12.40–12.42
definition of detrimental reliance 1.29
denial of truth of representation 9.86–9.88
equitable forbearance 8.04, 8.34, 8.39–8.42, 8.46, 8.49, 8.56, 8.61, 8.63, 12.45
estoppel 7.07–7.08, 7.13, 7.48
estoppel by representation 7.48, 9.11–9.12, 9.126, 9.137
acted in reliance on representation, representee must have 9.82–9.83
denial of truth of representation 9.86–9.88
fact, representations of 9.21
negligence, estoppel by 9.165, 9.171–9.174
public authorities 9.137
restitution 9.101, 9.115, 9.117, 9.121–9.123, 17.70–17.72
fact, representations of 9.21
money paid under a mistake of fact 9.165
negligence, estoppel by 9.165, 9.171–9.174, 17.67–17.69
present intention, representations of 9.27
proprietary estoppel and constructive trusts 11.158
public authorities 9.137
restitution 1.10–1.11, 9.101, 17.67–17.73
estoppel by representation 9.101, 9.115, 9.117, 9.121–9.123, 17.70–17.72
negligence, estoppel by 9.165, 9.171
unified theory of estoppel 7.07–7.08, 7.13
waiver 5.19–5.20
charges 12.77
charterparties 21.14, 21.35
cheques, custody and preparation of 9.162–9.163
clean hands principle 11.96–11.97
clarity and certainty
commercial certainty 1.02, 15.01, 17.41
constructive trusts 11.145
deed, estoppel by 12.29
documentary credits 17.41
election 6.16, 6.24–6.25
equitable forbearance 8.15–8.28, 9.33–9.34
estoppel 20.76
estoppel by representation 9.19, 9.32–9.35, 12.19
flexibility 1.02
inferences and implied statements 12.31–12.36
insurance 20.76
knowledge 8.28
new contracts, creation of 2.40
proprietary estoppel 11.01, 11.27, 11.30–11.31, 11.50, 11.52, 11.145
rescission 2.30
silence or inactivity 8.16
statements, representation by 9.44
subjective or objective test 8.17
terminology 9.32
unilateral relations 1.24
variation 1.24, 2.30, 2.40
waiver 3.04, 5.12, 17.41
collateral issues 2.10–2.13, 4.33, 12.37–12.39
commercial law 1.34, 15.01–15.03
assurances 11.34
certainty 1.02, 15.01, 17.41
constructive trusts 11.06, 11.134–11.140
equitable forbearance 15.03
estoppel by convention 15.03
estoppel by representation 15.03
insurance 15.03
market conditions 15.01
Panchaud Frères doctrine 13.03–13.06
proprietary estoppel 11.06, 11.34, 11.134–11.40
remedial equitable theory 2.38
shipping 15.04
variation 2.24, 2.38
commercial leases see new business tenancies
commercial difficulties, moderation of 2.26, 2.42–2.50
collusion 20.43
common expectations
assurances 11.26–11.27
constructive trusts 11.06, 11.134–11.140
imperfect gift cases 11.16
mistake 11.18, 11.20
 proprietary estoppel 11.06, 11.08, 11.11–11.16, 11.26–11.27, 11.134–11.140
communication see also speak/disclose, duty to
detrimental reliance and estoppel by representation 9.76
election 6.05–6.06
election, waiver by 4.07, 22.02, 22.15–22.16
estoppel by representation 9.64, 9.76
landlord and tenant 22.02, 22.15–22.16
unilateral waiver 4.36
company law
agents 18.03, 18.06–18.08
delegation 18.07
detrimental reliance 18.10
directors, de facto appointment of managing 18.07
estoppel 18.05–18.13
forgery 18.05
knowledge 18.02–18.03
liquidators 18.05, 18.09
meetings, notice of company 18.04
ostensible authority 18.07
securities, issue of 18.06, 18.13
share issues 18.06, 18.09–18.12
statute, undermining the effect of 18.05
third parties 18.05, 18.07
title 18.05
ultra vires 18.05, 18.13
unequivocal representation 18.02
voluntary relinquishment of a right 18.02–18.03
waiver 18.01–18.04
complete doctrines, waiver, variation, and estoppel as 1.02–1.21
concealment 9.129
conditions, breach of 4.30, 21.33
conduct
agency 16.12–16.13
assurances 11.21–11.22, 11.35
clean hands principle 11.96–11.97
constructive trusts 11.146
detrimental reliance 8.63
election, waiver by 4.26
equitable forbearance 8.16, 8.19–8.21, 8.27–8.28, 8.40, 8.63
estoppel 7.40, 7.46, 16.12–16.13
estoppel by convention 10.09–10.10
estoppel by representation 9.35, 9.39, 9.47–9.50, 9.52–9.53, 9.74, 22.43
holding out 9.48
insurance 20.04, 20.09, 20.12, 20.49, 20.51, 20.54, 20.82–20.83
knowledge 4.23–4.26, 9.74
landlord and tenant 22.43
misconduct 11.96–11.97
 mutual dealings, inferences from 9.49
Panchaud Frères doctrine 13.02–13.05
proprietary estoppel
assurances 11.21–11.22, 11.35
constructive trusts 11.146
remedies 11.83, 11.96–11.97, 11.105
terminology 11.07
silence or inactivity 9.52–9.53
surrender of tenancies and estoppel by representation 22.43
consideration
adequacy 2.16
building contracts 19.05, 19.07
consent 1.23
contractual estoppel 7.30
conveyancing 11.120
deed, estoppel by 12.43–12.44
detrimental reliance 1.20, 2.15–2.25, 8.08, 8.57, 8.75–8.76
duress 1.15, 2.24
equitable forbearance 8.06, 8.08–8.09, 8.57, 8.75–8.76, 8.79, 8.81
estoppel
deed, estoppel by 12.43–12.44
detrimental reliance 1.29
procedural doctrines distinguished 14.06
proprietary estoppel 1.23
unified theory 1.18–1.19, 7.13, 7.17–7.21, 7.30, 17.73
waiver 14.06
fact, representations of 9.26
future, representations about the 9.26
interlocking doctrines, series of 1.21
knowledge 4.17
mistake 11.161–11.162
Panchaud Frères doctrine 13.13
past consideration 2.17
procedural doctrines distinguished from estoppel 14.06
promissory estoppel 8.06
proprietary estoppel 1.23, 11.120, 11.161–11.162
third parties 11.120
total waiver 4.31, 4.34
undue influence 1.15
unified theory of estoppel, variation and waiver 1.18–1.19, 7.13, 7.17–7.21, 7.30, 17.73
variation 1.18–1.19, 1.23–1.24, 2.04, 2.13, 2.15–2.25, 3.07
waiver 1.18–1.19, 4.31, 4.34, 5.02, 14.06
construction contracts
agreements to vary 19.07–19.10
breach of contract 19.04, 19.13, 19.16–19.17
consideration 19.05, 19.07
continuing breaches 19.17
 damages 19.19
defects 19.13–19.17, 19.19–19.21
denials of existence of concluded contracts 19.22
detrimental reliance 19.20–19.21
due diligence 19.17
estoppel 19.18–19.22
evidence 19.12
formation of contracts 19.13
inspection by engineers or architects 19.13–19.16
knowledge 19.14, 19.16, 19.19
notification provisions, non-compliance with 19.20
offer and acceptance 19.08–19.09
parole evidence rule 19.09
price 19.06
qualitative and quantitative changes 19.12
quantum meruit 19.08–19.09, 19.11
remuneration 19.04, 19.09
representations 19.21
repudiation 19.11, 19.13, 19.17
restitution 19.08–19.09, 19.12
specifications 19.03–19.04, 19.10
standard form contracts 19.13
transfer of land 8.85–8.86
unequivocal representation 19.13
unjust enrichment 19.08–19.09
variation 19.02–19.12
waiver 19.13–19.17
constructive trusts 7.15, 11.44–11.49 see also proprietary estoppel and constructive trusts
Contracts (Rights of Third Parties) Act 1999 2.44
contractual estoppel 13.16–13.24
banking law 17.52
consideration 7.30
creation 7.25
deed, estoppel by 12.03, 12.05, 12.40
detrimental reliance 1.33, 13.22, 17.61
entire agreement clauses 13.16
estoppel by convention 13.20, 13.23
estoppel by deed 13.22
estoppel by representation 9.13–9.15
extra-contractual statements, restriction of liability for 13.16
no reliance clauses 13.16, 13.18
sale of goods 1.33
shipping law 1.33
syndication 17.61
unconscionability 7.29, 13.20–13.21, 13.23
unified theory of estoppel 7.25, 7.28–7.30
waiver 1.33
convention, estoppel by see estoppel by convention
conveyancing
deed, estoppel by 12.34–12.35, 12.56, 12.62–12.63, 12.72
proprietary estoppel and third parties 11.116, 11.118–11.120
cover notes 20.12
damages
construction contracts 19.19
election 6.17, 6.19–6.20, 6.22–6.28
election, waiver by 4.01
estoppel 19.19, 21.08, 21.28
insurance 20.89
sale of goods 21.08, 21.28
shipping 21.31, 21.39
total waiver 4.30, 4.33–4.35
waiver 1.25, 4.30, 4.33–4.35, 5.06–5.07, 21.28, 21.31, 21.39
debts, promises not to enforce 9.25
deed, estoppel by 1.33, 7.01, 12.01–12.78
actions on the deed 12.37–12.39, 12.55
benefit 12.55, 12.59
burden 12.56, 12.60–12.62
categorisation 12.05–12.13
causes of action 12.01
change of position 12.40–12.42
charges 12.77
clarity and certainty 12.29
collateral issues 12.37–12.39
common intention 12.18
consideration 12.43–12.44
construction of representations 12.09
contractual estoppel 12.03, 12.05, 12.40, 13.22
conveyancing 12.34–12.35, 12.56, 12.62–12.63, 12.72
creation of deeds 12.16–12.17
date 12.28
deeds poll 12.18
defences 12.47–12.54
delivery 12.17, 12.28
denials of statements 12.34, 12.43, 12.48
detrimental reliance 12.10, 12.40–12.45, 12.63–12.64
equitable forbearance 12.45
equity of redemption 12.79
estates or interests created by estoppel 12.66–12.71
estoppel by convention 12.05, 12.08, 12.15
estoppel by representation 12.03, 12.05–12.13
burden 12.61
clarity and uncertainty 12.29
detrimental reliance 12.10, 12.40, 12.44, 12.64
fact, statements of 12.19
 landlord and tenant 22.34
restrictive construction principle 12.09
statements and representations 12.08–12.09
statute, where estoppel contravene or undermine a 12.53
third parties, effect on 12.11
unequivocal representations 12.29
validity of deeds 12.15
evidence, as a rule of 12.01–12.02, 12.46
examples 12.22–12.23
feeding the estoppel 12.62, 12.72–12.79
formalities 12.14, 12.15
fraud 12.50, 12.59
imperfect grants 12.06, 12.13, 12.58, 12.71–12.72
inferences and implied statements 12.31–12.36
intention 12.47–12.49
introductions 12.28
knowledge 12.41–12.42
land, title to 12.23
landlord and tenant 22.34
misrepresentation 12.50
mixed fact or law, statements of 12.19–12.21
operative words 12.26–12.27
original parties 12.55–12.56
parties affected by deeds 12.55–12.65
parts of deeds 12.23–12.28
passing of title 12.65
privies of those who executed the deeds 12.57–12.62
property transactions 12.34–12.35, 12.56, 12.62–12.79
public policy 12.54
recitals 12.25, 12.48, 12.74–12.75
rectification 12.02, 12.50–12.52
registered land 12.62, 12.77
relief 12.46
restraint of trade 12.54
restrictive construction principle 12.09
seals 12.17
shield/sword approach 12.01
statements and representations 12.08–12.09
statements of fact 12.14, 12.15–12.27, 12.31
statute, where estoppel contravene or undermine a 12.53
terminology 12.04
testimoniums 12.28
third parties, effect on 12.11, 12.58, 12.75–12.76
title 12.03, 12.74–12.79
examples 12.23
benefit 12.59
passing title 12.65
 registration 12.62
statements 12.34–12.35
third parties 12.58
trespass 12.37
vacant possession 12.36
truth 12.20–12.21, 12.30, 12.43, 12.48
types 12.06, 12.18
unconscionability or inequity 12.45
unequivocal representations 12.29
vacant possession 12.36
validity of deeds 12.15
void deeds and voidable deeds 12.50–12.52
defences
deed, estoppel by 12.47–12.54
equitable forbearance 8.76, 8.78
estoppel by representation 9.02, 9.07, 9.129–9.140
insurance and waiver 20.48
restitution and estoppel 17.67–17.68
delay
acquiescence 6.30
documentary credits 17.43
election, waiver by 4.09–4.10, 4.12, 4.27, 6.30, 20.34
equitable forbearance 9.51
estoppel by representation 9.51, 22.39
insurance and waiver by election 20.34
landlord and tenant 22.39
loss of a chance 9.104–9.105
prosecuting legal proceedings, in 9.51
rent 22.29
rent review 22.39
sale of goods 4.27
shipping 21.35
unequivocal representations 4.09–4.10, 4.12
waiver 5.10, 17.43, 21.35
delegation 16.08, 20.42
detrimental reliance see also change of position and detrimental reliance; detrimental reliance
and estoppel by representation; equitable forbearance and detrimental reliance
agency 11.38–11.42, 16.02, 16.12, 16.19, 16.26, 20.77
assurances 11.03, 11.21, 11.23, 11.33, 11.35
banking law 17.52, 17.61
causation 8.40–8.42
commercial dealings 2.24
consideration 1.29, 2.15–2.25, 8.08, 8.57, 8.75–8.76
construction contracts 1913 19.20–19.21
constructive trusts 11.04, 11.137, 11.141, 11.158
contractual estoppel 1.33, 13.22
deed, estoppel by 12.40–12.45
definition of detriment 1.29
duress 1.15
election 6.05
election, waiver by 4.06, 4.10, 4.24, 8.06
estoppel 1.23, 1.29, 7.47–7.50, 7.52
banking law 17.52, 17.61
construction contracts 19.20–19.21
contractual estoppel 1.33, 13.22
convention, by 8.80, 10.01, 10.03, 10.05, 10.10–10.12
insurance 20.60, 20.77
mandates between customers and banks and estoppel 17.56, 17.58
non-disclosure in insurance 20.64
restitution 17.67–17.73
syndication 17.61
unified theory, of 7.07, 7.10, 7.14–7.15, 7.22–7.24, 7.30
estoppel by convention 8.80, 10.01, 10.03, 10.05, 10.10–10.12
fact, representations of 9.20–9.21
injurious reliance/injurious action distinction 1.15
insurance 20.04, 20.07, 20.60, 20.64, 20.77, 20.85, 20.87
interlocking doctrines, series of 1.21
knowledge 9.71–9.74, 11.38–11.42, 12.41–12.42
agency 11.38–11.42
unconscionability 11.17
law, representations of 9.29
legitimate expectations 1.07
mandates between customers and banks and estoppel 17.56, 17.58
mistake 9.61
mixed fact and law 9.28, 9.31
new promises 8.75
non-disclosure in insurance and estoppel 20.64
Panchaud Frères doctrine 13.07, 13.12
parties 12.63
promissory estoppel 1.30, 1.32, 8.57, 9.93
public policy 2.24
pure waiver 4.29
reasonableness 4.43
restitution 1.11–1.12, 17.67–17.73
sale of goods and waiver 21.02–21.06
shipping 21.02–21.06, 21.25
silence or inactivity 9.55
super-added benefit, accrual of 2.18
syndication 17.61
undue influence 1.15
unified theory of estoppel 7.07, 7.14–7.15
variation 2.06, 2.15–2.25, 2.44
waiver
agency 16.02
 complexities 5.19
definition 3.02, 3.04, 3.11, 3.13, 3.21
insurance 20.04, 20.07
sale of goods 21.02–21.06
shipping 21.02–21.06, 21.35
detrimental reliance and estoppel by representation 9.72–9.107
acted in reliance on representation, representee must have 9.82–9.84
budget or expenditure, representee alters its 9.98–9.101
burden of proof 9.85, 9.113
causation 7.47, 9.84–9.85
change of position 7.48, 9.11–9.12, 9.126, 9.137
acted in reliance on representation, representee must have 9.82–9.83
denial of truth of representation 9.86–9.88
fact, representations of 9.21
negligence, estoppel by 9.165, 9.171–9.174
public authorities 9.137
restitution 9.101, 9.115, 9.117, 9.121–9.123, 17.70–17.72
communication 9.76
deed, estoppel by 12.10, 12.40, 12.44, 12.64
denial of truth of representation 9.86–9.88
difficulties 9.102–9.107
disclaimers 9.81
equitable forbearance 9.93, 9.128
evidence, estoppel by representation as a rule of 9.114, 9.120, 9.127–9.128
examples 9.93–9.101
fact, representations of 9.21
flexibility 9.90, 9.114–9.119, 9.128
inequity 9.89–9.92
intention 9.73
knowledge 9.71–9.74
landlord and tenant 22.39
loss of a chance 9.102–9.105
minimum equity concept 9.117, 9.121–9.126
mistake 9.61
money had and received 9.119
money paid under a mistake of fact 9.124
mutuality 9.17
negligence, estoppel by 9.84, 9.95, 9.110, 9.166, 9.172
omissions 9.82
overpayments 9.100, 9.109, 9.122
parties to legal proceedings 9.59
pro tanto or partial relief 9.109–9.128
promissory estoppel 9.93
proprietary estoppel 9.93, 9.128
public authorities 9.137
public, representations to the 9.40
reasonableness 9.71, 9.76–9.81
 relief 9.108–9.128
remedies 9.114–9.119, 9.124
restitution 9.101, 9.109, 9.113, 9.115, 9.117, 9.121–9.123, 17.70–17.72
reverse detriment 9.12
safeguard its legal position, representee fails to 9.96–9.97
silence or inactivity 9.55
speak/disclose, duty to 9.61
sub-leases 9.106–9.107
subsequent authorities 9.115–9.127
substantive doctrine, estoppel by representation as 9.114
successive representees 9.42–9.43
syndication 17.61
third parties 9.17
truth 9.02, 9.76, 9.84, 9.88, 9.96
unconscionability 9.03, 9.91–9.92, 9.120–9.121, 9.126
unified doctrine of estoppel 9.117, 9.124
uniformity 9.90
value, representee forgoes something of 9.94–9.95
deviation 21.39
directors 16.09
disclaimers 9.81–9.82, 20.13
disclosure see non-disclosure in insurance and estoppel; speak/disclose, duty to
discretion
benefit 4.37
equitable discretion 6.21, 6.24, 6.27, 8.34
fettering 11.95
proprietary estoppel and remedies 11.02, 11.03, 11.82–11.96, 11.104–11.106, 11.124
quantification 11.104–11.106
relevant factors 11.95–11.96
remedies 11.115
unilateral waiver 4.36
dishonesty 9.68, 16.07
documentary credits
clarity and certainty 17.41
defective documents 17.40, 17.42–17.43, 17.46–17.51
delay 17.43
effect of waiver on relationships between parties 17.51
election, waiver by 17.40, 17.42–17.45
estoppel 17.66
imputation of knowledge 17.44
indemnities 17.51
interrelated contracts 17.39
knowledge 17.44–17.45
presentation 17.40
relevance of waiver 17.46–17.51
sale of goods 21.14
transfer of documents 17.40
 UCP 600 17.41, 17.46, 17.48–17.50
unequivocal representation 17.43
unilateral waiver 17.41–17.42
variation 17.47, 20.20
waiver 17.39–17.51
domestic services 11.76
due diligence 17.07, 19.17
duress
coercion 1.14
consideration 1.15
economic duress 2.14, 2.24, 2.38, 8.64
equitable forbearance 1.15, 8.64
estoppel by representation 9.129
fraud 1.15
injurious reliance/injurious action distinction 1.15
overbearance of will 1.14
proprietary estoppel 1.15
unconscionability 1.15
variation 2.14, 2.24, 2.38
election 6.03–6.29 see also election, waiver by; landlord and tenant and waiver by election
acquiescence 1.27, 6.02
affirmation 6.02, 6.11, 6.20
agency 16.22
breach of contract 1.27, 6.09–6.28
clarity and certainty 6.16, 6.24–6.25
common law 6.04
communication 6.05–6.06
contract, election to remain bound by 6.15–6.28
co-operation exception 6.16, 6.25–6.26, 6.28
damages 6.17, 6.19–6.20, 6.22–6.28
detrimental reliance 6.05, 8.34
distinguished from waiver by election 6.01, 6.07
equitable discretion 6.21, 6.24, 6.27, 8.34
equity 6.04
estoppel 3.08–3.10, 16.22
exclusion clauses 1.27
insurance 20.56–20.59
knowledge 6.07
legitimate interests 6.17, 6.19, 6.28
limits of doctrine 6.08–6.28
loss of rights 6.01
mutual fairness 6.04
necessity, variation by 2.50
penalties 6.21–6.23, 6.27
preservation of rights 6.14
primary obligations 6.24–6.25
remedies 6.01, 6.03
 repudiation 1.27, 2.32, 6.02, 6.06, 6.09–6.10, 6.13–6.28
secondary obligations 6.22–6.25
specific performance 6.28
termination 1.27, 6.09–6.28
terms of contract 6.08–6.14
unequivocal representation 6.05–6.07
variation 2.01
White and Carter (Councils) v McGregor, exclusion by rule in 1.27, 6.08, 6.15–6.28
election, waiver by 1.26–1.27, 4.01–4.27 see also insurance and waiver by election
abandonment of rights 4.01, 4.24
acquiescence 6.29–6.30
affirmation 4.24
analogous rights 1.26
Australia 4.22–4.23
bills of exchange 17.33
communication 4.07
conduct 4.23–4.26
consideration 4.17
damages 4.01
defective performance 4.01
definition of waiver 3.08–3.10, 3.13
delay 4.09–4.10, 4.12, 4.27, 6.30
detrimental reliance 4.06, 4.10, 4.23–4.24, 8.06
distinguished from election 6.01, 6.07
documentary credits 17.40, 17.42–17.45
equitable estoppel 3.10
equitable forbearance 4.17, 4.25, 4.40, 8.06–8.07, 8.34
estoppel 4.06, 4.10
examples 4.27
facts, knowledge of 4.15, 4.16–4.17, 4.22
failure to act 4.10
forfeiture of a lease 4.27
future non-performance 4.06
implied from conduct 4.07–4.08
insurance 20.07, 20.89
intention 4.15, 4.24, 4.26
knowledge requirement 1.27, 4.05, 4.15–4.26, 4.40, 8.06
landlord and tenant 4.17, 4.19, 22.54–22.55
loan facilities 17.08–17.09
loss of rights 6.01
new business tenancies and estoppel by representation 22.54–22.55
past breaches 4.06
past performance 5.03
payment, form of 4.27
proprietary estoppel 1.09
pure waiver 4.28
re-entry, right of 4.17
 rejection 4.01
remedies 4.01, 4.08, 5.05–5.06
repudiation 1.26, 4.01, 4.19, 4.24, 5.06
rescission 4.24
reservation of rights 4.11–4.14
rights, knowledge of 4.15, 4.18–4.23
safe ports, nomination of 4.02–4.04
sale of goods 4.01, 4.27, 21.07, 21.09, 21.12–21.17
shipping 21.32
silence or inactivity 4.09–4.10
specific performance 4.08
subset of waiver 1.27
suspensory, waiver as 5.03
total waiver 4.30–4.31, 20.89
unequivocal representation 4.05, 4.07–4.14, 4.25–4.26
unilateral waiver 4.36
encouragement 11.07, 11.17–11.18, 11.29, 11.36–11.37, 11.160
engineers, inspection by 19.13–19.16
entire agreement clauses 8.15, 13.16
equitable forbearance 4.39–4.44, 8.01–8.87 see also equitable forbearance and detrimental
reliance; equitable forbearance and estoppel; equitable forbearance and relief
background 8.01–8.02
blurring of boundaries 4.40
burden of proof 8.41–8.43, 7.47
business tenancies 22.29
causation 8.40–8.42
cause of action, as 8.76
clarity and certainty 8.15–8.28, 9.33–9.34
Combe principle 8.75–8.76, 8.79
commercial law 15.03
conduct 8.16, 8.19–8.21, 8.27–8.28, 8.40, 8.63
consideration 8.06, 8.08–8.09, 8.57, 8.66, 8.75, 8.79, 8.81
contract, interface with 8.08–8.09
co-operation 8.26
defective performance, objections to 8.16, 8.26–8.28, 8.43
defence, as 8.76, 8.78
delay in prosecuting legal proceedings 9.51
duress 1.15, 8.64
election, waiver by 4.40, 8.06–8.07, 8.34, 20.07, 20.16–10.27
enforcement of rights 8.03, 8.14
entire agreement clauses 8.15
existing rights 1.30
express promises 8.35
extinguishment 1.30
fact, representations of 9.20–9.27
fair dealing and justice, broad principle of 4.39
force majeure 4.41
formalities 8.87
future intentions, representations of 9.20–9.27
ignorance 8.35–8.38
inequity 9.90
inferred promises 8.36–8.37
instalments 8.71–8.73
insurance 20.07, 20.16–20.17, 20.61–20.74
intended promise to be acted upon, promisor must have 8.30–8.31
intention to affect legal relationships 8.03, 8.29
Jordan v Money 9.20–9.27
knowledge 4.40–4.42, 8.03, 8.06, 8.30–8.41, 9.72
clarity and certainty 8.28
election, waiver by 4.17, 4.25
imputation 4.25
inferred promises 8.36–8.37
re-entry 4.17
silence or inactivity 8.25, 8.38
unequivocal representations 8.28
waiver 8.32–8.34
landlord and tenant 8.19, 8.35, 8.68, 8.75, 22.28–22.30
legitimate expectations 1.06, 1.08
negotiations 8.20, 22.30
new obligations, creation of 1.30
new rights, creation of 8.81
non-disclosure in insurance and estoppel 20.61, 20.63–20.74
offensive/defensive use 7.35
original position, restoration of promisee to the 8.67–8.69
permanent effect 8.65–8.70
pre-existing relationships 7.39, 8.10–8.13, 8.76, 8.78
prejudice 8.15
promises or representation 8.14–8.31
pure waiver 4.29
rent 22.28–22.29
repairs 22.30
reservation of rights 8.26
revocation 8.74
sale of goods and waiver 21.04–21.05, 21.18
scope 8.75–8.82
shipping 21.04–21.05, 21.35, 21.38
silence or inactivity 8.16, 8.21–8.25, 8.38, 8.79
subjective or objective test 8.17
subtractive, as 7.38
suspension of legal rights 1.30, 8.03–8.04, 8.08, 8.14–8.15, 8.65–8.72, 8.74
terminology 4.39, 8.05–8.07
terms of the forbearance 8.66
third parties 8.83–8.86
title 5.15
 total waiver 4.35
unconscionability 8.31, 8.81
undue influence 1.15
unequivocal representations 4.39, 8.03, 8.15–8.28, 9.33–9.34
unified theory of estoppel 7.23–7.24, 17.73
unilateral waiver 4.38
variation 8.06, 8.09, 8.15
waiver 5.15, 5.17, 8.09, 8.15, 8.33–8.34
definition 2.13, 3.15
election, by 4.40, 8.06–8.07, 20.07, 20.16–20.17
knowledge 8.32–8.34
promissory estoppel 1.30
pure waiver 4.29
sale of goods 21.04–21.05, 21.18
shipping 21.04–21.05, 21.35, 21.38
title 5.15
total waiver 4.35
unilateral waiver 4.38
withdrawal of representation 8.03, 8.68
equitable forbearance and detrimental reliance 8.03–8.08, 8.39–8.64
acted upon, representation intended to be 8.31
bilateral relations 8.52
budget and expenditure, promisee alters its 8.60–8.61
causation 8.40–8.42
change of position 8.04, 8.34, 8.39–8.42, 8.46, 8.49, 8.56, 8.61, 8.63, 12.45
conduct 8.27, 8.63
consideration 8.08, 8.57, 8.75–8.76
continued performance of a loss-making contract 8.56–8.59
contract, interface with 8.08
definition of waiver 3.13
economic duress 8.64
election 8.34
estoppel 4.43–4.44, 7.49–7.50
estoppel by convention 8.80
examples of detriment 8.51–8.61
inequity 8.34, 8.44–8.64
knowledge 8.03, 8.06, 8.40–8.41, 9.72
landlord and tenant 8.46–8.47, 8.52, 8.54, 8.63
legal position, promisee fails to safeguard its 8.52–8.61
new promises 8.75
pais, estoppel in 7.33
performance of contractual duties 8.55
prejudice 8.45–8.49, 8.54, 8.60
promissory estoppel 8.57
proprietary estoppel 7.50, 7.52–7.53, 8.70
remedies 8.04, 8.66–8.67, 8.69–8.73
repudiatory breach 8.55
 specific goods, contracts for 8.58
terminology 8.05–8.08
unconscionability 8.30
value, promisee forgoes something of 8.54
variation 8.06
waiver 1.30, 4.40–4.44, 8.06–8.07, 8.09, 8.15, 8.33–8.34
withdrawal of promises 8.62
equitable forbearance and estoppel 7.36–7.45
belief 7.45
burden of proof 7.47
convention, estoppel by 8.79–8.80, 10.02
deed, estoppel by 12.45
equitable estoppel 7.33
insurance 20.61–20.74
measure of relief 7.51, 7.53
non-disclosure in insurance 20.61, 20.63–20.74
offensive/defensive use 7.35
pre-existing relationships 7.39
promises or representation 7.40–7.41, 7.44
promissory estoppel 8.02, 8.05–8.06
proprietary estoppel 1.32, 8.70, 8.81, 17.73
representation, estoppel by 7.41–7.42, 8.05, 8.80, 9.21–9.22, 9.36, 9.93, 9.128
subtractive, estoppel as 7.38
third parties 7.55
unified theory 7.23–7.24, 17.73
use of term 4.39
waiver 4.43
equitable forbearance and relief 8.62–8.74
change of position 8.04, 8.67, 8.72–8.73
consideration 8.66
detrimental reliance 8.04, 8.66–8.67, 8.69–8.73
flexibility 8.04
instalments 8.71–8.73
leases 8.68
measure of relief 7.51, 7.53
original position, restoration of promisee to the 8.67–8.69
permanent effect 8.65–8.70
prevention of detriment 8.67–8.68
proprietary estoppel 8.70
revocation 8.74
suspensory effect 8.65–8.72, 8.74
terms of the forbearance 8.66
withdrawal of promises 8.68
equity of redemption 12.79
estoppel 7.01–7.55 see also agency and estoppel; banking law and estoppel; bills of lading and
estoppel; contractual estoppel; deed, estoppel by; equitable forbearance and estoppel;
estoppel by convention; estoppel by representation; estoppel, unified theory of; promissory
 estoppel
abuse of process 14.01, 14.03–14.04, 14.11–14.12
acquiescence 6.30, 7.42
assignment 7.55
bailment 21.25
belief 7.45–7.46
breach of contract 7.37
categorisation 7.01–7.03, 7.33
causation 17.57, 21.27
cause of action estoppel 14.01, 14.08–14.09
change of position 1.29, 5.19–5.20, 7.48, 17.67–17.73
circuity of actions 17.67, 21.28
clarity and certainty 20.76
company law 18.05–18.13
conduct 7.40, 7.46
consideration 1.29, 14.06
construction contracts 19.18–19.22
convention, estoppel by 7.35, 7.45, 7.50
damages 19.19, 21.28
defences 17.67–17.68
delegation 18.07
demurrage 21.42–21.50
denials of liability 20.01
detrimental reliance 7.47–7.50, 7.52
bills of lading 21.44, 21.46, 21.49
change of position 1.29
company law 18.10
consideration 1.29
equitable forbearance 4.43–4.44, 7.49–7.50
insurance 20.61–20.74
mandates between customers and banks 17.56, 17.58
restitution 17.72–17.73
waiver 1.29, 3.11, 3.13
directors, de facto appointment of managing 18.07
duty of care 21.27
election, waiver by 3.08–3.10, 4.06, 4.10, 21.41
estoppel by convention 21.41
estoppel by representation 21.22–21.23, 21.41
evidence 7.38, 7.54
executed obligations 2.03, 2.09
executory obligations 2.03
fairness 7.52
flexibility 3.12, 20.75
forgery 17.54–17.55, 17.58, 18.05
form and substance, distinctions of 2.03
fraud 17.59
general nature of doctrines 7.35–7.38
historical origins 7.01–7.02
insurance 20.01–20.02, 20.48–20.49, 20.60–20.78
intention 3.11
issue estoppel 14.01, 14.08–14.09
knowledge 3.10, 20.75, 21.20, 21.41
last resort, estoppel as doctrine of 1.02
legitimate expectations 1.06–1.09
liquidators 18.05, 18.09
loss of rights 20.78
measure of relief 7.51–7.53
minimum equity concept 17.73
mistake 17.67, 17.69
negligence, estoppel by 21.26–21.28
offensive/defensive use 7.35–7.37
offer and acceptance 19.08–19.09
Panchaud Frères doctrine 13.02, 13.04–13.08, 13.11–13.13
pais, estoppel in 7.01, 7.33
parole evidence rule 19.09
passing title 21.20–21.21
pre-existing relationships 7.39
procedural doctrines, distinction from 14.01–14.12
promises or representation 7.40–7.46
quantum meruit 19.08–19.09, 19.11
record, estoppel by 7.01, 7.33, 14.01
remedies 7.38, 7.53, 19.12
remuneration 19.04, 19.09
res judicata 1.33, 14.01, 14.03
restitution 1.10–1.11, 7.02, 17.67–17.73, 19.08–19.09, 19.12
sale of goods 21.20–21.28
salvage 21.42
securities, issue of 18.06, 18.13
share issues 18.06, 18.09–18.12
shipping 21.29, 21.41–21.50
silence or inactivity 3.12, 7.40, 7.42, 17.57
specifications 19.03–19.04, 19.10
statute, undermining the effect of 18.05
terminological versus actual distinctions 2.02–2.03
third parties 7.54–7.55, 14.02, 18.05, 18.07
title 18.05, 21.20–21.25
transit in rem judicatam 14.01, 14.10 ultra vires 18.05, 18.13
unconscionability 7.36, 17.73
unequivocal representations 20.76, 21.25
unified theory 7.03–7.32, 17.73
unjust enrichment 19.08–19.09
use of term 4.39
variation 2.01–2.03, 2.09, 2.20, 3.12, 20.75
waiver 1.28–1.29, 7.45, 14.06
 complexities 5.08, 5.12, 5.14–5.20
definition 3.08–3.13, 3.20
distinguished 3.08–3.13, 3.20
election, waiver by 4.06, 4.10
insurance 20.48–20.49
shipping 21.41
warranties, breach of 20.61–20.62
estoppel by convention 10.01–10.18
application of doctrine 10.09–10.12
belief 7.45
broad analysis 10.03–10.08
causes of action 10.03, 10.15–10.16
commercial law 15.03
conduct 10.09–10.10
contractual estoppel 13.20, 13.23
course of dealing 10.09
deed, estoppel by 12.05, 12.08, 12.15
denial of particular facts 10.14–10.18
detrimental reliance 7.50, 8.80, 10.01, 10.03, 10.05, 10.10–10.12
difficulties 10.03, 10.05
equitable forbearance 8.79–8.80, 10.02
estoppel by representation 1.31, 10.02, 10.06, 10.10, 10.12
evidential doctrine, as 10.13
flexibility 10.03, 10.04, 10.08
injustice 10.11–10.12
landlord and tenant 22.31–22.58
negotiations 10.09
offensive/defensive use 7.35
overarching doctrine 10.04–10.07
pais, estoppel in 7.33
proprietary estoppel 1.32, 10.12
repairs 22.31–22.33
shared assumptions 10.01–10.02, 10.09–10.10
silence or inactivity 10.09
substantive rights 10.13
sword, as a 10.13–10.18
taxonomic approach 10.07–10.08
unconscionability 10.05, 10.11–10.12
unified theory of estoppel 7.13, 7.18–7.19, 7.23
estoppel by deed see deed, estoppel by
estoppel by representation 7.3–7.48, 9.01–9.176 see also detrimental reliance and estoppel by
representation; landlord and tenant and estoppel by representation
acquiescence 9.53, 9.57
acted upon, representations intended to be 9.02, 9.70–9.71
admissions of liability 9.31, 9.45
agency 9.07, 9.17–9.18, 9.144, 9.150
assignment 9.156
bankruptcy, trustees in 9.147–9.149
belief 7.45–7.49
benefit of the estoppel, transferring the 9.144–9.146
bills of exchange 9.162–19.163
bills of lading 9.41, 9.45
budget or expenditure, representee alters its 9.98–9.101
burden 9.147–9.154, 12.61
burden of proof 7.47, 9.37
burden of the estoppel, transferring the 9.147–9.158
business leases 22.35, 22.38, 22.53–22.58
causation 7.47, 9.85
causes of action 9.04–9.12
cheques, custody and preparation of 9.162–9.163
clarity and certainty 9.19, 9.32–9.35, 9.44, 9.47, 12.29
commercial law 15.03
communication 9.64
concealment 9.129
conduct 9.35, 9.39, 9.47–9.50, 9.52–9.53, 9.74
contractual estoppel 9.13–9.15
deed, estoppel by 12.03, 12.05–12.13
burden 12.61
clarity and certainty 12.29
detrimental reliance 12.10, 12.40, 12.44, 12.64
fact, statements of 12.19
landlord and tenant 22.34
restrictive construction principle 12.09
statements and representations 12.08–12.09
statute, where estoppel contravene or undermine a 12.53
third parties, effect on 12.11
validity of feeds 12.15
defences 9.02, 9.07, 9.129–9.140
delay 9.51, 22.39
denial of truth of representation 9.02, 9.10–9.11, 9.17, 9.108
difficulties 9.10–9.12, 9.102–9.107, 9.161, 9.168–9.169
disclaimers 9.82
dishonesty 9.68
duress 9.129
election, waiver by 22.54–22.55
equitable estoppel 7.33
equitable forbearance 8.05, 8.80, 9.21–9.22, 9.36
equivocal representations 7.41–7.42, 9.38–9.39
estoppel by convention 1.31, 10.02, 10.06, 10.10, 10.12
evidence 7.38, 7.54
burden of proof 9.37
difficulties with the analysis 9.10–9.12
rule, of 9.04–9.12, 9.14–9.15, 17.73
unified theory of estoppel 7.06, 7.08
examples of representation 9.40–9.41, 9.44–9.66
exclusive possession 22.34
express representations 9.44–9.47
fact, representation of 9.20–9.31, 12.19
false representations 9.02
flexibility 9.03, 9.11
foreseeability 9.03
fraud 9.68
future intention, representations of 9.21–9.22
holding out 9.48
inconsistent legal right, failure to assert an 9.60–9.63
induced, representation was improperly 9.129–9.130
intention 9.02, 9.21–9.27, 9.39, 9.68–9.74, 22.43, 22.45
interim rent 22.35
Jordan v Mooney 9.21–9.22
knowledge 9.02, 9.68–9.74
land, purchasers of 9.150–9.154
landlord and tenant 22.34–22.58
law, representations of 9.29–9.30
liquidators 9.147–9.149
loss of a chance 9.102–9.105
minimum equity concept 17.73
misrepresentation 9.68
mistake 9.58, 9.59, 9.61
mixed fact and law, representations of 9.28
money paid under a mistake of fact 9.165
mutual dealings, inferences from 9.49
mutuality 9.16–9.17
negligence, estoppel by 9.57, 9.63, 9.144, 9.159–9.176
negligence, representation by 9.67
new business tenancies, applications for 22.35, 22.53–22.58
non-reliance clauses 17.61
omissions 9.55–9.56
opinions, expression of 9.18
oral statements 9.45
ostensible ownership of goods or securities 9.164
parties raising the estoppel or group of which it was a member, representation must have been made
to 9.39–9.43
parties to legal proceedings 9.59
passing title 9.142–9.145
pension schemes, trustees of 9.46
personal representatives 9.155
pre-existing relationships 7.39
present intention, representations of 9.27
pro tanto estoppel 17.71
promises or representations 7.40–7.44
promissory estoppel 1.30, 9.36
 proprietary estoppel 1.09, 1.32, 9.52, 11.04
public authorities 9.134–9.140
public policy 9.15
public/private law 9.133
public, representations to the general 9.39–9.42
questions, response to 9.18, 9.65
relief 9.108–9.128
remedies 9.11, 9.68
rent 22.35, 22.38–22.40
repairs 22.35, 22.41
representation, definition of 9.18–9.67
respond, failure to 9.65
restitution 9.11, 9.165–9.166, 9.171
reverse detriment 9.12
safeguard its legal position, representee fails to 9.96–9.97
sale of goods 21.22–21.23
service charges 22.41
silence or inactivity 7.42, 9.52–9.58
speak, duty to 9.54–9.66
statute, undermining or contravening the effect of a 9.15, 9.131–9.137, 12.53
sub-leases 9.102–9.105, 9.158
substantive law 9.04–9.12, 17.73
successive representees 9.42–9.43
surrender by operation of the law 22.42–22.52
sword/shield terminology 9.08–9.09
syndication 17.61
tenancy by estoppel 22.34–22.37
third parties 7.54, 9.17, 9.141–9.158, 9.164, 12.11
time of the essence 22.39
title 5.15
ultra vires 9.134–9.137, 22.37
unconscionability 9.03, 17.73
unequivocal representations 9.19, 9.32–9.35, 22.40, 22.44–22.46, 22.57
unified theory of estoppel 7.06, 7.08, 7.13, 7.23, 9.12
value, representee forgoes something of 9.94–9.95
waiver 1.30, 9.23–9.26
waiver by estoppel 22.54–22.55
writing 9.45
estoppel, unified theory of 1.28– 1.29, 7.03–7.32
Australia 7.10, 7.16
authority in support of theory 7.10–7.12
change of position 7.07–7.08, 7.13
common law 7.16
consideration 7.13, 7.17–7.21, 7.30, 17.73
constructive trusts 7.15
contractual estoppel 7.25, 7.28–7.30
convention, estoppel by 7.13, 7.18–7.19, 7.23
 detrimental reliance 7.07, 7.10, 7.14–7.15, 7.22–7.24, 7.30
division and fracture, movement to 7.16, 7.25–7.27
equitable forbearance 7.23–7.24, 17.73
equity 7.07, 7.10
estoppel by representation 1.29, 7.30–7.32, 9.12
evidence 7.06, 7.08
failure of theory 7.13–7.32
fairness 7.04
impossibility of a completely unified theory 7.13–7.15, 7.32
inconsistencies 7.16–7.21
intention 7.17–7.18
minimum equity theory 7.07, 7.22–7.24
promissory estoppel 7.20
proprietary estoppel 1.18, 7.13, 7.17–7.21, 7.23–7.27, 17.73
rejection of theory 7.31–7.32
remedies 7.06, 7.08
representation, estoppel by 7.06, 7.08, 7.13, 7.23
restitution 1.17, 7.02, 7.05–7.06, 7.13, 17.73
substantive effect 7.17–7.21
theoretical bases 7.05–7.09
unconscionability 7.10, 7.29–7.30
variation 7.03, 7.13, 7.16
waiver 7.03, 7.12, 7.16, 7.20
eviction of squatters 22.47
evidence
building contracts 19.12
deed, estoppel by 12.01–12.02, 12.46
detrimental reliance and estoppel by representation 9.114, 9.120, 9.127–9.128
estoppel 7.38, 7.54, 10.13, 12.01–12.02, 12.46
estoppel by convention 10.13
estoppel by representation
burden of proof 9.37
detrimental reliance 9.114, 9.120, 9.127–9.128
difficulties with the analysis 9.10–9.12
rule of evidence, as 9.04–9.12, 9.14–9.15, 17.73
unified theory of estoppel 7.06, 7.08
parole evidence rule 19.09
unified theory of estoppel 7.06, 7.08
waiver 5.01, 5.08–5.12
exclusion of liability 1.27, 20.46–20.47
exclusive possession 22.19, 22.34
expectations see common expectations; legitimate expectations
fact, representations of 9.20–9.31
fairness/injustice
election 6.04
election, waiver by 20.07, 20.14, 20.16–20.17
equitable forbearance 4.39
 estoppel 7.04, 7.52, 20.64
estoppel by convention 10.11–10.12
insurance 20.07, 20.14, 20.16–20.17, 20.64
legitimate expectations 1.08
mutual fairness 6.04
non-disclosure in insurance and estoppel 20.64
Panchaud Frères doctrine 13.05, 13.07–13.10
proprietary estoppel and remedies 11.87
unfair contract terms 2.38, 2.43, 20.52
unified theory of estoppel 7.04
utmost good faith 20.07, 20.14, 20.17, 20.19
waiver, election by 20.07, 20.14, 20.16–20.17
false representations 9.02
feeding the estoppel 12.62, 12.72–12.79
‘five probanda’ 11.02, 11.19–11.20
forbearance see equitable forbearance
force majeure 2.42, 2.46, 4.41
forfeiture, right to 4.27, 22.01, 22.04–22.12, 22.24
forgery 16.24, 17.54–17.55, 17.58
formalities
bills of exchange 17.28, 17.32–17.33
deed, estoppel by 12.14, 12.15
equitable forbearance 8.87
implied discharge 2.38–2.39
Law of Property (Miscellaneous Provisions)
Act 1989 11.44–11.49
leases 8.87
mistake 11.163–11.164
proprietary estoppel 11.44–11.49, 11.163–11.164
rescission 2.29–2.30
sale of goods 2.29, 3.18
sale of land 11.163–11.164
variation 2.05, 2.27, 2.30, 2.38–2.39
waiver 3.18–3.19, 17.28, 17.32–17.33
writing 8.87
formation of contracts see also offer and acceptance
construction contracts 19.13
insurance and waiver 20.09–20.13
variation 2.05, 2.14–2.16, 2.28–2.29
fraud
agency 16.07, 16.24, 20.43
deed, estoppel by 12.50, 12.59
duress 1.15
election, waiver by 20.26, 20.32, 20.43
estoppel 12.50, 12.59, 16.24, 17.59, 20.61–20.64
insurance 20.26, 20.32, 20.43, 20.65, 20.72
knowledge 9.68, 20.43
 mandates between customers and banks and estoppel 17.59
non-disclosure in insurance and estoppel 20.65, 20.72
proprietary estoppel 11.01
Statute of Frauds 3.18, 11.46, 17.02–17.03, 17.22
undue influence 1.15
waiver 16.07, 20.26, 20.32, 20.43
frustration 2.43, 2.46, 2.48, 2.50
future, representations about the 1.30, 9.20–9.27, 11.128–11.129
general public, representations to the 9.39–9.42
goods, sale of see sale of goods
guarantees 17.01–17.05, 17.21–17.25, 17.60
Hague-Visby rules 21.45
Henderson v Henderson, rule in 14.11
holding out 9.48, 16.16
illegality 11.103
imperfect gifts/grants
common expectation cases 11.16
deed, estoppel by 12.06, 12.13, 12.58, 12.71–12.72
proprietary estoppel 11.08, 11.09–11.10, 11.16
inaction see silence or inactivity
inconsistent acts
loan facilities and waiver 17.14
Panchaud Frères doctrine 13.03–13.06, 13.14
surrender of tenancies and estoppel by representation 22.43, 22.45 inconsistent rights
estoppel by representation 9.60–9.63
knowledge 11.36–11.43
proprietary estoppel and assurances 11.25
speak/disclose, duty to 9.60–9.62
indemnities 17.51, 20.56–20.59
inequity see unconscionability/inequity
injunctions 11.107, 22.10
injurious reliance see detrimental reliance
injustice see fairness/injustice
insolvency 9.30
inspection by engineers and architects 19.13–19.16
insurance see also insurance and waiver; insurance and waiver by election; non-disclosure in
insurance and estoppel
agents 20.77
answers given by the insured, effect of 20.73–20.74
avoidance 20.71, 20.80, 20.85
burden of proof 20.84, 20.86
Canada 20.59
clarity and certainty 20.76
commercial law 15.03
conduct 20.04, 20.09, 20.12, 20.51, 20.54, 20.82–20.83
damages 20.89
denials of liability 20.01
 detrimental reliance 20.60, 20.64, 20.77, 20.85, 20.87
difficulties and potential solutions 20.69, 20.73
election 20.56–20.59
equitable forbearance 20.61–20.74
estoppel 20.01–20.02, 20.60–20.78
fairness 20.64
flexibility 20.75
fraud 20.65, 20.72
indemnities 20.56–20.59
inquiry, putting insurers on 20.74
investigations 20.82
issue of policies 20.81
knowledge 20.70–20.72, 20.75, 20.79, 20.82, 20.84, 20.86–20.88
life of policy, during 20.82
litigation
after commencement 20.84–20.89
prior to 20.79–20.84
lost rights 20.78
marine insurance 20.64, 20.70, 20.72
market practice 20.70–20.71
moral hazard 20.65, 20.72
practical responses to doctrines 20.79–20.89
proposal forms 20.65–20.70, 20.72–20.73
reinsurance 20.70
rent 22.05
repudiation 20.86
reservation of rights 20.83
triggering an estoppel, representations 20.76
unequivocal acts/representations 20.64, 20.76, 20.81, 20.85
utmost good faith 20.63
variation 20.75
warranties, breach of 20.61–20.62
insurance and waiver 20.01–20.55 see also insurance and waiver by election
common law 20.05
conduct 20.04, 20.09, 20.12, 20.49, 20.51, 20.54
cover notes 20.12
defences 20.48
definition of waiver 20.04–20.13, 20.45
denials of liability 20.01
detrimental reliance 20.04, 20.07
difficulties 20.44–20.52
disclaimers 20.13
effects of waiver 20.53–20.55
equitable forbearance 20.07
estoppel 20.48–20.49
exclusion of liability 20.46–20.47
extension of cover 20.45–20.49
formation of contracts 20.09–20.13
future performance 20.09
knowledge 20.07, 20.09
Lloyd’s market 20.10, 20.13
marine insurance 20.52
material non-disclosure 20.01
motor insurance 20.12
non-waiver agreements or clauses 20.50–20.52
notice of claims 20.53–20.54
offer and acceptance 20.10–20.12
pure waiver 20.08–20.09, 20.53
standard terms 20.52
statutory exceptions 20.47–20.48
suspension of cover 20.49
taxonomy 20.05
unequivocal conduct 20.04, 20.09, 20.12, 20.49, 20.51, 20.54
unfair contract terms 20.52
unilateral waiver 4.38, 20.08–20.09, 20.53
United States 20.50–20.52, 20.55
utmost good faith 20.07
voluntary relinquishment of rights 20.04
insurance and waiver by election 20.08, 20.14–20.43
affirmation 20.15
agents 20.38–20.43
breach 20.07, 20.14–20.34
burden of proof 20.19
collusion 20.43
conditions precedent, breach of 20.14, 20.17
conditions subsequent, breach of 20.19–20.20
delay 20.34
delegation 20.42
discharge 20.14
disclosure 20.16, 20.23
due diligence 20.20
equitable forbearance 20.07, 20.16–20.17
fairness 20.07, 20.14, 20.16–20.17
fraud 20.26, 20.32, 20.43
imputation of knowledge 20.39
intention 20.37
investigations 20.26, 20.36
issue of the policy 20.23–20.25
knowledge 20.18, 20.34–20.43
landlord and tenant 22.05
late payments, acceptance of 20.22
litigation
conduct 20.28, 20.30
control 20.29–20.31
insured, against the 20.32–20.33
marine insurance 20.16
material non-disclosure 20.23
negotiations 20.27
non-disclosure 20.16, 20.23
notification of claims 20.26
premiums 20.22–20.25, 20.41, 22.05
procedural conditions 20.33
rent 22.05
silence or inactivity 20.18, 20.34
total waiver 20.89
unequivocal conduct/representation 20.18, 20.21–20.37, 20.40
utmost good faith 20.07, 20.14, 20.17, 20.19
warranties, breach of 20.14–20.15, 20.17, 20.19
when there will be a waiver 20.14–20.53
intention
acted upon, representations intended to be 9.02, 9.70–9.71
 conduct 4.26
constructive trusts 11.134–11.142, 11.146–11.151, 11.154–11.159
deed, estoppel by 12.18, 12.47–12.49
detrimental reliance 9.73
difficulties in distinguishing representations of fact and intention 9.23–9.26
election, waiver by 4.26, 20.37, 22.14
estoppel 3.11
estoppel by representation 9.02, 9.21–9.27, 9.39, 9.68–9.74, 22.43, 22.45
fact/intent dichotomy 9.23–9.26
fact, representations of 9.23–9.26
general public, representations to the 9.39
insurance and waiver by election 20.37
knowledge 4.15, 4.24, 4.26, 9.02, 9.68–9.74, 11.38–11.40
landlord and tenant 22.14, 22.43, 22.45
legal relationships, intention to affect 8.03, 8.29, 9.70
mixed fact and law 9.28
present intention, representations of 9.27
proprietary estoppel 11.134–11.142, 11.146–11.151, 11.154–11.159
representations of future 9.21–9.26
surrender of tenancies and estoppel by representation 22.43, 22.45
unequivocal representations 4.26
unified theory of estoppel 7.17–7.18
waiver, definition of 3.11
interest 17.07–17.09, 17.11
interlocking doctrines, series of 1.20–1.21
issue estoppel 14.01, 14.08–14.09
joint tenants 22.17
judicial review 1.04–1.05
keys, handing back 22.48
knowledge see also knowledge and waiver
abandonment of rights 3.24, 4.24
acquiescence 11.36–11.37
acted upon, representations intended to be 9.70–9.71
acts agents are authorised to perform 20.41
affirmation 4.24
agency 11.38–11.42, 16.03–16.09, 17.44, 20.38–20.43
assurances 11.32, 11.37–11.43
Australia 4.23–4.26
banking law 17.36, 17.52
bills of exchange 17.36
clarity and certainty 8.28
collusion 20.43
company law 18.02–18.03
conduct 4.23–4.26, 9.74
consideration 4.17
construction contracts 19.14, 19.16, 19.19
deed, estoppel by 12.41–12.42
 detrimental reliance 9.71–9.74
agency 11.38–11.42
equitable forbearance 8.03, 8.06, 8.40–8.41, 9.72
unconscionability 11.17
dishonesty 9.68
documentary credits 17.44–17.45
election 6.07
encouragement 11.36, 11.37
equitable forbearance 4.40–4.42, 8.30–8.41
clarity and certainty 8.28
detrimental reliance 8.03, 8.06, 8.40–8.41, 9.72
imputation 4.25
inferred promises 8.36–8.37
re-entry 4.17
silence or inactivity 8.25, 8.38
estoppel 12.41–12.42, 17.52, 19.19, 20.70–20.72, 20.75, 21.20
estoppel by representation 9.02, 9.66, 9.68–9.74
facts, knowledge of 4.15, 4.16–4.17, 4.22
fraud 9.68, 20.43
imputation of knowledge
agency 16.03–16.09, 17.44
bills of exchange 17.36
equitable forbearance 4.25
insurance 20.39
inconsistent rights 11.36–11.43
insurance 20.70–20.72, 20.75
intention 9.02, 9.68–9.74, 11.36–11.40
landlord and tenant 4.17, 4.19
legitimate expectations 1.06
marine insurance 20.70, 20.72
misrepresentation 9.68
mistake 11.17–11.18
non-disclosure in insurance and estoppel 20.70–20.72
objective manifestation of choice 4.26
proprietary estoppel 9.72, 11.17–11.18, 11.32, 11.37–11.42
re-entry, right of 4.17
remedies 4.24, 9.68
repudiation 4.19, 4.24
rescission 4.24
rights, knowledge of 4.15, 4.18–4.23
sale of goods and estoppel 21.20
silence or inactivity 8.25, 8.38
speak/disclose, duty to 9.66
unconscionability 11.17, 11.36–11.37
unequivocal representations 4.17, 4.23, 4.25–4.26
knowledge and waiver
agency 16.03–16.09
 banking law 17.52
bills of exchange 17.36
company law 18.02–18.03
complexities of waiver 5.07–5.09
construction contracts 19.14, 19.16
definition of waiver 3.10
documentary credits 17.44–17.45
election, waiver by 1.27, 4.05, 4.15–4.25, 20.18, 20.34–20.43
equitable forbearance 4.40–4.42, 8.06
force majeure 4.41
imputation of knowledge 4.15, 4.18, 4.24–4.25, 20.39
insurance 20.18, 20.34–20.43
landlord and tenant 2.01, 22.11–22.16
equitable forbearance 4.40, 8.06, 8.32–8.34
estoppel 3.10
imputation of knowledge 4.15, 4.18, 4.24–4.25, 20.39
insurance 20.07, 20.09, 20.18, 20.34–20.43
intention 4.15, 4.24, 4.26
landlord and tenant 2.01, 22.11–22.16
limiting factor, as 1.23, 1.25, 1.29
loan facilities 17.09, 17.15–17.17, 17.27
re-entry 22.02
sale of goods 21.02–21.06, 21.10, 21.15–21.16, 21.18
shipping 21.02–21.06, 21.34, 21.38
sub-leases 22.12
total waiver 4.35
unilateral waiver 4.36
land
boundaries 9.151–9.152
building leases 8.85–8.86
consideration 11.120
conveyancing
deed, estoppel by 12.34–12.35, 12.56, 12.62–12.63, 12.72
proprietary estoppel and third parties 11.116, 11.118–11.120
deed, estoppel by 9.152, 12.34–12.35, 12.56, 12.62–12.63, 12.72
estoppel by representation 9.150–9.154
occupation 8.84–8.86
overreaching 11.119
proprietary estoppel 9.154, 11.01, 11.04, 11.09–11.15, 11.126–11.127
conveyancing 11.116, 11.118–11.120
mistake 11.163–11.164
sale of land, formalities for 11.163–11.164
third parties 11.116, 11.118–11.120
purchasers 9.150–9.154
registered land 11.120
sale of land, formalities for 11.163–11.164
third parties 8.84–8.86, 11.116, 11.118–11.120
 title 12.23
transfer of land 8.84–8.86
trespass 12.37
unregistered land 11.119
landlord and tenant see also landlord and tenant and estoppel by representation; landlord and
tenant and waiver by election; rent
business leases 22.29, 22.35, 22.38, 22.53–22.58
deed, estoppel by 22.34
delay 22.39
detrimental reliance 22.39
equitable forbearance 8.19, 8.35, 8.75, 22.28–22.30
estoppel by convention 22.31–22.58
exclusive possession 22.34
formalities 8.87
interim rent 22.35
negotiations 22.30
pre-existing relationships 8.12
re-entry, right of 4.17
rent review 22.38–22.40
repairs 22.06, 22.24, 22.30–22.33, 22, 35, 22.41
service charges 22.41
tenancy by estoppel 22.34–22.37
time of the essence 22.39
ultra vires 22.37
unequivocal representations 22.40
waiver 5.15
writing 8.87
landlord and tenant and estoppel by representation 22.34–22.58
business leases 22.35, 22.38, 22.53–22.58
change of possession 22.43
conduct 22.43
deed, estoppel by 22.34
delay 22.39
detrimental reliance 22.39
eviction of squatters 22.47
exclusive possession 22.34
inconsistent acts 22.43, 22.45
intention 22.43, 22.45
interim rent 22.35
keys, handing back 22.48
landlords, unequivocal acts by 22.46–22.47
locks, changing 22.47
new business tenancies, applications for 22.35, 22.53–22.58
regrant, surrender and 22.49–22.52
rent review 22.38–22.40
repairs 22.35, 22.41
service charges 22.41
 surrender by operation of the law 22.42–22.52
tenancy by estoppel 22.34–22.37
tenants, unequivocal acts by 22.45, 22.48
time of the essence 22.39
ultra vires 22.37
unequivocal representations/acts 22.40, 22.44–22.48
variation 22.50
landlord and tenant and waiver by election 22.01–22.27
acceptance of rent 22.03–22.06
affirmation 22.01
agency 22.13
assignment of reversion 22.16
breach of covenants 22.01, 22.03, 22.10–22.13, 22.16, 22.24–22.26
business tenancies, applications for new 22.20–22.22
case specificity 22.23–22.27
communication 22.02, 22.15–22.16
‘continuing’ and ‘once and for all’ breaches 22.24–22.27
court proceedings, issue of 22.10
defective notices to quit, waiver of 22.17
exclusive possession, payment and acceptance of money for 22.19
forfeiture, right to 4.27, 22.01, 22.04–22.12, 22.24
imputation of knowledge 22.13
injunctions 22.10
insurance premiums 22.05
intention 22.14
joint tenants 22.17
knowledge 4.17, 4.19, 22.02, 22.11–22.16
negotiations 22.09, 22.22
new tenancies, applications for 22.20–22.22, 22.54–22.55
notice to quit, service of 22.08, 22.17–22.19
offers to buy tenant’s interest 22.09
re-entry, right of 22.01–22.02, 22.10
rent 22.03–22.07, 22.14–22.15, 22.22, 22.25, 22.27
repairs 22.06, 22.24
section 25
notices 22.21
section 26
notices 22.21–22.22
sub-letting 22.12, 22.25, 22.27
unequivocal acts/representations 22.02–22.16, 22.23
without prejudice 22.04, 22.09
last resort, waiver, variation, and estoppel as doctrines of 1.02
late payments, acceptance of 20.22
Law of Property (Miscellaneous Provisions) Act 1989 11.44–11.49, 11.94
law, representations of 9.29–9.30
leases see landlord and tenant
legal positions, failure to safeguard 8.52–8.61, 9.96–9.97
legal proceedings see litigation
legitimate expectations 1.04–1.09, 9.135–9.136
liens 21.09–21.10, 21.30
lifestyle, changes to 11.74
links to other doctrines 1.04–1.16
liquidators 9.147–9.149
litigation
conduct 20.28, 20.30
control 20.29–20.31
delay 9.51
insurance and waiver by election 20.28–20.33
insured, against the 20.32–20.33
landlord and tenant and waiver by election 22.10
parties 9.59
Lloyd’s market 20.10, 20.13
loan facilities and waiver 17.07–17.20
acceptance of payments 17.11
agents 17.16–17.17, 17.27
due diligence 17.07
effect of waiver 17.18–17.19
election, waiver by 17.08–17.09
imputing knowledge 17.16–17.17
inconsistently, acting 17.14
interest 17.07–17.09, 17.11
knowledge 17.09, 17.15–17.17, 17.27
non-waiver clauses 17.20
operation 17.07–17.20
parts of debts 17.19
protection 17.20
pure waiver 17.08, 17.18
reservation of rights 17.13–17.14
silence or inactivity 17.10, 17.12
suspensory, waiver as 17.18
syndicated loan facilities 17.15, 17.27
unequivocal representations 17.09–17.13
unilateral waiver 17.08, 17.18
locks, changing 22.47
loss of a chance 9.102–9.105
maintenance 17.21–17.26
mandates between customers and banks and estoppel 17.53–17.59
bank documents 17.53–17.54
banking law 17.53–17.59
breach of mandate 17.55, 17.57
causative link 17.57
circuity of action 17.56–17.57
detrimental reliance 17.56, 17.58
estoppel 17.53–17.59
 estoppel by representation 17.58
extent of duty 17.59
forgery 17.54–17.55, 17.58
fraud 17.59
implied terms 17.58
negligence, estoppel by 17.53, 17.55–17.59
silence or inactivity 17.57
marine insurance
election, waiver by 20.16
estoppel 20.64, 20.70, 20.72
knowledge 20.70, 20.72
non-disclosure 20.16, 20.64, 20.70, 20.72
non-waiver agreements 20.52
masters, authority of 21.44
material non-disclosure 20.63, 20.68, 20.71–20.73
meetings, notice of company 18.04
mere equities 11.117, 11.122, 11.138, 11.140, 11.158
minimum equity concept
constructive trusts 11.158
detrimental reliance and estoppel by representation 9.117, 9.121–9.126
estoppel by representation 17.73
mistake 11.162
proprietary estoppel 11.158, 11.162
remedies 11.87
restitution 9.11, 17.73
unified theory of estoppel 7.07, 7.22–7.24
misrepresentation 9.68, 11.58, 12.50
mistake
acquiescence 11.160
common expectations 11.18, 11.20
consideration 11.161–11.162
detrimental reliance 9.61, 11.161–11.164
encouragement 11.17–11.18, 11.160
enforcement 11.163
estoppel 9.58, 9.59, 9.61, 17.67, 17.69
estoppel by representation 9.58, 9.59, 9.61
fact, of 11.17
‘five probanda’ 11.02, 11.19–11.20
formalities for sale of land 11.163–11.164
inducement 11.17
knowledge 11.17–11.18
law, of 11.16, 11.17
minimum equity approach 11.162
money paid under a mistake of fact 9.124, 9.165
mutual bargain 11.161–11.163
part performance 11.163
parties to legal proceedings 9.59
 proprietary estoppel 11.02, 11.06, 11.08, 11.16–11.20, 11.160–11.164
remedies 11.162
speak/disclose, duty to 9.58, 9.59, 9.61
unilateral mistake 11.06, 11.08, 11.17–11.20, 11.160
mitigation 1.24
mixed fact or law, representations of 9.28, 9.31, 12.19–12.21
moderation of commercial difficulties 2.26, 2.42–2.50
money had and received 9.119
money paid under a mistake of fact 9.124
moral hazard 20.65, 20.72
motor insurance 20.12
mutual dealings, inferences from 9.49
mutuality 9.17
necessity, variation by 1.24, 2.42, 2.45–2.50
negligence, estoppel by
agency 16.24
bills of exchange 9.162–9.163
change of position 9.165, 9.171–9.174, 17.67–17.69
cheques, custody and preparation of 9.162–9.163
circuity of action 17.67
detrimental reliance 9.84, 9.95, 9.110, 9.166, 9.172
difficulties 9.161, 9.168–9.169
estoppel 16.24, 17.53, 17.55–17.59
estoppel by representation 9.57, 9.63, 9.84, 9.95, 9.110, 9.144, 9.159–9.176
forgery 16.24
inferred representation 9.169
mandates between customers and banks and estoppel 17.53, 17.55–17.59
money paid under a mistake of fact 9.165
ostensible ownership of goods or securities 9.164
passing of title 9.144
restitution 9.165–9.166, 9.171, 17.67–17.70
sale of goods 21.26–21.28
speak/disclose, duty to 9.57, 9.63
third parties 9.164
negotiations 10.09, 20.27, 22.09, 22.22, 22.30
new business tenancies
applications 22.20–22.22, 22.35, 22.53–22.58
defective notices 22.58
election, waiver by 22.20–22.22, 22.54
equitable forbearance 22.29
estoppel by representation 22.35, 22.53–22.58
interim rent 22.35
section 25
notices 22.58
section 26
notices 22.54, 22.58
time limits 22.54, 22.56
 unequivocal representations 22.57
waiver by election 22.54–22.55
new contracts, creation of 2.31–2.32, 2.40
no reliance clauses 13.16, 13.18
non-disclosure in insurance and estoppel 20.01, 20.61, 20.63–20.74
answers given by the insured, effect of 20.73–20.74
avoidance 20.71
detrimental reliance 20.64
difficulties and potential solutions 20.69, 20.73
election, waiver by 20.16, 20.23
equitable forbearance 20.61, 20.63–20.74
fairness 20.64
fraud 20.65, 20.72
general duty 20.66
inquiry, putting insurers on 20.74
knowledge 20.70–20.72
marine insurance 20.64, 20.70, 20.72
market practice 20.70–20.71
material non-disclosure 20.23, 20.63, 20.68, 20.71–20.73
moral hazard 20.65, 20.72
proposal forms 20.65–20.70, 20.72–20.73
reinsurance 20.70
unequivocal representations 20.64
utmost good faith 20.63
offer and acceptance
construction contracts 19.08–19.09
estoppel 19.08–19.09
insurance and waiver 20.10–20.12
variation 1.24, 2.04, 2.14, 2.41, 3.07
waiver, definition of 3.07
omissions 9.55–9.56
opinions 9.18, 9.29
oral representations 9.45, 11.46, 11.144
overreaching 11.119
pais, estoppel in 7.01, 7.33
Panchaud Frères doctrine 13.02–13.15
bills of lading 13.03–13.04, 13.11
broad application 13.07, 13.10
commercial relationships 13.03–13.06
conduct 13.02–13.05
consideration 13.13
consistently, duty to act 13.03–13.06, 13.14
detrimental reliance 13.07, 13.12
effect 13.15
estoppel 13.02, 13.04–13.08, 13.11, 13.13
facts of case 13.03–13.06
fair dealing 13.05, 13.07–13.10
 narrow application 13.07
rejection 13.08–13.09
sale of goods 1.33
shipping law 1.33
unconscionability 13.12–13.13
waiver 1.33, 13.02, 13.08, 13.11–13.13
parole evidence rule 19.09
part performance 5.03, 11.09, 11.46–11.47, 11.163
parties to legal proceedings 9.59
passing of title 9.142–9.145, 12.65, 21.20–21.21
pension schemes, trustees of 9.46
personal representatives 9.155
pre-existing relationships 7.39, 8.10–8.13, 8.76, 8.78
premiums, acceptance of 20.22–20.25, 20.41, 22.05
present, representations about the 9.27
private law/public law 1.07–1.09
pro tanto or partial relief 9.109–9.128, 17.71
procedural doctrines 14.01–14.12
promissory estoppel
Combe v Combe, status of 1.30
consideration 8.06
detrimental reliance 1.30, 1.32, 8.57, 9.93
equitable forbearance 1.30, 7.20, 8.02, 8.05–8.06, 8.57
estoppel by representation 1.30, 9.36, 9.93
future intentions and promises 1.30
knowledge 1.30
proprietary estoppel as sub-species, of 11.02
terminology 8.05–8.06
unified theory of estoppel 7.20
waiver 1.30, 7.20
proportionality 11.93–11.94
proprietary estoppel 11.01–11.164 see also assurances and proprietary estoppel; proprietary
estoppel and constructive trusts; proprietary estoppel and detrimental reliance
acquiescence 11.17, 11.160
active encouragement 11.07
after-acquired property 11.130
belief 7.45–7.46
benefit 11.122–11.123
burden 11.113–11.121
categories of cases 11.08–11.20
causes of action 11.04, 11.124
chattels 11.127
clarity and certainty 11.01
common expectation cases 11.08, 11.11–11.16
complexity 11.02
conduct 11.07, 11.17
consideration 1.23, 7.17–7.21, 11.120, 11.161–11.162
contract 11.04, 11.07, 11.160–11.164
conveyancing 11.116, 11.118–11.120
discretion 11.02, 11.03, 11.124
domestic property 11.01
duress 1.15
election, waiver by 1.09
encouragement 11.07, 11.17–11.18
enforcement 11.04, 11.160, 11.163
equitable estoppel 7.33
equitable forbearance 1.32, 8.81, 17.73
estoppel by convention 1.32, 10.12, 17.73
estoppel by representation 1.09, 1.32, 9.93, 9.128, 9.134–9.140, 11.04, 17.73
fairness 7.52
‘five probanda’ 11.02, 11.19–11.20
formalities of sale of land 11.163–11.164
fraud 11.01
future, representations about the 9.20, 11.128–11.129
historical background 11.02
imperfect gift cases 11.08, 11.09–11.10, 11.16
inequity 9.90
knowledge 9.72, 11.17–11.18
land 11.01, 11.04, 11.09–11.15, 11.126–11.127
Law of Property (Miscellaneous Provisions) Act 1989 11.44–11.49
legitimate expectations 1.06–1.08
mere equities 11.117, 11.122
minimum equity approach 11.162
mistake 7.42, 11.02, 11.06, 11.08, 11.17–11.20, 11.160–11.164
offensive/defensive use 7.36
overreaching 11.119
pais, estoppel in 7.33
part performance 11.09, 11.46–11.47, 11.163
passive conduct 11.07, 11.17
perfecting gifts 11.10, 11.16
permanent effects 11.124
post-adjudication rights 11.121, 11.123
pre-adjudication rights 11.114–11.117, 11.122
pre-existing relationships 7.39
present rights 11.128–11.129
promissory estoppel 1.32
property rights, confined to 1.32
registered land 11.120
remedies 11.112, 11.115, 11.162
representation, estoppel by 7.42–7.44
scope 11.124–11.132
specific property 11.131–11.132
sub-leases 9.158
substantive effect 1.32, 7.17–7.21
 subtractive, estoppel as 7.38
terminology 11.04–11.07
third parties 7.55, 11.112–11.123
title 5.15
tort 11.04
unconscionability 11.01, 11.03, 11.20, 11.125
undue influence 1.15
unified theory of estoppel 1.18, 7.13, 7.17–7.21, 7.23–7.27, 17.73
unilateral mistake 11.06, 11.08, 11.160
unjust enrichment 11.04
unregistered land 11.119
vesting of property rights 11.112
waiver 1.09, 5.15
proprietary estoppel and constructive trusts 11.07, 11.132–11.159
assimilation 11.02, 11.133
assurances 11.34, 11.146, 11.149, 11.157–11.158
bargain cases 11.92
change of position 11.158
clarity and certainty 11.145
commercial context 11.141–11.145
common expectations 11.06, 11.134–11.140
common intention 11.134–11.140, 11.142, 11.146–11.151, 11.154–11.159
conduct 11.146
detrimental reliance 11.04, 11.137, 11.141, 11.158
domestic context 11.146–11.156
implied intention constructive trusts 11.140, 11.158
institutional constructive trusts 11.148, 11.150
Law of Property (Miscellaneous Provisions) Act 1989 11.44–11.49
mere equities 11.138, 11.140, 11.158
minimum equity concept 11.158
oral agreements 11.144
post-acquisition intent 11.142–11.145, 11.154
pre-acquisition intent 11.142, 11.145, 11.154
promises or expectations 11.06
remedial constructive trusts 11.148, 11.150
remedies 11.06, 11.92, 11.148, 11.150, 11.157–11.159
restitution 11.137
specific property 11.132
third parties 11.113–11.116
proprietary estoppel and detrimental reliance 11.53–11.81
after-acquired property 11.130
assurances
benefits received 11.80–11.81
causal link 11.53
elements of estoppel 11.53–11.57, 11.60–11.61, 11.67–11.73
present and future rights 11.128
unconscionability 11.03, 11.21, 11.23, 11.33, 11.35
 benefits received and off setting the detriment 11.80–11.81
burden of proof 11.55–11.58, 11.67
causal link 11.53–11.55, 11.61, 11.67
change of position 7.48, 11.53, 11.63–11.64, 11.67–11.68, 11.71–11.76
consideration 11.64
constructive trusts 11.04, 11.137, 11.141, 11.158
de minimis detriment 11.65
detriment, definition of 1.29
domestic services, performance of 11.61, 11.76–11.78
equitable forbearance 7.50, 7.52–7.53, 8.70
examples of detriment 9.93, 11.71–11.79
expenditure whilst in occupation of property 11.79
future rights 11.128
household expenses, contributions to 11.62
inducement 11.54–11.58
knowledge 11.17, 11.42
legal position, failure to safeguard a 11.72
lifestyle, change of 11.74
materiality 11.58
mistake 11.160–11.164
off setting the detriment 11.80–11.81
personal distress 11.65
present and future rights 11.128
proportionality 9.128
rebuttal of presumption 11.59–11.62
referability 11.58
remedies 1.32, 11.83, 11.88–11.94, 11.100, 11.104
restitution 17.72
set-off 11.80
specific categories 11.72–11.79
statutory duty to perform 11.60
terminology 11.04
unconscionability
assurances 11.03, 11.21–11.23, 11.33, 11.35
causal link 11.67
de minimis detriment 11.65
overlap 11.66
set-off 11.80
value, foregoing something of 11.73–11.75
proprietary estoppel and remedies 11.05, 11.82–11.111
assurances 11.35, 11.50, 11.52, 11.85, 11.88–11.89, 11.93–11.96, 11.106
Australia 11.89
bargain category 11.92
beliefs or expectations 11.85–11.94, 11.109
causes of action 11.83
clean hands principle 11.96–11.97
compensation 11.111
 conduct 11.83, 11.96–11.97, 11.105
constructive trusts 11.06, 11.92, 11.148, 11.150, 11.157–11.159
detrimental reliance 11.83, 11.88–11.94, 11.100, 11.104
discretion 11.82–11.96
examples 11.107–11.111
fairness 11.87
financial circumstances 11.83, 11.98
illegality 11.103
injunctions 11.107
Law of Property (Miscellaneous Provisions) Act 1989 11.94
life interests 11.109
minimum equity concept 11.87
minimum remedies 11.03
misconduct 11.96–11.97
mistake 11.162
non-bargain cases 11.92
occupy property for life, grants of right to 11.109
oppression 11.96
ownership rights, grants of 11.110
personal circumstances 11.98
pre-adjudication misconduct 11.96–11.97
proportionality 11.93–11.94
quantification 11.91, 11.95, 11.98, 11.100, 11.104–11.106
refusal of applications to the court 11.108
remedies 1.32
specific performance 11.110
subsisting relationship between parties 11.99
taxation 11.102
third parties 11.112, 11.115
unconscionability 11.03, 11.85, 11.88, 11.94
welfare benefits 11.101
proposal forms 20.65–20.70, 20.72–20.73
public authorities, estoppel by representation and 9.134–9.140
public policy
abuse of process 14.11–14.12
assurances 11.21
deed, estoppel by 12.54
detrimental reliance 2.24
Law of Property (Miscellaneous Provisions) Act 1989 11.49
legitimate expectations 1.08
proprietary estoppel 11.21
variation 2.24
public, representations to the general 9.39–9.43
pure waiver 4.28–4.29
bills of exchange 17.31
definition 3.14, 4.28
detriment 4.29
 election, waiver by 4.28
equitable forbearance 4.29
future performance 4.28, 5.03, 5.05
insurance 20.08–20.09, 20.53
loan facilities 17.08, 17.18
repudiation 4.29
sale of goods 21.09–21.11
shipping 21.30
suspensory, waiver as being 5.03
quantum meruit 19.08–19.09, 19.11
questions, responses to 9.18, 9.65
real property see land
record, estoppel by 7.01, 7.33, 14.01
rectification 12.02, 12.50–12.52
redemption, equity of 12.79
re-entry, right of 22.01–22.02, 22.10
registered land 11.120, 12.62, 12.77
regrant, surrender and 22.49–22.52
reinsurance 20.70
remedies/relief see also damages; proprietary estoppel and remedies
constructive trusts 11.148, 11.150, 11.157–11.159
deed, estoppel by 12.46
detrimental reliance 8.04, 8.66–8.67, 8.69–8.73, 9.108–9.128
discretion 11.115
election 6.03
election, waiver by 4.01, 4.08, 5.05–5.06
equitable forbearance 8.04, 8.62–8.74
estoppel 7.38, 7.53
estoppel by representation 9.11, 9.108–9.128
proprietary estoppel 11.35, 11.50, 11.52, 11.162
unified theory of estoppel 7.06, 7.08
estoppel by representation 9.11, 9.108–9.128
injunctions 11.107, 22.10
knowledge 9.68
mistake 11.162
pro tanto or partial relief 9.109–9.128, 17.71
promissory estoppel 1.32
public authorities 9.136
rescission 2.27–2.35, 2.37, 2.39, 4.24
restitution 1.10
specific performance 4.08, 6.28, 11.110
third parties 11.112, 11.115
unified theory of estoppel 7.06, 7.08
variation 2.38, 3.07
waiver 3.03, 3.07, 3.15, 5.01, 5.05–5.06
rent
acceptance 22.03–22.07, 22.27
 arrears 22.25
business tenancies 22.29
delay 22.29
demands 22.14–22.15
election, waiver by 22.03–22.07, 22.14–22.15, 22.22, 22.25, 22.27
equitable forbearance 22.28–22.29
forfeiture, right of 22.04–22.06
insurance premiums 22.05
interim rent 22.22, 22.35
new business tenancies and estoppel by representation 22.35
no rent promises 22.28
rent review 22.38–22.40
unequivocal representations 22.03–22.07
repairs 22.06, 22.24, 22.30–22.33, 22.35, 22.41
representation, estoppel by see estoppel by representation
repudiation
building contracts 19.11, 19.13, 19.17
change in performance 4.46
deviation 21.39
election 1.27, 2.32, 6.02, 6.06, 6.09–6.10, 6.13–6.28
election, waiver by 1.26, 4.01, 5.06
equitable forbearance 8.55
knowledge 4.19, 4.24
pure waiver 4.29
reservation of rights 4.46
sale of goods 21.13
shipping 21.39
termination 1.27, 6.02, 6.06, 6.09–6.10, 6.13–6.28
total waiver 4.30
variation 2.32, 2.41
waiver 4.30, 5.06, 5.09, 19.13, 19.17, 21.13, 21.39
res judicata 1.33, 7.33, 14.01, 14.03
rescission 2.27–2.35, 2.37, 2.39, 4.24
reservation of rights 4.11–4.14, 4.46, 8.26, 17.13–17.14, 21.16, 21.19
restitution see also restitution and estoppel
building contracts 19.08–19.09, 19.12
change of position 9.165, 9.171
detriment 1.11–1.12
remedies 1.10
quantum meruit 19.08–19.09
subtraction 1.12
unjust enrichment 1.10, 19.08
restitution and estoppel
banking law 17.67–17.73
change of position 1.10–1.11, 17.67–17.73
estoppel by representation 9.101, 9.115, 9.117, 9.121–9.123, 17.70–17.72
negligence, estoppel by 9.165, 9.171
 circuity of action 17.67
constructive trusts 11.137
defences 17.67–17.68
detrimental reliance 17.72–17.73
difficulties in relationship between change of position and estoppel 17.70–17.73
estoppel by representation
change of position 9.101, 9.115, 9.117, 9.121–9.123, 17.70–17.72
detrimental reliance 9.113, 9.115, 9.121–9.123, 17.72
minimum equity concept 9.11, 17.73
negligence, estoppel by 9.165, 9.171
pro tanto 9.109, 9.117, 17.71
unconscionability 17.73
minimum equity concept 9.11, 17.73
mistake 17.67, 17.69
negligence, estoppel by 9.165–9.166, 9.171, 17.67–17.70
proprietary estoppel and constructive trusts 11.137
unconscionability 17.73
unified theory of estoppel 1.17, 7.02, 7.05–7.06, 7.13, 17.73
variation 19.08–19.09, 19.12
restraint of trade 12.54
sale of goods 21.01 see also sale of goods and waiver
bailment 21.25
causation 21.27
circuity of actions 21.28
contractual estoppel 1.33
damages 21.28
delay 4.27
duty of care 21.27
estoppel 21.20–21.28
estoppel by representation 21.22–21.23
flexibility 2.29
formalities 2.29
knowledge 21.20
negligence, estoppel by 21.26–21.28
Panchaud Frères doctrine 1.33
passing title 21.20–21.21
payment, form of 4.27
rejection 4.01
sale of goods 2.29
title 21.20–21.25
unequivocal representations 21.25
sale of goods and waiver 21.01–21.19
accord and satisfaction 21.08
breach of conditions 4.30
charterparties 21.14
damages 21.08
defective documents 21.15
 defective performance 21.14
definition of waiver 3.18
delivery 21.13, 21.17
detrimental reliance 21.02–21.06
documentary credits 21.14
election, waiver by 4.01, 4.27, 21.07, 21.09, 21.12–21.17
equitable forbearance 21.04–21.05, 21.18
formalities 3.18
inconsistencies 21.02–21.03
incorrect payments 21.17
knowledge 21.02–21.06, 21.10, 21.15–21.16, 21.18
notice, failure to give proper 21.16
oral variation 3.18
pure waiver 21.09–21.11
rejection 21.08, 21.14
repudiation 21.13
reservation of rights 21.16, 21.19
seller’s liens 21.09–21.10
tender 21.14–21.15, 21.17
terminological difficulties 21.02–21.06
total waiver 4.30, 4.34, 21.08
unequivocal representations 21.02, 21.18
unilateral waiver 21.09–21.10
variation 3.18, 21.15
writing 3.18
salvage 21.48
severance 5.07
shams 4.14, 4.46
shipping 15.04, 21.01–21.50 see also bills of lading and estoppel
agency 21.37
anti-technicality clauses 21.40
charterparties 21.35, 21.40
contractual estoppel 1.33
damages 21.31, 21.39
delay 21.35
detrimental reliance 21.02–21.06, 21.35
deviation 21.39
election 21.29, 21.40
election, waiver by 21.32
equitable forbearance 21.04–21.05, 21.35, 21.38
estoppel 21.29, 21.41–21.50
demurrage 21.42–21.50
election, waiver by 21.41
equitable forbearance 21.41
estoppel by convention 21.41
estoppel by representation 21.41
inconsistencies 21.02–21.03
 knowledge 21.02–21.06, 21.34, 21.38, 21.41
Panchaud Frères doctrine 1.33
pure waiver 21.30
repudiation 21.39
safe ports, nomination of 4.02–4.04
salvage 21.42
shipowners’ liens 21.30
silence or inactivity 21.35
terminological difficulties 21.02–21.06
total waiver 21.31
unequivocal representations 21.02, 21.34–21.38
unilateral waiver 21.30–21.31
waiver 4.02–4.04, 21.01–21.06, 21.29–21.39
securities 17.62–17.65
security and waiver 17.21–17.26
service charges 22.41
silence or inactivity
acquiescence 6.30, 7.42, 9.52
clarity and certainty 8.16
commercial duty 8.21
conduct, representation by 9.52–9.53
detrimental reliance 9.55
election, waiver by 4.09–4.10, 20.18, 20.34
equitable forbearance 8.16, 8.21–8.25, 8.38, 8.79
estoppel 3.12, 7.40, 7.42, 17.57
estoppel by convention 10.09
estoppel by representation 9.52–9.53, 9.54–9.58
implied representation 8.22, 9.52–9.53
insurance and waiver by election 20.18, 20.34
knowledge 8.25, 8.38
loan facilities 17.10, 17.12
mandates between customers and banks and estoppel 17.57
proprietary estoppel 9.52
prosecuting claims, delay in 8.22
shipping 21.35
speak/disclose, duty to 9.54–9.58
unequivocal representations 4.10, 8.16
waiver 3.12, 5.10, 17.10, 17.12, 21.35
social security benefits 11.101
speak/disclose, duty to 9.54–9.66
acquiescence, estoppel by 9.57
detrimental reliance 9.61
estoppel by representation 9.54–9.66
examples 9.59–9.66
general principles 9.54–9.58
implied representations 9.65
inconsistent legal right, failure to assert a 9.60–9.62
 knowledge 9.66
mistake 9.58, 9.59, 9.61
negligence, estoppel by 9.57.9.63
omissions 9.55–9.56
parties to legal proceedings 9.59
respond, failure to 9.65
silence or inactivity 9.54–9.58
specific performance 4.08, 6.28, 11.110
specifications 19.03–19.04, 19.10
squatters, eviction of 22.47
standard form contracts 19.13, 20.52
statute, estoppel as undermining or contravening a 5.18, 9.15, 9.131–9.137, 12.53 Statute of
Frauds 3.18, 11.46, 17.02–17.03, 17.22
sub-leases
detrimental reliance and estoppel by representation 9.106–9.107
election, waiver by 22.12, 22.25, 22.27
entering sub-leases 9.106–9.107
estoppel by representation 9.102–19.105, 9.158
granting sub-leases 9.106–9.107
knowledge 22.12
proprietary estoppel 9.158
subrogation 17.26
subtraction 1.12
surrender of tenancies and estoppel by representation 22.42–22.52
change of possession 22.43
conduct 22.43
departure of tenants 22.45
eviction of squatters 22.47
inconsistent acts 22.43, 22.45
intention 22.43, 22.45
keys, handing back 22.48
landlords, unequivocal acts by 22.46–22.47
locks, changing 22.47
operation of the law, by 22.42–22.52
regrant, surrender and 22.49–22.52
tenants, unequivocal acts by 22.45, 22.48
unequivocal representations/acts 22.44–22.46
variation 22.50
suspension
equitable forbearance 1.30, 8.03–8.04, 8.08, 8.14–8.15
legal rights, of 8.03–8.04, 8.08, 8.14–8.15
necessity, variation by 2.49
waiver 1.26
sword/shield dichotomy
bills of lading 21.50
deed, estoppel by 12.01
estoppel 12.01, 21.50
 estoppel by convention 10.13–10.18
estoppel by representation 9.08–9.09
syndication 17.15, 17.27, 17.61
taxation 11.102
taxonomy 1.22–1.23, 10.07–10.08, 20.05
tenants see landlord and tenant
terminology see also waiver, definition of
actual distinctions versus terminological distinctions 2.02–2.03
clarity and certainty 9.32
deed, estoppel by 12.04
equitable forbearance 4.39, 8.05–8.08
promissory estoppel 8.05–8.06
proprietary estoppel 11.04–11.07
sale of goods and waiver 21.02–21.06
unequivocal representations 9.32
variation 2.02–2.03
waiver 2.02–2.03
third parties
agency 16.01, 16.10–16.11, 16.20–16.26
assignment 5.16–5.20, 8.83
assurances 11.113
benefit 5.14–5.20, 11.122–11.123
burden 5.14–5.20, 11.113–11.121
consideration 11.120
constructive trusts 11.113–11.116
conveyancing 11.116, 11.118–11.120
deed, estoppel by 12.11, 12.58, 12.75–12.76
detrimental reliance 11.114
equitable forbearance 7.55, 8.83–8.86
estoppel 7.54–7.55, 14.02
agency 16.10–16.11, 16.20–16.26
procedural doctrines distinguished 14.02
waiver 5.14–5.17
estoppel by representation 9.17, 9.141–9.158, 9.164, 12.11
mere equities 11.117, 11.122
negligence, estoppel by 9.164
overreaching 11.119
post-adjudication rights 11.121, 11.123
pre-adjudication rights 11.114–11.117, 11.122
procedural doctrines distinguished from estoppel 14.02
proprietary estoppel 1.32, 11.112–11.123
registered land 11.120
remedies 11.112, 11.115
substantive effect as against 1.32
title 5.15
transfer of land 8.84–8.86
unregistered land 11.119
 variation 2.44
vesting of property rights 11.112
waiver 5.01, 5.14–5.20, 16.01
time of the essence 22.39
title
agency 16.18–16.19, 16.23
deed, estoppel by 12.03, 12.74–12.79
examples 12.23
benefit 12.59
passing title 12.65
registration 12.62
statements 12.34–12.35
third parties 12.58
trespass 12.37
vacant possession 12.36
benefit 12.59
equitable forbearance 5.15
estoppel
agency 16.18–16.19, 16.23
sale of goods 21.20–21.25
estoppel by representation 5.15
feeding title 12.74–12.79
ostensible authority 16.18–16.19
passing title 9.142–9.145, 12.65, 21.20–21.21
proprietary estoppel 5.15
registration 12.65
sale of goods and estoppel 21.20–21.25
statements 12.34–12.35
third parties 5.15, 12.58
trespass 12.37
vacant possession 12.36
waiver 5.15
tort 11.04
total waiver 4.30–4.35
accord and satisfaction 4.31
breach of contract 4.30–4.33
collateral contracts 4.33
complexities 5.03, 5.05
consideration 4.31, 4.34
damages 4.30, 4.33–4.35
election, waiver by 4.30–4.31, 20.89
equitable forbearance 4.35
knowledge 4.35
past performance 5.03
remedies 5.05
repudiation 4.30
sale of goods 4.30, 4.34, 21.08
 shipping 21.31
suspensory, waiver as not being 5.03
unilateral waiver 4.36
variation 4.33, 4.35
waiver 3.14, 21.08
transit in rem judicatam 14.01, 14.10
trespass 12.37
trusts see constructive trusts; proprietary estoppel and constructive trusts; trustees
trustees
bankruptcy, in 9.147–9.149
pension schemes, of 9.46
ultra vires 9.134–9.137, 16.12, 22.37
uncertainty see clarity and certainty
unconscionability/inequity see unconscionability/ inequity and detrimental reliance
contractual estoppel 7.29, 13.20–13.21, 13.23
deed, estoppel by 12.45
duress 1.15
equitable forbearance 8.30–8.31, 8.34, 8.44–8.64, 8.81, 9.90
estoppel 7.36, 17.73
estoppel by convention 10.05, 10.11–10.12
estoppel by representation 9.03, 9.89–9.92, 9.120–9.121, 9.126, 17.73
knowledge 11.17, 11.36–11.37
Panchaud Frères doctrine 13.12–13.13
proprietary estoppel 11.01, 11.20, 11.125
assurances 11.22–11.23, 11.33, 11.35, 11.52
remedies 11.03, 11.85, 11.88, 11.94
remedies 11.03, 11.85, 11.88, 11.94
restitution 17.73
undue influence 1.15
unified theory of estoppel 7.10, 7.29–7.30
unconscionability/inequity and detrimental reliance
assurances 11.03, 11.21–11.23, 11.33, 11.35
causal link 11.67
de minimis detriment 11.65
equitable forbearance 8.30, 8.34, 8.44–8.64
estoppel by representation 9.03, 9.89–9.92, 9.120–9.121, 9.126
proprietary estoppel 11.03, 11.21–11.23, 11.33, 11.35, 11.65–11.67, 11.80
set-off 11.80
undue influence 1.14–1.15
unequivocal representation/acts see also unequivocal representation/acts and waiver
agency 16.01, 16.03
bills of exchange 17.34–17.35
bills of lading 21.45
company law 18.02
conduct 9.35, 9.47
construction contracts 19.13
deed, estoppel by 12.29–12.36
 delay 4.09–4.10, 4.12
documentary credits 17.43
election 6.05–6.07
equitable forbearance 4.39, 8.03, 8.15–8.28, 9.33–9.34
estoppel 20.64, 20.76, 21.25, 21.45
estoppel by representation 9.19, 9.32–9.35, 22.40, 22.44–22.46, 22.57
failure to act 4.10
inferences and implied statements 12.31–12.36
injunctions 22.10
insurance 20.64, 20.76, 20.81, 20.85
intention 4.26
knowledge 4.17, 4.23, 4.25–4.26
landlord and tenant 22.01–22.16, 22.23, 22.40, 22.44–22.46, 22.57
loan facilities 17.09–17.13
new business tenancies and estoppel by representation 22.57
non-disclosure in insurance and estoppel 20.64
notice to quit, service of 22.08
proprietary estoppel 11.30
rent, acceptance of 22.03–22.07
rent review 22.40
reservation of rights 4.11–4.14
sale of goods 21.02, 21.18, 21.25
shams 4.14
shipping 21.02, 21.34–21.38
silence or inactivity 4.10, 8.16
statements, representation by 9.44
subjective or objective test 8.17
surrender of tenancies and estoppel by representation 22.44–22.46
terminology 9.32
unequivocal representation/acts and waiver
agency 16.01, 16.03
bills of exchange 17.34–17.35
company law 18.02
complexities 5.08, 5.10–5f. 11
construction contracts 19.13
definition of waiver 3.14, 20.04, 20.09
documentary credits 17.43
election, waiver by 4.07–4.14
examples 4.26
insurance 20.18, 20.21–20.37, 20.40
knowledge 4.05
landlord and tenant 22.01–22.16, 22.23
estoppel 16.01, 16.03
insurance
case specific, waiver as 20.54
definition of waiver 20.04, 20.09, election, waiver by 20.18, 20.21–20.37, 20.40
motor insurance 20.12
 non-waiver agreements 20.51
suspension 20.49
knowledge 4.05
loan facilities 17.09–17.13
motor insurance 20.12
non-waiver agreements 20.51
sale of goods 21.02, 21.18
shipping 21.02, 21.34–21.38
unfair contract terms 2.38, 2.43, 20.52
unified theory 1.03, 1.17–1.20, 9.117, 9.124 see also estoppel, unified theory of unilateral waiver
4.36–4.37
benefit 4.37–4.38
bilateral obligations 4.37
bills of exchange 17.31
breach of contract 4.36
communication 4.36
complexities 5.03, 5.05
definition 3.14, 4.36
difficulties with doctrine 4.38
discretion 4.36
election, waiver by 4.36
equitable forbearance 4.38
future performance 4.36, 5.03, 5.05
insurers 4.38, 20.08–20.09, 20.53
knowledge 4.36
loan facilities 17.08, 17.18
mutual exchange of promises 4.38
sale of goods 21.09–21.10
shipping 21.30–21.31
suspensory, waiver as being 5.03
total waiver 4.36
unjust enrichment 1.10, 11.04, 19.08–19.09
unregistered land 11.119
utmost good faith 20.07, 20.14, 20.17, 20.19
value, representees forgoing something of 9.94–9.95
variation 2.01–2.50
adequacy of consideration 2.16
agreements permitting variation 1.24, 2.14, 2.42–2.44
anticipatory repudiatory breach 2.41
banking 17.01–17.05, 17.47
bilateral relations 1.24
building contracts 2.43, 19.02–19.12
clarity and certainty 1.24, 2.30, 2.40
collateral contracts 2.10–2.13
commercial dealings 2.24, 2.38
commercial difficulties, moderation of 2.26, 2.42–2.50
consensus as to the obligations which are altered 2.14
consent 2.14, 2.44
consideration 1.23–1.24, 2.04, 2.13, 2.15–2.25, 3.07
construction of contracts 2.42
Contracts (Rights of Third Parties) Act 1999 2.44
detriment or benefit, action to 2.06, 2.15–2.25
difficulties associated with doctrine 2.26–2.50
discharge by agreement of previous contract 2.27
dissolution of contracts 2.03–2.04
documentary credits 17.47
duress 2.14, 2.24, 2.38
economic duress 2.24, 2.38
effect of a variation 2.26–2.40
election 2.01, 2.50
equitable forbearance 8.06, 8.09, 8.15
estoppel 2.01–2.03, 2.09, 2.20, 3.12
executed obligations 2.03, 2.09
executory obligations 2.03
form and substance, distinctions of 2.03
insurance 20.75
terminological versus actual distinctions 2.02–2.03
unified theory of estoppel 7.03, 7.13, 7.16
waiver, definition of 3.12
estoppel by representation 22.50
executed obligations 2.03, 2.09
executory obligations 2.03
facility, variation of the 17.04–17.05
flexibility 2.29
force majeure 2.42, 2.46
form and substance, distinctions of 2.03
formalities 2.05, 2.27, 2.30, 2.38–2.39
formation of contracts 2.05, 2.14–2.16, 2.28–2.29
frustration 2.43, 2.46, 2.48, 2.50
guarantees 17.01–17.05
implied discharge 2.36–2.40
inferred objective intention 2.31–2.35
insurance 20.75
landlord and tenant 22.50
last resort, variation as doctrine of 1.02
mitigation 1.24
moderation of commercial difficulties 2.26, 2.42–2.50
necessity, variation by 1.24, 2.42, 2.45–2.50
new contracts, creation of 2.31–2.32, 2.40
offer and acceptance 1.24, 2.04, 2.14, 2.41, 3.07
past consideration 2.17
practical benefit, receipt of 2.20–2.23
pre-contractual variation 2.10–2.13
public policy 2.24
 regrant, surrender and 22.50
remedies 2.38, 3.07
repudiation 2.32, 2.41
requirements 2.04–2.25
rescission 2.27–2.35, 2.37, 2.39
restitution 19.08–19.09, 19.12
sale of goods 2.29, 21.15
security and waiver 17.23–17.25
Statute of Frauds 17.02–17.03
suspension, doctrine of 2.49
terminological versus actual distinctions 2.02–2.03
third parties 2.44
total waiver 4.33, 4.35
unfair contract terms 2.38, 2.43
unified theory of estoppel 1.03, 1.17–1.19, 7.03, 7.13, 7.16
unilateral relations 1.24
unilateral variation 2.14, 2.26, 2.32, 2.41, 17.03
valid and subsisting contracts 2.06–2.13
waiver 2.01–2.03, 2.11
banking law 17.02–17.03
collateral contracts 2.11
complexities 5.08
definition 3.07, 3.12
distinguished 3.07
documentary credits 17.47
executed obligations 2.03
executory obligations 2.03
form and substance, distinctions of 2.03
sale of goods and waiver 21.15
security 17.23–17.25
terminological versus actual distinctions 2.02–2.03
total waiver 4.33, 4.35
writing or evidenced in writing 2.05, 2.29, 2.38, 2.40, 17.02
voluntary relinquishment of rights 1.21, 18.02–18.03, 20.04
waiver see also agency and waiver; election, waiver by; insurance and waiver; knowledge and
waiver; landlord and tenant and waiver by election; pure waiver; sale of goods and waiver;
total waiver; unequivocal representation/acts and waiver; unilateral waiver; waiver,
definition of
accord and satisfaction 17.29
additional obligations, as not creating 1.25
all rights, loss of 1.25
assignment 5.16–5.20
banking law 17.06–17.51
benefits and burdens, passing of 5.14–5.20
bills of exchange 17.28–17.38
bills of lading 21.30, 21.36
breach of contract 5.05, 5.09, 16.01, 19.13, 19.16–19.17
breach, loss of rights before 1.25
business practices 17.24
case specific, waiver as 5.07, 5.11
change of position 5.19–5.20
charter parties 21.35
clarity and certainty 5.12
collateral contracts 2.11
company law 18.01–18.04
complexities 5.01–5.20
complications 1.26
conduct 5.08–5.12
consideration 5.02, 14.06
construction contracts 19.13–19.17
contractual estoppel 1.33
contractual rights, loss of 1.25
damages 1.25, 5.06–5.07, 21.31, 21.39
defects 5.09, 17.40–17.43, 17.46–17.51, 19.13–19.17
definition 1.25
delay 5.10, 17.43, 21.35
destruction of rights 5.01
detrimental reliance
agency 16.02
complexities of waiver 5.19
equitable forbearance 4.40, 4.43, 8.09, 8.15, 8.33–8.34
shipping law 21.02–21.06, 21.35
deviation 21.39
documentary credits 17.39–17.51, 17.66
due diligence 17.07, 19.17
effect of waiver 4.46, 5.01–5.06, 17.18–17.19, 17.27–17.38, 21.39
equitable forbearance 4.39–4.44, 8.09, 8.15, 8.32–8.34
complexities of waiver 5.12, 5.15, 5.17
detrimental reliance 1.30, 4.40–4.44, 8.06–8.07, 8.09, 8.15, 8.33–8.34
promissory estoppel 1.30
shipping 21.04–21.05, 21.35, 21.38
title 5.15
estoppel 1.28–1.29, 7.45, 14.06
change of position 5.19–5.20
complexities of waiver 5.08, 5.12, 5.14–5.20
contractual estoppel 1.33
unified theory of estoppel 7.03, 7.12, 7.16, 7.20
evidence 5.01, 5.08–5.12
executed obligations 2.03
executory obligations 2.03
form and substance, distinctions of 2.03
formalities and bills of exchange 17.28, 17.32–17.33
formation of contracts 19.13
future, representations about the 5.03, 5.05, 9.20
 general principles 1.28
guarantees 17.21–17.25
inconsistently, acting 17.14
indemnities 17.51
inspection by engineers or architects 19.13–19.16
insurance, non-disclosure and 20.88
interest 17.09–17.09, 17.11
irrevocable waiver 1.26
landlord and tenant 5.16
last resort, waiver as doctrine of 1.02
liens 21.30
loan facilities, operation of 17.07–17.20, 17.27
loss of rights 1.25–1.26
maintenance 17.21–17.26
New Zealand 5.17
non-waiver clauses 17.20
ostensible authority 16.03
Panchaud Frères doctrine 1.33, 13.02, 13.08, 13.11–13.13
past performance 5.03
promissory estoppel 1.30
proprietary estoppel 5.15
pure waiver 5.03, 5.05, 21.30
remedies 5.05–5.06
representation, estoppel by 5.15
repudiation 5.06, 5.09, 19.13, 19.17, 21.39
reservation of rights 17.13–17.14
sale of goods 21.01–21.20
security, maintenance of 17.21–17.26
severance 5.07
shipowner’s liens 21.30
shipping 21.01–21.06, 21.29–21.39
silence or inactivity 5.10, 17.10, 17.12, 21.35
standard form contracts 19.13
Statute of Frauds 17.22
statutory purpose, overriding a 5.18
subrogation 17.26
suspensory, waiver as 1.26, 5.01, 5.03–5.06, 5.19, 17.18
syndication 17.15, 17.27
terminology 2.02–2.03, 21.02–21.06
third parties 5.01, 5.14–5.20
title 5.15
total waiver 5.03, 5.05
types 1.25–1.26, 4.01–4.46
unified theory of estoppel 1.03, 1.17–1.19, 7.03, 7.12, 7.16, 7.20
variation 2.01–2.03, 2.11, 5.08, 17.02–17.03, 17.23–17.25, 17.47
waiver, definition of 3.01–3.21
clarity and certainty 3.04
 consideration 3.07, 3.17, 3.19
contractual rights 3.12
current usage 3.20–3.21
defective performance 3.14–3.15
detrimental reliance 3.02, 3.04, 3.11, 3.13, 3.21
election 3.08–3.10, 3.14
equitable forbearance 3.13, 3.15
estoppel 3.08–3.13, 3.20
exclusion, process of 3.06, 3.07–3.12
flexibility 3.01, 3.12, 3.20–3.21
formalities, avoidance of contractual 3.18–3.19
future performance, acceptance of 3.14
historical difficulties in defining the term 3.01–3.04
historical origins 3.16–3.19
hybrid of estoppel and waiver 3.13
inclusion, process of 3.06, 3.13–3.15, 3.20
informed choice 3.14
insurance 20.04–20.13, 20.45
intention 3.11
knowledge requirement 3.10
non-performance, acceptance of 3.15
offer and acceptance 3.07
performance 3.07
provisos to a definition 3.16–3.21
pure waiver 3.14
remedies 3.03, 3.07, 3.15
rights, waiver of 3.03
sale of goods 3.18
silence or inactivity 3.12
Statute of Frauds 3.18
term of art, waiver as a 3.01, 3.03
total waiver 3.14
types of waiver 3.13–3.15
unilateral waiver 3.14
vagueness 3.01
variation 3.07, 3.12
writing 3.18
warranties
breach 20.14–20.15, 20.17, 20.19, 20.61–20.62
equitable forbearance 20.61–20.62
insurance 20.14–20.15, 20.17, 20.19, 20.61–20.62
waiver by election 20.14–20.15, 20.17, 20.19
welfare benefits 11.101
without prejudice 22.04, 22.09
writing
banking 17.02
estoppel by representation 9.45
landlord and tenant 8.87
sale of goods 3.18
variation 2.05, 2.29, 2.38, 2.40, 17.02
waiver, definition of 3.18
 1 See Transgrain Shipping BV v Global Transporte Oceanico SA (The Mexico I) [1990] 1 Lloyd’s
Rep 507 at 514 per Mustill LJ (as he then was).
2 See eg Colley v Overseas Exporters [1921] 3 KB 302 at 311–12 per McCardie J.
3 Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd [1947] AC
46 at 56 per Lord Wright.
4 See The Commonwealth of Australia v Verwayn (1990) 170 CLR 394 at 406 per Mason CJ.
5 See eg Baxendale v Bennet (1878) 3 QBD 578 per Bramwell LJ at 529 (‘Estoppels are odious, and
the doctrine should never be applied without a necessity for it’). Compare, however, Lord Upjohn’s
rejection—‘All estoppels are not odious but must be applied so as to work justice and not
injustice’—Carl Zeiss Stiftung v Rayner & Keeler (No 2) [1967] AC 853 at 947.
6 [1985] AC 374 at 408.
7 See eg R v SSE, ex p Nottinghamshire CC [1986] AC 240 at 249 per Lord Scarman.
8 Drawing on AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; R v Liverpool Corpn, ex p

London Taxi Fleet Operators’ Assn [1972] 2 QB 299.

9 As in oral assurances to a student that she would be permitted to re-enter the UK on return from

her Christmas break in Nigeria—Oloniluyi v SSHD [1989] Imm AR 135.

10 AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.
11 R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337.
12 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R v Brent LBC

ex p Gunning (1985) 84 LGR 168; R v British Coal Corpn, ex p Vardy [1993] ICR 720.
13 As in oral assurances to a student that she would be permitted to re-enter the UK on return from

her Christmas break in Nigeria—Oloniluyi v SSHD [1989] Imm AR 135.

14 As in guidance as to the use of telephone taps—R v SSHD ex p Ruddock [1988] 1 WLR 1482.
15 It cannot be a waiver—the issue of knowledge being irrelevant and there usually being no

contract between the parties.

16 R v Secretary of State for National Heritage, ex p J Paul Getty Trust, The Independent, 7

November 1994.
17 See R v IRC, ex p Matrix Securities Ltd [1994] 1 WLR 334 (subject’s expectation not protected

where the relevant conduct was reversed before the State changed its approach); R v IRC, ex p MFK
Underwriting Agencies [1990] 1 WLR 1545.
18 [2001] QB 213.
19 At para 60.
20 R v MAFF, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714; R v SSHD, ex p

Jaramillo-Silva [1995] 7 Admin LR 445.

21 [2002] UKHL 8.
22 At para 33 drawing on Newbury DC v SSE [1981] AC 578 at 616 per Lord Scarman; R v

Leicester CC, ex p Powergen UK Ltd [2000] JPL 629 at 637. Previous statements as to the application
of estoppel to public law were therefore to be ignored as deriving from a time when the doctrine of
legitimate expectation was less well developed—para 35.
23 At para 34.
24 See R v North and East Devon HA, ex p Coughlan [2001] QB 213 at paras 70–1; see also R v

IRC, ex p Unilever Plc [1996] STC 681.

25 See the discussion of Henderson v Henderson at para 14.11 below. As set out in Chapter 14, we

do not categorise Henderson v Henderson as an estoppel. The point is made here as part of the
discussion of potential categorisation difficulties.
 26 See summary in paras 7.51 ff below.
27 [1991] 2 AC 548.
28 Lipkin Gorman at 579 per Lord Goff.
29 See para 7.06 and paras 9.109 ff below.
30 See Avon CC v Howlett [1983] 1 WLR 605.
31 Lipkin Gorman at 581–3.
32 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 in which Lord

Justice Robert Walker canvassed the possibility of the role of estoppel in restitution as withering
away—at para 48.
33 [2001] 3 All ER 818; [2001] EWCA Civ 369.
34 [2002] 1 All ER 198; [2001] EWCA Civ 970.
35 See paras 7.09 ff and 9.109 ff.
36 Both discussed estoppel and change of position as differing doctrines.
37 [2001] 3 All ER 818; [2001] EWCA Civ 369.
38 Waiver is irrelevant for these purposes. Not only does the mere payment of money by mistake

not constitute a contract but no question of knowledge is in play.

39 At paras 45–7.
40 Peter Jaffey, ‘Change of position and estoppel’ [2002] LMCLQ 1.
41 It is for this reason that no assistance in analysing waiver and estoppel can be derived from

mistake cases outwith the restitutionary arena. The identical distinction between types of detriment
can be drawn.
42 The subtractive analogy at an abstract level would apply similarly with waiver. In waiver, rights

are voluntarily lost by the representation. There is little left to subtract.

43 [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48 per Robert Walker LJ. Discussed in this
chapter below and at paras 7.09 ff. For a rejection of a unified theory based on unconscionability in a
specifically restitution-based analysis, see Professor J Beatson QC and G Virgo, ‘Contract, Unjust
Enrichment and Unconscionability’ (2002) 118 LQR 352.
44 See Universe Tankships Inc of Monrovia v International Transport Workers Federation (‘The
Universe Sentinel’) [1983] 1 AC 366 at 400B–E; Dimskal Shipping Co SA v International Transport
Workers Federation [1992] 2 AC 152 at 165G; DSND Subsea Ltd v Petroleum Geo-Services ASA
[2000] BLR 530 at 545, paras 131–2.
45 See Meagher at 15-050.
46 See Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82. For an academic discussion

of the links between undue influence and a free form doctrine of unconscionability, see Professor
Andrew Phang and Professor Hans Tjio, ‘The uncertain boundaries of undue influence’ [2002]
LMCLQ 231 at 241–3.
47 Huguenin v Baseley (1807) 14 Ves 273; 33 ER 526.
48 See Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 916 AC per

Lord Diplock; para 7.14 below.

49 See Allcard v Skinner (1887) 36 ChD 145 at 157–8; Middleton v Brown (1878) 47 LJ Ch 411;

Borrell v Dann (1843) 2 Hare 440; 67 ER 181 and the proposition that Chancery mends no man’s
bargain—Maynard v Moesley (1676) 3 Swanst 651; 36 ER 1009.
50 See discussion in R Bigwood, ‘Economic Duress by (Threatened) Breach of Contract’ (2001)

117 LQR 376.

51 See Symons v Williams (1875) 1 VLR (Eq) 199 at 216.
 52 See para 1.11 above.
53 For an example of the practical, but not theoretical, overlap between the doctrines, see Glencore
Grain Ltd v Flacker Shipping Ltd (‘The MV Happy Day’) [2002] EWCA Civ 1068; [2002] 2 Lloyd’s
Rep 487.
54 See Chapter 7 passim.
55 [1983] 1 AC 854 per Lord Diplock at 916A–C.
56 In an empirical, common law system, this must be the deductive route by which doctrines are
arrived at.
57 See Waltons Stores (Interstate) Ltd v Maker (1988) 164 CLR 387 at 447–53; Foran v Wight
(1989) 168 CLR 385 at 434–6; Commonwealth v Verwayen (1990) 170 CLR 394 at 431–46 all per
Deane J and Commonwealth v Verwayen at 410–13 per Mason CJ. In Roxburgh v Rothmans of Pall
Mall Australia (2002) 76 ALJR 203, this broad-based approach was extended into and purported to
subsume restitutionary principles—per Gummow J at paras 63–4, 74.
58 Thus, the majority of the High Court has stated that the estoppel by representation doctrine

remains distinct from the unified theory of ‘equitable estoppel’ developed and expanded in that
jurisdiction: see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, Commonwealth of
Australia v Verwayen (1990) 170 CLR 394, McCraith v Fraser (1991) 104 FLR (Aus) 227.
59 Meagher analyses the Australian doctrine and comes to the same conclusion as to the

uncertainties of that which it may or may not include at 1725.

60 This is also apparent from the case law since the Second Edition—where the trend has been

firmly away from any unified theory.

61 In the sense of the body of English jurisprudence based on empirical reasoning not in that of a

distinction between common law and equity.

62 eg, legitimate expectation—see above.
63 See, in the context of legitimate expectation, R v MAFF, ex p Humble Fisheries (Offshore) Ltd

[1995] 2 All ER 714; R v SSHD, ex p Jaramillo-Silva [1995] 7 Admin LR 445; R v East Sussex CC, ex
p Reprotech (Pebsham) Ltd [2002] UKHL 8 at paras 33–1.
64 Used in a general sense to cover not only those areas which fall within the jurisdiction of the

Commercial Court but also those areas which fall outwith that jurisdiction but remain ‘commercial’
in a loose sense of the word—see Chapter 15.
65 ‘Estoppel’ in this context refers to equitable forbearance, estoppel by representation, estoppel by

convention, by deed and proprietary estoppel.

66 As opposed to the role that variation plays in specific areas of the law.
67 See Williams v Roffey Brothers [1991] 1 QB 1.
68 Seen most notably in the numerous cases of parties’ failure to comply with the formalities of the

Statute of Frauds and the Sale of Goods Act 1893.

69 See discussion of White & Carter (Councils) at paras 6.15 ff below.
70 For instance by the incorporation of rules into the contract which provide for their own variation

without agreement.
71 As to unified theories.
72 Waiver of tort being a different doctrine falling outwith this work.
73 Assuming that the contract does not automatically determine or the right to elect may be

curtailed in certain types of contract—see paras 6.15 ff.

74 See paras 5.02 and 5.05 below.
75 [1962] AC 413.
 76 The terms have often been used interchangeably by the Courts.
77 See Chapter 13, passim.
78 See Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce [1997]

4 All ER 514 at 530j per Evans LJ.

 1 See Goss v Lord Nugent (1883) 5 B & Ad 58 at 64–5; 110 ER 713 at 716.
2 See the second part of this volume passim for a discussion of the application of variation to
various commercial contexts.
3 See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER
(Comm) 896; [2002] 2 LLR 487; [2002] 2 Lloyd’s Rep 487 for an example of the practical overlap.
Compare, however, Cowey v Liberian Operations Limited [1966] 2 Lloyd’s Rep 45 where such an
attempt to plead alternative estoppel and variation cases failed.
4 See Stead v Dawber (1839) 10 Ad & E 58; 113 ER 22; WJ Alan v El Nasr Export [1972] 2 QB
189 at 218 D per Megaw LJ.
5 See Fenner v Blake [1900] 1 QB 426.
6 See Treitel 1 at 111, 207.
7 See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER
(Comm) 896; [2002] 2 LLR 487; [2002] 2 Lloyd’s Rep 487 at [61] per Potter LJ which is in similar
terms.
8 For a discussion of the executory nature of a variation see Dorimex; Tradex Srl & Intertrade Srl v

Visage Imports Ltd [1999] EWCA 2223 at [21] per Scott VC.
9 Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd’s Rep 340 per Devlin J at 349 col 2–350 col

1; Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER (Comm) 896;
[2002] 2 LLR 487; [2002] 2 Lloyd’s Rep 487 at [61]. A distinction which explains the need for
consideration for a variation but not for a waiver.
10 By barring an election, a claim or other legal redress.
11 See Robinson v Page (1826) 3 Russ 114 at 119; 38 ER 519 at 521.
12 It may, however, operate as an implied discharge as discussed at paras 2.36 ff below.
13 Variation requires the existence of some of the obligations between the parties both before and

after the variation. Dissolution of all obligations both past and present requires discharge by
agreement. See paras 19.11 ff for a discussion of this principle in a particular context.
14 See eg Bret v JS (1600) Croke, Eliz 756; 78 ER 987; Pinnel’s Case (1602) 5 Coke Rep 117a; 77

ER 237 in which the alteration of a contractual obligation was viewed as the acceptance of a fresh
obligation and the conferring of a fresh and therefore different benefit.
15 (1883) 5 B & Ad 58 at 64–5; 110 ER 713 at 716.
16 Lord Denning MR’s view that variation of a contract can be nothing more or less than a

particular interpretation of its terms, it is submitted, is incorrect (see Amalgamated Investment &
Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84 at 121C–D). That is to
confuse the existence of a term with its meaning. Variation, at the least, is alteration of the physical
terms of a contract.
17 See McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38.
18 See eg s 40 Law of Property Act 1925; s 2 Law of Property Act 1989; ss 1–2, 11 Employment

Rights Act 1996.

19 See New Hart Business v Brindley [1975] Ch 342. See, however, Yaxley v Gotts [2000] Ch 162 at

175, if, on analysis of the mischief that the requirement in writing was intended to prevent, the harm
suffered as a result of not enforcing the obligation is greater than the mischief, an estoppel may arise
giving effect to the oral representations on which the unenforceable ‘variation’ is based.
20 However, where the variation alters the contract, that variation can be relied on by way of

defence to an action on the contract—see In re a Debtor (No 517 of 1991) TLR 25 November 1991
and para 2.34 below.
 21 See Berry v Berry [1929] 2 KB 316.
22 See the discussion of Brikom Investments v Carr [1979] 1 QB 467 at paras 2.10 ff below.
23 See Goss, op cit. Therefore, in the employment context, a transfer of employment at common

law from X to Y will usually not be a variation of the contract of employment as the transfer
necessarily involves the termination of employment with X before employment with Y begins (de
Rosa v John Barrie Ltd [1974] 1 WLR 946 at 964D–E).
24 [1928] Ch 179.
25 At 195 per Sargant LJ; 196–7 per Lawrence LJ—not least because the variation would have
required re-presentation and of the risk and disclosure (see Agapitos Laiki Bank (Hellas) SA v Agnew
(No 2) [2002] EWHC 1558 (Comm); [2003] Lloyd’s Rep IR 54 at [72] per Moore Bick J (as he then
was)).
26 A distinction is therefore drawn between the parties agreeing that the performance will be
different and an acceptance by one party that another party’s performance has been different.
27 See Isaacs v Royal Ins Co (1870) LR 5 Exch 296 at 300; Hirdes GmbH v Edmond [1991] 2

Lloyd’s Rep 546.

28 See eg Lineberger v Security life & Trust Co 95 SE 2d 501.
29 In this context, it is respectfully suggested that Lawrence LJ’s suggestion at 197 is either

incorrect or merely refers to the fact that the transaction between assignor and assignee was complete
once assignment had taken place and been notified.
30 [1979] 1 QB 467.
31 See Treitel 1 at 110; Chitty on Contracts 3-080(4).
32 At 484F–485C.
33 At 485F–486G.
34 At 488B–F.
35 At 488F–489E.
36 At 490G–491C.
37 Lord Denning MR’s dicta are not considered in any detail in this chapter. See paras 8.12 and

8.86 below for an analysis of Carr insofar as it relates to the doctrine of estoppel.
38 See De Lasalle v Guildford [1901] 2 KB 215; Hill v Harris [1965] QB 601.
39 See De Lasalle, ibid at 221: ‘It [the collateral contract] must be a collateral undertaking forming

part of the contract by agreement of the parties express or implied, and must be given during the
course of dealing which leads to the bargain, and should then enter into the bargain as part of it.’
40 In this context see Heilbut Symons & Co v Buckleton [1913] AC 30 at 47 where Lord Moulton

stated, ‘Such collateral contracts, the sole effect of which is to vary or add to the terms of the written
contract, are therefore viewed with suspicion by the law’ (author’s emphasis).
41 ie an agreement that the Claimant and the Defendant would enter into a contract and once they

did so would not enforce one particular term of that contract.

42 See Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 619 cols 1–2 per Lloyd LJ for

the test to be applied.

43 It being impossible to say what terms were not to be complied with prior to entry into the main

contract.
44 See Walford v Miles [1992] 2 AC 128; May & Butcher v R [1934] 2 KB 17n. Contrast Foley v

Classique Coaches [1934] 2 KB 1; Hillas & Co Ltd v Arcos (1932) 43 Ll L R 359 and The Queensland
Electricity Generating Board v New Hope Collieries Ltd [1989] 1 Lloyd’s Rep 205 at 210, where Sir
Robin Cooke stated that arguments based on uncertainty exert ‘minimal attraction’.
 45 (1877) 2 App Cas 439 at 448 per Lord Cairns.
46 See Record v Bell [1991] 1 WLR 853 at 862A–B.
47 Such an analysis would also ensure that the analysis of the requirements for a collateral

contract, a contract and a variation are consistent.

48 (1862) 11 CBNS 869; 142 ER 1037.
49 The parties’ former unrestricted right to vary the contract is now subject to the Contract (Rights

of Third Parties) Act 1999. By s 2, the parties may not vary the contract to remove or vary third party
rights where (i) the third party has communicated, by words or conduct, his assent to the term; or (ii)
the promisor is aware that the third party has relied on the term; or (iii) the promisor could be
reasonably expected to have foreseen that the third party would rely on the term and the third party
has in fact done so. The parties may mitigate the effects of s 2 by conferring on themselves the
express power to vary the contract without third party consent (s 2(3)(a)); by creating an express
mechanism by which the third party’s consent is to be obtained (s 2(3)(b)); or by applying to a court
or tribunal where the third party is unobtainable or is incapable of giving consent (s 2(4)). See further
discussion at para 2.32 below.
50 See Morris v CH Bailey [1969] 2 Lloyd’s Rep 215 at 219 cols 1–2 per Salmon LJ; Fairlie v

Christie (1817) 4 Taunt 416 at 420; 129 ER 166 at 168.

51 See Hill v Patten (1873) 8 East 373; 103 ER 386.
52 However, whether a party did or did not intend to vary the contract will be objectively derived

from a consideration of the objective evidence—see eg (albeit in the context of construing the
contract) Deutsche Genossenschaftsbank v Burnhope & ors [1995] 1 WLR 1580 at 1587D–F per Lord
Steyn.
53 See Grogan v Robert Meredith TLR 20 February 1996.
54 See Campbell v Christie (1817) 2 Stark 64; 171 ER 573, where the failure to obtain the consent

of one of a pool of underwriters vitiated the proposed variation of the insurance contract.
55 See ‘The Universe Sentinel’ [1983] 1 AC 366; Atlas Express Ltd v Kafco (Importers and

Distributors) Ltd [1989] QB 833.

56 The variation will substitute one contract for another and therefore must comply with the

contractual requirement of certainty—see Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce

Marketing [1972] AC 741 at 757 per Lord Hailsham; Chitty on Contracts 2.136 ff.
57 If this is absent, there may still be a waiver or equitable forbearance—see Shore Ventures Ltd v
Anstead Holdings Inc & Ors [2010] EWHC 1485 at [274] per Newey J.
58 As with most formalities, the requirement that there be consideration may have a protective

function—ensuring that the party allegedly agreeing to the variation has at least derived some
commercial benefit from it—see Adam Opel GmbH & Anor v Mitras Automotive (UK) Ltd [2007]
EWHC 3205; [2008] Bus LR D55 at [42].
59 See Chitty on Contracts 3.004 ff; 3.074 ff; 23.034.
60 See eg O’Sullivan v Management Agency & Music Ltd [1985] QB 428; Re William Porter & Co
[1937] 2 All ER 361 (analysis based solely on detriment).
61 See WJ Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189; Shamsher Jute Mills

Ltd v Sethia (London) Ltd [1987] 2 Lloyd’s Rep 388.

62 See para 17.08 below.
63 See Shore Ventures Ltd v Anstead Holdings Inc & Ors [2010] EWHC 1485 (Ch) at [274] per

Newey J.
64 See Grisley v Lother (1614) Hobart 10; 80 ER 161.
 65 See Shadwell v Shadwell (1860) 9 CBNS 159; 142 ER 62; Chitty on Contracts 3.008 and n 37.
66 See eg Chappell & Co v Nestle Co Ltd [1960] AC 87 (chocolate wrappers constitute
consideration); but contrast Lipkin Gorman v Karpnale [1991] 2 AC 548.
67 See Stilk v Myrick (1809) 2 Camp 317; 170 ER 851 at 1168.
68 See, for a very early formulation of the analysis, the Introduction to PS Atiyah, The Rise and

Fall of the Freedom of Contract (Clarendon Press, Oxford, 1979).

69 [1991] 1 QB 1.
70 At 13E–G and 23D.
71 At 11, 19, 20 and 21.
72 At 15G–16B.
73 At 19D.
74 At 18H.
75 At 19D–E.
76 At 23D.
77 Mindy Chen-Wishart, ‘Consideration: Practical Benefit and the Emperor’s New Clothes’ in J

Beatson and D Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon Press, Oxford,
1995) at 123–50.
78 See South Caribbean Trading Ltd v Trafigura Beheer BV [2004] EWHC 2676 (Comm) per

Colman J at [109].
79 Re Selectmove [1995] 1 WLR 474 at 480C–481D (CA) per Lord Justice Peter Gibson.
80 See Simon Container Machinery Ltd v Emba Machinery AB [1998] 2 Lloyd’s Rep 429 at 434 col

1–435 col 1 per HHJ Raymond Jack QC.

81 See Horwood & Ors v Land of Leather Ltd [2010] EWHC 546; [2010] Lloyd’s Rep IR 453,

[2010] 1 CLC 423 per Teare J at [41] where the Learned Judge having found that there was
consideration ‘on conventional grounds’ also found a Williams type benefit. See also Parties Named
In Schedule A v Dresdner Kleinwort Ltd [2010] EWHC 1249 at [56].
82 Williams does suggest that the principle is subject to the public policy caveat (as expressed by

Lord Justice Russell) that care must be taken where the parties do not possess equal bargaining power.
83 At 21 per Purchas LJ. See also Anangel Atlas Compania Naviera SA v Ishikawajima-Harima

Heavy Industries Co Ltd (No 2) [1990] 2 Lloyd’s Rep 526, where the Defendant promised concessions
to the Claimant to persuade them to accept a hull on time pour encourager les autres, namely the
Defendant’s other customers, to accept constructed hulls in a falling market.
84 But see Re Selectmove [1995] 1 WLR 474 at 480C–481D (CA), in which Lord Justice Peter

Gibson recognised the force of an argument that in the real world practical benefit would accrue to a
creditor in allowing payment of a debt by instalments but felt himself bound by Foakes v Beer (1884)
9 App Cas 605.
85 See Adam Opel GmbH & Anor v Mitras Automotive (UK) Ltd [2007] EWHC 3205; [2008] Bus

LR D55 per David Donaldson QC at [42].

86 Save where a debt is concerned in which case Foakes v Beer would apply—see n 85 above.
87 See Simon Container Machinery Ltd v Emba Machinery AB [1998] 2 Lloyd’s Rep 429 at 434 col

1–435 col 1 per HHJ Raymond Jack QC.

88 But see Hudson para 5-046, where the author canvasses the possibility that the employer may

agree to a variation purely to benefit the contractor. In that circumstance there would be no bilateral
exchange and Williams would not apply. The approach may be theoretically correct; however, in
practical terms it is difficult to envisage a situation where an employer would so agree unless some
benefit accrued to the employer.
89 A variation inevitably implies a state of affairs where the requirements set out above exist. A

unilateral variation is one where there is no apparent consensus at that time.

90 See United Dominions Corpn (Jamaica) Limited v Shoucar [1969] 1 AC 340 at 349 E–F per Lord
Devlin. It is noticeable, however, that in the over 40 years since Shoucar those practical difficulties
have yet to emerge. Indeed, recent authority (see eg Samuel v Wadlow [2007] EWCA Civ 155 per
Toulson LJ at [46]; Shell UK Ltd v Revenue & Customs [2007] UKSPC 0624) suggests that the greater
practical difficulties are in fact created by the reliance on the cases where the rescission-type analysis
is adopted.
91 See para 2.05 above.
92 The formal requirement also prevents the statutory requirements as to writing being bypassed by
oral variations. See Robinson v Page (1826) 3 Russ 114; 38 ER 519; Stead v Dawber (1839) 10 Ad &
E 58; 113 ER 22; Noble v Ward (1867) LR 2 Ex 135; Morris v Baron & Co [1918] AC 1; British and
Beningtons Ltd v NW Cachar Tea Co Ltd [1923] AC 48; United Dominions Corpn (Jamaica) Limited v
Shoucar [1969] 1 AC 340. For a more modern approach, albeit in the estoppel context, to statutory
requirements, see Yaxley v Gotts [2000] Ch 162 at 175C per Robert Walker LJ; Shah v Shah [2001] 4
All ER 138; [2001] EWCA Civ 527.
93 See Morris v Baron & Co [1918] AC 1.
94 See Morris v Baron & Co [1918] AC 1 at 20–1 per Viscount Haldane, 25–6 per Lord Dunedin,

29–33 per Lord Atkinson; British and Beningtons [1923] AC 48 at 68–9 per Lord Sumner.
95 See Sookraj v Samaroo [2004] UKPC 50; [2005] 1 P & CR DG 11 at [19ff].
96 See Samuel v Wadlow [2007] EWCA Civ 155 per Toulson LJ at [46]. The Court of Appeal

accepted that Morris v Baron remained good law but only in the area of its original application; see
also the obiter discussion in Langston Group Corpn v Cardiff City Football Club [2008] EWHC 535
at [47]; but contrast Cumbria County Council v Dow & Ors (No 2) [2008] IRLR 109 at [36] per Elias
P, where the Learned Judge applied Morris v Baron to employment law (though it does not appear
that the point was debated in any detail).
97 For an extreme example of the application of Morris v Baron creating uncertainty, see Shell UK

Ltd v Revenue & Customs [2007] UKSPC 0624.

98 Other than, perhaps, case-by-case pragmatism.
99 See United Dominions Corpn (Jamaica) v Shoucar [1969] 1 AC 340 at 348B–C per Lord Devlin.
100 Hence the canon of construction that all terms of a contract are to be construed together (the
expressio unius principle) and the difficulty of severing contract terms.
101 Absent severance of a term of the contract.
102 See Edwin Hill & Partners v First National Plc [1989] 1 WLR 225 at 234H per Nourse LJ and

235E per Browne-Wilkinson VC.

103 That is, if there is an election to treat the breach as repudiatory.
104 See McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476–7; Johnson v Agnew [1980]
AC 367 at 396.
105 [2007] UKSPC 0624.
106 At [120].
107 This would obviously raise interesting factual matrix questions when it came to interpreting the

contract applying the Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1
WLR 896 line of authority.
108 The previous contract would, of course, be relevant to any issue of breach prior to the variation.
 109 See the analysis in parallel terms in Compagnie Noga D’importation Et D’exportation SA v
Abacha & Ors [2003] EWCA Civ 1100 per Tuckey LJ at [43 ff].
110 At 349 E–F.
111 [1918] AC 1.
112 See McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476–7; Johnson v Agnew [1980]

AC 367 at 396.
113 See Yaxley v Gotts [2000] Ch 162 at 175C (per Robert Walker LJ); 182A (per Clarke LJ); 191A
(per Beldam LJ).
114 The Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contracts Regulations,
1994 SI 1994/3159, and Unfair Terms in Consumer Contracts (EC) 1993/13. The protective ambit of
the unfair contracts legislation may be particularly relevant to agreements permitting variation—see
para 2.41 below; Chitty on Contracts 23-038.
115 See discussion in Glover, Commercial Equity (Butterworths, Sydney, 1997) at paras 2.24 ff; C
Brand, ‘The development of tracing rules in commercial cases’ [1997] LMCLQ 65.
116 See Chitty on Contracts 7-011–18; Universe Tankships of Monrovia v International Transport

Workers Federation (‘The Universe Sentinel’) [1981] ICR129 rev’d on a different point [1983] AC
366; DSND Subsea Ltd v Petroleum Geo-Services ASA [2000] BLR 530; discussed in R Bigwood,
‘Economic Duress by (Threatened) Breach of Contract’ [2001] 117 LQR 376.
117 See Adam Opel GmbH & Anor v Mitras Automotive (UK) Ltd [2007] EWHC 3205, [2008] Bus

LR D55 per David Donaldson QC at [42] which explicitly refers to the protective role of
consideration in the context of variation now being replaced by economic duress.
118 See British and Beningtons [1923] AC 48 at 68 per Lord Sumner.
119 See United Dominions Corpn (Jamaica) v Shoucar [1969] 1 AC 340 at 348A per Lord Devlin.
120 See Morris v Baron [1918] AC 1. A conviction that is perhaps now more pertinent to the use of

rescission in this context rather than to discharge—see above and especially n 91.
121 A distinction is to be drawn between variation and unilateral variation.
122 This approach would be consistent with the requirement that a proposed variation must be

sufficiently certain so as to give it contractual effect—see Woodhouse AC Israel Cocoa Ltd SA v

Nigerian Produce Marketing [1972] AC 741 at 757 per Lord Hailsham.
123 There may be a further benefit to this analysis. The mutual release by the parties of their

obligations under the old contract might operate as consideration for entry into the new contract
thereby avoiding the difficulties associated with consideration as outlined at paras 2.15 ff above.
124 United Dominions Corpn (Jamaica) v Shoucar [1969] 1 AC 340 at 348A considered at paras

2.28 ff above.
125 See Coleman v S&W Baldwin [1977] IRLR 342; Pedersen v Camden LBC [1981] ICR 674. In

the employment context, the relationship is subject to an implied obligation of good faith and
confidence. Therefore, a unilateral variation will probably amount to repudiation as a result of a
breach of that obligation in any event see Woods v WM Car Services (Peterborough) Ltd [1981] ICR
666; [1982] ICR 693 (CA).
126 See Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91.
127 See Vitol SA v Norelf Ltd [1996] 3 WLR 105 at 113A–C per Lord Steyn.
128 See Page v Liverpool Victoria Friendly Society (1927) 43 TLR 712 at 713 per Lord Hansworth

MR; Yeo v Stewart [1947] 2 All ER 28 at 33F–G per Sellers J.

129 Robert H Dahl v Nelson, Donkin (1881) 6 App Cas 38 at 39, 43; Dal v Orr [1980] IRLR 413;

Spafax v Harrison [1980] IRLR 413.

 130 Millbrook v McIntosh [1981] IRLR 309.
131 The converse is not, however, true—the parties cannot by their agreement exclude subsequent
variations of the contract. Thus a term of the contract which states that the contract can only be varied
in writing will not prevent there being an oral variation—see I-Way Ltd v World Online Telecom UK
Ltd [2002] EWCA 413 at para 11.2. See also Spring Finance Ltd v HS Real Company LLC [2011]
EWHC 57 (Comm) per HHJ Mackie QC (obiter) at para 53, ‘My first impression, having heard the
submissions of Counsel, was that there could in theory be an oral variation, notwithstanding a clause
requiring that to be in writing, but that the Court would be likely to require strong evidence before
reaching such a finding.’ Under English law, therefore, the effect of such a term is, at best, not to
prohibit consensual oral variation but to raise a rebuttable presumption that, in the absence of writing,
there has been no variation. The presumption will be rebutted only by strong evidence that both
parties intended to vary the terms of the contract. This is not the position under the United States
Uniform Commercial Code, which provides, at s 2-209(2): ‘An agreement in a signed record which
excludes modification or rescission except by a signed record may not be otherwise modified or
rescinded.’
132 In particular the Unfair Terms in Consumer Contracts Regulations 1994, SI 1994/3159. Thus in

an un-negotiated contract between a seller/supplier and a consumer, the following terms may be
suspect: (1) that permitting unilateral variation of the contract without a valid reason as specified in
the contract—Sch 3 to the Regulations, para 1(j); (2) that permitting variation of the characteristics of
the product or service to be provided—Sch 3 para 1 (k); (3) that permitting variation of the price or
subsequent price fixing without a correlative right to cancel the contract—Sch 3 para 1(1).
133 See Wandsworth BC v Da Silva [1998] IRLR 193 at para 31; Newbold v Leicester CC [1999]

ICR 1182 at 1189E–F; [1999] EWCA 3115 at para 26 per Auld LJ.
134 See paras 19-03–04 below.
135 The Act is clearly drafted and its provisions require little elucidation. For the intellectual

genesis of the Act, see Law Commission Report, Privity of Contract: Contracts for the Benefit of
Third Parties (July 1996) Cm 3329 XV:(14) ff; Professor Burrows, Reforming Privity of Contract:
Law Commission Report No 242 (unrep) 16 ff.
136 See s 2(1)–(2).
137 See s 2(3)(a).
138 That difficulty was recognised by the Courts at the time, the litigation being described as an
‘unattractive piece of forensic history’ (Andre & Cie SA v Tradax Export SA [1983] 1 Lloyd’s Rep
254 at 258 cols 1–2 per Kerr LJ) with those involved being the ‘cognoscenti in this recondite field’
(Tradax Export SA v Cook Industries Inc [1982] 1 Lloyd’s Rep 385 at 387 col 2 per Kerr LJ).
139 A Grain and Feed Trade Association cif contract which provided for English law to be the

proper law of the shipping contract and for arbitration of the issues arising from the shipping contract
to take place in London.
140 The involvement of a company at more than one point in the string would create a ‘circle’; ie,

the process restarting albeit at a different buying/selling price.

141 The Notice of Appropriation had to be a particular form, defects in which led to particular
issues of waiver arising—as to which see paras 4.16 and 4.27 below; para 22.03 below.
142 Westfaliscbe Central Genossenschaft GmbH v Seabright per Goff J (as he then was), unrep but

cited in Bremer Handelsgessellschaft mbH v Continental Grain [1983] 1 Lloyd’s Rep 269.
143 See Bremer, ibid at 280 col 2 per Mustill J as he then was.
144 Seabright, supra in Bremer at 292.
 145 [1978] 2 Lloyd’s Rep 109.
146 See Lord Wilberforce at 115 col 1. See also Intertradex SA v Lesieur-Torteaux SARL [1978] 2
Lloyd’s Rep 509 at 513; Bremer Handelsgesellschaft mbH v C Mackprang Jr (No 1) [1979] 1 Lloyd’s
Rep 221 at 224, 228; Continental Grain Export Corpn v STM Grain Ltd [1979] 2 Lloyd’s Rep 378 at
473.
147 See Lord Wilberforce at 115 col 1; Lord Salmon at 128 col 2.
148 See Lord Russell at 131.
149 [1983] 2 Lloyd’s Rep 304.
150 At 307 col 1.
151 See Sainsbury Ltd v Street [1972] 1 WLR 834; and also Tennants (Lancashire) Limited v CS

Wilson & Co [1917] AC 495 at 511–12 where Viscount Haldane suggested that there might be lawful
pro rata performance of a supply contract.
152 1 Rolle’s Abridgement Conditions G p 10 (p 450) cited in Hall v Wright (1858) EB & E 746 at

758, 790; 120 ER 688 at 693.

153 It is clear that there is no right to suspend performance in the light of another party’s breach

(see Channel Tunnel Group v Balfour Beatty [1992] 1 QB 655 at 666; Terkol Rederierne v Petroleo
Brasilero SA (‘The Badagry’) [1985] 1 Lloyd’s Rep 395 at 399; Canterbury Pipelines v Christ Church
Drainage [1979] NZLR 347). However, it is debatable whether a distinction may be drawn between
suspension in response to breach as opposed to suspension in the face of a potentially frustrating
event.
154 See eg British Movietonenews Ltd v London and District Cinemas [1952] AC 166 at 185.
 1 See Edward L Rubin, ‘Towards a General Theory of Waiver’ (1981) 28 UCLA Law Review at 478.
An indication of the popularity of waiver is the nearly 2,000 references to the doctrine on
<http://www.bailii.org> since the Second Edition.
2 See Ross T Smyth & Co Ltd v Bailey Son & Co (1940) 164 LT 102 at 106 per Lord Wright;
Larratt v Bankers & Traders Insurance Co (1941) 41 SR(NSW) 215 at 216 per Jordan CJ. For similar
Scottish sentiments see Gloag on Contract, 2nd edn at 281.
3 See The Commonwealth of Australia v Verwayn (1990) 170 CLR 394 at 406 per Mason CJ.
4 See Banning v Wright [1972] 1 WLR 972 at 981D–E per Lord Reid; Oliver Ashworth (Holdings)
Ltd v Ballard (Kent) Ltd [1999]; EWCA Civ 1027 at [37] per Robert Walker LJ.
5 See Mulcahy v Hoyne (1925) 36 CLR 41 at 53 per Isaacs J.
6 See Mardorf Peach & Co Ltd v Attica Sea Carriers Corporation of Liberia (‘The Laconia’)
[1977] AC 850 at 871B–E per Lord Wilberforce and, more recently, Hamar & Lockville Trustees Ltd
v French [1997] EWCA 1121 at [57] per Millet LJ.
7 Corbin, ‘Conditions in the Law of Contract’ (1919) 28 Yale LJ 739 at 754.
8 See para 3.20 below.
9 The Commonwealth of Australia v Verwayn (1990) 170 CLR 394 at 449 per Deane J.
10 See eg R (Bottomley) v General Commissioners of Income Tax Pontefract Division [2009]

EWHC 1708; [2009] STI 2195; [2009] BTC 358; [2009] STC 2532 at [21]; Persimmon Homes (South
Coast) Ltd v Hall Aggregates (South Coast) Ltd [2009] EWCA Civ 1108; [2009] NPC 118 at [52–53];
Garside v Black Horse Ltd & Ors [2010] EWHC 190 at [27–28]; Softlanding Systems Inc v KDP
Software Ltd & Anor [2010] EWHC 326 at [127]; BDW Trading v JM Rowe (Investments) Ltd [2010]
EWHC 1987 at [45]; Hudson Bay Apparel Brands Llc v Umbro International Ltd [2010] EWCA Civ
949 at [60].
11 [1999] EWCA Civ 1027; [2000] Ch 12.
12 At [37] per Robert Walker LJ as he then was.
13 See, eg, the need for knowledge/informed choice—at [33] per Robert Walker LJ.
14 At [36]. For further amplification as to the rights/remedies or rights/defences distinction see

Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147, [2008] Bus LR 931 at
[38] per Rix LJ.
15 Tyers v Rosedale (1873) LR 8 Exch 305 at 318 per Martin B.
16 Thus, eg, waiver is applicable to the Crown in contracts to which it is a party—Sykes v R [1939]

3 DLR 585.
17 As to the expressed need for which, see Scandanavian Trading Tanker Co AB v Flota Petrolera

Ecuatoriana (‘The Scaptrade’) [1983] 2 AC 694 at 703E–704G per Lord Diplock; Banco Exterior
Internacional v Mann [1995] 1 All ER 936 at 944b per Hobhouse LJ; Westdeutsche Landesbank
Girozentrale v Islington London Borough Council [1996] 2 All ER 961 at 987h per Lord Browne-
Wilkinson.
18 See Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (‘The Mihalis Angelos’)

[1971] 1 QB 164 at 204D–E per Megaw LJ.

19 See for examples postdating the Second Edition: HIH Casualty & General Insurance Ltd v AXA

Corporate Solutions [2002] EWCA Civ 1253; [2002] 2 All ER (Comm) 1053; Moore Large &
Company Ltd v Hermes Credit and Guarantee Plc [2003] EWHC 26; [2003] 1 Lloyd’s Rep 163;
[2003] Lloyd’s Rep IR 315; Go West Ltd v Spigarolo [2003] EWCA Civ 17; Super Chem Products Ltd
v. American Life and General Insurance Co Ltd (Trinidad and Tobago) [2004] UKPC 2; [2004] 1 All
ER (Comm) 713; [2004] 1 CLC 1041; [2004] 2 All ER 358; [2004] Lloyd’s Rep IR 446; Spriggs v
Wessington Court School Ltd [2004] EWHC 1432; [2005] Lloyd’s Rep IR 474; Bottiglieri Di
Navigazione SpA v Cosco Qingdao Ocean Shipping Company [2005] EWHC 244; [2005] 2 Lloyd’s
Rep 1; Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239; Fortisbank SA v Trenwick
International Ltd [2005] EWHC 399; Bolton Metropolitan Borough Council v Municipal Mutual
Insurance Ltd [2006] EWCA Civ 50; Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008]
EWCA Civ 147; [2008] Bus LR 931; Lexington Insurance Company v Multinacional De Seguros SA
(Rev 1) [2008] EWHC 1170; [2009] 1 All ER (Comm) 35; [2009] Lloyd’s Rep IR 1; Leofelis SA &
Anor v Lonsdale Sports Ltd [2008] EWCA Civ 640; [2008] ETMR 63; Tele2 International Card
Company SA v Post Office Ltd [2009] EWCA Civ 9; Sabmiller Africa BV v Tanzania Breweries Ltd
[2009] EWHC 2140; [2010] 1 Lloyd’s Rep 392; Persimmon Homes (South Coast) Ltd v Hall
Aggregates (South Coast) Ltd [2009] EWCA Civ 1108, [2009] NPC 118; Shell Egypt West Manzala
GmbH & Anor v Dana Gas Egypt Ltd [2010] EWHC 465; DRL Ltd v Wincanton Group Ltd [2010]
EWHC 2896; Force India Formula One Team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051;
Crosstown Music Company 1, LLC v Rive Droite Music Ltd & Ors [2010] EWCA Civ 1222.
20 In practice the distinction may be less easy to draw; the practical results of applying the two
doctrines may be indistinguishable—see Watson v Healy Lands Ltd [1965] NZLR 511 at 513, ll 10–20
per Woodhouse J.
21 Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd’s Rep 340 per Devlin J at 349 col 2–350
col 1. See also Hudson Bay Apparel Brands Llc v Umbro International Ltd [2010] EWCA Civ 949 at
[62] per Lord Neuberger.
22 Levey & Co v Goldberg [1922] 1 KB 688 at 690 per McCardie J. See also Impala Distributors v

Taunus Chemical Manufacturing Co (Pty) Ltd (1993) (3) SA 273; Van As v du Preez (1981) (3) SA
760; Waimor Holdings Ltd v Dean [1981] 2 NZLR 416.
23 Stoljar, ‘The Modification of Contracts’ (1957) 35 Canadian Bar Review 485 at 492.
24 See paras 2.15 ff above.
25 See para 2.14 above.
26 See SN Kurkjian (Commodity Brokers) Ltd v Marketing Exchange for Africa Ltd [1986] 2

Lloyd’s Rep 614 at 615 col 2; the parties could, for instance, vary the contract to introduce a ‘no-
waiver’ agreement—see paras 17.20 and 20.50 below.
27 Even where the Courts have found that a particular waiver had contractual status, it was still
only an ‘agreement to release or not to assert a right’—Nippon Menkwa Kabushiki Kaisha (Japan
Cotton Trading Company Ltd) v Dawsons Bank Ltd (1935) 51 Ll L R 147 at 150 col 2 per Lord
Russell.
28 Thus even in cases of unilateral or pure waiver which may operate in futuro (see paras 4.28 and

4.36 below), the waivor is forgoing its remedies where the waivee proffers different performance at
the later date.
29 [1981] 1 Lloyd’s Rep 359.
30 At 368 col 2–369 col 2 per Mustill J. See the discussion as to whether a waiver irrevocably

changes the terms of the contract at para 5.02 below.

31 [1971] AC 850.
32 At 882H–883D.
33 [1990] 1 Lloyd’s Rep 391.
34 See Chapter 6, passim below.
35 Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (‘The
Kanchenjunga’) [1990] 1 Lloyd’s Rep 391 at 399 col 2 per Lord Goff.
 36 See also Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239 at [18] per Maurice Kay LJ.
37 [2008] EWCA Civ 147; [2008] Bus LR 931.
38 [2009] EWCA Civ 1108.
39 See Kosmar at [38]. See also Lexington Insurance Company & Ors v Multinacional De Seguros

SA [2008] EWHC 1170; [2009] 1 All ER (Comm) 35; [2009] Lloyd’s Rep IR 1 at [61] where there
was no election as there was no choice; there was merely the presentation of an argument (that the
reinsurers were automatically discharged as a result of a failure of condition precedent) which was
either wrong or right.
40 See the ‘extremely general statement’ in Super Chem Products Ltd v American Life and General
Insurance Co [2004] UKPC 2; [2004] 2 All ER 358; [2004] 1 CLC 1041; [2004] 2 Lloyd’s Rep IR
446; [2004] 1 All ER (Comm) 713 at [21].
41 At [51–53] per Rix LJ. The concept of ‘waiver by estoppel’ is considered in this work under the
rubric of equitable forbearance for the reasons set out below. The equitable estoppel to which the
Court was referring is the wider, non-contractual estoppel by representation—also dealt with below.
42 Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR

931 at [36 ff] per Rix LJ.

43 See Shell Oil UK Ltd v Enterprise Oil Plc [1999] 2 Lloyd’s Rep 456 at 478 col 2–479 col 2;

paras 149 and 153 per Lloyd J.

44 See Kosmar supra at [38]; Lexington supra at [64]; Westbrook Resources Ltd v Globe

Metallurgical Inc [2009] EWCA Civ 310; [2009] 2 All ER (Comm) 1060; [2009] 2 Lloyd’s Rep 224
at [12].
45 Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305 at 327 per Isaacs J.
46 See Evenden v Guildford City FC [1975] QB 917 at 924B–C per Denning MR; Waltons Stores

(Interstate) Ltd v Maher (1988) 164 CLR 387 at 399–406 per Deane J; The Commonwealth of
Australia v Verwayn (1990) 170 CLR 394 at 410 per Mason CJ.
47 Although the Court of Appeal has talked of ‘waiver’ in non-contractual contexts—see eg Muse v

London Borough of Brent [2008] EWCA Civ 1447; [2009] PTSR 680 at [49 ff] per Arden LJ—the
better view is that the Court was using the term not to relate to the common law doctrine but to a
waiver akin to that by which someone forgoes the performance of a public law duty or the benefit of
the ECHR.
48 An estoppel may preserve a contract which is otherwise in restraint of trade and a waiver will
not—Pro-Active Sports Management Ltd v Rooney & Ors [2010] EWHC 1807 at [706m–712] per HHJ
Hegarty QC. Similarly, in insurance, there may be no election but there may well be an equitable
forbearance—see Kosmar supra; Lexington supra.
49 Kosmar supra at [38].
50 See Pacol Ltd & Ors v Trade Lines and R/I Sif IV (‘The Henrik Sif’) [1982] 1 Lloyd’s Rep 456 at

465 col 2 per Webster J.

51 See paras 4.07 ff below.
52 See eg Enron (Thrace) Exploration and Production BV & Anor v Clapp & Ors [2004] EWHC

1612 at [60].
53 See BICC v Burndy [1985] Ch 232 at 253B–C per Kerr LJ.
54 See also State Trading Corporation of India v Compagnie Francaise d’Importation et de

Distribution [1983] 2 Lloyd’s Rep 679 at 681 col 2 per Lloyd J; Telfair Shipping Corpn v Athos
Shipping Co SA (‘The Athos’) [1981] 2 Lloyds Rep 74 at 87 col 2–88 col 2 per Neill J; [1983] 1
Lloyd’s Rep 127 (CA) at 134 col 2 per Kerr LJ; Craine v Colonial Mutual Fire Insurance Co (1920)
28 CLR 305 at 326 per Isaacs J.
55 See Treitel 1 at 111 ff and paras 4.39 ff below. However, a full analysis of equitable forbearance

falls outwith the scope of this chapter and is dealt with in Chapter 8.
56 See Hudson 1-081. See the Court of Appeal’s analysis in Persimmon Homes (South Coast) Ltd v
Hall Aggregates (South Coast) Ltd [2009] EWCA Civ 1108 at [51–3] per Rix LJ. As indicated above,
the ‘waiver by estoppel’ referred to is in fact equitable forbearance.
57 As to the broad requirement of knowledge or intention, see Purmasing v National Transport
Corpn (Mauritius) [1998] UKPC 50 at [13–14]; Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd
[2000] Ch 12 [1999] EWCA Civ 1027 at para 37 per Robert Walker LJ; EIC Services Ltd & Anor v
Phipps & Ors [2003] EWHC 1507 at [134]; IFE Fund SA v Goldman Sachs International [2007]
EWCA Civ 811, [2007] 2 Lloyd’s Rep 449 at [49]; Leofelis SA & Anor v Lonsdale Sports Ltd & Ors
[2008] EWHC 451 at [43]; Kosmar Villa Holidays Plc v The Trustees of Syndicate 1243 [2009]
EWCA Civ 147 at [38].
58 The rights forgone can be legal or equitable—see J Glover, Commercial Equity: Fiduciary
Relationships (Butterworths, Sydney, 1995) at 3.29–30, pp 46–7.
59 See Northwestern Fire & Marine Insurance Co v Pollard 238 P 594 at 596 (1925); Hoxie v

Howe Insurance Co 32 Conn 21 (1864); Clark v West 193 NY 349 (1908).

60 See eg BDW Trading Ltd v JM Rowe (Investments) Ltd [2010] EWHC 1987 at [45].
61 See Insurance Corporation Channel Islands v The Royal Hotel Ltd [1998] LRLR 151 at 162 col

2 per Mance J as he then was.

62 Common and essential to all is the need for an unequivocal representation—Keller Ltd (T/A

Concrete) v Morrison Construction Ltd [1998] EWCA 161 at [36–7] per Hobhouse LJ.
63 This analysis and passage was approved in Pacific Brands Sport & Leisure Pty v Underworks

Pty [2006] FCAFC 40 at [113]. See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ
1068; [2002] 2 All ER (Comm) 896; [2002] 2 Lloyd’s Rep 487 at [64] per Potter LJ for an analysis in
parallel terms.
64 See Reinwood Ltd v L Brown & Sons Ltd [2008] EWCA Civ 1090; [2009] BLR 37; [2008] 49 EG

78; [2008] 3 EGLR 21; [2008] 42 EG 167, 121 Con LR 1; [2008] 2 CLC 422 at [48 ff].
65 See eg Bottiglieri Di Navigazione SpA v Cosco Qingdao Ocean Shipping Co [2005] EWHC 244;
[2005] 2 Lloyd’s Rep 1 at [30–32]; Riyad Bank v Ali United Bank (UK) Plc [2005] EWHC 279 at
[184] which both recognise the possibility of a total waiver—albeit none arose in those cases. See
further paras 4.30 ff below.
66 See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER

(Comm) 896; [2002] 2 Lloyd’s Rep 487 at [64] per Potter LJ; paras 4.36 ff below.
67 Whether past or future.
68 Total waiver as opposed to waiver by election and pure waiver.
69 There is powerful support for this approach—see eg Treitel 1 at 111—albeit that it renders
extremely difficult the formulation of any overarching theory of injurious reliance.
70 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus

LR 931 at [74] where Lord Justice Rix recognised the pragmatic origins of these doctrines.
71 [1973] 2 NSWLR 713.
72 At 730D–G.
73 See paras 2.28 ff above.
74 In the US the Courts have explicitly recognised that they are attempting to bypass s 87A—2–

209(4) of the Statute of Frauds—see Farmers Elevator Co of Reserve v Anderson 552 P 2d 63 (1976);
Imperator Realty v Tull 228 NY 447 (1990).
75 See Besseler Waetcher Glover & Co v South Derwent Coal Co Ltd [1938] 1 KB 408 at 415–16

per Goddard J; Hickman v Hayes (1875) 10 LR 10 CP 598 at 605 per Lindley J; Plevins v Downing Co
(1876) 1 CPD 220. In so doing, the Courts adopted the procedural rule of retraxit by which rights
were formally renounced in Court—3 Blackstone’s Commentaries 296.
76 This explains why the argument succeeds in Hickman and not in Plevins where, on one view, the
party suing had to rely on the waiver.
77 See eg Cuff v Penn (1813) 1M&S21; 105 ER 8; Thresh v Rake (1793) 1 Esp 53; 170 ER 277;
Goss v Lord Nugent (1833) 5B&Ad 558; 110ER713; Stead v Dawber (1839) 10Ad&E 57; 113 ER 22;
Stoljar, ‘The Modification of Contracts’ (1957) 35 Canadian Bar Review 485 at 494; 497–8.
78 cf Stoljar op cit at 504. A further result was that waiver was a one-sided doctrine with the
doctrine of estoppel being developed to protect the waivee, cf Stoljar op cit at 502.
79 See Commonwealth of Australia v Verwayn, supra at 406 per Mason J.
80 Mardorf Peach & Co Ltd v Attica Sea Carriers Corporation of Liberia (‘The Laconia’) [1977]

AC 850 at 871B–E per Lord Wilberforce.

81 Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305 at 326 per Isaacs J.
82 For an example of the merits of the case leading to the same result whichever doctrine was used,

see Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER (Comm)
896; [2002] 2 LLR 487; [2002] 2 Lloyd’s Rep 487; see also Go West Ltd v Spigarolo & Anor [2003]
EWCA Civ 17 at [60–63]. This has led at least one commentator to refer to the doctrine as
‘parasitic’—Carter at para 1042.
83 Charles Rickards Ltd v Oppenheim [1950] 1 KB 616 at 623 per Denning LJ.
84 For an analysis as to why the principle of ‘injurious reliance’ is closer to estoppel than waiver

see the discussion of the requirement of detriment in Chapter 8 passim, Chapter 9 passim and Chapter
11.
85 Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 916 A–C per

Lord Diplock.
86 See Wilson v Kingsgate Mining Industries Pty Ltd [1973] 713 at 730D–G per Wootten J where

the Court recognised the tendency to create and apply one doctrine but emphasised that there
remained clear differences between the doctrines.
 1 [1971] AC 850.
2 For the purposes of the analysis in this chapter the party who is waiving the right is referred to as
X and the other party to the contract as Y.
3 Scarf v Jardine (1882) 7 App Cas 345 at 360–1 per Lord Blackburn.
4 Election in the sense used by us encompasses equitable and common law election—see para 6.04

below.
5 See Van Schalkwyk v Griesel (1948) (1) SA 460 at 463 per Tindall JA; contra Ex p Sussen 1941
TPD 15 at 20 per Murray J.
6 China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama
[1979] 1 WLR 1018 at 1034H per Lord Scarman. See also Tucker v Angus Healthcare (Glenesk) Ltd
[2001] ScotCS 6 (Ct Sess, 12 January 2001) at para 11.
7 As to which see Commonwealth of Australia v Verwayn supra at 423 per Brennan J.
8 See Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305 at 320 per Isaacs J.
9 A distinction is therefore to be drawn between waiver by election which is retrospective and pure

waiver which waives the future performance of a particular obligation.

10 See Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd’s Rep 340 at 349 col 2–350 col 1 per

Devlin J; Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER
(Comm) 896; [2002] 2 Lloyd’s Rep 487 at [65]; Lexington Insurance Co v Multinacional de Seguros
SA [2008] EWHC 1170 at [64] per Clarke J.
11 See Garside v Black Horse Ltd [2010] EWHC 190 at [27].
12 Atlantic Shipping and Trading Co Ltd v Louis Dreyfus & Co [1922] 2 AC 250 at 262 per Lord

Sumner.
13 This conclusion is also supported by logic—if X were to elect in a particular way (for instance

to accept the non-contractual performance as proper performance) X might forgo any right to
damages that it might have.
14 Paras 4.02 ff (as they stood in the Second Edition) were expressly approved in Aluminium Ltd v

Northern & Western Insurance Company Ltd [2011] EWHC 1352 at [91–98].
15 [1990] 1 Lloyd’s Rep 391.
16 At 397 col 2–398 col 2.
17 At 398 col 2–399 col 1.
18 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus

LR 931 at [52–53] for a consideration of this argument.

19 See The Athos [1981] 2 Lloyd’s Rep 74 at 87–8 per Neil J; Cia Tirrena di Assicurazioni SpA v

Grand Union Insurance Co [1991] 2 Lloyds Rep 143 at 153 per Waller J compared with ‘The
Scaptrade’ [1983] QB 529 at 536 per Goff LJ; Janred Properties Ltd v ENIT [1989] 2 All ER 444.
20 See Westbrook Resources Ltd v Globe Metallurgical Inc [2009] EWCA Civ 310; [2009] 2 All

ER (Comm) 1060; [2009] 2 Lloyd’s Rep 224 at [12].

21 A similar difficulty may arise if waiver is confined to an accepting of different future

performance as again it is X’s rights arising from Y’s change of position which are being waived—
see Stoljar, ‘The Modification of Contracts’ (1957) 35 Canadian Bar Review 485 at 491; compare
Corbin on Contracts (1951) s 752.
22 See eg Ficom SA v Sociedad Codex Limitada [1980] 2 Lloyd’s Rep 118 at 132 col 2 per Goff J.

Further, a waiver or estoppel may arise from the same facts allowing one claim to succeed and the
other to fail—see Commonwealth of Australia v Antonio Giorgio Pty Ltd (1986) 67 ALR 244.
23 That is the analysis in Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR3 05 at 326
per Isaacs J.
24 Both are currently to be regarded as classic statements of the law in this area—see Kosmar Villa

Holidays PLc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR 931 at [36–37].
25 Vitol SA v Norelf Ltd [1996] 3 WLR 105 at 113B–114E per Lord Steyn.
26 See para 6.05 below and cases there cited. See also David Blackstone v Burnetts (West End) Ltd
[1973] 1 WLR 1487 at 1499C per Swanwick J; Sargent v ASL Developments Ltd (1974) 131 CLR 634
at 656 per Mason J; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 733 per
Rich, Dixon, Ewatt JJ; Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 at 633 per
the Court; Zucker v Straightlace Pty Ltd (1986) 11 NSWLR 87 at 94F–96E per Young J.
27 See Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 at 534 col 1 per Megaw
LJ; Mardorf Peach & Co Ltd v Attica Sea Carriers Corp of Liberia (‘The Laconia’) [1977] AC 850 at
871C per Lord Wilberforce; Bremer Handelsgesellschaft v C Mackprang Jr (No 1) [1979] 1 Lloyd’s
Rep 221 at 228 col 2 per Stephenson LJ; Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67 col
2–68 col 1 per Goff J; Sea Calm Co SA v Chantiers Navals de L’Esterel SA (‘The Uhenbels’) [1986] 2
Lloyd’s Rep 294 at 298 col 1 per Hirst J. See also Berry v Hodsdon [1989] 1 Qd R 361 at 365 per
Derrington J; Hawler Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 at 304 per
Priestley JA; Spelson v George (1992) 22 NSWLR 666 at 672 per Handley JA; Hamar & Lockville
Trustees Ltd v French [1997] EWCA 1121 at para 57 per Millet LJ; Keller Ltd (T/A Keller Concrete)
v Morrison Construction Ltd [1998] EWCA 161 at paras 36–7 per Hobhouse LJ; Flacker Shipping Ltd
v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER (Comm) 896; [2002] 2 Lloyd’s Rep
487 at [68]; Enron (Thrace) Exploration BV v Clapp [2004] EWHC 1612 at [60]; R (Bottomley) v
General Commissioners of Income Tax Pontefract Division [2009] EWHC 1708; [2009] STI 2195;
[2009] BTC 358; [2009] STC 2532 at [21]; Persimmion Homes (South Coast) Ltd v Hall Aggregates
(South Coast) Ltd [2009] EWCA Civ 1108; [2009] NPC 118 at [52]; Garside v Black Horse Ltd
[2010] EWHC 190 at [28]; Softlanding Systems Inc v KDP Software Ltd [2010] EWHC 326 at [127];
Dubai Islamic Bank PJSC v PSI Energy Holding Company BSC & Ors [2011] EWHC 1019.
28 Tropical Traders Ltd v Goonan (1964) 111 CLR 41 at 55 per Kitto J.
29 Youell & Ors v Bland Welch & Co Ltd & Ors (‘The “Superhulls Cover” Case’) (No 2) [1990] 2

Lloyd’s Rep 431 at 450 col 1 per Phillips J; see also Bremer Handelsgesellschaft mbH v Westzucker
GmbH [1981] 1 Lloyd’s Rep 207 at 212 col 2 per Goff J; Cerealmangimi SpA v Toepfer (‘The
Eurometal’) [1981] 1 Lloyd’s Rep 337 at 341 col 2 per Lloyd J. See also Harrison v Shepherd Homes
[2011] EWHC 1811 at [185–6].
30 See Keller Ltd (T/A Keller Concrete) v Morrison Construction Ltd [1998] EWCA 161 at [36–7]

per Hobhouse LJ (as he then was). It may well be that the representation has to be sufficiently clear
that it would—if the other elements were present—be sufficient to form a contract. As such, a case
which does not succeed in waiver (there being no sufficiently unequivocal representation) will also
fail in collateral contract—see eg Chvetsov v Matuzy [2011] EWHC 248 at [119–20].
31 The proposition was explicitly approved in Christiansen v Klepac [2001] NSWSC 385 (20 April

2001) at para 18. See also Tropical Traders Ltd v Goonan (1964) 111 CLR 41 at 55; Sargent v ASL
Developments Pty Ltd (1974) 131 CLR 634 and Immer (No 145) Pty Ltd v Uniting Church in Australia
Property Trust (NSW) (1993) 182 CLR 26. The fact that the unequivocal representation must only be
capable of one construction cuts both ways, ie if the representation is unequivocal it will be
unequivocal for all purposes. Thus, in The Mayor and Commonalty and Citizens of the City of London
v (1) Reeve & Co Ltd; (2) G Lawrence Wholesale Meat Co Ltd; (3) Citigen (London) Ltd [2000] BLR
211, Part 20 proceedings were barred by the waiver clause previously entered into by the parties.
32 Thus, eg, X can by prior agreement waive any rights accruing from a breach of fiduciary duty by
Y—see J Glover, Commercial Equity: Fiduciary Relationships (Butterworths, Sydney, 1995) paras
3.29–3.30, pp 46–7.
33 See Trustees of Henry Smith’s Charity v Wilson [1983] QB 316 at 331 per Slade LJ; and also

O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 261 per Jordan CJ; Holland v Wiltshire (1954)
90 CLR 409.
34 See Metcalfe v Britannia Ironworks Co (1877) 2 QBD 423 at 427 per Lord Coleridge CJ;
Forman & Co Pty Ltd v The Ship Liddesdale [1900] AC 190 at 204 per Lord Hobhouse.
35 See Davenport v R (1877) 3 App Cas 115; R v Paulson [1921] 1 AC 271 at 286 per Lord
Atkinson; Fuller’s Theatre v Musgrove (1923) 31 CLR 524 at 541 per Isaacs and Rich JJ; Mulcahy v
Hoyne (1925) 26 CLR 41 at 57 per Starke J; Wendt v Bruce (1931) 45 CLR 245; Tropical Traders Ltd
v Goonan (1964) 111 CLR 41 at 42 per Kitto J; Sargent v ASL Developments Ltd (1974) 131 CLR 634;
Expert Clothing Service & Sales Ltd v Hillgate House Pty Ltd [1986] Ch 340 at 359D per Slade LJ.
36 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444. The claim must be for specific
performance alone, ie not for specific performance and damages in lieu.
37 See Johnson v Agnew [1980] AC 367.
38 The obvious factual overlap between the remedy of specific performance and the right to treat

the contract as at an end collapses the distinction normally drawn between election between remedies
and election between rights—see Oliver Ashworth (Holdings) Ltd v Ballard Kent Ltd [2000] Ch 12;
[1999] EWCA Civ 1027 at [36] per Robert Walker LJ. As to the need to draw the distinction between
election between rights and election between remedies, see United Australia v Barclays Bank [1941]
AC 1 at 29–30 per Lord Atkin: Johnson v Agnew [1980] AC 367 at 396 per Lord Wilberforce and
Tang Man Sit v Capacious Investments [1996] 514 at 521–2 per Lord Nicholls (contrast, however,
China National Foreign Trade Transportation v Evlogia Shipping [1979] 1 WLR 1018 at 1043 per
Lord Scarman; ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 at 398 per Lord Goff).
39 See para 20.26 below.
40 See Fortisbank SA v Trenwick International Ltd [2005] EWHC 399 at [32–35]; GPS Contractors

Ltd v Ringway Infrastructure Services Ltd [2010] EWHC 283; [2010] BLR 377 at [40–41].
41 See IMT Shipping & Chartering GmbH v Chansung Shipping Co Ltd, Owners of the Zenovia

[2009] EWHC 739; [2009] 2 All ER (Comm) 177; [2009] 2 Lloyd’s Rep 139; [2009] 1 CLC 582 at
[18]; Inframatrix Investments Ltd v Dean Construction [2011] EWHC 1947 at [62].
42 See Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ; Wahbe Tamari &

Sons and Jaffa Trading Co v Colprogeca-Sociedade General de Fibras, Cafes e Produtos Colonias
Lda [1969] 2 Lloyd’s Rep 18 at 23 col 1 per Megaw J.
43 See eg Becker v Sunnypine Park Pty (1982) (1) SA 958 at 965 per Goldstone J. Thus it is not the

immediate failure by X to elect which leads to the loss of rights but a delay such as to trigger some
detriment to Y—see Crabb v Gleeson [1920] VLR 189; Owendale Pty Ltd v Anthony (1967) 117 CLR
539 at 557 per Windeyer J; Turner v Labafox International Pty Ltd (1974) 131 CLR 660 at 671 per
Mason J.
44 See Enron (Thrace) Exploration and Production BV v Clapp [2004] EWHC 1612 at [60].
45 Selwyn v Garfit (1888) 38 ChD 273. This conclusion was approved in Amaya v Everest Property

Holdings Ltd [2010] NSWCA 315 at [158].

46 The use of ‘non-waiver’ agreements, ie agreements entered into before breach or any right of
election arises, is not considered here as such agreements are confined, by and large, to, and have
effect in, sophisticated commercial agreements between experienced parties—see eg paras 17.20 and
20.50 below.
47 See Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 at 541 col 2 per Roskill
LJ; Cook Industries Inc v Meunerie Legois SA [1981] 1 Lloyd’s Rep 359 at 368 col 1 per Mustill J;
Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep 583 at 590 col 1 per Goff J; Nichimen Corporation
v Gatoil Overseas Inc [1987] 2 Lloyd’s Rep 46 at 56 col 2 per Sir John Megaw.
48 See Fortisbank SA v Trenwick International Ltd [2005] EWHC 399 at [32–35]; GPS Contractors

Ltd v Ringway Infrastructure Services Ltd [2010] EWHC 283; [2010] BLR 377 at [40–41].
49 See Bremer Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1 Lloyd’s Rep 221 at 225
cols 1–2 per Lord Denning MR.
50 See eg Oceanic Freighters Corporation v MV Libyaville Reederei und Schiffahrts GmbH [1975]
1 Lloyd’s Rep 537 at 554 per Mocatta J; Bremer v Macprang supra at 230 col 2–231 col 1 per Shaw
LJ; Finagrain v Kruse supra at 525 col 1 per Mocatta J. See also Croft v Lumley (1856) 5 E & B 648
at 652; Davenport v R (1877) 3 App Cas 115 at 132 per Sir Monatgue E Smith; Stone v Stringer
(1880) 61 LT 470; R v Paulson [1921] 1 AC 271 at 286 per Lord Atkinson; Haynes v Hirst (1927) 27
SR (NSW) 480 per Long Innes J; Carter v Green [1950] 2 KB 76; Antaios Naviera SA v Salen
Rederierna AB [1983] 1 WLR 1362 at 1370H–1371C per Lord Donaldson MR; 1377A–C per Fox LJ.
51 Bremer v Macprang at 225 cols 1–2; 226 col 1 per Lord Denning MR.
52 Antaios Naviera SA v Salen Rederierna AB [1983] 1 WLR 1362 at 1370H–1371C per Lord

Donaldson MR; 1377 A–C per Fox LJ.

53 See Craine v Colonial Mutual Fire Insurance Co (1928) 28 CLR 305 at 326 per Isaacs J.
54 Assuming that it was an express reservation of rights—an implied reservation of rights is

unlikely to succeed in any event—see Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239 at
[23] per Maurice Kay LJ.
55 As to which see paras 8.26–27 below.
56 ‘Imputed’ does not connote in this context the imputation of knowledge to a company or

principal via its employee or agent.

57 Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 883B–C.

Knowledge of the facts here means not each and every factual detail but of the nature of the case—
see, in a different context, R (Bottomley) v General Commissioners of Income Tax Pontefract Division
[2009] EWHC 1708; [2009] STI 2195; [2009] BTC 358; [2009] STC 2532 at [21]; Competition
Commission v BAA Ltd [2010] EWCA Civ 1097 at [38].
58 [1978] 2 Lloyd’s Rep 109.
59 The Grain and Feed Trade Association contract; the provisions of which are considered in more

detail at paras 2.43 ff above.

60 See para 4.39 below for a further consideration of the case.
61 At 127 col 1.
62 See Earl of Darnley v Proprietors of London, Chatham and Dover Railway (1867) LR 2 HL 43 at
57 per Lord Chelmsford LC: ‘A waiver must be an intentional act with knowledge’ cited in HB
Property Development Ltd v SSE [1998] EWCA Civ 260 at paras 42–3 per Henry LJ. See also Bristol
and West Building Society v Mothew [1996] 4 All ER 698 at 703a–b; 704a per Millett LJ where a plea
of waiver unsupported by any allegation of X’s knowledge was held not to amount to a defence to an
application for summary judgment under CPR 24 and Purmasing v National Transport Corp
(Mauritius) [1998] UKPC 50 (PC, 9 December 1998) at paras 13–14; Oliver Ashworth (Holdings) Ltd
v Ballard (Kent) Ltd [2000] Ch 12; [1999] EWCA Civ 1027 at para 33 per Robert Walker LJ; EIC
Services Ltd v Phipps [2003] EWHC 1507 at [134]; IFE Fund SA v Goldman Sachs International
[2007] EWCA Civ 811; [2007] 2 Lloyd’s Rep 449 at [49]; Leofelis SA v Lonsdale Sports Ltd [2007]
EWHC 451 at [43] (upheld in the CA at [2008] EWCA Civ 640; [2008] ETMR 63); Kosmar Villa
Holidays Plc v The Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR 931 at [38] per
Rix LJ; EDF Energy Networks (EPN) Plc v BOH Ltd [2009] EWHC 3193; [2009] 49 EG 71; [2010]
L&TR 14; [2010] 2 P&CR 3 at [59]; Hudson Bay Apparel Brands Llc v Umbro International Ltd
[2010] EWCA Civ 949 at [60]; Proactive Sports Management Ltd v Rooney [2010] 1807 at [712];
BDW Trading Ltd v JM Rowe (Investments) Ltd [2010] EWHC 1987 at [45]; aff’d [2011] EWCA Civ
548 at [68 ff].
63 [1910] 1 Ch 777.
64 At 786.
65 Fuller’s Theatre and Vaudeville Co v Rofe [1923] AC 435 at 443 per Lord Atkinson.
66 See eg Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305, a case on insurance law
in which Matthews was applied; see also Aquis Estates Ltd v Minton [1975] 1 WLR 1452 at 1458E.
67 As to which see para 3.12 above; para 6.05 below and cases there cited. See also Thomas v
Henry (1985) (3) SA 889 at 896 per Van Heerden JA.
68 Drexel Burnham Lambert International NV v Mohamed Schaker Salim Abou el Nasr and
Establissement Abou Nasr el Bassatni [1986] 1 Lloyd’s Rep 356 at 366 col 2 per Staughton J.
69 Similarly in equitable forbearance, the requirements that Y relied on the representation and that

it would be inequitable for X to resile would also act as substitutes for the doctrine of consideration
(see paras 8.06 ff below).
70 At 116 col 2.
71 [1985] 1 Ch 457.
72 At 464F–G per Stephenson LJ.
73 At 481B per Stephenson LJ.
74 At 482C per Stephenson LJ.
75 [1971] AC 850.
76 At 883 B–C; see para 4.09 above.
77 [1965] VR 433.
78 Young v Bristol Aeroplane Co Ltd [1946] AC 163 at 176; Evans v Bartlam [1937] AC 473 at 479.
79 At 486G.
80 See para 4.01 above and para 6.01 below and at 487C.
81 At 487C–E.
82 At 487F–H.
83 At 493G–H per May LJ; 500D–E per Slade LJ.
84 At 500H–501B.
85 [1990] 1 Lloyd’s Rep 391.
86 At 398 col 2.
87 [1987] ICR 700.
88 At 717F–G. This may be disapplication peculiar to employment law—see Quigley v University

of St Andrews [2006] UKEAT 0025_05_0908 at [66].

89 [1965] VR 433.
90 See Sargent v ASL Developments Ltd (1974) 131 CLR 634; Khoury v Government Insurance

Office of New South Wales (1984) 165 CLR 622; Zucker v Straightlace Pty Ltd (1986) 11 NSWLR 87
at 93.
91 Therefore there will be no presumption that they know of their rights—Peyman at 487D per

Stephenson LJ.
92 See Insurance Corporation of the Channel Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151
at 162 col 2 per Mance J as he then was. Under Scots law, the point is clear—‘Before a right can be
regarded as waiver, its holder must know of its existence’, Reid & Blackie, Personal Bar approved
Gillespie Investments Ltd v Gillespie [2010] ScotCS CSOH 113 at [51]; Primary Healthcare Centres
(Broadfoot) Ltd v Humphrey [2010] Scots CS CSOH 129 at [27].
93 Put colloquially, ‘the penny must drop’ when X becomes aware of the facts.
94 See Vyvyan v Vyvyan (1861) 30 Beav 655; 54 ER 813; Kendall v Hamilton (1879) 4 App Cas 504
at 542 per Lord Blackburn. More recently see Simner v New India Assuurance Co [1995] LRLR 240 at
258 col 2 per Judge Diamond QC.
95 [1965] VR 433.
96 See Insurance Corporation of the Channel Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151
at 162 col 2 per Mance J as he then was.
97 See eg O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 262–4 per Jordan CJ; Elder’s
Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd (1941) 65 CLR 603 at
617–18 per Rich ACJ, Dixon, McTieman JJ.
98 Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 643–6 per Stephen J; Elder’s Trustee

and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd (1941) 65 CLR 603 at 618 per
Rich ACJ, Dixon, McTiernan JJ.
99 At 488A–B per Stephenson LJ.
100 At 488C per Stephenson LJ.
101 At 488C–D per Stephenson LJ.
102 See 491C per Stephenson LJ. For support for this view see Sargent v ASL Developments Ltd

(1974) 131 CLR 634 at 645–6 per Stephen J; Elder’s Trustee and Executor Co Ltd v Commonwealth
Homes and Investment Co Ltd (1941) 65 CLR 603 at 618 per Rich ACJ, Dixon, McTiernan JJ.
103 A point expressly approved in HIH Casualty and General Insurance Ltd v Axa Corporate

Solutions [2002] EWCA Civ 1253; [2002] 2 All ER (Comm) 1053 at [21–22]. Given the need for a
specific unequivocal representation, it is likely that the representor was aware of its rights.
104 Due to its links to estoppel, equitable forbearance looks to the conduct of X and its effect on Y;

X’s knowledge is strictly speaking irrelevant.

105 The primary thrust of Y’s case would then be based on Y’s actions in response to X’s conduct.
106 At 488C–D per Stephenson LJ.
107 As to the broad requirement of knowledge or intention, see Purmasing v National Transport
Corpn (Mauritius) [1998] UKPC 50 at [13–14]; Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd
[2000] Ch 12; [1999] EWCA Civ 1027 at [37] per Robert Walker LJ.
108 The rights forgone can be legal or equitable—see J Glover, Commercial Equity: Fiduciary

Relationships (Butterworths, Sydney, 1995) at 3.29–30, pp 46–7.

109 See Northwestern Fire & Marine Insurance Co v Pollard 238 P 594 at 596 (1925); Hoxie v

Howe Insurance Co 32 Conn 21 (1864); Clark v West 193 NY 349 (1908).

110 See National Home Loans Corpn Plc v Collins [1997] EWCA Civ 374 at [12] per Singer J.
111 At least in English and Australian law—see eg Insurance Corporation of the Channel Islands

Ltd v The Royal Hotel Ltd [1998] LRLR 151 at 163 col 1 per Mance J as he then was. Compare
Palmer v Poulter (1983) (4) SA 11 at 20 per Ackerman J; Thomas v Henry (1985) (3) SA 889 at 898;
Boyer v American Casualty Company 332 F 2d 708 (1964) at 711 per Smith CJ; Richmond v
Grabowski 781 PP 2d 192 (1989); Shane v WCAU-TV, CBS Televisions, Div of CBS Inc 719 F Supp
353 (1989); Lone Mountain Production Co v Natural Gas Pipeline Co of America 710 F Supp 305
(1989); contra Community Convalescent Center of Naperville Inc v First Interstate Mortgage Co of
Illinois 537 NE 2d 1162; app denied 545 NE 2d 106 (1989); Ebrahimi v EF Hutton & Co Inc 794 P 2d
1015 (1989) which suggest that the position is less clear in other jurisdictions.
112 Tropical Traders v Goonan (1964) 111 CLR 41 at 55 per Kitto J; Watson v Healy Lands Ltd

[1965] NZLR 511 at 514 per Woodhouse J—ll 33–5; Central Estates (Belgravia) Ltd v Woolgar (No
2) [1972] 1 WLR 1048 at 1052, 1054, 1056; Sargent v ASL Developments (1974) 131 CLR 634 at 646
per Stephen J; Champtaloup v Thomas [1976] 2 NSWLR 264 at 268E per Glass JA; but see Earl
Darnley v London, Chatham & Dover Rly Co (Properties etc) (1867) LR 2 HL 43 at 47 for the
contrary view.
113 For further examples see Wallis, Son & Wells v Pratt & Haynes [1911] AC 394; Bowes v
Chaleyer (1923) 32 CLR 159; Wendt v Bruce (1931) 45 CLR 245 at 253; Hain Steamship Co Ltd v
Tate and Lyle Ltd (1936) 41 Comm Cas 350; Tramways Advertising Pty Ltd v Luna Park NSW Ltd
(1938) SR (NSW) 632 at 644 per Jordan CJ; Chandris v Isbrandtson-Moller Co Inc [1951] 1 KB 240
at 248 per Devlin J; Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 349 per Fullagar J; Gange v
Sullivan (1966) CLR 418; Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche
Kolen Centrale [1967] 1 AC 361 at 395B per Viscount Dilhorne; Compagnie de Renflouement de
Recuperation et de Travaux Sous Marins VS Baroukh et Cie v W Seymour Plant Sales & Hire Ltd
[1981] 2 Lloyd’s Rep 466 at 482 col 2 per Mustill J.
114 See Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos) [1981] 2 Lloyd’s Rep 74 at 87

col 2 per Neill J; Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 556 per Windeyer J; Matthews v
Smallwood [1910] 1 Ch 777 at 786 per Parker J; Fuller’s Theatre and Vaudeville Co v Rofe [1923] AC
435 at 443 per Lord Atkinson.
115 See eg Charles Rickards v Oppenheim [1950] 1 KB 616 (on its facts as opposed to the analysis

of waiver set out in the case).

116 See eg the facts as set out in Ficom SA v Sociedad Cadex Limitada [1980] 2 Lloyd’s Rep 118 at

131 col 2 per Goff J; Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB 473 at 475
per Bailhache J; Cape Asbestos v Lloyd’s Bank [1921] WN 274 at 276 per Bailhache J; Nichimen
Corporation v Gatoil Overseas Inc [1987] 2 Lloyd’s Rep 46.
117 See eg Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd’s Rep

109; Bunge GmbH v Alfred C Toepfer [1978] 1 Lloyd’s Rep 506; Tidebrook Maritime Corpn v Vitol
SA of Geneva (‘Front Commander’) [2006] EWCA Civ 944 at [53]; Ocean Pride Maritime Ltd v
Qingdao Ocean Shipping Company [2007] EWHC 2796 at [111].
118 See Commonwealth of Australia v Verwayn supra at 423 per Brennan J.
119 Banning v Wright [1972] 1 WLR 972 at 979C–D per Lord Hailsham LC.
120 Hence the use of the term ‘pure waiver’.
121 Approved in Reinwood Ltd v L Brown & Sons Ltd [2008] EWCA Civ 1090; [2009] BLR 37;

[2008] 49 EG 78; [2008] 3 EGLR 21; [2008] 42 EG 167; 121 Con LR 1; [2008] 2 CLC 422 at [50] per
Lloyd LJ.
122 Tufton Associates Ltd v Dilmun Shipping [1992] 1 Lloyd’s Rep 71 at 80 col 2 per Judge

Diamond QC.
123 Mulcahy v Hoyne (1925) 36 CLR 41 at 53 per Isaacs J.
124 Namely such of their primary obligations to perform under the contract which have accrued
and the secondary obligation to pay damages in respect of the failure to perform the primary
obligations—see Photo Production Ltd v Securicor [1980] AC 827 at 849; State Trading Corpn of
India v Golodetz [1989] 2 Lloyd’s Rep 277 at 285–7 per Kerr LJ.
125 See Tufton supra.
126 [1971] AC 850 supra.
 127 [1972] 1 WLR 972.
128 At 979.
129 Total waiver is obviously distinct from waiver by election and should be treated as such—

Treitel 1 at 909.
130 Mulcahy v Hoyne (1925) 36 CLR 41 at 55, 56 per Isaacs J; On v Ford (1989) 167 CLR 316 at

337–8 per Deane J.

131 [1980] 1 Lloyd’s Rep 129.
132 At 137 col 2–138 col 1 per Megaw LJ.
133 [1954] 2 QB 459.
134 At 477 per Devlin J.
135 See also The Democritos [1975] 1 Lloyd’s Rep 368 at 398 col 1 per Kerr J.
136 For waiver in this sense, see Ledingham v Bermejo Estancia Co Ltd [1947] 1 All ER 749.
137 See Benjamin 12.47, 12.48.
138 Contrast, however, Riyad Bank v Ahli United Bank (UK) Plc [2005] EWHC 279 at [184] where
the Court was directed to the above passages and said that the view advanced in the previous edition
was that total waiver must mean either an agreement or an estoppel. With due respect to the Court,
that was not the view advanced in the previous edition nor is it the view advanced now.
139 Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1446A–C per Diplock LJ; C

Czarnikow Ltd v Koufos [1966] 2 QB 695 at 730F–731B per Diplock LJ; RV Ward Ltd v Bignall
[1967] 1 QB 534 at 548B–E per Diplock LJ; Banning v Wright [1972] 1 WLR 972 at 990C–D per Lord
Simon; Moschi v Lep Air Services [1973] AC 331 at 350C–D per Lord Diplock; 355G per Lord
Simon; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848–50 per Lord Diplock;
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at
982C–E per Lord Diplock; Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 at 478F–G per
Lord Diplock; Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 915D–
E per Lord Diplock; Afovos Shipping Co v Pagnan [1983] 1 WLR 195 at 203C–G per Lord Diplock;
State Trading Corpn of India v M Golodetz Ltd [1989] 2 Lloyd’s Rep 285 col 2–286 col 1 per Kerr LJ.
140 See eg Sullivan v Constable (1932) 48 TLR 369.
141 Thus, eg, in construction law, the Courts are extremely unwilling to find that there has been a
waiver of a right to claim damages due to the contractor’s defective work by the architect’s
acceptance of the building as complete—East Ham BC v Bernard Sunley Ltd [1966] AC 406; Hudson
4-127.
142 For a recent example see Bottiglieri Di Navigazione SpA v Cosco Qingdao Ocean Shipping

Company [2005] EWHC 244; [2005] 2 Lloyd’s Rep 1 at [30–32].

143 Compagnie de Renflouement de Recuperation et de Travaux Sous Marins VS Baroukh et de v W

Seymour Plant Sales & Hire Ltd [1981] 2 Lloyd’s Rep 466 at 482 col 2 per Mustill J.
144 As the Court did, in effect, in Riyad Bank v Ahli United Bank (UK) Plc [2005] EWHC 279 at

[184].
145 These circumstances may include the existence of a pure or unilateral waiver—see Bottiglieri

Di Navigazione SpA v Cosco Qingdao Ocean Shipping Company [2005] EWHC 244; [2005] 2 Lloyd’s
Rep 1 at [30–32].
146 See eg Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 at 541 col 2 per

Roskill LJ.
147 See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER

(Comm) 896; [2002] 2 Lloyd’s Rep 487 at [64] per Potter LJ.
 148 Hawksley v Outram [1892] 3 Ch 359 at 376 per Lindley LJ; 378 per Lopes LJ; Morell v Studd &
Millington [1913] 2 Ch 648 at 660 per Astbury J; Panoutsos v Raymond Hadley Corporation of New
York [1917] 2 KB 473 at 477 per Viscount Reading CJ; North v Loomes [1919] 1 Ch 378; Napier v
Dexters Ltd (1926) 26 Ll L R 184 at 187–8; Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA
Civ 1068; [2002] 2 All ER (Comm) 896; [2002] 2 Lloyd’s Rep 487 at [64] per Potter LJ. See also In
the Matter of the Estate of Clark 447 NW 2d 549 (1989); Gesell v Reeves 429 NW 2d 363 (1988);
WWW Associates Inc v Gianconteri 548 NYS 2d 580; 559 NYS 2d 983; 565 NYS 2d 440 (1989).
149 Lloyd v Nowell [1895] 2 Ch 744 at 746 per Kekewich J (the exercise of the powers being the
condition precedent to any obligations accruing under the contract); Heron Garage v Moss [1974] 1
WLR 148 at 153D–F per Brightman J.
150 See Hawksley v Outrant [1892] 3 Ch 359 at 376 per Lindley LJ.
151 This difficulty is encountered in other jurisdictions—see Margo v Seegers (1980) (3) SA 708 at
712 per Goldstone J; compared with Phillips v Townsend (1983) (3) SA 403 at 409A–C Schock J;
Meyer v Barnardo (1984) (2) SA 580 at 584 per Kumleben J.
152 [1966] 1 WLR 1334.
153 At 1339F–G with whom the other Lord Justices agreed.
154 See paras 4.07 and 4.10 above.
155 [1892] 3 Ch 359 at 376 per Lindley LJ.
156 See Lloyd v Nowell [1895] 2 Ch 744 at 746 per Kekewich J; Meyer v Bamardo (1984) (2) SA

580 at 584 per Kumleben J.

157 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008]

Bus LR 931 at [54] per Rix LJ.

158 Although equitable forbearance is considered in this section for the sake of completeness, it is

clear from our analysis above that equitable forbearance is not ‘waiver’ within the true meaning of
the word. It is, however, linked to waiver in two key respects. First, it applies only to contractual
promises (see Thorner v Major [2009] UKHL 18; [2009] 13 EG 142; [2009] WTLR 713; [2009] Fam
Law 583; [2009] 2 FLR 405; [2009] 1 WLR 776 at [61] per Lord Walker). Second, equitable
forbearance can be invoked where waiver will not suffice—see eg in response to a breach of
promissory warranty in the insurance context (Kosmar Villa Holidays Ltd v Trustees of Syndicate
1243 [2008] EWCA Civ 147; [2008] Bus LR 931) or where, eg, the contract at issue is unenforceable
being in restraint of trade (see Proactive Sports Management Ltd v Rooney [2010] EWHC 1807).
159 For a fuller explanation see Chapter 8 passim.
160 Sea Calm Shipping Co SA v Chantiers Navals de L’Esterel SA (‘The Uhenhels’) [1986] 2
Lloyd’s Rep 294 at 298 col 1 per Hirst J. See also Persimmon Homes (South Coast) Ltd v Hall
Aggregates (South Coast) Ltd [2009] EWCA Civ 1108; [2009] NPC 118 at [52–53].
161 See eg Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008]
Bus LR 931 at [38] Westbrook Resources Ltd v Globe Metallurgical Inc [2009] EWCA Civ 310;
[2009] 2 All ER (Comm) 1060; [2009] 2 Lloyd’s Rep 224 at [12]; Garside v Black Horse Ltd [2010]
EWHC 190 at [28–29].
162 See eg Bremer Handelsgesellschaft mbH v Bunge Corporation [1983] 1 Lloyd’s Rep 476 at 484

col 2 per Goff J; Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep 583 at 586 col 1 and 587 col 2 per
Goff J.
163 Ross T Smyth & Co Ltd v Bailey, Son & Co (1940) 164 LT 102 at 106 per Lord Wright.
164 Plasticmoda Societa per Azioni v Davidsons (Manchester) Ltd [1952] 1 Lloyd’s Rep 527 at 538

col 2–539 col 1 per Denning LJ.

 165 This conclusion must follow from the fact that several doctrines can be seen to be operating in
this area.
166 See paras 3.02 ff above.
167 Indeed, if anything, the common law has become less welcoming of a unified theory in the time
that has elapsed since the First Edition of this work.
168 See para 21.02 below.
169 See para 4.25 above.
170 [1978] 2 Lloyd’s Rep 109.
171 See para 2.45 above for an explanation of the facts underlying these cases.
172 At 126 cols 1–2.
173 At 127 col 1.
174 (No 1) [1979] 1 Lloyd’s Rep 221.
175 It is respectfully submitted that Lord Denning’s contention ought to be treated with some
caution for two reasons. First, the contention is based on a reading of the House of Lords in Bremer as
laying down a general doctrine of waiver and overturning allegedly inconsistent Court of Appeal
decisions (at 225 col 2). The former is inconsistent with Lord Wilberforce’s express disavowal of any
intent to change the law and the latter is, unfortunately, incorrect. Second, it is not possible to fuse
estoppel and waiver as set out at paras 3.11 ff above.
176 [1947] KB 130.
177 At 226 col 1.
178 At 229 col 1.
179 At 231 col 1.
180 See para 4.22 above.
181 See eg Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 at 534 per Megaw

LJ; Bunge GmbH v Alfred C Toepfer [1978] 1 Lloyd’s Rep 506; EDM Mertens & Co PVBA v
Veevoeder Import Export Vimex BV [1979] 2 Lloyd’s Rep 272 at 284 col 2 per Lloyd J; Peter Cremer
v Granaria BV [1981] 2 Lloyd’s Rep 583; Bremer Handelsgesellschaft mbH v Bunge Corporation
[1983] 1 Lloyd’s Rep 476 at 484 col 2 per Goff LJ.
182 See eg Nippon Yusen Kaisha v Pacifica Navegacion SA (‘The Ion’) [1980] 2 Lloyd’s Rep 245.
183 That is, excluding equitable forbearance.
184 A formulation approved in Zhang v Shanghai Wool & Jute Textile Co Ltd [2006] VSCA 133 at

[14].
185 See Fortisbank SA v Trenwick International Ltd [2005] EWHC 399 at [32–35]; GPS

Contractors Ltd v Ringway Infrastructure Services Ltd [2010] EWHC 283; [2010] BLR 377 at [40–
41].
 1 See para 4.17 above.
2 See para 3.10 above.
3 See Reinwood Ltd v L Brown & Sons [2008] EWCA Civ 1090; [2009] BLR 37; [2008] 49 EG 78;

[2008] 3 EGLR 21; [2008] 42 EG 167; 121 Con LR 1; [2008] 2 CLC 422 at [50] per Lloyd LJ.
4 See Cape Asbestos v Lloyd’s Bank [1921] WN 274 at 276 per Bailhache J; Ficom SA v Sociedad

Codex Limitada [1980] 2 Lloyd’s Rep 118 at 132 col 1 per Goff J.
5 See eg ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391.
6 Larratt v Bankers & Traders Insurance Co (1941) 41 SR (NSW) 215 at 216–17 per Jordan CJ.
7 For examples see Wallis, Son & Wells v Pratt & Haynes [1911] AC 394; Bowes v Chaleyer

(1923) 32 CLR 159; Wendt v Bruce (1931) 45 CLR 245 at 253; Hain Steamship Co Ltd v Tate and
Lyle Ltd (1936) 41 Comm Cas 350; Tramways Advertising Pty Ltd v Luna Park NSW Ltd (1938) SR
(NSW) 632 at 644 per Jordan CJ; Chandris v Isbrandtson-Moller Co Inc [1951] 1 KB 240 at 248 per
Devlin J; Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 349 per Fullagar J; Gange v Sullivan
(1966) 116 CLR 418; Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen
Centrale [1967] 1 AC 361 at 395B per Viscount Dilhorne; Compagnie de Renflouement de
Recuperation et de Travaux Sous Marins VS Baroukh et Cie v W Seymour Plant Sales & Hire Ltd
[1981] 2 Lloyd’s Rep 466 at 482 col 2 per Mustill J.
8 As to the emphasis on choice, see Lexington Insurance Co v Multinacional de Seguros SA [2008]

EWHC 1170 at [62] per Clarke J.

9 For an argument to the contrary see Lucke, ‘Non-Contractual Arrangements for the Modification

of Performance: Forbearance, waiver and equitable estoppel’ (1991) 21 University of Western

Australia Law Review 149 at 163.
10 See eg Alexander v Gardner (1835) 1 Bing NC 671; 131 ER 1276.
11 Subject always to the parties’ implied obligations to act so as not to frustrate or defeat the

purpose of the contract: Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288 at 297; Chitty
13.012.
12 (1875) LR 10 CP 598 at 607.
13 See also Dowling v Roe (1927) 39 CLR 363 at 370 per Isaacs J.
14 Ogle v Earl Vane (1868) LR 3 QB 272; Hickman v Haynes (1875) LR 10 CP 598 at 607; Levey &

Co v Goldberg [1922] 1 KB 688 at 691–2 per McCardie J; Besseler Waecheter Glover & Co v South
Derwent Coal Co Ltd [1938] 1 KB 408 at 418 per Goddard J.
15 See eg R v Paulson [1921] 1 AC 271 at 280 per Lord Atkinson (but not those outwith knowledge

—Matthews v Smallwood [1910] 1 Ch 777 at 786 per Parker J); Elders Trustee and Executor Co Ltd v
Common wealth Homes and Investment Co Ltd (1941) 65 CLR 603 at 616 per Rich ACJ, Dixon,
McTiernan JJ.
16 Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 at 534 col 1 per Megaw LJ.
17 Alphapoint Shipping Ltd v Totem Amfert Negev Ltd [2004] EWHC 2232 at [18–22].
18 See Bunge GmbH v Alfred C Toepfer [1978] 1 Lloyd’s Rep 506 at 510 col 2 per Brandon J.
19 ETS Soules & Cie International Trade Development Co Ltd [1980] 1 Lloyd’s Rep 129 at 137 col

2–138 col 1 per Megaw LJ.

20 HIH Casualty and General Insurance Ltd & Ors v Chase Manhattan Bank & Ors [2003] UKHL

6; [2003] 1 All ER (Comm) 349; [2003] 2 LLR 61; [2003] 1 CLC 358; [2003] Lloyds Rep IR 230;
[2003] 2 Lloyd’s Rep 61; [2003] Lloyd’s Rep IR 230 at [51–55; 93].
21 Waimiha Sawmilling Co Ltd v Howe [1922] NZLR 339.
22 See Sunflower Services Ltd v Unisys New Zealand Ltd (New Zealand) [1997] UKPC 7 at para 16;
Real Honest Investment Ltd v Attorney General [1997] UKPC 34 at para 12. See also: Tramways
Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) SR (NSW) 632 at 645 per Jordan CJ (but have to
have another breach Monigatti v Minchen [1937] NZLR); Larking v Great Western (Nepean) Gravel
Ltd (1940) 64 CLR 221; Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 349 per Fullagar J; Ogle v
Comboyuro Investments Pty Ltd (1976) 136 CLR 444; Wood Factory Pty Ltd v Kiritos Pty Ltd (1985)
2 NSWLR 105 at 145G per McHugh J; Lombok Pty Ltd v Supetina Pty Ltd (1987) 71 ALR 333 at 349
per Pincus J; UCB Leasing Ltd v Holtum (1987)137New LJ 614 at 615; Re Emanuel [1988] 2 Qd R
514; Foran v Wright (1989)168 CLR 385; Loughridge v Lavery [1969] VR 912; Berger v Boyles
[1971] VR 321 at 326 ll 5–10 per Gillard J; The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547;
Sibbles v Highfern Pty Ltd (1987) 164 CLR 214.
23 See para 2.14 above.
24 In the sense of equitable forbearance—see para 8.15 below and Woodhouse AC Israel Cocoa Ltd
SA v Nigerian Produce Marketing [1972] AC 741 at 762C–D.
25 See Carolan v Brabazon (1846) 3 Jo & Lat 200 at 209 per Sugden LC: ‘this Court requires as
clear evidence of the waiver as of the existence of the contract itself’; Robinson v Page (1826) 3 Russ
114 at 119; 38 ER 519 at 521; ex p Schumann (1877) 19 LR Ir 240. As an example, see Chvetsov v
Matuzy [2011] EWHC 248 at [119–120] where the representation was insufficiently clear to found a
waiver and, as a result, any case in contract failed as well.
26 See Food Corpn of India v Antclizo Shipping Corporation (‘The Antclizo’) [1987] 2 Lloyd’s Rep

130 at 142 cols 1–2, where Lord Justice Buckley rejected a submission that a waiver required a lower
standard.
27 Feinstein v Niggli & Anor (1981) (2) SA 684 at 698 per Trollip JA; see also Laws v Rutherford

1924 AD 261 at 263 per Innes CJ; Netlon Ltd v Pacnet Pty Ltd (1977) (3) SA 840 at 872G–873H. In
Australia, see Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 217 per
Jordan CJ; Tiplady v Gold Coast Carlton Pty Ltd (1984) 8 FCR 438 at 451.
28 Bunge GmbH v Alfred C Toepfer [1978] 1 Lloyd’s Rep 506 at 510 col 2 per Brandon J.
29 See Tenax Steamship Co Ltd v Owners of the Brimnes (‘The Brimnes’) [1979] 1 QB 929;

Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB 473; Tankexpress A/S v
Compagnie Financiere Belge des Petroles SA (‘The Petrofina’) [1949] AC 76 at 93, 98, 103.
30 See eg Cerealmangimi SpA v Toepfer (‘The Eurometal’) [1981] 1 Lloyd’s Rep 337.
31 See eg Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd’s Rep
109; but see Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57, where the defect was not apparent
from the face of the notices, at 67 col 2–68 col 1 per Goff J.
32 See eg Mardorf Peach & Co v Attica Sea Carriers Corporation of Liberia (‘The Laconia’)
[1977] AC 850 at 871B–E per Lord Wilberforce.
33 As to which, see Selwyn v Garfit (1888) 38 ChD 273; Amaya v Everest Property Holdings Ltd

[2010] NSWCA 315 at [158].

34 Bremer Handelsgesellschaft mbH v Deutsche Conti-Handelsgesellschaft mbH [1983] 2 Lloyd’s
Rep 45 at 49 col 2 per Lord Donaldson MR; State Trading Corpn of India Ltd v M Golodetz Ltd
[1989] 2 Lloyd’s Rep 277 at 286 col 2 per Lloyd LJ; Enron (Thrace) Exploration and Production BV v
Clapp [2004] EWHC 1612 at [60]. On analysis, if the Court does so find, it is more likely than not
that the Court is applying estoppel principles and there should be some requirement of prejudice.
35 See Tyrer & Co v Hessler & Co (1902) 7 Comm Cas 166 at 171 per Romer LJ; Allen v Robles
[1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ; Buckland v Farmar & Moody [1979] 1
WLR 221 at 236D per Goff LJ; Pearl Carriers Inc v Japan Line Ltd (‘The Chemical Venture’) [1993]
1 Lloyd’s Rep 508 at 521 col 2 per Gatehouse J.
 36 See para 5.09 above.
37 See Cape Asbestos v Lloyd’s Bank [1921] WN 274 at 276 per Bailhache J.
38 See the approach adopted in Bremer v Vanden Avenne-Izegem supra; Cook Industries Inc v

Meunerie Legois SA [1981] 1 Lloyd’s Rep 359 at 368 col 1 per Mustill J.
39 (1941) 41 SR (NSW) 215 at 216–17 op cit.
40 See eg Evans v Employers’ Mutual Insurance Association Ltd [1936] 1 KB 505; FAME

Insurance Co v Spence [1958] NZLR 735; Mardorf Peach & Co Ltd v Attica Sea Carriers
Corporation of Liberia (‘The Laconia’) [1977] AC 850 at 871B–E per Lord Wilberforce.
41 Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Company [2007] EWHC 2796 at [108].
42 See Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 All ER

(Comm) 896; [2002] 2 Lloyd’s Rep 487 at [68] per Potter LJ.
43 See paras 17.16, 20.39; Chapter 16 passim.
44 [1979] QB 467.
45 [1975] 1 QB 929.
46 See paras 9.141 ff and 11.04 below.
47 See Re Goldcorp Exchange Ltd [1994] 2 All ER 806 at 817f–818c per Lord Mustill.
48 [1979] QB 467.
49 [1975] 1 QB 929.
50 See para 8.41 below.
51 See para 8.86 below.
52 ibid at 960D ff per Megaw LJ.
53 See eg 948D–E, 955H–956B per Edmund Davies LJ (as he then was); 971H per Cairns LJ.
54 ibid at 956B per Edmund Davies LJ (as he then was).
55 [2002] 1 NZLR 173 at paras 46–9.
56 See Mangles v Dixon (1882) 3 HLC 702 at 735; Phips v Lovegrove (1873) LR 16 EQ 80;
Roxburghe v Cox (1881) 17 Ch D 520 at 526; British National Trust (in liq) v Pither (1937) 57 CLR
89 at 105.
57 As in waiver by election and total waiver.
58 For support of this analysis, see Bay of Plenty Electricity Ltd v Natural Gas Corp Energy [2002]

1 NZLR 173 at paras 46–9. If this were not the case, X could assign to Z with a provision for
assignment back to X and bypass the previous waiver.
59 See Re Exchange Securities and Commodities Ltd [1988] Ch 46; para 9.131 below.
60 As in pure and unilateral waiver.
 1 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus
LR 931 at [36–38] per Rix LJ.
2 See Kosmar supra; Lexington Insurance Company v Multinacional de Seguros SA [2008] EWHC
1170; [2009] 1 All ER (Comm) 35; [2009] Lloyd’s Rep IR 1 at [52–63] per Clarke J.
3 eg, whether the party chooses to accept the repudiation and rely on its accrued rights to do so or
chooses to remain bound by the contract.
4 See paras 6.04 ff below.
5 In all its four meanings.
6 Bliss v South East Thames Regional Health Authority [1987] ICR 700 at 715G and H per Dillon
LJ; Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd [1998] 1 Lloyd’s Rep 565 at 590
cols 1–2 per Cresswell J; Tropical Traders Ltd v Goonan (1964) 111 CLR 41 at 55.
7 That is the ‘positive’ aspect of election; the negative aspect being the decision to accept the
repudiatory breach.
8 Referred to for convenience’s sake as ‘election’.
9 In so doing, the analysis is confined to the doctrine of election as substantively applied. No

consideration is given to the use of the term in civil procedure where the Claimant may elect between
two particular remedies (see eg Lordsvale Finance Plc v Bank of Zambia [1996] 3 All ER 156) or
between two particular Defendants by entering judgment against one of them (CPR 24). In either case
the Claimant must before judgment (see Neilson v Betts LR 5 HL) have made an informed choice to
that end (Island Records Ltd v Tring International Ltd [1995] 3 All ER 444 at 447 per Lightman J;
Bonus Garment Company v Karl Rieker GmbH & Co KG [1995] 3 HKC 721; Tang Man Sit v
Capacious Investments Ltd [1996] 2 WLR 192) and be choosing between two alternative remedies
(see Professor P Birks, ‘Inconsistency between Compensation and Restitution’ (1996) 112 LQR 375–
9).
10 Scarf v Jardine (1882) 7 App Cas 345 at 360–1 per Lord Blackburn.
11 Johnson v Agnew [1980] AC 367 at 398 per Lord Wilberforce.
12 Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR

931 at [38].
13 Lissenden v CAV Bosch [1940] AC 412 at 418 per Viscount Maugham.
14 ibid per Viscount Maugham.
15 Lissenden v CAV Bosch, supra at 429 per Lord Atkin.
16 Verschures Creameries Ltd v Hull and Netherlands Steamship Co Ltd [1921] 2 KB 608 at 612

per Scrutton LJ.

17 Lacy v Anderson (1581–2) Choyce Cases in Chancery 155, 156; Dillon v Parker (1818) 1 Swans

539; 36 ER 422 at 403; 434 per Plumer MR.

18 See Lexington Insurance Company v Multinacional se Seguros SA [2008] EWHC 1170; [2009] 1

All ER (Comm) 35; [2009] Lloyd’s Rep IR 1. A decision whether or not to argue that a reinsurer was
automatically discharged from liability as a result of a breach of a condition precedent was not a
choice between two possible remedies such that there was no election—at [61– 63] per Clarke J.
19 Once its elements are satisfied.
20 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326 per Isaacs J; Wendt

v Bruce (1931) 45 CLR 245 at 253 per Gavan Duffy CJ, Starke J; 257 per Dixon J; Grundt v Great
Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 657 per Latham CJ.
21 Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR

9321 at [38].
 22 Wendt v Bruce (1931) 45 CLR 245 at 253 per Gavan Duffy CJ, Starke J; 257 per Dixon J.
23 United Australia Ltd v Barclays Bank [1941] AC 1 at 30 per Lord Atkin; Meng Leong
Development Pte Ltd v Jip Hong Trading Co Pte Ltd [1985] AC 511 at 522B–D per Lord Templeman.
See also Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 611–12 per Brennan J;
Ciaverella v Balmer (1983) 153 CLR 438 at 449 per the Court.
24 Paras 6.05–07 (as they stood in the Second Edition) were expressly approved in Aluminium Ltd v
Northern & Western Insurance Company Ltd [2011] EWHC 1352 at [91–98].
25 See Lexington Insurance Company v Multinacional se Seguros SA [2008] EWHC 1170; [2009] 1
All ER (Comm) 35; [2009] Lloyd’s Rep IR 1 at [61–63] per Clarke J.
26 Heyman v Darwins Ltd [1942] AC 356 at 361 per Viscount Simon LC; State Trading Corp of
India v M Golodetz [1989] 2 Lloyd’s Rep 277 at 286 col 2 per Kerr LJ. The same test applies to
affirmation—see Carr and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 at 550B per Sellers
LJ.
27 Vitol SA v Norelf Ltd [1996] AC 800 at 810H–811A; [1996] 3 WLR 105 at 113B per Lord Steyn.
28 Vitol SA v Norelf Ltd, ibid at 811F–G; at 113F–114E per Lord Steyn.
29 The word used in Vitol, ibid. It is submitted that the reference to the election being ‘conveyed’

to the other party avoids a false dichotomy between the cases where there is overt communication and
those where the Courts have inferred election from conduct. The key issue is whether the other party
has become aware of the election.
30 Lakshmijit v Sherani [1974] AC 605 at 616C–D per Lord Cross; China National Foreign Trade

Transportation Corporation v Evlogia Shipping Co SA of Panama (‘The Mihalios Xilas’) [1979] 1

WLR 1018 at 1024D–E per Lord Diplock; 1034H–1035B per Lord Scarman. The communication need
not be by a party to contract (see Wood Factory Pty Ltd v Kiritos Pty Ltd [1985] 2 NSWLR 105 at
146; MSC Mediterranean Shipping Co SA v BRE Metro Ltd [1985] 2 Lloyd’s Rep 239 at 240 col 2 per
Saville J; Vitol SA v Norelf Ltd supra at 811A–B; 113C–D per Lord Steyn).
31 Where there is no overt communication, whether or not there has been an election may be an

inference drawn from conduct by the Courts (see State Trading Corpn of India v M Golodetz [1989] 2
Lloyd’s Rep 277 at 286 col 2 per Kerr LJ; Tropical Traders Ltd v Goonan (1966) 115 CLR 41 at 55;
Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfield’) [1978] 2 Lloyd’s Rep 357 at 379 col 1
per Kerr J). The Court will only so infer where one party’s actions demonstrate objectively and
unequivocally that it is making the alleged election (see Insurance Corporation of the Channel
Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151 at 162 col 2 per Mance J as he then was).
32 Insurance Corporation of the Channel Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151 at
163 col 1 per Mance J as he then was.
33 Detrimental reliance only being required where there is an estoppel. However, an election may

give rise in limited circumstances to an estoppel.

34 See Insurance Corporation of the Channel Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151
at 163 col 1 per Mance J as he then was.
35 This work only deals with election as part of the substantial law as opposed to election between

rights and remedies in the context of litigation.

36 In Insurance Corporation of the Channel Islands Ltd v The Royal Hotel Ltd [1998] LRLR 151 at
163 col 1, Mr Justice Mance (as he then was) noted that there may be a distinction between what the
reasonable party (alleging the election) may infer and what the prudent party (alleged to have elected)
may have thought. That distinction created a ‘conundrum’ that Mr Justice Mance was not required to
resolve. It would appear, however, that the distinction (a) may only arise in insurance law; and (b)
even if it does arise, may be more apparent than real.
 37 Carr and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 at 550D–F per Sellers LJ.
38 See State Trading Corpn of India v M Golodetz [1989] 2 Lloyd’s Rep 277.
39 MSC Mediterranean Shipping Co SA v BRE Metro Ltd [1985] 2 Lloyd’s Rep 239 at 240 col 2 per

Saville J.
40 Chatterton v Maclean [1951] 1 All ER 761 at 764C–D per Parker J.
41 RV Ward v Bignall [1967] 1 QB 534 at 548E–F per Diplock LJ; Gator Shipping Corpn v Trans-

Asiatic Oil SA (‘The Odenfield’) [1978] 2 Lloyd’s Rep 357 at 379 col 1 per Kerr LJ.
42 Heyman v Darwins [1942] AC 356 at 362 per Viscount Simon LC.
43 The alternative view is that one cause of action has merged with the other—see Kendall v

Hamilton (1879) 4 App Cas 504 at 513–15; Brostoff v Clark Kenneth Leventhal (11 March 1996,
Dyson J).
44 United Australia Ltd v Barclays Bank [1941] AC 1 at 30 per Lord Atkin; Express Newspapers v

News (UK) Ltd [1990] 1 WLR 1320 at 1329G per Browne-Wilkinson VC; Meng Leong Development
Pte Ltd v Jip Hong Trading Co Pte Ltd [1985] AC 511 at 522B–D per Lord Templeman. See also Port
of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 611–12 per Brennan J; Ciaverella v
Balmer (1983) 153 CLR 438 at 449 per the Court.
45 Kendall v Hamilton (1879) 4 App Cas 504 at 542 per Lord Blackburn; C Inc Plc v L & Ors

[2001] 2 Lloyd’s Rep 459 at 481 col 2; para 111 per Aikens J.
46 For the elements of waiver by election see paras 4.01 ff above.
47 [1962] AC 413.
48 As the current chapter concerns election, the discussion focuses on breach (ie, termination for

fault) as opposed to non-fault termination or ‘drop dead’ clauses.

49 As with all contractual attempts to limit the parties’ ability to manoeuvre at some later date, an

English Court will permit the parties to bypass an anti-technicality clause where their intention so to
do is sufficiently clear—see I-Way Ltd v World Online Telecom UK Ltd [2002] EWCA 413 at para
11.2. The position is different under the UCC—§2.209(2).
50 See eg Steedman v Drinkle [1916] 1 AC 275 at 278.
51 See eg Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1 WLR 1129 at 1132.
52 Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195 at 198A–B; Rawson v Hobbs (1961) 107

CLR 466 at 477–8 per Dixon CJ; ‘The Mihalis Angelos’ [1971] 1 QB 164; Tradax Export SA v Dorada
Campania Naviera SA (‘The Lutetian’) [1982] 2 Lloyd’s Rep 140 at 154 col 2–155 col 2 per Bingham
J.
53 Afovos Shipping Co SA v Pagnan [1982] 1 WLR 848 at 856D–G per Griffiths LJ.
54 See para 21.40 below for a discussion of ‘anti-technicality’ clauses.
55 The relationship between the terms of the contract and election was succinctly explained in

Trading Ltd (t/a Barratt North London) v JM Rowe (Investments) Ltd [2011] EWCA Civ 548 at [78]
per Patten LJ.
56 Afovos Shipping Co SA v Pagnan [1982] 1 WLR 848 at 858A–B and 859 per Lord Griffiths.
57 Green v Sommerville (1979) 141 CLR 595 at 600 per Barwick CJ.
58 Tankexpress A/S v Compagnie Financiere Belge des Petroles SA (‘The Petrofina’) [1949] AC

76.
59 Where the contract does not provide a complete code, the improper contractual notice may still

serve as an acceptance of a repudiatory breach—see Stocznia Gdanska SA v Latvian Shipping Co

[2002] 2 Lloyd’s Rep 436; Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465
at [31].
 60 CDV Software Entertainment AG v Gamecock Media Europe Ltd [2009] EWHC 2965 at [112–
114] per Gloster J.
61 See Mint Security Ltd v Blair [1982] 1 Lloyd’s Rep 188 at 198; Iron Trades Mutual Insurance
Co Ltd v Companhia de Seguros Imperio [1991] 1 Re LR 213 at 225; Wise (Underwriting Agency) Ltd
v Grupo Nacional Provincial SA [2004] EWCA Civ 962 at [83].
62 [2006] EWHC 63; [2006] 1 LLR 599; [2006] 1 Lloyd’s Rep 599; [2006] 2 P & CR 9.
63 [2009] EWCA Civ 75; [2009] CILL 2708; [2009] BLR 196; [2009] 1 Lloyd’s Rep 461; [2009] 1
CLC 134; [2010] QB 27.
64 At [44].
65 For examples of the care with which the Courts will scrutinise the communications between the
parties to ascertain whether there has been an election and if so, what the results of that would be, see
Drake Insurance Plc v Provident Insurance Plc [2003] EWCA Civ 1834; [2004] QB 601 at [102 ff]
per Rix LJ; Leofelis SA v Lonsdale Sports Ltd [2008] EWCA Civ 640; [2008] ETMR 63 at [66 ff] per
Lloyd LJ; Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465 at [33 ff].
66 See Vitol SA v Norelf Ltd [1996] AC 800 at 810l per Lord Steyn.
67 See Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465 at [33 ff].
68 Indeed, the parties might have to proceed down one path or the other as refusing to do so could

in some cases amount to a further repudiation of the contract.

69 At 427, 429, 430, 445. See also Fullers’ Theatres Limited v Musgrove (1923) 31 CLR 524 at

543–4; Dyke v McLeish Estates Ltd (1927) 27 SR (NSW) 74 at 76; Tramways Advertising Pty Ltd v
Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 645 per Jordan CJ; Ahmed v Estate & Trust
Agencies [1938] AC 624 at 639.
70 The most obvious being that it makes little sense to keep a contract alive where one party has

made it perfectly clear that it will not perform its obligations under the contract.
71 At 429.
72 Including passive co-operation (Hounslow London Borough Council v Twickenham Garden

Developments Ltd [1971] 1 Ch 233 at 253–4 per Megarry J) or assistance (Finelli v Dee (1968) 67
DLR (2d) 393 at 395 Laskin JA).
73 The principle applies in employment (where the right to be paid wages is only triggered by the

offer by the employee to provide services) and potentially to charter parties—see Clea Shipping
Corpn v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984] 1 All ER 129 at 138a
per Lloyd J; contra Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfeld’) [1978] 2 Lloyd’s
Rep 357.
74 cf the pragmatic approach of Sachs LJ in Decro-Wall International SA v Practitioners in

Marketing [1971] 1 WLR 361 at 375G–H.

75 [1962] AC 413 at 431 per Lord Reid.
76 At 431.
77 See Clea Shipping Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984] 1

All ER 129 at 132j per Lloyd J.

78 [1976] 1 Lloyd’s Rep 250. For a more recent, albeit Scottish, example, see Highland and

Universal Properties Ltd v Safeway Properties Ltd [2000] ScotCS 28 where the Court affirmed its
power to deny the innocent party a remedy to which it was entitled in ‘wholly exceptional’
circumstances where there was a ‘very cogent reason’ for so doing so that it was ‘inconvenient and
unjust’ to grant the remedy.
79 At 255.
 80 [1984] 1 All ER 129.
81 See also the similar statement by Mr Justice Kerr in Gator Shipping Corpn v Trans-Asiatic Oil
Ltd SA (‘The Odenfeld’) [1978] 2 Lloyd’s Rep 357 at 374 col 1: ‘It follows that any fetter on the
innocent party’s right of election whether or not to accept a repudiation will only be applied in
extreme circumstances, viz where damages would be an adequate remedy and where an election to
keep the contract alive would be wholly unreasonable.’
82 At 137b–g. Mr Justice Lloyd founded that conclusion on an analogy with the American law of
contract (where even in cases of repudiation the innocent party must mitigate its loss) and on the fact
that the innocent party’s refusal to accept the repudiation was equivalent to its being granted specific
performance of the contract. See also Ocean Marine Navigation Ltd v Koch Carbon Inc, the Dynamic
[2003] EWHC 1936; [2003] 2 Lloyd’s Rep 693 at [23].
83 George Barker (Transport) Ltd v Eynon [1974] 1WLR 462.
84 Ahmed v Estate & Trust Agencies (1927) Ltd [1938] AC 624 at 639–40; Gator Shipping Corp v
Trans-Asiatic Oil SA (‘The Odenfeld’) [1978] 2 Lloyd’s Rep 357 at 374 per Kerr J.
85 [1962] AC 413 at 445.
86 For the suggestion, see Carter para 1125, p 417.
87 [1962] AC 413 at 430.
88 At 256.
89 It has also been suggested that Attica Sea Carriers is an extreme case which should be confined

to its particular facts—see Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfeld’) [1978] 2
Lloyd’s Rep 357 at 373 per Kerr J.
90 For the contrary view see Clea Shipping Corp v Bulk Oil International Limited (No 2) (‘The

Alaskan Trader’) [1984] 1 All ER 129 at 135f–g per Lloyd J.

91 [1989] AC 788.
92 Albeit in a slightly different context.
93 At 805D–F.
94 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86–8 per Lord

Dunedin; Bridge v Campbell Discount Co Ltd [1962] AC 600.

95 Legione v Hateley (1983) 152 CLR 406 at 446.
96 See eg Thompson v Hudson (1869) LR 4 HL 1 at 28 per Lord Westbury; The Atlantic Star [1988]

1 Lloyd’s Rep 122 at 125, 127.

97 Elsey v JG Collins Insurance Agencies Ltd (1978) 83 DLR (3d) 1 at 15 per Dickson J; Philips

Hong Kong Ltd v Attorney General of Hong Kong (1993) 61 BLR 49 at 58.
98 See para 6.03 above.
99 By denying the innocent party its remedy of continuing with the contract—see Clea Shipping

Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984] 1 All ER 129 at 136c per
Lloyd J.
100 See White and Carter [1962] AC 413 at 445 per Lord Hodson. Equity will be particularly

reluctant to intervene to alter commercial bargains—see Scandinavian Trading Tanker Co AB v Flota

Petrolera Ecuatoriana (‘The Scaptrade’) [1983] 2 All ER 763, [1983] 3 WLR 203.
101 Johnson v Agnew [1980] AC 367 at 398 per Lord Wilberforce.
102 cf Decro-Wall International SA v Practitioners in Marketing [1971] 1 WLR 361 at 370 E where

Salmon LJ thought that Lord Reid was paraphrasing an argument addressed to their Lordships without
commenting on the quality of that argument.
103 The doctrine does not force the innocent party to accept the repudiation—see Clea Shipping
Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984] 1 All ER 129 at 136c per
Lloyd J.
104 Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1446A–C per Diplock LJ; C

Czarnikow Ltd v Koufos [1966] 2 QB 695 at 730F–731B per Diplock LJ; RV Ward Ltd v Bignall
[1967] 1 QB 534 at 548B–E per Diplock LJ; Banning v Wright [1972] 1 WLR 972 at 990C–D per Lord
Simon; Moschi v Lep Air Services [1973] AC 331 at 350C–D per Lord Diplock; 355G per Lord
Simon; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848–50 per Lord Diplock;
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at
982C–E per Lord Diplock; Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 at 478F–G per
Lord Diplock; Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 915D–
E per Lord Diplock; Afovos Shipping Co v Pagnan [1983] 1 WLR 195 at 203C–G per Lord Diplock;
State Trading Corpn of India v M Golodetz Ltd [1989] 2 Lloyd’s Rep 285 col 2–286 col 1 per Kerr LJ.
105 The certainty argument was considered and rejected in Clea Shipping Corp v Bulk Oil
International (No 2) (‘The Alaskan Trader’) [1984] 1 All ER 129 at 137f–g per Lloyd J.
106 Attica Sea Carriers Corp v Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyd’s Rep

250; Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfeld’) [1978] 2 Lloyd’s Rep 357; Clea
Shipping Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984] 1 All ER 129.
As to the American position, see Rockingham County v Luten Bridge Co 35 F 2d 301 (CA, 4th Cir,
1929) at 308.
107 See Reichman v Beveridge [2006] EWCA Civ 1659 at [17] per Lloyd LJ.
108 Clea Shipping Corp v Bulk Oil International (No 2) (‘The Alaskan Trader’) [1984] 1 All ER

129 at 135j per Lloyd J citing The Odenfeld.

109 Ocean Marine Navigation Ltd v Koch Carbon Inc, The Dynamic [2003] EWHC 1936; [2003] 2

Lloyd’s Rep 693 at [23].

110 This was the approach taken in Decro-Wall International SA v Practitioners in Marketing Ltd

[1971] 1 WLR 361.

111 At para 6.19 above.
112 Attica Sea Carriers Corp v Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyd’s Rep

250 at 255 per Lord Denning MR; Ocean Marine Navigation Ltd v Koch Carbon Inc [2003] EWHC
1936; [2003] 2 Lloyd’s Rep 693 at [23].
113 [1962] AC 413 at 431 per Lord Reid.
114 Such justification as there is for the doctrine being remedial—see para 6.14 above; Decro Wall

International SA v Practitioners in Marketing [1971] 1 WLR 361 at 370D–E per Salmon LJ; 375H per
Sachs LJ; Clea Shipping Corp v Bulk Oil International Limited (No 2) (‘The Alaskan Trader’) [1984]
1 All ER 129 at 137 per Lloyd J; Lusograin Comercio Intemacional de Cereas Ltd v Bunge AG [1986]
2 Lloyd’s Rep 654 at 658.
115 See para 6.26 above; Gator Shipping Corpn v Trans-Asiatic Oil SA (‘The Odenfeld’) [1978] 2

Lloyd’s Rep 357 at 374 per Kerr J; Clea Shipping Corp v Bulk Oil International (‘The Alaskan
Trader’) [1984] 1 All ER 129 at 135j per Lloyd J.
116 (1877) 8 ChD.
117 At 313 per James, Baggallay, Thesiger LJJ.
118 Duke of Leeds v Earl Amherst 2 Ph 117 at 123.
119 At 314 per James, Baggallay, Thesiger LJJ.
120 ibid.
121 See para 4.10 above.
 122 See paras 3.12 ff above.
123 Taylor Fashions Ltd v Liverpool Trustees Co [1982] 1 QB 133 at 147C–D per Oliver J;
Amalgamated Property Co v Texas Bank [1982] QB 84 at 103B–D per Goff J; Habib Bank Ltd v Habib
Bank AG [1981] 1 WLR 1265 at 1285B–F per Oliver LJ. For an explanation of the doctrine see
Chapter 7 passim.
124 In re Pauling’s Settlement Trusts [1964] 1 Ch 303 at 353 per Upjohn LJ; Shaw v Applegate
[1977] 1 WLR 970 at 977H–978B per Buckley LJ; Taylor Fashions Ltd v Liverpool Trustees Co
[1982] 1 QB 133 at 148E–G; 154F–G; 155C–D per Oliver J.
125 See Willmott v Barber (1880) 15 ChD 96 at 105–6 per Fry J (a party will not be allowed to rely
on its rights where it would be fraudulent to do so). Thus, eg, knowledge may be required in certain
contexts—see eg Life Association of Scotland v Siddal (1861) 3 De GF & J 58; 45 ER 800 at 72–3; 74;
806 per Turner LJ; In Re Pauling’s Settlement Trusts [1964] 1 Ch 303 at 353 per Upjohn LJ.
 1 Strictly speaking ‘estouper’ and ‘estoupail’. The first reference appears to be Dialogue on the
Laws of England (1531): ‘The law in such cases giveth no remedy to him that is estopped.’
2 See Coke, A Commentary on Littleton, 11th edn, (London, 1719) 352a.
3 Coke used the term estoppel by writing but his text makes it is clear that he was referring to the
doctrine now known as estoppel by deed (as to which see generally Chapter 12 below).
4 See Coke, A Commentary on Littleton, 11th edn (London, 1719) 352a. The term estoppel by

conduct has been used as an alternative to estoppel in pais. This term has also been used to describe
estoppel by representation, where the relevant representation is made by conduct rather than by
express statement or by silence. Because of the terminological inconsistency we have avoided the use
of this term in our text.
5 Now supported by powerful extra-judicial comments—see Lord Neuberger, ‘The stuffing of
Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537.
6 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48 per
Robert Walker LJ.
7 National Westminster Bank Plc v Somer International Ltd [2002] 1 All ER 198 at paras 35, 48 per

Potter LJ; 59–61 per Clarke LJ.

8 See particularly Scottish Equitable plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at

para 48 per Robert Walker LJ. Lord Robert Walker expressed similar concerns as to the relationship
between the various doctrines after his elevation to the Supreme Court—see Thorner v Major [2009]
1 WLR 776 at [64].
9 See, eg, Baxendale v Bennet (1878) 3 QBD 578 per Bramwell LJ at 529 (‘Estoppels are odious,

and the doctrine should never be applied without a necessity for it’). Compare, however, Lord
Upjohn’s rejection, ‘All estoppels are not odious but must be applied so as to work justice and not
injustice’: Carl Zeiss Stiftung v Rayner & Keeler (No 2) [1967] AC 853 at 947.
10 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships

Limited [1947] AC 46 PC Canada at 56, quoting Sir Frederick Pollock. See also Simm v Anglo
American Telegraph (1879) 5 QBD 188 CA at 202 per Bramwell LJ.
11 Re Exchange Securities & Commodities Ltd [1988] Ch 46 at 54 per Harman J.
12 London Joint Stock Bank Ltd v Macmillan [1918] AC 777 at 818 per Lord Haldane.
13 Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA at 44 per Morris LJ. See also Rust Consulting

Ltd v PB Ltd [2011] EWHC 1622 at [79].

14 For academic support of the unified theorem see Thompson, ‘From Representation to
Expectation: Estoppel as a cause of action’ [1983] Camb LR 257; Duthie, ‘Equitable Estoppel,
Unconscionability and the Enforcement of Promises’ (1988) 104 LQR 362; Kirk, ‘Confronting the
Forms of Action: The Emergence of Substantive Estoppel’ (1991) 13 Adelaide LR 225; Lunney,
‘Towards a Unified Estoppel—the Long and Winding Road’ [1992] Conv 239 and Halliwell,
‘Estoppel: Unconscionability as a cause of action’ (1994) 14 LS 15; Lord Neuberger, ‘The stuffing of
Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537. For a particularly stark
example of an overarching theory being deployed, see Professor Andrew Phang and Professor Hans
Tjio, ‘The uncertain boundaries of undue influence’ [2002] LMCLQ 231 at 241–3.
15 Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd [1947]
AC 46 at 56 per Lord Wright.
16 For an antipathetic reaction to such theoretical overreach in the restitutionary context, see

Professor Jack Beatson QC and G Virgo, ‘Contract, Unjust Enrichment and Unconscionability’
(2002)118 LQR 352.
 17 See Scottish Equitable plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at paras 46–8
per Robert Walker LJ.
18 [1983] 1 WLR 605.
19 See the discussion at paras 9.11 ff, 9.109 ff below.
20 See Scottish Equitable plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at paras 46–8

per Robert Walker LJ.

21 At para 47. See also E Fung and L Ho, ‘Establishing Estoppel After the Recognition of Change
of Position’ [2001] Restitution Law Review 52; Peter Jaffey, ‘Change of Position and Estoppel’ [2002]
LMCLQ 1.
22 See Scottish Equitable at para 44; para 9.117 below.
23 See Scottish Equitable plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48 per

Robert Walker LJ.

24 M and W are used, here as elsewhere in text, to signify the person seeking to resile from the pre-

existing state of affairs and the person seeking to enforce that pre-existing state of affairs
respectively.
25 [2002] 1 All ER 198; [2001] EWCA Civ 970.
26 At para 37 per Potter LJ.
27 At para 46 per Potter LJ.
28 Lord Justice Potter. Both Lord Justice Clarke and Lord Justice Peter Gibson agreed with Lord

Justice Potter (see paras 50 and 69 respectively). Interestingly, however, their analysis was confined
to the status of Avon CC v Howlett. See also Lord Justice Robert Walker in Scottish Equitable at para
44.
29 At para 41 per Potter LJ.
30 At para 46 per Potter LJ.
31 At para 47 per Potter LJ.
32 At para 47 per Potter LJ.
33 First National Bank Plc v Thompson [1996] 1 All ER 140 CA at 144h–j. See also Dun &

Bradstreet Software Services (England) Ltd v Provident Mutual Life Assurance Assoc [1997] EWCA
Civ 1816 at paras 47–54 per Peter Gibson LJ; Baird Textile Holdings Ltd v Marks & Spencer Plc
[2002] 1 All ER (Comm) 737; [2001] EWCA Civ 274 at paras 35–6 per Morritt VC; 50–1, 54 per
Judge LJ and 83–99 per Mance LJ.
34 Scottish Equitable at para 48.
35 See n 28 above.
36 (1938) 59 CLR 641 at 674–5.
37 See also Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 447–53; Foran v Wight

(1989) 168 CLR 385 at 434–6; Commonwealth v Verwayen (1990) 170 CLR 394 at 431–46 all per
Deane J; and Commonwealth v Verwayen at 410–13 per Mason CJ. This principle may even extend
into and subsume restitution—Roxborough v Rothmans of Pall Mall Australia [2002] 76 ALSR 203 at
paras 63–74 per Gummow J.
38 Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International

Bank Ltd [1982] 1QB 84 at 122a–d per Lord Denning MR; Lyle-Meller v A Lewis & Co [1956] 1WLR
29 CA at 35 per Denning LJ; Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at 241
per Lord Denning MR.
39 [2007] ICR 445; [2006] EWCA Civ 1551 at paras 91–93 and 129. See also Parties Named In

Schedule A v Dresdner Kleinwort Ltd [2010] EWHC 1249 (QB) at para 59.
 40 It could, however, be fairly said that this is not a unified theory but a common factor to several
diverse doctrines. It would, in any event, face some difficulty in explaining so-called contractual
estoppel where detriment or unconscionability is not a factor.
41 [1976] Ch 179 CA at 193a–b.
42 A sentiment shared by Lord Walker in Thorner v Major [2009] 1 WLR 776 at [64].
43 [1983] 1 AC 854.
44 See in parallel terms Lord Neuberger, ‘The stuffing of Minerva’s Owl? Taxonomy and
taxidermy in equity’ [2009] CLJ 537 at 547–8.
45 At 916A–C.
46 As do Scottish Equitable Plc and National Westminster Bank Plc.
47 See Chapter 2 passim.
48 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at paras 46–8

per Robert Walker LJ; National Westminster Bank Plc v Somer International Ltd [2002] 1 All ER 198.
49 See Yaxley v Gotts [2000] 1 All ER 711, in particular Robert Walker LJ at 721–2, 724h–725b,

Beldam LJ 735e–736h.
50 See Roger Halson, ‘The Offensive Limits of Promissory Estoppel’ [1999] LMCLQ 256 at 270

for a parallel conclusion. See also Professor Jack Beatson QC and G Virgo, ‘Contract, Unjust
Enrichment and Unconscionability’ (2002) 118 LQR 352. The possibility of unhelpful theoretical
overreach is well recognised in other, perhaps more logical, disciplines—hence the well-known von
Neumann injunction in pure mathematics and theoretical physics that any construct is only justifiable
if and to the extent that it is expected to work.
51 Thus, the majority of the High Court does not accept that unified theory of equitable estoppel is

all-embracing—estoppel by representation doctrine remaining distinct—see Waltons Stores

(Interstate) Ltd v Maher (1988) 164 CLR 387; Commonwealth of Australia v Verwayen (1990) 170
CLR 394; McCraith v Fraser (1991) 104 FLR (Aus) 227.
52 See Baird Textile Holdings Ltd v Marks & Spencer Plc [2002] 1 All ER (Comm) 737; [2001]

EWCA Civ 274 (CA, 28 February 2001) at paras 35–6 per Morritt VC; 50–1, 54 per Judge LJ and 83–
99 per Mance LJ where the Waltons Stores approach was canvassed and rejected.
53 Meagher analyses the Australian doctrine and comes to the same conclusion as to the

uncertainties of that which it may or may not include at 1725.

54 Even proprietary estoppel has its limits, however—see Mark Pawlowski, ‘New Limits on
Proprietary Estoppel’ (1998) 114 LQR 351.
55 For an argument along parallel lines in relation to equitable forbearance, see Roger Halson, ‘The

Offensive Limits of Promissory Estoppel’ [1999] LMCLQ 256.

56 Jordan v Money (1854) VHLC 185.
57 [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER (Comm) 737.
58 At [38, 55, 88 ff].
59 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Commonwealth of Australia v

Verwayen (1990) 170 CLR 394.

60 See paras 4.18 ff above.
61 See further paras 8.05–07 below.
62 See paras 11.21–11.25 below.
63 See paras 8.102 ff below.
64 See paras 11.103–106 below.
65 See paras 8.69 ff below.
 66 It should be noted that even the radical developments seen in the Australian jurisdiction have
not extended to the assimilation of all types of estoppel. According to the majority of the High Court,
the estoppel by representation doctrine remains distinct from the equitable estoppel principle
developed and expanded in that jurisdiction: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR
387; Commonwealth of Australia v Verwayen (1990) 170 CLR 394; McCraith v Fraser (1991) 104
FLR (Aus) 227. But see the minority judgments of Deane J in Waltons Stores supra and of Mason CJ
and Deane J in Verwayen supra.
67 See Baird Textile Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274; [2001] CLC 999;
[2002] 1 All ER (Comm) 737 at para 38 per Morritt VC; para 54 per Judge LJ; para 99 per Mance LJ.
See also White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 at [66] per Sir
Peter Gibson.
68 See Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce
International Bank Ltd [1982] 1 QB 84 at 105D–106A per Robert Goff J.
69 See Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 Con LR 129 at 185–6
per HHJ Esyr Lewis QC.
70 BP Plc v AON Ltd [2006] EWHC 424 at [268 ff].
71 See Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999;

[2002] 1 All ER (Comm) 737 at para 38 per Morritt VC; para 54 per Judge LJ; para 99 per Mance LJ.
See also White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 at [66] per Sir
Peter Gibson.
72 [2003] EWHC 1487 at [191 ff] per HHJ Richard Seymour QC.
73 [2006] EWHC 1586 at [109 ff] per Coulson J.
74 [2008] EWHC 1016 at [181 ff] per Ramsey J.
75 [2006] EWCA Civ 386; [2006] 1 CLC 582; [2006] 2 Lloyd’s Rep 511.
76 At [56–7].
77 See eg Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd [2008] EWHC 1686; [2008] 2

Lloyd’s Rep 581; [2009] 1 All ER (Comm) 16 at [31 ff] per Aikens J; BSkyb Ltd & Anor v HP
Enterprise Services UK Ltd & Anor (Rev 1) [2010] EWHC 86 (TCC); 26 Const LJ 289; [2010] BLR
267; (2010) 26 Const LJ 289; [2010] CILL 2841; 129 Con LR 147 at [384] per Ramsey J; Titan Steel
Wheels Ltd v The Royal Bank of Scotland Plc [2010] EWHC 211; [2010] 2 Lloyd’s Rep 92 at [87 ff]
per David Steel J; Foodco UK Llp (t/a Muffin Break) v Henry Boot Developments Ltd [2010] EWHC
358 at [169 ff] per Lewison J; Zentralbank Österreich AG v The Royal Bank of Scotland Plc [2010]
EWHC 1392 at [241 ff] per Clarke J; Proactive Sports Management Ltd v Rooney (Rev 1) [2010]
EWHC 1807 at [667 ff] per Judge Hegarty QC; Morgan v Pooley [2010] EWHC 2447 [at 113 ff] per
Edwards-Stuart J; Cassa Di Risparmio Della Republica Di San Marino SpA v Barclays Bank [2011]
EWHC 484 at [493 ff] esp [505] per Hamblen J; Bank Leumi (UK) Plc v Wachner [2011] EWHC 656
at [184] per Flaux J.
78 [2010] EWCA Civ 1221.
79 At [177–8].
80 See Chapter 13 passim.
81 The contrary position—namely that contractual theory is subsuming estoppel into it (which

given a contractual estoppel’s ability to replace estoppel by deed and possibly estoppel by convention
must be arguable)—also puts considerable difficulties in the way of a unified theory. Far from there
being a unified theory, estoppels would in fact be ceasing to be categorised as such.
82 It being fundamental to estoppels (and indeed waivers) that their various elements and
difficulties arise precisely as a result of seeking to give statements and promises force in the absence
of consideration.
83 First National Bank Plc v Thompson [1996] 1 All ER 140 CA at 144h–j. See also Dun &

Bradstreet Software Services (England) Ltd v Provident Mutual Life Assurance Assoc [1997] EWCA
Civ 1816 at paras 47–54 per Peter Gibson LJ; Baird Textile Holdings Ltd v Marks & Spencer Plc
[2002] 1 All ER (Comm) 737; [2001] EWCA Civ 274 at paras 35–6 per Morritt VC; 50–1, 54 per
Judge LJ and 83–99 per Mance LJ.
84 [1998] AC 878.
85 At 918C.
86 See Chapter 14 passim.
87 Meagher at 1702, Legione v Hateley (1983) 152 CLR 406 at 430.
88 Legione v Hateley (1983) 152 CLR 406 at 430.
89 As to proprietary estoppel, see para 11.04 below and as to equitable forbearance, see paras 8.05–
07 below.
90 Legione v Hateley (1983) 152 CLR 406 at 430.
91 Roebuck v Mongovin [1994] 1 All ER 568 HL at 575 per Lord Brown Wilkinson.
92 Saloman v Akiens [1993] 1 EGLR 101 CA; Fontana NV v Mautner (1980) 254 EG 199; Morrow

v Carty [1957] NI 174; Film Investors Overseas Services SA v The Home Video Channel (trading as
the Adult Channel), The Times, 2 December 1996.
93 See paras 9.109 ff below.
94 Silovi Pty Ltd v Barbaro (1988)13 NSWLR 466 per Priestley JA at 472. The comments were

directed towards the Australian doctrine of equitable estoppel but the distinction drawn between the
evidential and the substantive principles is equally applicable to the English proprietary estoppel
doctrine.
95 Though not in the restitutionary sense—there being in a large number of cases no obvious

subtractive benefit to be removed.

96 See eg Knights v Wiffen (1870) LR 5 QB 660 CA; In re Ottos Kopje Diamond Mines Ltd [1893]

1 Ch 1892 CA; TCB Ltd v Gray [1986] Ch 621.

97 See Sledmore v Dalby [1996] P & CR 196 CA at 207 per Hobhouse LJ.
98 Hopgood v Brown [1955] 1 WLR 213.
99 See Timothy Ellis v London Borough of Lambeth (1999) EGCS 101 per Swinton Thomas LJ. It

was deemed insufficient that prejudice was merely more than ‘de minimis’. A more onerous
obligation to demonstrate significant detriment may be applied in this class of estoppel to reflect the
‘all or nothing’ approach to grant of remedies.
100 Where the convention may affect third party rights—as in the pensions cases.
101 [2001] 3 All ER 818; [2001] EWCA Civ 369; at para 48 per Robert Walker LJ.
102 See generally paras 9.141 ff below.
103 Bay of Plenty Electricity Ltd v Natural Gas Corp Energy [2002] 1 NZLR 173 at paras 46 ff.
 1 (1877) 2 App Cas 439.
2 ibid at 448.
3 [1947] KB 130.
4 ibid at 134.
5 Not the least by the rejection of a single, broad doctrine of estoppel—see eg Dun & Bradstreet

Software Services (England) Ltd v Provident Mutual Life Assurance Association [1997] EWCA Civ
1816 at paras 47–54 per Peter Gibson LJ; Baird Textile Holdings Ltd v Marks & Spencer Plc [2002] 1
All ER (Comm) 737; [2001] EWCA Civ 274 at paras 35–6 per Morritt VC; paras 50–1, 54 per Judge
LJ and paras 83–99 per Mance LJ.
6 These have been categorised as aspects of unconscionability (see Steria Ltd v Ronald Hutchison
[2006] EWCA Civ 1551; [2007] ICR 445 at [93] per Neuberger LJ) but the more established approach
is that they are independent elements of the doctrine.
7 See eg Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008]
Bus LR 931 at [33–38]; Steria Ltd v Ronald Hutchison [2006] EWCA Civ 1551; [2007] ICR 445 at
[93] per Neuberger LJ; Fortisbank SA v Trenwick International Ltd & Ors [2005] EWHC 399 at [30];
see also HIH Casualty & General Insurance Ltd v AXA Corporate Solutions [2002] EWCA Civ 1253;
[2002] 2 All ER (Comm) 1053 at [19].
8 Thorner v Major & Ors [2009] UKHL 18; [2009] 13 EG 142; [2009] WTLR 713; [2009] Fam

Law 583; [2009] 2 FLR 405; [2009] 1 WLR 776 at [61] per Lord Walker.
9 The doctrine affects equitable rights in the same way (see Goldsworthy v Brickell [1987] Ch 378

CA); both are therefore referred under the rubric of legal rights.
10 See Steria Ltd v Hutchison [2007] ICR 445 at [93]; Grievson v Grievson [2011] EWHC 1367 at

[25].
11 The fourth is axiomatic (without it there would be no dispute)—which is no doubt why it was

omitted from Lord Justice Neuberger’s formulation of the three ‘classic’ requirements in Steria Ltd v
Ronald Hutchison [2006] EWCA Civ 1551; [2007] ICR 445 at [93].
12 This fourfold enunciation is often pithily reduced to equitable forbearance equals unequivocal

representation plus detrimental reliance—see eg Oliver Ashworth (Holdings) Ltd v Ballard [2000] Ch
12; [1999] EWCA Civ 1027 at para 33 per Robert Walker LJ; Steria supra.
13 See Dun & Bradstreet Software Services (England) Ltd v Provident Mutual Life Assurance

Assoc [1997] EWCA Civ 1816 at paras 47–54 per Peter Gibson LJ; Baird Textile Holdings Ltd v
Marks & Spencer Plc [2002] 1 All ER (Comm) 737; [2001] EWCA Civ 274 at paras 35–6 per Morritt
VC; 50–1, 54 per Judge LJ and 83–99 per Mance LJ.
14 ‘The Winson’ [1980] Lloyd’s Rep 213 CA at 222; ‘The “Superhulls Cover” Case’ (No 2) [1990]
2 Lloyd’s Rep 431 at 448; Argy Trading Co Ltd v Lapid Developments Ltd [1977] 1 WLR 444 at
456g–h. As is set out in paras 9.21 ff below, there is some difficulty in reconciling the line of cases
based on equitable forbearance with the ratio of the House of Lords’ decision in Jordan v Money
(1854) 5 HLC 185 with its strict insistence that estoppel could only operate on representations of fact.
15 Although it may create the new rights arising from a party’s concessions or forbearance, ie the
rights to treat those concessions and forbearances as binding.
16 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus

LR 931 at [33 ff] per Rix LJ; Proactive Sports Management Ltd v Rooney [2010] EWHC 1807 at [692
ff] per HHJ Hegarty QC.
17 See para 4.39 above and paras 21.04 ff below for a further discussion of the distinctions.
18 In some authorities, the term waiver by estoppel is used to mean equitable forbearance—see
Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd [2009] EWCA Civ 1108 at
[51–53] per Rix LJ discussed at paras 3.09 ff above.
19 See eg Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem [1978] 2 Lloyd’s Rep 10 HL;

Bremer Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1 Lloyd’s Rep 221 CA; Finagrain
SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 CA; Cook v Meunerie Liegeois SA [1981]
Lloyd’s Rep 359; Edm JM Mertens v Veevoeder Import Export Vimex [1979] 2 Lloyd’s Rep 372 and
more recently Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal [2005] UKPC 16 at [20].
20 See eg Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008]
Bus LR 931 at [33 ff].
21 It is sometimes difficult to distinguish the two situations: see eg Re William Porter & Co Ltd
[1937] 2 All ER 361 and Fenner v Blake [1900] 1 QB 426.
22 (1809) 2 Camp 317.
23 See paras 2.18 ff above.
24 [1991] 1 QB 1.
25 Despite Williams being over 20 years old, it has only been explicitly applied in a few cases.
26 It must be noted that the same level of certainty and specificity of representation is required for

a variation or an equitable forbearance—see Hodgson & Anor v Lipson [2009] EWHC 3111 at [24–
26] per Parker J. Thus, relying on equitable forbearance will only assist when consideration, even in
the Williams v Roffey formulation, is not present.
27 See Collier v P & M J Wright (Holdings) Ltd [2007] EWCA Civ 1329; [2007] NPC 136; [2008]

1 WLR 643; [2007] BPIR 1452 per Arden LJ at [42]; but note Longmore LJ at [45–47]; Re Selectmove
[1995] 1 WLR 474 at 480C–481D per Lord Justice Peter Gibson; Foakes v Beer (1884) 9 App Cas
605; para 17.19 below; para 2.24 above.
28 Paras 8.10 ff (as they stood in the Second Edition) were expressly approved in Aluminium Ltd v

Northern & Western Insurance Company Ltd [2011] EWHC 1352 at [91–98].
29 Thorner v Major & Ors [2009] UKHL 18; [2009] 13 EG 142; [2009] WTLR 713; [2009] Fam

Law 583; [2009] 2 FLR 405; [2009] 1 WLR 776 at [61] per Lord Walker.
30 See para 8.08 above.
31 This is a doctrinal and logical necessity.
32 Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 at 448; Birmingham & District
Land Co v London & North Western Rail Co (1888) 40 ChD 268 CA at 286; BP Explorations Ltd v
Hunt (No 2) [1979] 1 WLR 783 at 809f–h (aff’d on other grounds at [1983] AC 352); Nippon Yusen v
Pacifica Navegacion SA (‘The Ion’) [1980] 2 Lloyd’s Rep 245 CA at 250; Marseille Fret SA v D
Oilman Schiffahrts GmbH & Co Ltd (‘The Trado’) [1982] 1 Lloyd’s Rep 157 at 160–1; Durham Fancy
Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839 at 846f–g; James v Heim Galleries
(1980) 256 EG 819 CA; Drexel Burnham Lambert International v El Nasr [1986] 1 Lloyd’s Rep 357
at 365.
33 See eg Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 at 448; Birmingham &

District Land Co v London & North Western Rail Co (1888) 40 ChD 268 CA at 286.
34 Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839 at 846f–g.
35 Maharaj v Chand [1986] AC 898 PC.
36 Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839.
37 Robertson v Minister of Pensions [1949] 1 KB 227 (although arguably this case should have

been decided on grounds of estoppel by representation rather than equitable forbearance).

38 Augier v Secretary of State for the Environment (1979) 38 P & CR 219. Augier must, however,
be reconsidered given the statements by the House of Lords in R (Reprotech (Pebsham) Ltd) v East
Sussex County Council [2002] UKHL 8; [2003] 1 P & CR 5; [2003] 1 WLR 348; [2002] NPC 32;
[2002] 10 EGCS 158; [2002] 4 All ER 58; [2002] JPL 821 at [33] that private law concepts such as
estoppel did not have a role to play in public law decision making involving pure public law duties
given the developments in public law since the 1970s. Augier (although not cited in Reprotech) must
now be regarded as superseded (see also Graham v Secretary of the State for the Environment and
Anor [1993] JPL 353).
39 Goldsworthy v Brickell [1987] Ch 378 CA.
40 Fontana NV v Mautner (1980) 254 EG 199; Brikom Investments Ltd v Carr [1979] QB 467 CA.
41 Co-operative Wholesale Society v Chester le Street District Council [1997] 73 P & CR 111.
42 Evenden v Guildford City Association Football Club Ltd [1975] QB 917.
43 Braithwaite v Winwood [1960] 3 All ER 642.
44 Re William Porter & Co Ltd [1937] 2 All ER 361.
45 In Morris v Tarrant [1971] 2 QB 143, it was held that it could not. Compare Lord Denning MR’s

minority judgment in Wallis Holiday Camp v Shell-Mex [1974] 3 All ER 575 at 580–1.
46 [1982] 1 Lloyd’s Rep 456.
47 At 466 cols 1–2 per Webster J. In Shearson Lehman Hutton Inc v Machine Watson and Co Ltd

[1989] 2 Lloyd’s Rep 570 at 598, Webster J expressed some doubt as to the correctness of his
judgment in Pacol but his reservations did not extend to his application of equitable forbearance.
48 [1979] QB 467 CA. See also Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3 PC.
49 It hoped to obtain planning permission to extend the building upwards which would obviously

have involved extensive works on the roof anyway.

50 See para 8.09 above.
51 The case was approved on another point in ‘The Stolt Loyalty’ [1993] 2 Lloyd’s Rep 281. Both

The Henrik Sif and The Stolt Loyalty were applied on the facts (and the duty to speak issue) in Thames
Trains Ltd v Adams [2006] EWHC 3291; see also Thompson & Ors v Arnold [2007] EWHC 1875.
Contrast Babcock International Ltd v Mitsui Babcock Energy Ltd [2002] EWHC 2728.
52 See paras 8.24 ff below.
53 Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 at 448; Birmingham & District
Land Co v London & North Western Rail Co (1888) 40 ChD 268 CA at 286; Tool Metal
Manufacturing Co v Tungsten Electric Co [1955] 1 WLR 761 HL at 763; Ajayi v RT Briscoe (Nigeria)
Ltd [1964] 1 WLR 1326 PC at 1331; Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3 PC at 5;
‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 HL at 399; ‘The “Superhulls Cover” Case’ (No 2)
[1990] 2 Lloyd’s Rep 431 at 449; Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 141; Nippon Yusen v
Pacifica Navegacion SA (‘The Ion’) [1980] 2 Lloyd’s Rep 245 CA at 250; BP Explorations Ltd v Hunt
(No 2) [1979] 1 WLR 783 at 809f–h (aff’d on other grounds at [1983] AC 352).
54 Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 at 448; Birmingham & District

Land Co v London & North Western Rail Co (1888) 40 ChD 268 CA at 286; Tool Metal
Manufacturing Co v Tungsten Electric Co [1955] 1 WLR 761 HL at 763; Bank Negara Indonesia v
Philip Hoalim [1973] 2 MLJ 3 PC at 5.
55 Thus distinguishing equitable forbearance from estoppel by representation: see further paras

9.21 ff below.
56 Foot Clinics (1943) Ltd v Coopers Gowns Ltd [1947] KB 506 at 510; Spence v Shell (1980) 256

EG 55 CA at 63; James v Heim Galleries (1980) 256 EG 819 CA at 821–3; Credit Suisse v Allerdale
BC [1996] 1 Lloyd’s Rep 315 at 370 (aff’d on other grounds [1996] 2 Lloyd’s Rep 241); ‘The Winson’
[1980] Lloyd’s Rep 213 CA at 222–3.
57 Braithwaite v Winwood [1960] 3 All ER 642 at 646d–e, Spence v Shell (1980) 256 EG 55 CA at

63; Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 141.

58 ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 HL at 399.
59 See eg HIH Casualty and General Insurance Limited, Axa Corporate Solutions [2002] EWCA
Civ 1253; [2002] 2 All ER (Comm) 1053 at [21–22] per Tuckey LJ.
60 James v Heim Galleries (1980) 256 EG 819 CA at 826; Spence v Shell (1980) 256 EG 55 CA at
63; Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd [1972] AC 741; Societe
Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19 at 25c; Telfair
Shipping Corpn v Athos Shipping Co SA (‘The Athos’) [1983] 1 Lloyd’s Rep 127 CA at 134, 141 and
145; Drexel Burnham Lambert International v El Nasr [1986] 1 Lloyd’s Rep 357 at 365; Finagrain SA
Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 CA at 534; Cook v Meunerie Liegeios SA
[1981] 1 Lloyd’s Rep 359 at 368; Goldsworthy v Brickell [1987] Ch 378 CA at 410; Allied Marine
Transport Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1 WLR 925 CA at 937;
Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242; Cie Francaise Importation
et de Distribution SA v Deutsche Continental Handelsgesellschaft [1985] 2 Lloyd’s Rep 592 at 596;
London and Clydebank Properties v HM Investment Co [1993] EGCS 63; Marc Rich & Co AG v
Portman [1996] 1 Lloyd’s Rep 430 at 442; Dun & Bradstreet Software Services (England) Ltd v
Provident Mutual Life Assurance Association [1997] EWCA Civ 1816 (CA, 9 June 1997) at para 54;
Thameside MBC v Barlow Securities Group Services Ltd [2001] EWCA Civ 1 at para 33; Baird
Textile Holdings Ltd v Marks & Spencer Plc [2002] 1 All ER 737; [2001] EWCA Civ 274 (CA, 28
February 2001) at paras 35, 38; Soteriou v Ultrachem Ltd & Ors [2004] EWHC 983 (QB); [2004]
IRLR 870 at [124]; Thorner v Major & Ors [2009] UKHL 18; [2009] 13 EG 142; [2009] WTLR 713;
[2009] Fam Law 583; [2009] 2 FLR 405; [2009] 1 WLR 776 at [54] per Lord Walker; IMT Shipping
& Chartering GmbH v Chansung Shipping Company Ltd, Owners of the ‘Zenovia’ [2009] EWHC 739
(Comm); [2009] 2 All ER (Comm) 177; [2009] 2 Lloyd’s Rep 139; [2009] 1 CLC 582 at [30–33] per
Tomlinson J; Prudential Assurance Co Ltd v Exel UK Ltd & Anor [2009] EWHC 1350 (Ch); [2010] L
& TR 7; [2010] 1 P & CR 7 at [203]. See also ‘The Chemical Venture’ [1993] 1 Lloyd’s Rep 509 at
521; The Kanchenjunga [1990] 1 Lloyd’s Rep 391 HL at 399 and ‘The “Superhulls Cover” Case’ (No
2) [1990] 2 Lloyd’s Rep 431 at 452, ‘The Scaptrade’ [1981] 2 Lloyd’s Rep 425 at 430–1
(‘unequivocal’); ‘The Shackleford’ [1978] 2 Lloyd’s Rep 155 at 159 (‘clear’); ‘The Winson’ [1980]
Lloyd’s Rep 213 CA (‘quite unequivocal’); Auckland Harbour Board v Kaihe [1962] NZLR 68 at 90
(‘clear and unqualified’). However, the representation can be made via an agent and the ordinary
agency rules apply: Fontana NV v Mautner (1980) 254 EG 199; Re Wickam (1917) 34 TLR 158;
Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315 (aff’d on other grounds [1996] 2 Lloyd’s Rep
241).
61 Hodgson v Lipson [2009] EWHC 3111 (QB) at [24–26] per Parker J.
62 See paras 17.20 and 20.50 below.
63 See Sere Holdings Ltd v Volkswagon Group United Kingdom Ltd [2004] EWHC 1551;

Electronic Holdings Ltd v United Parcels Service Ltd [2005] EWHC 221; [2005] 1 Lloyd’s Rep 470 at
[114(i)]; Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153. It must be noted that the presence of an
entire agreement clause may, not will, negative the estoppel, its effect will be question of fact and
degree—see Jet2.Com Ltd v Blackpool Airport Ltd [2010] EWHC 3166 at [40] per Beatson J.
64 IMT Shipping & Chartering GmbH v Chansung Shipping Company Ltd, Owners of the ‘Zenovia’

[2009] EWHC 739; [2009] 2 All ER (Comm) 177; [2009] 2 Lloyd’s Rep 139; [2009] 1 CLC 582 at
[18] per Tomlinson J.
 65 [1978] 2 Lloyd’s Rep 109 HL at 126 per Lord Salmon.
66 [1972] AC 741.
67 ibid at 767–8.
68 Supra at 116.
69 Bremer Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1 Lloyd’s Rep 221 CA at 228;

‘The Chemical Venture’ [1993] 1 Lloyd’s Rep 509 at 521; Goldsworthy v Brickell [1987] Ch 378 CA
at 410 and 411; Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1
All ER 19 at 25c–d.
70 (1877) 2 App Cas 614 at 448.
71 Goldsworthy v Brickell [1987] Ch 378 CA at 410 and 411.
72 Hiscox v Outhwaite [1991] 2 Lloyd’s Rep 524 at 534; Lark v Outhwaite [1991] 2 Lloyd’s Rep

132 at 141; R & H Electric Ltd and Anor v Haden Bill Electrical Ltd [1995] 2 BCLC 280 at 291d–f
(no comment was made on the point in the Court of Appeal decision at the same reference).
73 Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd [1972] AC 741 at 757e–

g and 762c–d (see also Atiyah, ‘Consideration and Estoppel: the thawing of the ice’ (1974) 38 MLR
65); Drexel Burnham Lambert International v El Nasr [1986] 1 Lloyds Rep 357 at 365; ‘The Winson’
[1980] Lloyd’s Rep 213 CA at 222–3; Food Corpn of India v Anticlizo Shipping Corp (‘The
Anticlizo’) [1987] 2 Lloyd’s Rep 130 CA at 142 (aff’d on other grounds [1988] 1 WLR 603 HL);
Hodgson v Lipson [2009] EWHC 3111 at [24–26] per Parker J.
74 ‘The Shackleford’ [1978] 2 Lloyd’s Rep 155 CA at 158.
75 ibid.
76 See eg Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; Tool Metal

Manufacturing Co v Tungsten Electric Co (1950) 59 RPC 108 CA; [1955] 1 WLR 761 HL; and
Brikom Investments Ltd v Carr [1979] QB 467 CA.
77 Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19

at 25c; Re William Porter & Co Ltd [1937] 2 All ER 361 at 363d–h; Foot Clinics (1943) Ltd v
Coopers Gowns Ltd [1947] KB 506 at 510; ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 HL at 399;
‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 450.
78 (1877) 2 App Cas 614.
79 [1960] 3 All ER 642; see also London and Clydebank Properties v HM Investment Co [1993]

EGCS 63; Fortisbank SA v Trenwick International Ltd [2005] EWHC 399 at [30(iv)].
80 [1997] 73 P & CR 111.
81 Even if there was a sufficiently clear representation, it is now settled that it will be very difficult

to establish that any detriment flows from a representation as to a statute-barred action after
limitation has expired—see Ace Insurance SA-NV v Seechurn [2002] EWCA Civ 67 at [59] per Ward
LJ.
82 In the Co-operative case there was more than mere negotiation, there was a specific

representation. Mere negotiation should not suffice—Fortisbank SA v Trenwick International Ltd

[2005] EWHC 399 at [30]. See, for the type of representation needed, Bridgestart Properties Ltd v
London Underground Ltd [2004] EWCA Civ 793 at [19–22]; Super Chem Products Ltd v American
Life and General Insurance Co Ltd & Ors (Trinidad and Tobago) [2004] UKPC 2, [2004] 2 All ER
358; [2004] 1 CLC 1041; [2004] Lloyd’s Rep IR 446; [2004] 1 All ER (Comm) 713 at [23] citing
Hillingdon London Borough Council v ARC Ltd (No 2) [2000] 3 EGLR 97 at 104 per Arden LJ;
Seechurn v ACE Insurance SA [2002] 2 Lloyd’s LR 390.
83 James v Heim Galleries (1980) 256 EG 819 CA at 822; Collin v Duke of Westminster [1985] 2
QB 581 at 599.
84 Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315 (aff’d on other grounds [1996] 2 Lloyd’s

Rep 241).
85 ‘The Winson’ [1980] Lloyd’s Rep 213 CA at 223.
86 Drexel Burnham Lambert International v El Nasr [1986] 1 Lloyd’s Rep 357 at 365.
87 See paras 8.22 ff below.
88 Amherst v James Walker Goldsmith & Silversmith Ltd [1983] Ch 305 CA at 320.
89 Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1
WLR 925 CA at 940–1.
90 Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242; Allied Marine

Transport Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1 WLR 925 CA at 937;
Cie Francaise Importation et de Distribution SA v Deutsche Continental Handelsgesellschaft [1985] 2
Lloyd’s Rep 592 at 596; Food Corpn of India v Anticlizo Shipping Corp (‘The Anticlizo’) [1986] 1
Lloyd’s Rep 181 at 187, aff’d [1988] 1 WLR 603 HL.
91 ‘The Chemical Venture’ [1993] 1 Lloyd’s Rep 509 at 521.
92 See eg Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ.
93 See eg Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242.
94 ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 452 referring to authorities

concerning estoppel by representation—see paras 9.54 ff below.

95 [1982] 1 Lloyds Rep 456.
96 ING Bank NV v Ros Roca SA [2011] EWCA Civ 353 at 92 ff per Rix LJ; Thames Trains Ltd v

Adams [2006] EWHC 3291; see also Thompson & Ors v Arnold [2007] EWHC 1875. Contrast
Babcock International Ltd v Mitsui Babcock Energy Ltd [2002] EWHC 2728.
97 [1992] 1 Lloyd’s Rep 515.
98 At 542.
99 [1993] 2 Lloyd’s Rep 281 at 288–9.
100 Note the obiter divergence of opinions in Wallis Holiday Camp v Shell-Mex [1974] 3 All ER

575: the claimant had occupied the land for over 11 years, when an offer for sale was received from
the owners; the claimant failed to respond, in the hope that the 12-year limitation period for adverse
possession would elapse before action was taken; Lord Denning MR at 580–1 considered such
conduct to bring promissory estoppel into play but Stamp LJ at 586g–587d did not (Ormrod LJ made
no comment on the issue).
101 It must be noted that the most recent formulation of the duty to speak—by Lord Justice Rix in

ING Bank NV v Ros Roca SA [2011] EWCA Civ 353 at 92 ff—does not rely on The Henrik Sif.
102 See Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 at 903 per Lord Wilberforce

(dissenting on the decision at issue but not on this particular point); Pacol Ltd v Trade Lines Ltd (‘The
Henrik Sif’) [1982] 1 Lloyd’s Rep 456 at 465 cols 1–2 per Webster J; The Stolt Loyalty [1993] 2
Lloyd’s Rep 281 at 290 cols 1–2 per Clarke J.
103 In effect where one party has led the other ‘up the garden path’.
104 Which is, of course, a further restriction on the application of these cases.
105 See below.
106 See ‘The Scaptrade’ [1981] 2 Lloyd’s Rep 425 at 431. As opposed to where the party

knowingly forgoes its rights by a waiver.

107 V Berg and Son Ltd v Vanden Avenne-Izegem PVBA [1977] 1 Lloyd’s Rep 499 CA.
108 James v Heim Galleries (1980) 256 EG 819 CA at 826; Finagrain SA Geneva v P Kruse
Hamburg [1976] 2 Lloyd’s Rep 508 CA at 541; Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep
583 at 588; Cook v Meunerie Liegeios SA [1981] 1 Lloyd’s Rep 359 at 368; contrast ‘The Chemical
Venture’ [1993] 1 Lloyd’s Rep 509 at 521 where no such reservation was made.
109 See eg the dubious decision of the majority in Bremer Handelsgesellschaft mbH v C Macprang

JR [1979] 1 Lloyd’s Rep 221 CA and Stephenson LJ’s dissent on this point at 229. Compare the
discussion of reservation of rights in relation to waiver by election at paras 4.11 ff.
110 Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos’) [1983] 1 Lloyd’s Rep 127 CA at
136.
111 [1978] 2 Lloyd’s Rep 109 HL.
112 Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19
at 25c–d.
113 See paras 8.32 ff below.
114 See HIH Casualty and General Insurance Ltd v AXA Corporate Solutions [2002] EWCA Civ
12534; [2002] 2 All ER (Comm) 1053 at [21–22] per Tuckey LJ.
115 Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 per Goff J at 67–8. See also the dissenting

judgment of Stephenson LJ in Bremer Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1

Lloyd’s Rep 221 CA at 228.
116 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 at 134 and 136 per

Denning J; Evenden v Guildford City Association Football Club Ltd [1975] QB 917 at 924 (same);
Charles Rickards Ltd v Oppenheim [1950] KB 616 CA at 622 (same); Brikom Investments Ltd v Carr
[1979] QB 467 CA at 482 (same). His Lordship’s frequent emphasis on the requirement is
understandable in light of his disavowal of the need to show detriment; in the absence of detriment,
intention to be bound becomes one of the touchstones of enforceability. For support from other
members of the judiciary, see Argy Trading Co Ltd v Lapid Developments Ltd [1977] 1 WLR 444 at
457a–e and James v Heim Galleries (1980) 256 EG 819 CA at 821. Contrast the more flexible
approach used in proprietary estoppel—paras 11.07 ff below.
117 See Vaughan v Vaughan [1953] 1 QB 762 CA where there could be neither a contract nor a

‘promissory estoppel’/equitable forbearance because of the lack of intent to create legal relations.
118 This is consistent with the approach to the nature of the promise made—see para 8.17 above.
119 Braithwaite v Winwood [1960] 3 All ER 642 at 646g–i.
120 Tool Metal Manufacturing Co v Tungsten Electric Co [1955] 1 WLR 761 HL per Viscount

Simonds at 764; Morrow v Carty [1957] NI 174 at 180.

121 James v Heim Galleries (1980) 256 EG 819 CA at 822.
122 Cie Francaise Importation et de Distribution SA v Deutsche Continental Handelsgesellschaft
[1985] 2 Lloyd’s Rep 592 at 596.
123 Braithwaite v Winwood [1960] 3 All ER 642.
124 Re Wickam (1917) 34 TLR 158.
125 cf the comparable rule in proprietary estoppel and also the approach of Mason and Wilson in

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 406 (Sutton, ‘Contract by estoppel’
(1989) 1 JCL 205 at 212).
126 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 at 134 and 136 per

Denning J; Wallis v Semark [1951] 2 TLR 222 CA at 226 (same); Evenden v Guildford City
Association Football Club Ltd [1975] QB 917 at 924 (same); Charles Rickards Ltd v Oppenheim
[1950] KB 616 CA at 622 (same); Brikom Investments Ltd v Carr [1979] QB 467 CA at 482 (same);
Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA at 36 (same); Ledingham v Bermejo Estancia Co
Ltd [1947] 1 All ER 749 at 752f–753a (same); Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at
324; James v Heim Galleries (1980) 256 EG 819 CA at 825; Goldsworthy v Brickell [1987] Ch 378
CA at 410 and 411.
127 Goldsworthy v Brickell [1987] Ch 378 CA at 410 and 411; Re Wickam (1917) 34 TLR 158;

James v Heim Galleries (1980) 256 EG 819 CA at 822.

128 James v Heim Galleries (1980) 256 EG 819 CA at 822 and 825; Morrow v Carty [1957] NI 174.
129 [1957] NI 174.
130 [1957] NI 174 at 182; cf s 90(1) of the American Restatement, Second, Contracts.
131 The knowledge may be vested in the promisor via its agent and the normal rules of attribution
will apply.
132 [1978] 2 Lloyd’s Rep 109 HL at 126.
133 See paras 4.18 ff above.
134 [1979] 1 Lloyd’s Rep 221 CA.
135 In Cerealmangimi SpA v Toepfer (‘The Eurometal’) [1981] 3 All ER 533, Lloyd J declined to

choose between the the majority and minority since he found as a fact that both the wider and
narrower tests were satisfied in the case before him.
136 ibid at 225.
137 ibid at 231.
138 ibid at 230.
139 ibid at 229.
140 In Cerealmangimi SpA v Toepfer (‘The Eurometal’) [1981] 3 All ER 533, Lloyd J declined to

choose between the the majority and minority since he found as a fact that both the wider and
narrower tests were satisfied in the case before him.
141 [1990] 1 Lloyd’s Rep 391 HL at 399; HIH Casualty and General Insurance Ltd v Axa

Corporate Solutions & ors (Comm Ct, 21 December 2001) at 11–12 per Jules Sher QC; ‘The
“Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 449–50; Auckland Harbour Board v
Kaihe [1962] NZLR 68 SC of Auckland at 88 lines 5–30; see also Telfair Shipping Corpn v Athos
Shipping Co SA (‘The Athos’) [1983] 1 Lloyd’s Rep 127 CA and Ets Soules & Cie v International
Trade Development Co Ltd [1980] 1 Lloyd’s Rep 129 CA at 137–8 where the Court of Appeal rejected
a defence based on waiver and election on the basis that there was no knowledge of the relevant right,
whereas this fact was wholly ignored in assessing the allegation of promissory estoppel or equitable
forbearance. Contra Proctor and Gamble Philippine Manufacturing Corpn v Peter Cremer GmbH &
Co (‘The Manila’) [1988] 3 All ER 843 at 853–4.
142 See paras 4.39 ff above; paras 21.04 ff below.
143 Contrast ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 450 where Philips

J (as he then was) asserted that this was not possible.

144 [1973] 2 MLJ 3 PC. See also Co-operative Wholesale Society v Chester le Street District

Council lands tribunal [1997] 73 P & CR 111 and Goldsworthy v Brickell [1987] Ch 378 CA. In
Goldsworthy, the defendant sought to rely on equitable forbearance to bar a claim to rescission on
grounds of undue influence. He did so on the assumption that the equitable defence of acquiescence
was not open to him, it being admitted that the claimant had no knowledge of his right to rescind at
the time when the alleged representation and reliance took place. (The term acquiescence was there
used to refer to the doctrine of cases such as Holder v Holder [1968] Ch 353 which may be used to bar
an equitable but not a legal claim as opposed to acquiescence in the sense used in proprietary
estoppel.)
 145 In ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 450.
146 It will be extremely difficult to spell out such a wide-ranging representation from conduct.
147 [1979] 1 Lloyd’s Rep 221 CA.
148 See, in identical terms, HIH Casualty and General Insurance Ltd v AXA Corporate Solutions

[2002] EWCA Civ 1253; [2002] 2 All ER (Comm) 1053 at [19]; Fortisbank SA v Trenwick
International Ltd [2005] EWHC 399 at [30].
149 See paras 8.24–25 above.
150 Tool Metal Manufacturing Co v Tungsten Electric [1955] 1 WLR 761 HL at 764; Ajayi v RT
Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 PC at 1331; WJ Alan & Co Ltd v El Nasr Export and
Import Co [1972] 2 QB 189 CA at 213; Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos’)
[1983] 1 Lloyd’s Rep 127 CA at 136; The Kanchenjunga [1990] 1 Lloyd’s Rep 391 HL at 399; Edm
JM Mertens v Veevoeder Import Export Vimex [1979] 2 Lloyd’s Rep 372 at 384; Amherst v James
Walker Goldsmith & Silversmith Ltd [1983] Ch 305 CA at 320; Avimex SA v Dewulf & Cie [1979] 2
Lloyd’s Rep 57 at 67; Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep 583 at 587; Fontana NV v
Mautner (1980) 254 EG 199 at 205; Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at 324;
Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242; Allied Marine Transport
Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1 WLR 925 CA at 940–1; Cie
Francaise Importation et de Distribution SA v Deutsche Continental Handelsgesellschaft [1985] 2
Lloyd’s Rep 592 at 596; ‘The Multitank Holsatia’ [1988] 2 Lloyd’s Rep 486 at 493; Ets Soules & Cie
v International Trade Development Co Ltd [1980] 1 Lloyd’s Rep 129 CA at 138; Wallis v Semark
[1951] 2 TLR 222 CA at 226; Morrow v Carty [1957] NI 174 at 181.
151 Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 CA at 535; Cook v

Meunerie liegeois SA [1981] 1 Lloyd’s Rep 359 at 368; Re Wickam (1917) 34 TLR 158.
152 ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 HL at 399; Fontana NV v Mautner (1980) 254

EG 199 at 205; Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 HL; Birmingham &
District Land Co v London & North Western Rail Co (1888) 40 ChD 268.
153 As to which see below at paras 8.70 ff.
154 See paras 8.62 ff below.
155 Peter Cremer v Granaria BV [1981] 2 Lloyd’s Rep 583 at 589.
156 Brikom Investments Ltd v Carr [1979] QB 467 CA at 490.
157 Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 142.
158 Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315 at 369 (aff’d on other grounds [1996] 2
Lloyd’s Rep 241). Colman J was there referring to estoppel by convention but was applying the same
test adopted in Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 142, namely that laid down in
Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International Bank
Ltd [1982] 1 QB 84.
159 Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 142 applying Amalgamated Investment &
Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 at 105a
per Goff J. cf the approach taken in Australia: Waltons Stores (Interstate) Ltd v Maher [1988] 164
CLR 387 (HC of Australia) per Guadron J at 463 (the promise must be a proximate cause of the acts
performed); see Sutton, ‘Contract by Estoppel’ (1989) 1 JCL 205.
160 [1979] QB 467 CA.
161 ibid at 482–3.
162 Tool Metal Manufacturing Co v Tungsten Electric Co (1950) 59 RPC 108 CA at 115 and 116.
163 As opposed to the doctrine of proprietary estoppel where it is now generally accepted as the
applicable rule—see paras 11.37 ff below. Those cases which aver that equitable forbearance and
proprietary estoppel are one and the same doctrine might be used to support an argument that the
presumption should apply.
164 [1981] Lloyd’s Rep 583 at 589.
165 Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242; Allied Marine
Transport Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1 WLR 925 CA at 940–1;
Cie Francaise Importation et de Distribution SA v Deutsche Continental Handelsgesellschaft [1985] 2
Lloyd’s Rep 592 at 596; Finagrain SA Geneva v P Kruse Hamburg [1976] 2 Lloyd’s Rep 508 CA at
535–6; Raiffeisen Hauptgenossenschaft v Louis Dreyfus & Co [1981] 1 Lloyd’s Rep 345 at 352;
Morrow v Carty [1957] NI 174 at 183. It is admitted, however, that some of these cases might be
explicable as instances where there was affirmative evidence that the conduct in question was not
caused or encouraged by the promise made.
166 Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos’) [1983] 1 Lloyd’s Rep 127 CA at
145.
167 See eg Collin v Duke of Westminster [1985] 2 QB 581 and James v Heim Galleries (1980) 256

EG 819 CA at 825. Similarly, in Fontana NV v Mautner (1980) 254 EG 199 at 203, the tenant could
not demonstrate reliance on a promise that it could remain in the property indefinitely because at all
times he believed that he had an independent legal right to remain, regardless of the landlord’s
wishes.
168 Ets Soules & Cie v International Trade Development Co Ltd [1980] 1 Lloyd’s Rep 129 CA at

137–8.
169 Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA (‘The Leonidas D’) [1985] 1

WLR 925 CA at 940–1.

170 Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 at 448.
171 See Hughes itself at 448.
172 Lester v Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR DG14 at [25] per Patten LJ.
173 [1955] 1 WLR 761 HL at 764—one of the few instances where the equitable forbearance has

been scrutinised by the House of Lords. See also Birmingham & District Land Co v London & North
Western Rail Co (1888) 40 ChD 268.
174 Alma Shipping Corporation v Union of India (‘The Astraea’) [1971] 2 Lloyd’s Rep 494 at 502;

Spence v Shell (1980) 256 EG 55 CA at 63; Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at
324; Morrow v Carty [1957] NI 174 at 181–2; Janred Properties Ltd v ENIT [1989] 2 All ER 444;
Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at 242; Meng Long Development
Pte v Jip Hong Trading Pte [1985] AC 511 PC; Commonwealth of Australia v Verwayen (1990) 170
CLR 394 at 422.
175 Amherst v James Walker Goldsmith & Silversmith Ltd [1983] Ch 305 CA at 319–20; ‘The
Multitank Holsatia’ [1988] 2 Lloyd’s Rep 486 at 493.
176 [1972] 2 QB 189 CA at 213. See also Ogilvy v Hope Davies [1976] 1 All ER 683 at 688b–689a;

Telfair Shipping Corpn v Athos Shipping Co SA (‘The Athos’) [1983] 1 Lloyd’s Rep 127 CA at 135;
Brikom Investments Ltd v Carr [1979] QB 467 CA at 486; Stoljar, ‘Estoppel and contract theory’
(1990) 3 JCL 1.
177 [1978] 2 Lloyd’s Rep 109 at 127.
178 [1990] 1 Lloyd’s Rep 391.
179 ibid at 399; BP Explorations Ltd v Hunt (No 2) [1979] 1 WLR 783 at 810d–h, aff’d on other
grounds at [1983] AC 352; Nippon Yusen v Pacifica Navegacion SA (‘The Ion’) [1980] 2 Lloyd’s Rep
245 at 250; Marseille Fret SA v D Oltman Schiffahrts GmbH & Co Ltd (‘The Trado’) [1982] 1 Lloyd’s
Rep 157 at 160–1; Steria Ltd v Hutchinson [2007] ICR 445 at [93]; Grievson v Grievson [2011]
EWHC 1367 at [25].
180 For a more detailed analysis and citation on this issue see paras 11.37 ff below.
181 Fontana NV v Mautner (1980) 254 EG 199 at 205–7, which was heavily influenced by the
analysis of this issue by the then current edition of Spencer Bower (3rd edn) at 393–5.
182 See para 11.44 below.
183 (1877) 2 App Cas 614.
184 [1990] 2 EGLR 139 at 140d–f; Fontana NV v Mautner (1980) 254 EG 199 at 205–7; Steria Ltd
v Hutchinson [2007] ICR 445 at [93].
185 [1982] 1 All ER 19; ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 at 454–5;
Shearson Lehman Hutton Inc v Maclaine Watson and Co Ltd [1989] 2 Lloyd’s Rep 570 at 598;
Goldsworthy v Brickell [1987] Ch 378 CA at 411 (sufficient if promisee acted to its detriment or in
some other way which would make it inequitable to allow the promise to be withdrawn).
186 See para 8.45 above.
187 This is the modern approach of the Court of Appeal—see Steria Ltd v Hutchinson [2007] ICR

445 at [93]. Given, however, that the authorities supporting the alternate view have not been
overruled, clarification from the Supreme Court may be needed.
188 [1955] 1 WLR 761 HL at 764. See also Birmingham & District Land Co v London & North

Western Rail Co (1888) 40 ChD 268.

189 [1964] 1 WLR 1326 PC at 1331.
190 See eg The Mayor and Burgesses of the London Borough of Southwark v Logan (1996) 29 HLR

40. Note the emphasis placed on detriment by the Australian Courts in cases such as Waltons Stores
(Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth of Australia v Verwayen (1990) 170
CLR 394. Given the importance of detriment in relation to the various species of estoppel, imposing a
detriment requirement in equitable forbearance cases should appeal to those who characterise the
doctrine as an example of a single unified or federated concept of that doctrine.
191 There are cases where the Courts have, however, considered wider questions of inequity—see

para 8.62 below. In estoppel by convention, the Court will definitely examine the wider position
(under the rubric of inequity)—see eg Steria Ltd v Ronald Hutchison [2006] EWCA Civ 1551; [2007]
ICR 445 at [109] per Neuberger LJ (as he then was); Redrow Plc v Pedley [2002] EWHC 983; [2003]
OPLR 29; [2002] Pens LR 339; [2002] PLR 339 at [60]; Trustee Solutions Ltd v Dubery [2006]
EWHC 1426; [2007] 1 All ER 308; [2006] Pens LR 177; [2007] ICR 412; [2006] PLR 177 at [51] per
Lewison J; Foster Wheeler Ltd v Hanley [2008] EWHC 2926; [2009] 1 CMLR 47; [2009] Pens LR 39
at [84–86] per Patten J; IMG Pension Plan HR Trustees Ltd v German [2009] EWHC 2785; [2010]
Pens LR 23 at [185–6] per Arnold J; Catchpole v Trustees of the Alitalia Airlines Pension Scheme
[2010] EWHC 1809 (Ch); [2010] Pens LR 387 at [47] per Warren J and the discussion at para 10.12
below.
192 Assuming that there is no reservation of rights or without prejudice protection of the position.
193 Banner Industrial and Chemical Properties Ltd v Clark Patterson Ltd [1990] 2 EGLR 139;
Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19.
194 The categorisation adopted is derived, subject to some modifications, from Malcolm Clarke’s

article, ‘Banker’s Commercial Credits among the High Trees’ [1974] CLJ 260 at 283.
195 (1877) 2 App Cas 614. See also ‘The Chemical Venture’ [1993] 1 Lloyd’s Rep 509.
196 As occurs in the on-sale of goods afloat or the futures/derivatives market.
 197 Clarke supra asserts that this is the type of detriment which arose in the WJ Alan & Co Ltd v El
Nasr Export and Import Co [1972] 2 QB 189 CA. There the seller promised to accept payment
calculated in sterling rather than, as specified in the contract, Kenyan shillings. Given the movement
in exchange rates, this had the effect of reducing the price; the seller was prevented from withdrawing
his promise to accept the reduced price. The difficulty with Clarke’s analysis is that there was no
threat to cancel the contract and thereby deprive the buyer of the goods, the seller was simply
demanding the full price for them. It may be that no detriment was suffered in El Nasr, if so, it was
simply not a case where the equitable doctrine should have been applied; it can be justified, if at all,
only on the basis of the contractual variation analysis applied by the majority. See also Wallis v
Semark [1951] 2 TLR 222 CA where there seems to be no evidence of detriment.
198 Re Wickam (1917) 34 TLR 158.
199 Augier v Secretary of State for the Environment (1979) 38 P & CR 219 at 226. Augier must now
be treated with some caution—not because its analysis in estoppel terms is wrong but because, more
fundamentally, estoppel-type reasoning should not be applied to purely public law decision making
where pure public law duties are in play—see R (Reprotech (Pebsham) Ltd) v East Sussex County
Council [2002] UKHL 8; [2003] 1 P & CR 5; [2003] 1 WLR 348; [2002] NPC 32; [2002] 10 EGCS
158; [2002] 4 All ER 58; [2002] JPL 821 at [33].
200 See paras 11.52 ff below.
201 Re William Porter & Co Ltd [1937] 2 All ER 361 at 364; Ledingham v Bermejo Estancia Co Ltd

[1947] 1 All ER 749.

202 Bruner v Moore [1904] 1 Ch 305.
203 JF Perrot v Cohen [1951] 1 KB 705 CA.
204 Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3 PC.
205 Brikom Investments v Seaford [1981] 1 WLR 863 CA.
206 Cerealmangimi SpA v Toepfer (‘The Eurometal’) [1981] 3 All ER 533.
207 ‘The Multitank Holsatia’ [1988] 2 Lloyd’s Rep 486 at 493. Contrast Shearson Lehman Hutton

Inc v Maclaine Watson and Co Ltd [1989] 2 Lloyd’s Rep 570 at 598, an estoppel by convention case
where the limited usefulness of costs orders was adverted to. See also Co-operative Wholesale Society
v Chester le Street District Council [1997] 73 P & CR 111.
208 Unsurprisingly, performance of clearly enforceable contractual duties per se will not amount to
detrimental reliance—see Bolkiah v The State of Brunei Darussalem [2007] UKPC 63 at [21].
209 Charles Rickards Ltd v Oppenheim [1950] KB 616 CA.
210 eg, situations where the promisor reduces the obligations to be performed.
211 [1991] 1 QB 1 CA.
212 ibid at 23a–c.
213 ibid at 13e–g and 17g.
214 ibid at 13e–g; it should be noted that the claimant would have had difficulty in relying on the

equitable forbearance doctrine, not just because of the detriment problem adverted to, but also
because it would involve using the doctrine aggressively in order to found a positive claim to the
promised bonus.
215 Societe Italio-Belge v Palm & Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19

at 26d–e. See also Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem [1978] 2 Lloyd’s Rep
109 HL at 127 where the seller had spent time and money on appropriations which were later rejected
by the buyers.
216 Bolkiah v The State of Brunei Darussalem [2007] UKPC 63 at [21].
 217 But see Collier v P & M J Wright (Holdings) Ltd [2007] EWCA Civ 1329; [2007] NPC 136;
[2008] 1 WLR 643; [2007] BPIR 1452 per Arden LJ at [42] where it is suggested that the payment of
money without more will constitute sufficient detrimental reliance on the part of the promisee.
218 There are obvious parallels with the defence of change of position in restitution, as to which
see Lipkin Gorman v Karpnale Ltd [1992] 2 AC 548.
219 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130.
220 There was no express finding that the promisee had altered its position in any way other than in
paying the reduced rent. The account of Counsel’s argument records the submission that the tenant
‘had arranged its affairs on the basis of the reduced rent’, ibid at 133. Spencer Bower, at 485,
identifies the detriment as the promisee’s electing to remain as a tenant, liable for the albeit reduced
rent. This ignores the fact that it was a 99-year lease; its terms may not have permitted a unilateral
right of termination on the part of the tenant (in which case the analysis is open to the objection that
the promisee is forced to assert that its failure to breach its legal obligations caused detriment).
Assuming, however, that the lease contained such a termination right, a further fundamental problem
rests on the fact that the tenant would have paid a considerable premium for a 99-year lease. Thus,
‘staying on’ as a tenant was the only way in which it could avoid forfeiting a valuable long-term asset
and could therefore hardly be viewed as detriment. The better view is that the tenant refrained from
cutting its losses and assigning the lease (see Gordon, ‘Creditor’s promises to forgo rights’ [1963]
CLJ 222). That might be sufficient to give rise to detriment if the tenant could show that such an
assignment was feasible in the difficult wartime conditions then prevailing.
221 Gordon, ‘Creditor’s promises to forgo rights’ [1963] CLJ 222; Tool Metal Manufacturing Co v

Tungsten Electric Co (1950) RPC 108 CA at 115 and 116.

222 See Amherst v James Walker Goldsmith & Silversmith Ltd [1983] Ch 305 CA at 319 (where it

was conceded that this doctrine could not apply because the tenants had suffered no prejudice as a
result of the land-lord’s protracted delay in issuing rent review proceedings, but in fact had benefited
from the use of the money in the interim); James v Heim Galleries (1980) 256 EG 819 CA at 822;
Banner Industrial and Chemical Properties Ltd v Clark Patterson Ltd [1990] 2 EGLR 139 at 140d–f.
223 At para 8.50.
224 They have in relation to estoppel by convention—see para 10.12 below and see eg Steria Ltd v

Ronald Hutchison [2006] EWCA Civ 1551; [2007] ICR 445 at [109] per Neuberger LJ (as he then
was); Redrow Plc v Pedley [2002] EWHC 983; [2003] OPLR 29; [2002] Pens LR 339; [2002] PLR
339 at [60]; Trustee Solutions Ltd v Dubery [2006] EWHC 1426; [2007] 1 All ER 308; [2006] Pens
LR 177; [2007] ICR 412; [2006] PLR 177 at [51] per Lewison J; Foster Wheeler Ltd v Hanley [2008]
EWHC 2926; [2009] 1 CMLR 47; [2009] Pens LR 39 at [84–86] per Patten J; IMG Pension Plan HR
Trustees Ltd v German [2009] EWHC 2785; [2010] Pens LR 23 at [185–6] per Arnold J; Catchpole v
Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch); [2010] Pens LR 387 at
[47] per Warren J.
225 BP Explorations Ltd v Hunt (No 2) [1979] 1 WLR 783 at 810d–h aff’d on other grounds at

[1983] AC 352; Nippon Yusen v Pacifica Navegacion SA (‘The Ion’) [1980] 2 Lloyd’s Rep 245 at 250;
Marseille Fret SA v D Oltman Schiffahrts GmbH & Co Ltd (‘The Trado’) [1982] 1 Lloyd’s Rep 157 at
160–1.
226 Morrow v Carty [1957] NI 174 at 183.
227 In V Berg and Son Ltd v Vanden Avenne-Izegem [1977] Lloyd’s Rep 499 CA 505, the Court
held that sophisticated commercial parties did not need the protection of equity, being unlikely to
‘wilt’ under the pressure of international trade.
228 In The Mayor and Burgesses of the London Borough of Southwark v Logan [1996] 29 HLR 40
at 47, Neild J took into account the housing obligations owed by the authority under this head.
229 D & C Builders v Rees [1966] 2 QB 617 CA.
230 Re Selectmove [1995] 1 WLR 474 CA at 539e.
231 [1976] 1 All ER 683 at 688b–689a.
232 [1879] 5 QBD 409 CA.
233 As happens in the pensions cases—see eg Steria Ltd v Ronald Hutchison [2006] EWCA Civ

1551; [2007] ICR 445 at [109] per Neuberger LJ (as he then was); Redrow Plc v Pedley [2002] EWHC
983; [2003] OPLR 29; [2002] Pens LR 339; [2002] PLR 339 at [60]; Trustee Solutions Ltd v Dubery
[2006] EWHC 1426; [2007] 1 All ER 308; [2006] Pens LR 177; [2007] ICR 412; [2006] PLR 177 at
[51] per Lewison J; Foster Wheeler Ltd v Hanley [2008] EWHC 2926, [2009] 1 CMLR 47; [2009]
Pens LR 39 at [84–86] per Patten J; IMG Pension Plan HR Trustees Ltd v German [2009] EWHC
2785; [2010] Pens LR 23 at [185–6] per Arnold J; Catchpole v Trustees of the Alitalia Airlines
Pension Scheme [2010] EWHC 1809 (Ch); [2010] Pens LR 387 at [47] per Warren J.
234 See DSND Subsea Ltd v Petroleum Geo-Services ASA [2000] BLR 530 at 545 paras 131–2 per

Dyson J; compare Universe Tankships Inc of Monrovia v International Transport Workers Federation
(‘The Universe Sentinel’) [1983] 1 AC 366 at 400 per Lord Scarman. Both are discussed in R
Bigwood, ‘Economic Duress by (Threatened) Breach of Contract’ (2001)117 LQR 376.
235 Societe Italio-Belge v Palm &- Vegetable Oils (Malaysia), The Post Chaser [1982] 1 All ER 19

at 27a–d; ‘The Kanchenjunga’ [1990] 1 Lloyd’s Rep 391 HL at 399; ‘The “Superhulls Cover” Case’
(No 2) [1990] 2 Lloyd’s Rep 431 at 449; ‘The Chemical Venture’ [1993] 1 Lloyd’s Rep 509 at 521;
Alma Shipping Corporation v Union of India (‘The Astraea’) [1971] 2 Lloyd’s Rep 494 at 502.
236 [1947] KB 130. See also Ledingham v Bermejo Estancia Co Ltd [1947] 1 All ER 749.
237 D & C Builders v Rees [1966] 2 QB 617 CA, dicta per Lord Denning at 625a–c; Jackson,

‘Estoppel as a Sword’ Part 2 (1965) 81 LQR 223; Atiyah, ‘Consideration and Estoppel: the thawing of
the ice’ (1974) 38 MLR 65, cf section 90(1) of the American Restatement, Second, Contracts.
238 See eg Charles Rickards Ltd v Oppenheim [1950] KB 616 CA; Tool Metal Manufacturing Co v

Tungsten Electric Co [1955] 1 WLR 761 HL. In D & C Builders v Rees [1966] 2 QB 617 CA itself,
resumption of the original contractual position was permitted but on the grounds that the concession
was extracted by duress and not because of any limitation on the scope of remedial relief available
under the equitable forbearance doctrine.
239 eg WJ Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189 CA, though note the
reservations concerning this case expressed above.
240 (1884) 9 App Cas 605.
241 [1964] 1 WLR 1326 PC at 1331.
242 ibid.
243 (1877) 2 App Cas 439. See also Charles Rickards Ltd v Oppenheim [1950] KB 616 CA.
244 [1993] 1 Lloyd’s Rep 509. In Ogilvy v Hope Davies [1976] 1 All ER 683, a vendor promised

not to enforce its right to prompt completion; it was prevented from claiming interest on the period of
the delayed completion. See also Nippon Yusen v Pacifica Navegacion SA (‘The Ion’) [1980] 2
Lloyd’s Rep 245 CA, where the change of position amounted to allowing a limitation period to
elapse; the Court thought it most unlikely that the promisee would be granted leave to serve out of
time. Birmingham &District Land Co v London & North Western Rail Co (1888) 40 ChD 268; Bank
Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3 PC.
245 [1981] 1 WLR 863 CA; it is not completely clear whether the case was decided on the basis of

estoppel by representation or equitable forbearance but it is suggested that it is capable of analysis on

either ground.
246 cf the approach of the Australian High Court in Waltons Stores (Interstate) Ltd v Maher (1988)

164 CLR 387; Commonwealth of Australia v Verwayen (1990) 170 CLR 394.
247 A possible example of this is Brikom Investments Ltd v Carr [1979] QB 467 CA, which
concerned a landlord’s promise not to enforce a covenant obliging the tenants to contribute towards
roof repairs; an equitable forbearance was established because the tenants and their assignees had
entered into the leases in reliance on the forbearance. There was no suggestion that the landlord could
revive the tenants’ obligation to repair. There was no other practical way to avoid prejudice to the
tenants and assignees; requiring the landlord to repurchase the leases would be financially onerous
and presumably unacceptable to the tenants and assignees.
248 See paras 8.44 ff above.
249 [1976] Ch 179.
250 [1976] 1 All ER 568 HL at 575d–f, referring to the proprietary estoppel case of Crabb v Arun
DC [1976] Ch 79.
251 At 575c–g.
252 [1955] 1 WLR 761.
253 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; Lyle-Meller v A

Lewis & Co [1956] 1 WLR 29 CA.

254 As in Tool Metal.
255 Treitel 1 at 3-118.
256 See para 8.70 above. Remedial flexibility is not subject to the same criticisms of legal

uncertainty that apply to supposed flexibility in determining the threshold conditions for invoking the
doctrine.
257 Charles Rickards Ltd v Oppenheim [1950] KB 616 CA at 624.
258 [1955] 1 WLR 761 HL at 785.
259 Ajayi v RT Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 PC at 1331.
260 Tool Metal Manufacturing Co v Tungsten Electric Co [1955] 1 WLR 761 HL at 765 and 785.
261 ibid at 785.
262 ibid.
263 ibid at 765; Eyestorm Ltd v Hoptonacre Homes Ltd [2007] EWCA Civ 1366 at [51] per Rimer

LJ.
264 For a discussion of the limits on equitable forbearance, see R Halson, ‘The offensive limits of

promissory estoppel’ [1999] LMCLQ 256.

265 Although the tenant’s defence to the landlord’s action will be as effective here as under

example one, assuming the other elements of equitable forbearance are made out.
266 [1951] 2 KB 215 CA.
267 See also Brikom Investments Ltd v Carr [1979] QB 467 CA at 486, where Roskill LJ was

concerned to ensure that the doctrine of consideration was not abolished by the back door; compare
Syros Shipping Co SA v Elaghill Trading Co (‘The Proodos C’) [1980] 2 Lloyd’s Rep 390.
268 See eg the inconsistent case of Re Wyvern Developments Ltd [1974] 1 WLR 1097 (although

Templeman J also held that a binding contract existed). See also Fenner v Blake [1900] 1 QB 426. In
Australia the principle does not apply—Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
269 See BP Plc v AON Ltd [2006] EWHC 424 at [268 ff]; the cases cited at paras 8.76 ff below; and

the Privy Council’s support of the doctrine in Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3
PC.
 270 Lark v Outhwaite [1991] 2 Lloyd’s Rep 132 at 141–2; Syros Shipping Co SA v Elaghill Trading
Co (‘The Proodos C’) [1980] 2 Lloyd’s Rep 390; Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA at
36 per Lord Denning MR; James v Heim Galleries (1980) 256 EG 819 CA at 821; Morrow v Carty
[1957] NI 174; Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at 324; Argy Trading Co Ltd v
Lapid Developments Ltd [1977] 1 WLR 444 at 457a–e; Brikom Investments v Seaford [1981] 1 WLR
863 CA at 868h–869b–d. See also Spencer Bower at 385–8; Amalgamated Investment & Property Co
Ltd (in liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 at 105.
271 If the doctrine affords a valid defence then it may be used positively to support a claim for an
injunction to prevent seizure of assets to meet the claim.
272 [1981] 1 WLR 863 CA at 896b–g, where his Lordship admitted that the doctrine was being used
as a shield with a sharp edge but ‘a shield none the less’.
273 Co-operative Wholesale Society v Chester le Street District Council (1997) 73 P & CR 111.
274 Between enabling a claim to succeed in certain categories of case and not being permitted to
defeat a no consideration defence.
275 [1982] 1 Lloyd’s Rep 456. See also Janred Properties Ltd v ENIT [1989] 2 All ER 444.
276 See White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 at [66]; Tesco

Stores Ltd v Costain Construction Ltd & Ors [2003] EWHC 1487 at [191 ff] per HHJ Richard
Seymour QC; BP Plc v AON Ltd [2006] EWHC 424 at [265] per Colman J; Investments Ltd v
Development Ventures Ltd [2006] EWHC 1586 at [109 ff] per Coulson J; Haden Young Ltd v Laing
O’Rourke Midlands Ltd [2008] EWHC 1016 at [181 ff] per Ramsey J.
277 A similar logic was adopted in Hiscox v Outhwaite (No 3) [1991] 2 Lloyd’s Rep 524 at 534–535

per Evans J. As suggested elsewhere (para 10.15 n 68), Hiscox was also a case turning on estoppel by
convention.
278 [1982] 1 QB 84. See also JF Perrott v Cohen [1951] 1 KB 705 CA; Harnam Singh v Jamal

Pirbhai [1951] AC 688 at 699; Farrow v Orttewell [1943] Ch 480; Lyle-Meller v A Lewis & Co [1956]
1 WLR 29 CA; Robertson v Minister of Pensions [1949] 1 KB 227 and generally Chapter 9 below.
279 See Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC

999; [2002] 1 All ER (Comm) 737 at para 38 per Morritt VC; para 54 per Judge LJ; para 99 per
Mance LJ. See also White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 at
[66] per Sir Peter Gibson.
280 See Tesco Stores Ltd v Costain Construction Ltd & Ors [2003] EWHC 1487 at [191 ff] per HHJ
Richard Seymour QC; BP Plc v AON Ltd [2006] EWHC 424 at [265] per Colman J; Investments Ltd v
Development Ventures Ltd [2006] EWHC 1586 at [109 ff] per Coulson J; Haden Young Ltd v Laing
O’Rourke Midlands Ltd [2008] EWHC 1016 at [181 ff] per Ramsey J.
281 Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International

Bank Ltd [1982] 1 QB 84 at 131–2 per Brandon LJ.

282 Thompson, ‘From representation to expectation: estoppel as a cause of action’ [1983] CLJ 257
at 274.
283 See discussion at para 10.13 below.
284 At least at the Supreme Court level—see eg Republic of India v India Steamship Co Ltd (No 2)

[1998] AC 878 at 914C–D; [1997] 3 WLR 818 per Lord Steyn at 830D–E; Johnson v Gore Wood &
Co [2001] 2 WLR 72 at 98D–100C; [2000] UKHL 65 paras 75–9 per Lord Goff. There is conflicting
Court of Appeal authority on point. In Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001]
EWCA Civ 369; National Westminster Bank Plc v Somer International Ltd [2002] 1 All ER 198;
[2001] EWCA Civ 970, differing Courts of Appeal suggested that a unified theory might be possible
and would solve the issues with which they were contending (the overlap between restitutionary and
estoppel-based theory) but recognised that such a theory did not, as yet, exist in English law—at paras
48 and 35 respectively. Compare, however, Baird Textiles Ltd v Marks & Spencer Plc [2001] EWCA
Civ 274; [2001] CLC 999; [2002] 1 All ER (Comm) 737 at paras 35 and 39 per Morritt VC; para 55
per Judge LJ and paras 95–9 per Mance LJ where Counsel’s attempt to introduce a unified theory into
English law failed. For further discussion see para 7.13 above.
285 See para 10.13 ff below.
286 The doctrine actually extends beyond the scope of promises to cover acquiescence to or
encouragement of mistakes made by another party but the promissory head of liability is closest to
the operation of equitable forbearance.
287 See the discussion in Chapter 7 above.
288 See eg Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 914C–D; [1997] 3
WLR 818 per Lord Steyn at 830D–E; Johnson v Gore Wood & Co [2001] 2 WLR 72 at 98D–100C;
[2000] UKHL 65 paras 75–9 per Lord Goff; but see Scottish Equitable Plc v Derby [2001] 3 All ER
818; [2001] EWCA Civ 369; National Westminster Bank Plc v Somer International Ltd [2002] 1 All
ER 198; [2001] EWCA Civ 970 and n 284 above. For further discussion see paras 7.13 ff above.
289 (1988) 164 CLR 387.
290 In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth of

Australia v Verwayen (1990) 170 CLR 394 it was emphasised that the conflict with the consideration
rule did not have to be addressed by restricting the doctrine to a defensive role. An alternative means
of avoiding direct conflict was by restricting the remedy available under the equitable doctrine. The
aim of the remedy was not to enforce the relevant promise in every case (although this might
sometimes be appropriate) but to restrict it to the minimum necessary to avoid detriment to the
promisee. This approach is arguably consistent with the remedies available under the English version
of equitable forbearance and therefore this is a line of development which is clearly open in this
jurisdiction. It does not, however, resolve the logical conflict. Once it is accepted that there is a class
of promises which can be enforced, there being the requisite detriment, there is an inevitable conflict
with consideration, unless consideration and detriment are to be viewed as equivalents.
291 Syros Shipping Co SA v Elaghill Trading Co (‘The Proodos C’) [1980] 2 Lloyd’s Rep 390 at

391–2; Combe v Combe [1951] 2 KB 215 CA.

292 In Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at 324, it was held that the doctrine
could not be used to render enforceable a land charge void for want of registration or to negative
operation of a statute. See contra Maharaj v Chand [1986] AC 898 PC.
293 There is Commonwealth authority, Bay of Plenty Electricity Ltd v Natural Gas Corp Energy
[2002] 1 NZLR 173 at paras 46–9; relying by analogy on Mangles v Dixon (1852) 3 HLC 702 at 735;
Phips v Lovegrove (1873) LR 16 EQ 80; Roxburghe v Cox (1881) 17 ChD 520 at 526; British National
Trust (in liq) v Pither (1937) 57 CLR 89 at 105. As set out below, that approach is correct.
294 Re Wickam (1917) 34 TLR 158; see Bay of Plenty Electricity Ltd v Natural Gas Corp Energy

[2002] 1 NZLR 173 at paras 46–9.

295 The same conclusion applies where waiver is concerned—see paras 5.17 ff above.
296 Canadian Imperial Bank of Commerce v Bello (1992) 64 P & CR 48 CA at 52.
297 (1888) 40 ChD 268.
298 Ashburn Anstalt v Arnold [1988] 2 WLR 706.
299 See paras 11.77 ff below.
300 [1979] QB 467 CA.
301 They hoped to obtain planning permission to extend the building upwards which would
obviously have involved extensive works on the roof anyway.
302 Treitel 1 explains the case at 3-116 as an instance where the collateral contract with the

original tenants sufficed to vary the terms of the lease permanently; the old terms could not be
revived by transfer of the tenancies.
303 The facts of Brikom Investments Ltd v Carr [1979] QB 467 CA are set out above; some of the
occupiers were given oral assurances and some were given written ones. Admittedly, the case was
decided under s 40 of the Law of Property Act 1925, which required only that the contract be
evidenced in writing; various memoranda were circulated which could probably have satisfied this
section; their Lordships might, however, have been expected to comment on the formality issue if it
had been deemed necessary to comply with s 40. See also Central London Property Trust Ltd v High
Trees House Ltd [1947] KB 130; Ogilvy v Hope Davies [1976] 1 All ER 683 at 688b–689a and
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
304 Section 2 Law of Property (Miscellaneous Provisions) Act 1989.
305 The same result is achieved by waiver—see para 3.05 above.
 1 Since Jordan v Money [1854] 5 HLC 185.
2 This apparent simplicity is clouded by the existence of a concept generally referred to as estoppel
by negligence. The analysis of estoppel by representation in this chapter draws on cases which were
ostensibly decided under the rubric of estoppel by negligence. As set out below, however, most, and
probably all, of the so-called estoppel by negligence cases are better explained by other legal
principles. It is submitted that estoppel by negligence is neither a valid legal principle nor one that
falls within the law of estoppel. However, a number of these authorities are cited in this chapter, in
support of general points on estoppel by representation. This is because these authorities correctly set
out the applicable principles, despite the ostensible reliance on estoppel by negligence.
3 As is set out at paras 9.70–71 below, it is not necessary to demonstrate A knew that the
representation was untrue.
4 See The Commonwealth v Verwayen [1990] 170 CLR 394 at 444 per Deane J; Metropolitan
Health Service Board v Australian Nursing Federation [2000] FCA 784 per Lee and Carr JJ at paras
58–60; Mirvac Homes Pty Ltd v Parramatta City Council [1999] NSWLEC 239 per Lloyd J at paras
32, 39; North Cronulla Precinct Committe Inc v Sutherland Shire Council [1998] NSWLEC 40 (18
March 1998) per Pearlman J; Wright v Hamilton Island Enterprises Ltd [1998] QSC 29 (per Tomas J
at 3).
5 For an explicit recognition of this, see the decision of the Supreme Court of British Columbia in

Paul v Vancouver International Airport Authority [2000] BCSC 341.

6 See Scottish Equitable Plc v Derby [2001] 3 All ER 818, [2001] EWCA Civ 369 at para 48 per

Robert Walker LJ; National Westminster Bank Plc v Somer International (UK) Ltd [2002] 1 All ER
198, below at paras 9.116 ff.
7 But see Steria Ltd v Ronald Hutchison [2007] ICR 445; [2006] EWCA Civ 1551 per Neuberger

LJ at paras 89–94 and 129 where it is suggested that these elements are always necessary to establish
‘unconscionability’ but the possibility that further, unspecified, factors may be considered is left
open; Parties Named In Schedule A v Dresdner Kleinwort Ltd [2010] EWHC 1249 (QB) per Simon J
at para 59 where it is said that unconscionability is the single factor that must be established and that
the elements listed here are ‘specific but flexible guiding principles’. For an explicit recognition of
the minimum equity approach, see Vaughan v Byron Shire Council [1999] NSWCA 235 (15 July
1999) per Handley JA at para 21; per Fitzgerald JA at para 53.
8 Low v Bouverie [1891] 3 Ch 82 CA at 105; Oliver v Bank of England [1902] 1 Ch 610 CA at 628

(aff’d without comment on the point at Starkey v Bank of England [1903] AC 114); Lyle-Meller v A
Lewis & Co [1956] 1 WLR 29 CA per Hodson LJ at 40 and per Lord Denning MR at 36 (contrasting
the doctrine with promissory estoppel); Bell v Marsh [1903] 1 Ch 528 CA per Lord Collins MR at
540; London Joint Stock Bank Ltd v Macmillan [1918] AC 777 per Lord Haldane at 818; Greenwood v
Martins Bank Ltd [1932] 1 KB 371 CA per Scrutton LJ at 379 and [1933] AC 51 per Lord Tomlin at
59 (‘a procedural matter’); Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v
Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150 col 2; Avon CC v
Howlett [1983] 1 WLR 605 CA per Slade LJ at 622c–d; Evans v Bartlam [1937] AC 473 per Lord
Wright at 484; Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54;
Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 223.
9 Low v Bouverie [1891] 3 Ch 82 CA at 105 per Bowen LJ; In re Ottos Kopje Diamond Mines Ltd

[1893] 1 Ch 1892 CA at 628; Seton, Laing v Lefone [1887] 19 QBD 68 CA at 70; Nippon Menkwa
Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC
(India) per Lord Russell at 150 col 2; Bridgestart Properties Ltd v London Underground Ltd [2004]
EWCA Civ 793 per Keene LJ at para 25; SmithKline Beecham Plc v Apotex Europe Ltd [2006] EWCA
Civ 658 CA per Jacob LJ at paras 103 and 109–12; Newport City Council v Charles [2009] HLR 18;
[2008] EWCA Civ 1541 per Laws LJ at para 27; Haden Young Ltd v Laing O’Rourke Midlands Ltd
[2008] EWHC 1016 (TCC) per Ramsey J at paras 183–4.
10 Low v Bouverie [1891] 3 Ch 82 CA at 105. See also Lyle-Metler v A Lewis & Co [1956] 1 WLR

29 CA per Hodson LJ at 40; Canada and Dominion Sugar Company Limited v Canadian National
(West Indies) Steamships Limited [1947] AC 46 PC Canada at 56.
11 Low v Bouverie [1891] 3 Ch 82 CA at 112; Nippon Menkwa Kabushiki Kaisha (Japan Cotton
Trading Co Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150
col 2. See also the examples cited below.
12 [1943] Ch 480 CA.
13 [1986] Ch 621.
14 [1976] QB 893 CA.
15 [2006] EWCA Civ 658 CA at paras 103–12.
16 [2008] EWHC 1016 (TCC). See also Baird Textile Holdings Ltd v Marks & Spencer Plc [2001]

CLC 999; [2001] EWCA Civ 274; [2002] 1 All ER (Comm) 737 for a consideration of this point in
the context of estoppel by convention.
17 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships

Limited [1947] AC 46 PC Canada at 56 (the doctrine may be described as rule of evidence but is more
properly viewed as substantive rule of law); Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB
225 CA (rev’d on appeal on another point at [1977] AC 890) per Lord Denning MR at 241g–h
(estoppel is a principle of justice and equity); National Westminster Bank Plc v Somer International
(UK) Ltd [2002] 1 All ER 198 per Potter LJ at para 43.
18 See paras 9.05–06 above.
19 See TCB Ltd v Gray [1986] Ch 621; Spiro v Lintern [1973] 1 WLR 1002; Intense Investments

Ltd v Development Ventures Ltd [2006] EWHC 1586 (TCC) per Peter Coulson QC at paras 109–15
(obiter); ING Bank NV v Ros Roca SA [2011] EWCA Civ 353 per Rix LJ at paras 97–9 (where there
was already a legal relationship between the parties).
20 See Jackson, ‘Estoppel as a sword’ Part 1 [1965] 81 LQR 84 and Part 2 [1965] 81 LQR 223;

Thompson, ‘From representation to expectation: estoppel as a cause of action’ [1983] CLJ 257.
21 The following cases affirm this outcome without expressly indicating that it is the only remedy
available: Maclaine v Gatty [1921] 1 AC 376 HL Sc per Lord Birkenhead at 386; Knights v Wiffen
[1870] LR 5 QB 660 CA per Blackburn J at 665; Carr v London and North Western Rly Co [1875] LR
10 CP 307 per Brett and Denman JJ at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at
838; Farrow v Orttewell [1943] Ch 480 CA per Lord Hanworth MR at 498; Evans v Bartlam [1937]
AC 473 per Lord Wright at 484; Jordan v Money [1854] 5 HLC 185, ER 868 per Lord Cranworth LC
at 210; Pickard v Sears [1837] 6 A & E 469; 112 ER 179 at 474; Re Exchange Securities &
Commodities Ltd [1988] Ch 46 per Harman J at 54; Algar v Middlesex County Council [1945] 2 All
ER 243 DC per Humphreys J at 250f–g; Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at
224.
22 It is no coincidence that one of the reaffirmations of the evidential nature of the doctrine is

contained in Avon CC v Howlett [1983] 1 WLR 605 CA per Slade LJ at 622c–d, which is authority for
the proposition that estoppel cannot operate pro tanto. See further paras 9.109 ff below.
23 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369; Peter Jaffey,

‘Change of position and estoppel’ [2002] LMCLQ 1.

24 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48; E
Fung and L Ho, ‘Establishing Estoppel After the Recogition of Change of Position’ [2001] Restitution
Law Review 52; Peter Jaffey, ‘Change of position and estoppel’ [2002] LMCLQ 1.
25 The concept of change of position disabling an estoppel was described as a ‘novel and

ingenious’ argument by Lord Justice Robert Walker in Scottish Equitable Plc v Derby [2001] 3 All
ER 818; [2001] EWCA Civ 369 at para 46. It appeared to be, however, an argument that his Lordship
was minded to accept. By contrast, Peter Jaffey criticises the use of the concept of a disabled
estoppel, preferring the notion of redundance based on hypothetically identical detriments (see
‘Change of Position and Estoppel’ [2002] LMCLQ 1). For the reasons set out in the balance of the
paragraph, the distinction is more apparent than real provided that the detriment relevant to each
doctrine is the same.
26 Contractual estoppel operates in the absence of detrimental reliance—strictly speaking, it is not
a species of estoppel—see Proactive Sports Management Ltd v Rooney [2010] EWHC 1807 (QB) per
Judge Hegarty QC at para 669, ‘a contractual provision setting out the basis upon which the parties
have agreed to conduct the transaction is essentially contractual in nature and does not fall within the
mainstream of the legal principles governing most forms of estoppel’. See further paras 13.16–24
below.
27 [2006] EWCA Civ 386; [2006] 2 Lloyd’s Rep 511; [2006] 1 CLC 582.
28 At paras 56 and 57.
29 [2008] 2 Lloyd’s Rep 581; [2009] 1 All ER (Comm) 16; [2008] EWHC 1686 (Comm) at paras

33–6.
30 [2010] EWCA Civ 1221 at paras 177 and 178.
31 Such as consumer protection legislation, eg, the Unfair Contract Terms Act 1977, see Foodco

UK Llp (t/a Maffin Break) v Henry Boot Developments Ltd [2010] EWHC 358 (Ch) at paras 172–7.
See also Lowe v Lombank [1960] 1 WLR 196 where the relevant legislation was the Hire Purchase Act
1938 and JP Morgan Chase Bank v Springwell Navigation Corporation [2008] EWHC 1186 (Comm)
at paras 546 and 551, where Gloster J considered that the reason for the decision in Lowe was that the
contractual term was rendered ineffective by statute; Raiffeisen Zentralbank Österreich AG v The
Royal Bank of Scotland Plc at paras 305–12. Where the contractual terms are rendered ineffective by
statute, the evidential doctrine of estoppel by representation may still operate, see Lowe v Lombank
[1960] 1 WLR 196; EA Grimstead & Son Ltd v McGarrigan [1999] EWCA Civ 3029; Raiffeisen
Zentralbank Österreich AG v The Royal Bank of Scotland Plc at paras 279–86. See also Shaftsbury
House (Developments) Ltd v Lee [2010] EWHC 1484 (Ch) at paras 66–7 where Proudman J offers a
preliminary view that, for the purposes of s 3 Misrepresentation Act 1967, there is no difference
between a contractual estoppel and an evidential estoppel based on a contractual provision. See also
paras 9.131–140 below.
32 [2010] EWHC 358 (Ch) at para 171. See also Bottin International Investments v Venson [2006]

EWHC 3112 (Ch) where Blackburne J held that a contractual estoppel arose out of a clause which
stated that a buyer had not relied on the seller’s representations, except to the extent stated in the
contract; Donegal International Ltd v Zambia [2007] 1 Lloyd’s Rep 397 where Andrew Smith J held
that a contractual estoppel arose out of a clause that stated that one party had not relied on any
statement made by the other party, other than those set out in the contract
33 [2010] EWHC 1392 (Comm); [2011] 1 Lloyd’s Rep 123 at paras 250–5.
34 Coke, A Commentary on Littleton, 11th edn (London, 1719) at 352a.
35 See eg In re Ottos Kopje Diamond Mines Ltd [1893] 1 Ch 1892 CA and Lyle-Meller v A Lewis &
Co [1956] 1 WLR 29 CA. This is an important distinction between estoppel by representation and
estoppel by convention, which requires mutual dealings between the parties. See para 10.09 below.
36 See para 9.39 below.
 37 Except in limited circumstances, see paras 9.141 ff below.
38 [1882] 7 App Cas 345 HL.
39 Scarf v Jardine [1882] 7 App Cas 345 HL at 350, 359, 363 and 364.
40 Lipkin Gorman v Karpnale [1991] 2 AC 548 per Lord Goff at 578, reducing the usefulness of the

doctrine as a defence to a restitutionary claim.

41 Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54.
42 Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA per Lord Denning MR at 243f
(rev’d on appeal on another point at [1977] AC 890); De Tchihatchef v Salerni Coupling Ltd [1932] 1
Ch 330; Ismail v Polish Ocean Lines [1976] QB 893 CA per Lord Denning MR at 903; per Ormrod LJ
at 907 and per Shaw LJ at 911; Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per
Astbury J at 228 (aff’d on other grounds [1915] 1 Ch 214 CA); Nippon Menkwa Kabushiki Kaisha
(Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India); Trane
(UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 per Judge Cooke at 38–9.
43 Algar v Middlesex County Council [1945] 2 All ER 243 DC per Humphreys J at 251e–f; George

Whitechurch Ltd v Cavanagh [1902] AC 117 per Lord James at 133.

44 As to which see para 9.29 below.
45 Avon CC v Howlett [1983] 1 WLR 605 CA, where the defendant asked his former employer

whether he was entitled to the payments which he had received from them. He was informed that
everything was in order and that he was so entitled. See also Ashpitel, Algar v Middlesex County
Council [1945] 2 All ER 243 DC per Cassels J at 248d–e and per Humphreys J at 251a–b; Holt v
Markham [1923] 1 KB 504; Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 224; and Low v
Bouverie [1891] 3 Ch 82 CA. No estoppel arose in the last case but would have done so were it not for
the fact the response to the enquiry was equivocal.
46 See paras 9.32 ff below.
47 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships

Limited [1947] AC 46 PC Canada at 55.

48 Jordan v Money [1854] 5 HLC 185 per Lord Cranworth LC at 215 and per Lord Brougham at

226, contra Lord St Leonards at 248 and 250; Citizens’ Bank of Louisiana v First National Bank of
New Orleans [1873] LR 6 HL 352 per Lord Selbourne at 360 (existing fact); Gresham Life Assurance
Society v Crowther [1914] 2 Ch 219 per Astbury J at 228 (aff’d on other grounds [1915] 1 Ch 214
CA); Maddison v Alderson [1883] 8 App Cas 467 per Lord Selbourne LC at 473; Covell v Sweetland
[1968] 1 WLR 1466 per Hinchcliffe J at 1474; Freeman v Cooke [1848] 2 Ex 654, ER 652 at 656;
Farquharson Bros and Co v C King and Co [1902] AC 325 at 330; Chadwick v Manning [1896] AC
231 per Lord Macnaughton at 238; Yorkshire Insurance Co v Craine [1922] 2 AC 541 at 553; Veitch v
Caldicott [1945] 173 LT 30 at 33; Carr v London and North Western Rly Co [1875] LR 10 CP 307 per
Brett and Denman JJ at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838; Re
Bankruptcy Notice [1924] 2 Ch 76 CA per Lord Pollock MR at 89 and per Atkin LJ at 96; Evans v
Bartlam [1937] AC 473 per Lord Russell at 483; George Whitechurch Ltd v Cavanagh [1902] AC 117
per Lord Macnaughton at 130; Algar v Middlesex County Council [1945] 2 All ER 243 DC per
Humphreys J at 250f–g and 251e–h; Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co
Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150 col 2; Kelsen
v Imperial Tobacco Co of Great Britain & Ireland Ltd [1957] 2 All ER 343 per MacNair J at 349d–f;
TCB Ltd v Gray [1986] Ch 621 per Sir Nicholas Browne-Wilkinson VC at 634; R v Restormel BC ex
parte Parkyn [2000] EGCS 105 per George Bartlett QC at para 48; ING Lease (UK) Ltd v Harwood
[2007] EWHC 2292 (QB); [2008] 1 All ER (Comm) 1150; [2008] 2 BCLC 57; [2008] Bus LR 762 per
Michael Harvey QC at para 85; Midland Expressway Ltd v Carillion Construction [2005] EWHC
2810 at paras 587–9.
49 Piggot v Stratton [1859] 1 De GF & J 33; 45 ER 271 per Lord Campbell LC at 50, 277;

Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Edmond Davies at 917.
50 See para 9.23 below for the principles applying to representations of present intention.
51 Roebuck v Mongovin [1994] 1 All ER 568 HL per Lord Browne-Wilkinson at 575; Argy Trading
Co Ltd v Lapid Developments Ltd [1977] 1 WLR 444 per Croom Johnson J at 457a–e. See also the
cases cited in n 48 above, including in particular Evans v Bartlam [1937] AC 473 per Lord Russell at
483; Jordan v Money [1854] 5 HLC 185, ER 868 per Lord Cranworth LC at 215. The distinction has
been confirmed by the Supreme Court of British Columbia in Fraser Valley Credit Union v Siba et al
[2001] BCSC 744 per HMJ Lynn Smith at para 40.
52 Jordan v Money [1854] 5 HLC 185 per Lord Cranworth LC at 215 and per Lord Brougham at
226, contra Lord St Leonards at 248 and 250; Maddison v Alderson [1883] 8 App Cas 467 per Lord
Selbourne LC at 473; George Whitechurch Ltd v Cavanagh [1902] AC 117 per Lord MacNaughton at
130; Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935]
51 Lloyd’s Rep 147 PC (India) pet Lord Russell at 150 col 2; Re Bankruptcy Notice [1924] 2 Ch 76
CA per Lord Pollock MR at 89; Evans v Bartlam [1937] AC 473 per Lord Wright at 484.
53 Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935]

51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150 col 2.

54 Kelsen v Imperial Tobacco Co of Great Britain & Ireland Ltd [1957] 2 All ER 343 per MacNair

J at 349e–f.
55 [1854] 5 HLC 185.
56 See the cases cited at n 48 above.
57 See per contra Lord Denning MR in Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA at 35 and

Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at 242b (rev’d on appeal on another
point at [1977] AC 890), positing a broad all-embracing estoppel doctrine operating on
representations of fact, law or intention and going beyond the confines of traditional estoppel by
representation. See also the minority judgments of Deane J in Waltons Stores (Interstate) Ltd v Maher
[1988] 164 CLR 387 and of Mason CJ and Deane J in Commonwealth of Australia v Verwayen [1990]
170 CLR 394.
58 As to which see generally Chapter 8.
59 These differences are set out at paras 7.17 ff above.
60 See para 8.65 above.
61 Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd [1956] 1 QB 529 CA per
Denning LJ at 540 and per Harman LJ at 545. In Dun & Bradstreet Software Services (England) Ltd v
Provident Mutual Life Assurance [1997] EGCS 89 CA (Lexis transcript), a representation that notices
served under a tenancy agreement were valid was one of fact. Similarly in Kaliszewska v John Clage
& Partners [1984] 5 Con LR at 87–8, a representation that a property was sound and without defects
was one of fact. Ungar takes this point to its logical conclusion by contending that all equitable
forbearance representations are to be viewed as ones of fact, see ‘The High Trees Case: Promise or
Gift?’[1965] 28 MLR 231.
62 De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 per Luxmoor J at 342; Covell v

Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474; London Borough of Waltham Forest v
Oakmesh Ltd [2009] EWHC 1688 (Ch); [2010] JPL 249 per Livesey QC at paras 45–50 where the
doctrine operated in relation to a housing association’s representation that a valid agreement under s
106 Town and Country Planning Act 1990 had been entered into.
63 See RANSA Sydney Squadron Ltd v Rusbcutters Bay Maritime Reserve Trust & Anor [1999]
NSWSC 569 (11 June 1999). The representation relied upon was that a lease would be granted in the
near future. Both the parties and Simos J treated the case as premised upon an estoppel by
representation. The estoppel argument failed on the facts, since finalisation of the terms of the lease
remained outstanding (at para 55) and both parties had remained at liberty to withdraw from
negotiations (see paras 71–4). Given the Australian jurisprudence’s more flexible approach, the
dividing line between equitable forbearance and estoppel by representation is of far lesser
significance.
64 [1922] 2 AC 541 at 546–7.
65 See also Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA, where the defendant was estopped
from denying certain products which it had manufactured fell within a royalty agreement entered into
with the claimant.
66 [1976] QB 893 CA. See also Brikom Investments v Seaford [1981] 1 WLR 863 CA per Ormrod
LJ at 896b–g, where the representation of ‘fact’ was that the landlord was responsible for performing
repairs to the demised premises.
67 Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 per Judge Cooke at 38–9.
68 See also Piggot v Stratton [1859] 1 De GF & J 33; 45 ER 271, where S represented to H that the

terms of S’s lease prevented his building on his land. In reliance on this H built houses on a
neighbouring plot. At 52, 278 Lord Campbell CJ distinguished Jordan v Money on the grounds that S
had stated that he had no power to build during the currency of the lease. This was a representation of
fact not future intention.
69 The very point in issue in Jordan v Money supra.
70 Eden v Smith [1800] 5 Ves 341; Reeves v Bryner [1801] 6 Ves 516.
71 Treitel 1 at 3-112.
72 See Midland Expressway Ltd v Carillion Construction [2005] EWHC 2810 at paras 587–92

where the case was pleaded and opened on the basis that there had been an estoppel by representation
but counsel conceded in closing that there was no representation of existing fact and sought to
advance a new case on the basis of promissory estoppel.
73 See eg Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd

[1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150 col 2, where it was held that a
representation that goods were unencumbered could not give rise to an estoppel as it was construed as
a promise not to enforce security over goods.
74 See further paras 9.10 ff above.
75 Edgington v Fitzmaurice [1885] 29 ChD 459 at 483.
76 Veitch v Caldicott [1945] 173 LT 30 at 33.
77 See the comments of Deane J in Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR 387 at

450.
78 Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474 (construction of a contract);
De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 (same); Algar v Middlesex County Council
[1945] 2 All ER 243 DC per Humphreys J at 251g–h (representation that an employee had the same
pension rights under new job as under old); Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA per
Hodson LJ at 40 (whether goods produced by D fell within the terms of a licence agreement entered
into with P); Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per Astbury J at 227 (aff’d
on other grounds [1915] 1 Ch 214 CA) (whether house mortgaged was trust property or not).
79 In particular in administrative law and in restitution.
80 See paras 9.70 and 9.76 below.
 81 Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA per Hodson LJ at 41; London County
Territorial and Auxiliary Forces Association v Nicholls [1949] 1 KB 35; Kai Nam v Ma Kam Cham
[1956] AC 358 PC HK per Lord Cohen at 367; Algar v Middlesex County Council [1945] 2 All ER 243
DC per Humphreys J at 251e–f; Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per
Astbury J at 228 (aff’d on other grounds [1915] 1 Ch 214 CA). Contra Lyle-Meller v A Lewis & Co
[1956] 1 WLR 29 CA per Lord Denning MR at 35; Moorgate Mercantile Co Ltd v Twitchings [1976]
1 QB 225 CA per Lord Denning MR at 242b (rev’d on appeal on another point at [1977] AC 890); and
Harnam Singh v Jamal Pirbhai [1951] AC 688, 691. The last mentioned case may be better
interpreted as one of equitable forbearance rather than estoppel by representation.
82 Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA per Hodson LJ at 41.
83 This breaches the principle that it must be reasonable to rely on the representation—see paras
9.76 ff below.
84 Algar v Middlesex County Council [1945] 2 All ER 243 DC per Humphreys J at 251e–f.
85 Re Bankruptcy Notice [1924] 2 Ch 76 CA per Atkin LJ at 96.
86 TCB Ltd v Gray [1986] Ch 621.
87 ibid.
88 Re Bankruptcy Notice [1924] 2 Ch 76 CA per Atkin LJ at 96.
89 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 CA per Lord Denning MR at 702 and per

Salmon LJ at 704.
90 Lyle-Meller v A Lewis & Co [1956] 1 WLR 29 CA per Hodson LJ at 41.
91 As to which, see generally paras 9.86 ff below.
92 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 CA per Lord Denning MR at 702.
93 Low v Bouverie [1891] 3 Ch 82 CA at 113. This requirement is of particular significance where

the representatation argued for is that a contractual relationship will arise. Unless the representee can
point to the terms upon which such a relationship is to subsist, an estoppel claim will fail. See RANSA
Sydney Squadron v Rwhcutters Bay Maritime Reserve Trust & Anor [1999] NSWSC 569 per Simos J
at paras 72–3 and in the context of estoppel by convention Baird Textile Holdings v Marks & Spencer
Plc [2002] 1 All ER (Comm) 737; [2001] CLC 999; [2001] EWCA Civ 274.
94 Low v Bouverie [1891] 3 Ch 82 CA at 113; Sidney Bolsom Investment Trust Ltd v E Karmios &

Co (London) Ltd [1956] 1 QB 529 CA per Denning LJ at 540; Lowe v Lombank [1960] 1 WLR 196 CA
per Diplock J at 205; Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s
Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 151 col 2; Moorgate Mercantile
Co Ltd v Twitchings [1977] AC 890 per Lord Wilberforce at 902 (dissenting, but not on this point);
Bute (Marquess) v Barclays Bank Ltd [1955] 1 QB 202 per McNair J at 213; Thor Navigation Inc v
Ingosstrakh Insurance Company Ltd [2005] EWHC 19 (Comm) per Gloster J at para 68.
95 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships

Limited [1947] AC 46 PC Canada at 56. See also Maclaine v Gatty [1921] 1 AC 376 HL Sc per Lord
Shaw at 394 (‘clear and continuous’); Weld Blundell v Synott [1940] 2 KB 107 per Asquith J at 114
(‘definite and unequivocal’).
96 [1891] 3 Ch 82 CA.
97 ibid at 106. See also Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett

and Denman JJ at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838; Algar v
Middlesex County Council [1945] 2 All ER 243 DC per Humphreys J at 250f–g; Nippon Menkwa
Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC
(India) per Lord Russell at 151 col 2.
 98 [1972] AC 741.
99 ibid per Lord Salmon at 771.
100 ibid per Lord Hailsham LC at 756.
101 ibid per Lord Cross at 768.
102 See Spencer Bower, Estoppel by Representation, 3rd edn.
103 Lord Cross did, however, make some additional comments on Low v Bouverie and the estoppel

by representation cases set out above at para 9.32.

104 See paras 8.17 ff above.
105 See the equitable forbearance/promissory estoppel cases of Bremer Handelsgesellschaft mbH v

Vanden Avenne-Izegem [1978] 2 Lloyd’s Rep 109 HL at 126 per Lord Salmon; Bremer
Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1 Lloyd’s Rep 221 CA at 228; ‘The
Chemical Venture’ [1993] 1 Lloyd’s Rep 509 at 521; Societe Italio-Belge v Palm & Vegetable Oils
(Malaysia), The Post Chaser [1982] 1 All ER 19 at 25c–d.
106 See also Goldsworthy v Brickell [1987] Ch 378 CA at 410 and 411, which concerned a

representation inferred from conduct, where an approach very similar to that of Woodhouse was
adopted. Further, in Peyman v Lanjani [1985] Ch 457 CA, Slade LJ held at 502g–h that if a
representation is to be inferred from conduct the acts must be consistent only with the position
alleged and be inconsistent with other positions.
107 At para 8.40 above. See also Ace Insurance SA-NV v Seechurn [2002] EWCA Civ 67 at paras

17–21.
108 At paras 8.15–16 above.
109 [1902] AC 117.
110 ibid at 145.
111 Freeman v Cooke [1848] 2 Ex 654, ER 652 at 657.
112 The Stolt Loyalty [1993] 2 Lloyd’s Rep 281; Piggott v Stratton [1859] 1 De GF & J 33, 45 ER

271 at 48. If the representor wishes to preserve its legal position, it can do so without resorting to
such underhand tactics. If it expressly disclaims responsibility for the accuracy of its representation,
no estoppel will arise. See Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 per
Warner J at 257c–d.
113 Jordan v Money [1854] 5 HLC 185 per Lord Cranworth LC at 212; Gresham Life Assurance

Society v Crowther [1914] 2 Ch 219 per Astbury J at 227 (aff’d on other grounds [1915] 1 Ch 214
CA); Knights v Wiffen [1870] LR 5 QB 660 CA per Mellor J at 666; Jones Bros v Holloway Ltd [1923]
2 KB 117 DC per Bailhache J at 124.
114 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 per Warner J at 257c–d;

Bell v Marsh [1903] 1 Ch 528 per Lord Collins MR at 541.

115 Bishop v Balkis Consolidated Co [1890] 25 QBD at 77 per Vaughan Williams J at 83 (aff’d on

other grounds at 512).

116 Or such smaller group to whom the representation is alleged to have been made.
117 There is some similarity between this issue and the vexed question of when a duty of care in

tort arises. An approach analogous with tort was taken in Seton, Laing v Lefone [1887] 19 QBD 68 CA
per Lord Esher MR at 72. The defendant issued a statement on which it was probable that other
tradespeople would rely. Hence the claimant could raise the estoppel despite intercepting the
statement, which the representor actually intended to go to another. However, as set out below, at para
9.176, this case may not be an example of estoppel at all. It may be a case of simple negligence and
hence it is of only limited use in assessing the issue under consideration.
 118 Simm v Anglo American Telegraph [1879] 5 QBD 188 CA; In re Ottos Kopje Diamond Mines
Ltd [1893] 1 Ch 1892 CA; Dixon v Kennaway [1900] 1 Ch 833; Cadbury Schweppes Plc v Halifax
Share Dealing Ltd [2006] EWHC 1184 (Ch).
119 Under the Sheffield Corpn v Barclay [1905] AC 392 implied indemnity.
120 Cadbury Schweppes Plc v Halifax Share Dealing Ltd [2006] EWHC 1184 (Ch).
121 Dixon v Kennaway [1900] 1 Ch 833 at 840, although Farwell J’s reasons for distinguishing

Simm v Anglo American Telegraph [1879] 5 QBD 188 CA are not entirely convincing.
122 Dixon v Kennaway [1900] 1 Ch 833 at 840, distinguishing Simm v Anglo American Telegraph
[1879] 5 QBD 188 CA.
123 See paras 9.129–130 below.
124 See Burkinshaw v Nicholls [1878] 3 App Cas 1004.
125 See eg Canada and Dominion Sugar Company Limited v Canadian National (West Indies)

Steamships Limited [1947] AC 46 PC and further authorities cited at paras 21.42 ff below.
126 Just as it is not possible to contract with the whole general public.
127 See generally paras 9.86 ff below on the necessity for detrimental reliance.
128 Any other result would contravene the principle that estoppel by representation does not

operate to pass title, as to which see para 9.141 below.

129 Burkinshaw v Nicholls [1878] 3 App Cas 1004.
130 [1880] 14 ChD 432.
131 See para 9.144 below.
132 Huntington v Imagine Group Holdings Ltd [2007] EWHC 1603 (Comm) per Clarke J at para

165.
133 London County Territorial and Auxiliary Forces Association v Nicholls [1949] 1 KB 35 per

Scott LJ at 49.
134 Parsons v New Zealand Shipping Co [1901] 1 KB 548.
135 Compania Vascongada v Churchill [1906] 1 KB 237; The Skarp [1935] P 134; The Tromp

[1912] P 337.
136 See paras 21.42 ff below.
137 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 CA per Lord Denning MR at 702 and per
Salmon LJ at 704.
138 Knights v Wiffen [1870] LR 5 QR 660 CA.
139 Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33.
140 Bank of England v Vagliano Bros [1891] AC 107 per Lord Halsbury LC at 117 and per Lord

Selborne at 123–4. Such express representations should be contrasted with the so-called estoppel by
negligence cases, where liability arises from a mere negligent failure in preparation or custody of the
relevant cheque.
141 Avon CC v Howlett [1983] 1 WLR 605 CA; the employee had queried the level of payments

received but was assured that they were in order.

142 Ismail v Polish Ocean Lines [1976] QB 893 CA.
143 ITN v Ward [1997] PLR 131.
144 Prudential Staff Pensions Ltd v The Prudential Assurance Company Ltd [2011] EWHC 960

(Ch) per Newey J at para 201; Redrow Plc v Pedley [2002] EWHC 983 (Ch); [2002] Pen LR 339 per
Morritt V-C at paras 60–4 (an estoppel by convention case).
145 Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett and Denman JJ at
317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838; Pickard v Sears [1837] 6 A & E
469; 112 ER 179 at 474; Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 224.
146 The term has also been used as an alternative to the term estoppel in pais which covers estoppel

by representation, by convention and possibly equitable forbearance and proprietary estoppel as well.
Given this termin ological inconsistency, the term is not used in this work.
147 See, however, Yorkshire Insurance Co v Craine [1922] 2 AC 541 PC at 553, where the Privy
Council, somewhat confusingly, rejected a claim based on estoppel by representation but accepted
one based on estoppel by conduct.
148 Walters v Morgan [1861] 3 De GF & J 718, 45 ER 1056: a representation could be made by ‘a
nod and a wink’. Note, however, that the case did not concern estoppel but the misrepresentation
sufficient to bar specific performance.
149 Hopgood v Brown [1955] 1 WLR 213.
150 Dionissis v R ‘the Laura’ [1865] 3 Moo PCCNS 181; 16 ER 68.
151 Hopgood v Brown [1955] 1 WLR 213; De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330.
152 Yorkshire Insurance Co v Craine [1922] 2 AC 541 PC at 546–7.
153 For further detail and examination of the agency principles see Chapter 16 passim.
154 Such cases have much in common with estoppel by convention and it may be possible for both

doctrines to operate on the same facts.

155 [1837] 6 A & E 469; 112 ER 179 at 474.
156 [1892] LR 19 Ind App 203 PC India; cf Bell v Marsh [1903] 1 Ch 528.
157 Even to the extent of signing the eventual mortgage agreement on her behalf.
158 [1865] LR 1 QB 7 per Cockbum CJ at 9.10.
159 Farrow v Orttewell [1943] Ch 480 CA.
160 National Westminster Bank Ltd v Barclays Bank International Ltd [1975] 1 QB 654 per Kerr J

at 674c–g.
161 See paras 8.21 ff above.
162 [1968] 1 WLR 1466 per Hinchcliffe J at 1474.
163 [1975] 1 QB 654 at 676b–c.
164 See also Holt v Markham [1923] 1 KB 504 CA per Scrutton LJ and Pearl Mill Co v Ivy Tannery

Co [1919] 1 KB 78 DC per Rowlatt J at 82 and McCardie J at 84.

165 [2001] ScotCS 116, TLR 11 May 1999. See also Brooker v Fisher [2008] Bus LR 1123; [2008]

FSR 26; [2008] EMLR 13; [2008] EWCA Civ 287 at paras 52–8 for a consideration of this point in
the context of proprietary estoppel.
166 Bristol Corporation v Sinnott [1918] 1 Ch 62 CA per Swinfen Eady LJ.
167 eg Pacol Ltd & Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik Sif’) [1982] 1 Lloyd’s Rep

456 at 465. See also the public law equivalent, ‘misdirection by omission’, in the doctrine of
legitimate expectation, see R v Inland Revenue Commissioners, ex p MFK Underwriting Agencies Ltd
[1990] 1 WLR 1545, in particular at 1569A–1570B per Bingham LJ; R (Medical Protection Society) v
HM Revenue & Customs [2009] EWHC 2780 (Admin).
168 See eg Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 per Lord

Diplock at 884d–h.
169 As to which see paras 11.17 ff and 11.30 ff below.
170 [1837] 6 A & E 469; 112 ER 179 at 474.
171 ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 per Phillips J at 452.
172 Greenwood v Martins Bank Ltd [1933] AC 51 per Lord Tomlin at 57; Chadwick v Manning
[1896] AC 231 per Lord MacNaughton at 238; Republic of India & Anor v India Steamship Co Ltd
(‘The Indian Endurance’) [1996] 3 All ER 641 CA per Staughton LJ at 653j; Jones Bros v Holloway
Ltd [1923] 2 KB 117 DC per Bailhache J at 124 and per McCardie J at 128; Hopgood v Brown [1955]
1 WLR 213 per Evershed MR at 224; English v English [2010] EWHC 2058 per HHJ Cooke, sitting as
a Deputy, at [59–61] (obiter)—here the relevant fact was that the representor’s signature had been
forged by her son in a loan application. See also Barbados Trust Company Ltd v Bank of Zambia
[2006] EWHC 222 per Langley J at [53] (obiter)—it is not possible ‘to spell a duty to speak out of a
contractual provision providing for a deemed consent from a want of response for 15 days. The
provision expressly addresses and provides for the consequence of silence’.
173 [1973] 1 WLR 1002 CA at 1010.
174 Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 per Lord Wilberforce at 903. See
also CEP Holdings Ltd v CEP Claddings Ltd [2009] EWHC 2447 per Gloster J at [39]. The statement
that ‘a promise or assurance could be by conduct but not by mere inactivity’ is an accurate description
of the position where there is no underlying duty to disclose.
175 Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 per Lord Wilberforce at 903.
176 Jones Bros v Holloway Ltd [1923] 2 KB 117 DC per Bailhache J at 124.
177 [1977] AC 890.
178 [1982] 1 Lloyd’s Rep 456.
179 See paras 9.159 ff below.
180 The Stolt Loyalty [1993] 2 Lloyd’s Rep 281; Republic of India & Anor v India Steamship Co
Ltd (‘The Indian Endurance’) [1996] 3 All ER 641 CA per Staughton LJ at 653j and 654a–c; ING
Bank NV v Ros Roca SA [2011] EWCA Civ 353 per Rix LJ at [93–98] (although there was no direct
reference to Pacol the relevant parts of Lord Wilberforce’s speech in Moorgate Mercantile v
Twitchings are cited with approval).
181 Although see para 9.59 below for the difficulties flowing from Webster J’s application of the
test to the facts of the case.
182 See Orion Finance Limited v JD Williams and Company Limited [1997] EWCA Civ 1 per Evans
LJ at 8.
183 Such as the relationship between the owner and charterer of a vessel (Tradax Export SA v
Dorada Compania Naviera SA (The ‘Lutetian’) [1982] 2 Lloyd’s Rep 140) or between an advising
merchant bank and its client (ING Bank NV v Ros Roca SA [2011] EWCA Civ 353 per Rix LJ at [95]).
184 See also The Stolt Loyalty [1993] 2 Lloyd’s Rep 281.
185 See contra Spiro v Lintern [1973] 1 WLR 1002 CA at 1011. The facts of Spiro are outlined

below at para 9.60. Arguably the defendant’s conduct went beyond the purely passive in this case, eg,
the defendant agreed to sell furniture to the claimant to be used in the property under dispute. It is
uncontroversial that knowledge of the falsity of the representation is not necessary where there has
been some active conduct on the part of the alleged representor.
186 As to which see para 9.68 below.
187 In RPPC v Bank Leumi [1992] Lloyd’s Rep 515 at 542, Hirst J stated that Pacol turned on its

peculiar facts.
188 [1993] 2 Lloyd’s Rep 281 at 288–9.
189 Thames Trains Ltd v Adams [2006] EWHC 3291 per Nelson J at [37]. Here it was held that

solicitor X had no duty to inform solicitor Y of X’s earlier offer to settle proceedings, which had not
yet reached Y, before accepting Y’s more favourable offer.
190 Republic of India & Anor v India Steamship Co Ltd (‘The Indian Endurance’) [1996] 3 All ER
641 CA per Staughton LJ at 654b–d, approving the approach taken in The Stolt Loyalty.
191 In effect where one party has led the other ‘up the garden path’.
192 [1973] 1 WLR 1002 CA per Buckley LJ at 1010.
193 See also Re Safety Explosives Ltd [1904] 1 Ch 226 CA and Pickard v Sears [1837] 6 A & E
469; 112 ER 179 (although there was a representation by conduct in that case as well as a duty to
speak, see para 9.47 above).
194 [2005] EWHC 2449.
195 At paras 103–04.
196 [1951] AC 489.
197 See paras 9.159 ff below
198 ie by statement, conduct or silence.
199 See eg Scarf v Jardine [1882] 7 App Cas 345 HL.
200 [1945] 2 All ER 243 DC per Cassels J at 248d–e and per Humphreys J at 251 a–b.
201 [1923] 1 KB 504 CA.
202 For criticism of such an approach, see Spencer Bower at III.4.13. Note also the divergence of

opinion on the principle applicable to the equitable forbearance doctrine: Wallis Holiday Camp v
Shell-Mex [1974] 3 All ER 575 per Lord Denning at 580–1 and Stamp LJ at 586g–587d.
203 Low v Bouverie [1891] 3 Ch 82 CA at 99.
204 Chadwick v Manning [1896] AC 231 per Lord Macnaughton at 238.
205 See paras 9.159 ff below.
206 As set out in para 9.58 above, it is probably necessary to show awareness of the true position

where a representation is inferred solely from silence, ie where a duty to speak is imposed.
207 Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555 per Pennycuick J at 570.
208 Spiro v Lintern [1973] 1 WLR 1002 CA at 1012b–d; Jordan v Money [1854] 5 HLC 185, ER
868 at 210 per Lord Cranworth LC at 212; Sarat Chunder Dey v Ghopal Chunder Laha [1892] LR 19
Ind App 203 PC India per Lord Shand at 215; Citizens’ Bank of Louisiana v First National Bank of
New Orleans [1873] LR 6 HL 352 per Lord Selbourne at 360–1; Freeman v Cooke [1848] 2 Ex 654,
ER 652 at 663; Greenwood v Martins Bank Ltd [1932] 1 KB 371 CA per Scrutton LJ at 379; Farrow v
Orttewell [1943] Ch 480 CA per Lord Hanworth MR at 499.
209 Low v Bouverie [1891] 3 Ch 82 CA at 107 and 111.
210 There seems to be only one case where an estoppel argument failed for want of the latter factor

alone. See the comments of Spencer Bower at V.3.3, citing Pierson v Altrincham UDC [1917] 86 LJ
KB 969.
211 Low v Bouverie [1891] 3 Ch 82 CA at 111; Covell v Sweetland [1968] 1 WLR 1466 per

Hinchcliffe J at 1474; Citizens’ Bank of Louisiana v First National Bank of New Orleans [1873] LR 6
HL 352 per Lord Selbourne at 360–1; Freeman v Cooke [1848] 2 Ex 654; ER 652 at 663; Bishop v
Balkis Consolidated Co [1890] 25 QBD 77 per Vaughan Williams LJ at 82 (aff’d on other grounds at
[1890] 25 QBD 512); Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett and
Denman JJ at 317; De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 per Luxmoor J at 342
(sufficient that representation was made with the purpose of its being acted upon); Dixon v Kennaway
& Co [1990] 1 Ch 833 per Farwell J at 838; Sidney Bolsom Investment Trust Ltd v E Karmios & Co
(London) Ltd [1956] 1 QB 529 CA per Denning LJ at 540 and per Morris LJ at 544; Algar v Middlesex
County Council [1945] 2 All ER 243 DC per Humphreys J at 250f–g; Lowe v Lombank [1960] 1 WLR
196 CA per Diplock J at 205; Customs & Excise Commissioners v Hebson Ltd [1953] 2 Lloyd’s Rep
382 per Pearson J at 397 col 1; Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per
Astbury J at 227 (aff’d on other grounds [1915] 1 Ch 214 CA); Nippon Menkwa Kabushiki Kaisha
(Japan Cotton Trading Co Ltd) v Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord
Russell at 150 col 2; TCB Ltd v Gray [1986] Ch 621 per Sir Nicholas Browne-Wilkinson VC at 634;
Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 224; Trane (UK) Ltd v Provident Mutual
Life Assurance [1995] EGLR 33 per Judge Cooke at 38–9; Hunter v Senate Support Services Ltd
[2004] EWHC 1085 at [73].
212 Citizens’ Bank of Louisiana v First National Bank of New Orleans [1873] LR 6 HL 352 per

Lord Selbourne at 360–1; Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd [1956]
1 QB 529 CA per Denning LJ at 541 and per Morris LJ at 544; Freeman v Cooke [1848] 2 Ex 654; ER
652 at 663; Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett and Denman JJ
at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838; Farrow v Orttewell [1943] Ch
480 CA per Lord Hanworth MR at 499; Jordan v Money [1854] 5 HLC 185; ER 868 per Lord
Cranworth LC at 214–15; Algar v Middlesex County Council [1945] 2 All ER 243 DC per Humphreys
J at 250f–g; Lowe v Lombank [1960] 1 WLR 196 CA per Diplock J at 205; Greenwood v Martins Bank
Ltd [1932] 1 KB 371 CA per Scrutton LJ at 379; Customs & Excise Commissioners v Hebson Ltd
[1953] 2 Lloyd’s Rep 382 per Pearson J at 397 col 1; Trane (UK) Ltd v Provident Mutual Life
Assurance [1995] EGLR 33 per Judge Cooke at 38–9; Hunter v Senate Support Services Ltd [2004]
EWHC 1085 per Randall QC at [73] (‘intending it to be relied on or in circumstances where they
ought reasonably to have expected it to be so’).
213 Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54; Hopgood v
Brown [1955] 1 WLR 213 per Evershed MR at 224.
214 [1995] EGLR 33 per Judge Cooke at 39.
215 As to which see paras 8.29 ff above.
216 Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 837, applying Knights v Wiffen

[1870] LR 5 QB 660 CA per Blackburn J at 665.

217 Jordan v Money [1854] 5 HLC 185 per Lord Cranworth LC at 212.
218 Knowledge of acts in reliance logically requires that the representor knows both of the acts

performed and of the fact that they are being performed in reliance on the representee’s belief in the
truth of the representation.
219 See para 8.32 above.
220 As to which see paras 9.159 ff below.
221 Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Salmon at 913.
222 Arguably, the intentional mental element required of the representor, as set out in para 9.71
above, involves constructive knowledge or notice of the acts of the representee. Such knowledge or
notice arises where the representor has reasonable grounds to suspect the relevant facts or has actual
knowledge of facts which would put him on notice of the existence of the relevant facts.
223 In re Ottos Kopje Diamond Mines Ltd [1893] 1 Ch 1892 CA; Dixon v Kennaway & Co [1990] 1

Ch 833.
224 Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett and Denman JJ at
317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838. See also Sidney Bolsom
Investment Trust Ltd v E Karmios & Co (London) Ltd [1956] 1 QB 529 CA per Morris LJ at 544 (no
estoppel because nothing in the representor’s conduct amounted to ‘an invitation to the representee to
act in the way it did’).
225 Re Bankruptcy Notice [1924] 2 Ch 76 CA per Pollock MR at 88; Re Exchange Securities &
Commodities Ltd [1988] Ch 46 per Harman J at 54.
226 As to which see para 9.86 below.
 227 Macfisheries Ltd v Harrison [1924] 132 LT 22; 40 TLR 709.
228 Pickard v Sears [1837] 6 A & E 469; 112 ER 179 at 474; Low v Bouverie [1891] 3 Ch 82 CA at
113; Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships
Limited [1947] AC 46 PC Canada at 56; Bell v Marsh [1903] 1 Ch 528 CA per Lord Collins MR at
541; per Omer LJ at 544; Farrow v Orttewell [1943] Ch 480 CA per Lord Hanworth MR at 498; Re
Bankruptcy Notice [1924] 2 Ch 76 CA per Atkin LJ at 96; Jordan v Money [1854] 5 HLC 185; ER 868
per Lord Cranworth LC at 210 and 212; Lowe v Lombank [1960] 1 WLR 196 CA per Diplock J at 205;
Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per Astbury J at 228 (aff’d on other
grounds [1915] 1 Ch 214 CA); ‘The “Superhulls Cover” Case’ (No 2) [1990] 2 Lloyd’s Rep 431 per
Phillips J at 448.
229 See the cases listed at n 246 below.
230 Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 per Judge Cooke at 39b;
Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per Astbury J at 227 (aff’d on other
grounds [1915] 1 Ch 214 CA).
231 Low v Bouverie [1891] 3 Ch 82 CA at 113; Canada and Dominion Sugar Company Limited v

Canadian National (West Indies) Steamships Limited [1947] AC 46 PC Canada at 55.

232 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships

Limited [1947] AC 46 PC Canada at 56. See also Maclaine v Gatty [1921] 1 AC 376 HL Sc per Lord
Birkenhead at 386 (the representee must have been ‘justified’ in believing the representation); Hunter
v Senate Support Services Ltd [2004] EWHC 1085 per Randall QC at [81–83].
233 Freeman v Cooke [1848] 2 Ex 654; ER 652 at 656; Seton, Laing v Lefone [1887] 19 QBD 68 CA

at 73; Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 per Judge Cooke at 39b.
234 This example was used in Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33

per Judge Cooke at 39b.

235 cf the principle that a representation of law cannot be the basis of an estoppel, as to which see

para 9.29 above.

236 [1956] 1 QB 529 CA.
237 ibid per Morris LJ at 544.
238 ibid per Denning LJ at 541.
239 [1995] EGLR 33 per Judge Cooke at 39b.
240 Sitting as a deputy High Court Judge.
241 [2002] EWHC Admin 2; ILR 11 March 2002.
242 At para 31.
243 The Court could in some cases adopt the recourse of holding that the representee did not in fact

rely on the representation—it being so absurd. That route is blocked on this hypothesis because the
representee is honest and that particular finding of fact is therefore not open to the Court.
244 The Australian approach is instructive. There, the Courts will assess the reasonableness of

reliance and apportion liability for detriment in accordance with the conduct of both parties. See
Vaughan v Byron Shire Council [1999] NSWCA 235 (15 July 1999) per Handley JA at para 21; per
Fitzgerald JA at para 53. Knowledge that the claimant’s solicitors, as agents, ought to have deduced
but did not in fact appreciate was not imputed to the principal. Nonetheless, Fitzgerald JA
apportioned liability on a 50:50 basis to reflect carelessness on the part of the claimant’s legal
advisers.
245 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 per Warner J at 257c–d.
246 Low v Bouverie [1891] 3 Ch 82 CA at 111; Oliver v Bank of England [1902] 1 Ch 610 CA at
628 (aff’d without comment on the point at Starkey v Bank of England [1903] AC 114); Canada and
Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC
46 PC Canada at 56; Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474; Greenwood v
Martins Bank Ltd [1933] AC 51 per Lord Tomlin at 57; Sarat Chunder Dey v Ghopal Chunder Laha
[1892] LR 19 Ind App 203 PC India per Lord Shand at 215; Bell v Marsh [1903] 1 Ch 528 CA per
Lord Collins MR at 541, per Romer LJ at 544; Hammersmith and Fulham BC v Top Shop Centres Ltd
[1990] Ch 237 at 259a; Carr v London and North Western Rly Co [1875] LR 10 CP 307 per Brett and
Denman JJ at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 838; Avon CC v Howlett
[1983] 1 WLR 605 CA per Slade LJ at 620f–g; H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694
CA per Lord Denning MR at 702 and per Salmon LJ at 704; Farrow v Orttewell [1943] Ch 480 CA per
Lord Hanworth MR at 491; Re Bankruptcy Notice [1924] 2 Ch 76 CA per Lord Pollock MR at 88; Re
Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54; Jordan v Money [1854] 5
HLC 185; ER 868 per Lord Cranworth LC at 210; Civil Aviation Authority v Internationale
Nederlanden Aviation Lease BV and the European Organisation for the Safety of Air Navigation
(Interveners) [1997] 1 Lloyd’s Rep 96 per Judge Diamond QC at 104 col 2; De Tchihatchef v Salerni
Coupling Ltd [1932] 1 Ch 330 per Luxmoor J at 342; Algar v Middlesex County Council [1945] 2 All
ER 243 DC per Humphreys J at 250f–g; Lowe v Lombank [1960] 1 WLR 196 CA per Diplock J at 205;
Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per Astbury J at 228 (aff’d on other
grounds [1915] 1 Ch 214 CA); Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v
Dawson’s Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 151 col 2; Knights v
Wiffen [1870] LR 5 QB 660 CA per Blackburn J at 665 and per Lush J at 667; Hopgood v Brown
[1955] 1 WLR 213 per Evershed MR at 224; Keith v R Gancia and Co Ltd [1904] 1 Ch 774 CA per
Vaughan Williams LJ at 789.
247 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 per Warner J at 259a. See
eg Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474 (failure to apply to Divorce
Court to get a maintenance agreement set aside); Dixon v Kennaway & Co [1990] 1 Ch 833 per
Farwell J at 839 (failure to pursue the fraudulent vendor of shares); Knights v Wiffen [1870] LR 5 QB
660 CA per Blackburn J at 665 (failure by a buyer to ask for its money back under a sale of goods
transaction on the sellers being unable to appropriate and ascertain specific goods in accordance with
the contract).
248 Citizens’ Bank of Louisiana v First National Bank of New Orleans [1873] LR 6 HL 352 per

Lord Selbourne at 360; Bell v Marsh [1903] 1 Ch 528 CA per Lord Collins MR at 541 and 543; per
Cozens Hardy LJ at 545.
249 As to which see para 9.86 below.
250 See para 9.93 below.
251 Seton, Laing v Lefone [1887] 19 QBD 68 CA at 71.
252 Greenwood v Martins Bank Ltd [1933] AC 51 per Lord Tomlin at 57.
253 See para 9.159 below.
254 [2007] ICR 445; [2006] EWCA Civ 1551 at para 117.
255 Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International

Bank Ltd [1982] 1 QB 84 per Goff J at 105a.

256 Freeman v Cooke [1848] 2 Ex 654; ER 652 at 656; Re Bankruptcy Notice [1924] 2 Ch 76 CA
per Lord Pollock MR at 88; Lowe v Lombank [1960] 1 WLR 196 CA per Diplock J at 205; Pickard v
Sears [1837] 6 A & E 469; 112 ER 179 at 474; Farrow v Orttewell [1943] Ch 480 CA per Lord
Hanworth MR at 491; Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 224; Re Exchange
Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54.
 257 Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315 at 369 (aff’d on other grounds [1996] 2
Lloyd’s Rep 241). Colman J was there referring to estoppel by convention but was applying the same
test adopted in Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce
International Bank Ltd supra.
258 Dixon v Kennaway & Co [1900] 1 Ch 833. See also the equitable forbearance case of Lark v
Outhwaite [1991] 2 Lloyd’s Rep 132 at 142.
259 See the following authorities where the burden seemed to be placed squarely on the shoulders
of the representee: Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawson’s
Bank Ltd [1935] 51 Lloyd’s Rep 147 PC (India) per Lord Russell at 150 col 2; Lowe v Lombank
[1960] 1 WLR 196 CA per Diplock J at 207; Trane (UK) Ltd v Provident Mutual Life Assurance
[1995] EGLR 33 (obiter) per Judge Cooke at 39d–e.
260 See para 11.55 below.
261 [1990] Ch 237 per Warner J at 262c–d.
262 Greasley v Cook [1980] 1 WLR 1306 CA; Re Basham dec’d [1986] 1 WLR 1498.
263 See Steria Ltd v Ronald Hutchison [2007] ICR 445, [2006] EWCA Civ 1551 per Mummery LJ

at para 75.
264 See Newbon v City Mutual Life Insurance Society Ltd [1935] 52 CLR 723 at 734–5.
265 Lowe v Lombank [1960] 1 WLR 196 CA per Diplock J at 207.
266 Spiro v Lintern [1973] 1 WLR 1002 CA at 1010–1011a and 1012h–1013d; Canada and

Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC
46 PC Canada at 56; Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474; Greenwood v
Martins Bank Ltd [1933] AC 51 per Lord Tomlin at 57; Bell v Marsh [1903] 1 Ch 528 CA per Lord
Collins MR at 541, per Romer LJ at 544 and per Cozens Hardy LJ at 545; Carr v London and North
Western Rly Co [1875] LR 10 CP 307 per Brett and Denman JJ at 317; Dixon v Kennaway & Co
[1990] 1 Ch 833 per Farwell J at 838; Avon CC v Howlett [1983] 1 WLR 605 CA per Slade LJ at
621g–622c; H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 CA per Lord Denning MR at 702 and
per Salmon LJ at 704; Fung Kai Sun v Chan Fui Hing [1951] AC 489 PC HK per Lord Wright at 503;
Re Bankruptcy Notice [1924] 2 Ch 76 CA per Lord Pollock MR at 88; Re Exchange Securities &
Commodities Ltd [1988] Ch 46 per Harman J at 54; M’Kensie v British Linen Co [1881] 6 App Cas 82
HL (Sc) per Lord Selbourne LC at 92, per Lord Blackburn at 101 and per Lord Watson at 109; Norfolk
CC v Secretary of State for the Environment [1973] 3 All ER 673 per Lord Widgery CJ at 677d–g;
Weld Blundell v Synott [1940] 2 KB 107 per Asquith J at 114; TCB Ltd v Gray [1986] Ch 621 per Sir
Nicholas Browne-Wilkinson VC at 634; George Whitechurch Ltd v Cavanagh [1902] AC 117 per
Lord Robertson at 135; Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 (obiter)
per Judge Cooke at 39d–e; Peyman v Lanjani [1985] Ch 457 CA per Slade LJ at 500d–e; per May LJ
496d–e; per Stephenson LJ at 488d–e; Hopgood v Brown [1955] 1 WLR 213 per Evershed MR at 224;
Simm v Anglo American Telegraph [1879] 5 QBD 188 CA (representee had to show that he was
damaged by his reliance on the representation); Steria Ltd v Ronald Hutchison [2007] ICR 445,
[2006] EWCA Civ 1551 per Mummery LJ at [74–75] and per Neuberger LJ at [93] and [124].
267 Jones Bros v Holloway Ltd v Woodhouse [1923] 2 KB 117 DC per Bailhache J at 124 and per

McCardie J at 128; Tarmac Construction Ltd v Esso Petroleum Co Ltd [1996] 51 Con LR 187 per HH
Judge Humphrey Lloyd QC at 223; Algar v Middlesex County Council [1945] 2 All ER 243 DC per
Humphreys J at 250f–g.
268 Farquharson Bros and Co v C King and Co [1902] AC 325 per Lord Halsbury LC at 330; Bell v
Marsh [1903] 1 Ch 528 per Lord Collins MR at 541; RE Jones v Waring & Gillow [1926] AC 670 per
Viscount Cave LC at 683; H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 CA per Lord Denning
MR at 702 and per Salmon LJ at 704; Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at
1474; Norfolk CC v Secretary of State for the Environment [1973] 3 All ER 673 per Lord Widgery CJ
at 677d–g; Peyman v Lanjani [1985] Ch 457 CA per Slade LJ at 501a–d.
269 Grundt v Great Boulder Pty Gold Mines Ltd [1937] 59 CLR 641 per Dixon J at 674. This was

an estoppel by convention case but the relevant principle would seem to be equally applicable in this
context; see Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 55; Cadbury
Schweppes Plc v Halifax Share Dealing Ltd [2006] EWHC 1184 per Lindsay J at [30–31].
270 Grundt, n 269 above, at 674–5; Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR 387
(HC of Australia) per Brennan J at 419.
271 [1932] 1 Ch 330.
272 [2007] ICR 445; [2006] EWCA Civ 1551 at para 125.
273 [1973] 3 All ER 673.
274 See also the example referred to in the preceding paragraph, De Tchihatchef v Salerni Coupling
Ltd [1932] 1 Ch 330. The mere denial of the representation would have harmed the representee
because the contractual terms would have been less favourable to it. This harm would have been
insufficient. It was necessary to go on to demonstrate harm resulting from the company’s acts in
reliance on the representation, namely including the representation in its share prospectus. See also
Cadbury Schweppes Plc v Halifax Share Dealing Ltd [2006] EWHC 1184 per Lindsay J at [30–31],
where the denial of the representation was sufficient to amount to detriment because it exposed the
defendant to liability under an implied indemnity to the claimant. The defendant would not have acted
in a manner which resulted in liability to indemnify had it known that the true position was not as
represented, therefore the detriment truly flowed from the defendant’s change of position.
275 [1991] 2 AC 548.
276 Holt v Markham [1923] 1 KB 504 CA per Warrington LJ at 512; Avon CC v Howlett [1983] 1

WLR 605 CA per Cumming-Bruce LJ at 608e–h; Ismail v Polish Ocean Lines [1976] QB 893 CA per
Lord Denning MR at 903; Civil Aviation Authority v Internationale Nederlanden Aviation Lease BV
and the European Organisation for the Safety of Air Navigation (Interveners) [1997] 1 Lloyd’s Rep
96 per Judge Diamond QC at 104 col 2.
277 See Chapters 8 and 11 passim.
278 See eg paras 11.95 ff below.
279 Avon CC v Howlett [1983] 1 WLR 605 CA per Slade LJ at 621g–h.
280 See discussion at paras 9.109 ff below and Chapter 7.
281 [2002] 1 All ER 198.
282 ibid per Potter LJ at paras 35–43; per Clarke LJ at para 59.
283 [2007] ICR 445, [2006] EWCA Civ 1551 at [91–93 and 129]. See also Parties Named In
Schedule A v Dresdner Kleinwort Ltd [2010] EWHC 1249 at [59].
284 Lord Neuberger has, in his academic writing, made the case for a unified doctrine of estoppel—

see ‘The stuffing of Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537.
285 Although see Steria Ltd v Ronald Hutchison [2007] ICR 445; [2006] EWCA Civ 1551 at [109];

Catchpole v Trustees of the Alitalia Airlines Pension Scheme [2010] Pens LR 387; [2010] EWHC
1809; [2010] ICR 1405 at para 47; Redrow Plc v Pedley [2002] EWHC 983 (Ch); [2002] Pen LR 339
at [60–64]; Trustee Solutions Ltd v Dubery [2006] EWHC 1526; [2007] ICR 412 at [51], for the
suggestion that the Court should lean against an estoppel in favour of one, or only some, of the
members of a pension scheme, as this involves favouring some of the members of the scheme over
the others. These cases may suggest a wider test of unconscionability—to avoid the detriment to the
wider class of pension holders arising from any depletion of the pot due to a representation made to a
particular sub-class of pension holders.
286 As to which see paras 9.102 and 107 below, discussing the two anomalous instances where

detriment has been found to exist, contrary to orthodox principles. The cases in issue involve estoppel
by representation. There is no reason to apply these dubious lines of authority to proprietary estoppel.
Hence there is a distinction between the operation of the two doctrines.
287 Reference should therefore be made to paras 11.63 ff, which set out the general principles that
determine the type of conduct capable of giving rise to detriment.
288 See paras 11.76 ff below.
289 The categorisation adopted is derived, subject to some modifications, from Malcolm Clarke’s
article, ‘Banker’s Commercial Credits among the High Trees’ [1974] CLJ 260 at 283.
290 TCB Ltd v Gray [1986] Ch 621 per Sir Nicholas Browne-Wilkinson VC at 634.
291 Re Exchange Securities & Commodities Ltd [1988] Ch 46, although no estoppel was made out
in the case, partly because the alleged representation was not established.
292 Farrow v Orttewell [1943] Ch 480 CA. The protective statute which governed the case,

Agricultural Holdings Act 1923, gave the tenant a right to compensation if it left as a result of a valid
notice to quit but not if it left voluntarily.
293 Spiro v Lintern [1973] 1 WLR 1002 CA at 1013a–d.
294 Seton, Laing v Lefone [1887] 19 QBD 68 CA.
295 Piggot v Stratton [1859] 1 De GF & J 33; 45 ER 271.
296 Re Bahia and San Francisco Railway Co Ltd [1868] LR 3 QB 5 84; In re Ottos Kopje Diamond

Mines Ltd [1893] 1 Ch 1892 CA.

297 Avon CC v Howlett [1983] 1 WLR 605 CA. By the time the true facts came to light, it was too

late to apply for the relevant benefits.

298 Catchpole v Trustees of the Alitalia Airlines Pension Scheme [2010] Pens LR 387; [2010]

EWHC 1809 (Ch); [2010] ICR 1405 per Warren J at [40 and 55].
299 Knights v Wiffen [1870] LR 5 QB 660 CA; Simm v Anglo American Telegraph [1879] 5 QBD

188 CA; Weld Blundell v Synott [1940] 2 KB 107 per Asquith J at 114; Fung Kai Sun v Chan Fui Hing
[1951] AC 489 PC HK; M’Kensie v British Linen Co [1881] 6 App Cas 82 HL; Hammersmith and
Fulham BC v Top Shop Centres Ltd [1990] Ch 237.
300 See para 9.102 below.
301 See eg Greenwood v Martins Bank Ltd [1933] AC 51.
302 See para 9.159 below.
303 Ismail v Polish Ocean Lines [1976] QB 893 CA.
304 De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 per Luxmoor J at 342.
305 Dixon v Kennaway & Co [1900] 1 Ch 833 per Farwell J at 838–9.
306 Covell v Sweetland [1968] 1 WLR 1466 per Hinchcliffe J at 1474.
307 Trane (UK) Ltd v Provident Mutual Life Assurance [1995] EGLR 33 per Judge Cooke at 38–9.
308 Such cases usually arise where A has mistakenly paid B a sum of money to which the latter is

not entitled and subsequently seeks its return in an action in restitution. For a discussion of the
difficult restitution/estoppel overlay, see paras 9.109 ff below.
309 For further analysis of detrimental reliance in this context, see Beatson and Bishop, ‘Mistaken

payments in the law of restitution’ [1986] University of Toronto LJ 149.

310 As to how much money must be spent, see paras 9.109 ff below.
311 As Birks I points out at 408, in National Westminster Bank Ltd v Barclays Bank International
Ltd [1975] 1 QB 654 the money paid to the alleged representee had never been touched. It was held in
an account which had been frozen by an injunction awarded to the claimant bank. This did not,
however, prevent the possibility of an estoppel arising.
312 cf the closely related restitutionary defence of change of position: Lipkin Gorman v Karpnale

[1991] 2 AC 548 per Lord Goff at 580.

313 Spiro v Lintern [1973] 1 WLR 1002 CA at 1013a–d. See also Lipkin Gorman v Karpnale [1991]
2 AC 548 per Lord Templeman at 560, commenting on the change of position defence.
314 [1983] 1 WLR 605 CA. See also Holt v Markham [1923] 1 KB 504 CA per Warrington LJ at
512 and per Scrutton LJ at 514–15; Deutsche Bank (London Agency) v Beriro & Co [1895] 73 LT 669
CA; Skyring v Greenwood [1825] 4 B & C 281; Weld Blundell v Synott [1940] 2 KB 107; Lamer v
LCC [1949] 2 KB 1; All ER 964 CA (although see paras 9.109 ff and 9.159 ff below as to whether all
of these cases actually involve estoppel by representation).
315 Sheldon J found as a fact that all the money had been so spent. The pleadings alleged that only
a proportion of the money had been spent. Counsel for the defendant declined the judge’s invitation to
adjust the pleadings accordingly, since the defendant’s trade union wished to use the proceedings as a
test case to ascertain whether it was possible to defeat the entirety of the employer’s claim for
overpayments, by demonstrating the requisite change of position in relation to some but not all of the
money in issue. See further paras 9.109 ff below.
316 London and River Plate Bank v Bank of Liverpool [1896] 1 QB 7 per Mathew J at 11; Skyring v

Greenwood [1825] 4 B & C 281 per Bayley J at 290; Holt v Markham [1923] 1 KB 504 CA per
Warrington LJ at 512.
317 See paras 9.109 ff below.
318 [1870] LR 5 QB 660 CA.
319 319 ibid per Blackburn J at 665. This finding is understandable given the impending insolvency

of Y. A similar approach was applied in M’Kensie v British Linen Co [1881] 6 App Cas 82 HL (Sc)
per Lord Blackburn at 100. More recently, in Hammersmith and Fulham BC v Top Shop Centres Ltd
[1990] Ch 237 per Warner J at 261a–c, it was held that a tenant’s forgoing the opportunity to
negotiate for a new sub-underlease or apply for relief against forfeiture of a sub-underlease, amounted
to detriment, regardless of whether such conduct was likely to result in a successful outcome. This
case is discussed further at para 11.69 below.
320 [1879] 5 QBD 188 CA per Brett LJ at 212, although these reservations are largely concerned
with the issue of whether title can pass as a result of estoppel rather than detriment. See also Re
Goldcorp Exchange Limited [1994] 2 All ER 806 per Lord Mustill at 817b.
321 [1879] 5 QBD 188 CA per Brett LJ at 211; Weld Blundell v Synott [1940] 2 KB 107 per Asquith
J at 114; Fung Kai Sun v Chan Fui Hing [1951] AC 489 PC HK per Lord Wright at 506.
322 This may explain the finding that granting an underlease amounted to detriment regardless of

its terms. Potentially, such a transaction might result in benefit to the claimant. Such cases cannot
sensibly be explained in terms of the Court’s distaste for speculation because the consequences of the
tenant’s decision may be clearly analysed by reference to the terms of the underlease.
323 [1900] 1 Ch 833 per Farwell J at 839–40.
324 See paras 11.73 ff below on the necessity of showing that expenditure or valuable assets have
been wasted.
325 cf the similar facts of Piggot v Stratton [1859] 1 De GF & J 33; 45 ER 271.
326 Spiro v Lintern [1973] 1 WLR 1002 CA at 1013a–d. cf the proprietary estoppel case of

Christian v Christian [1981] 131 NLJ 43.

 327 [1904] 1 Ch 774 CA, applied in Hammersmith and Fulham BC v Top Shop Centres Ltd [1990]
Ch 237.
328 A possible parallel is provided by the cheque cases such as Cocks v Masterman [1829] 9 B & C
902.
329 At V.5.6, Spencer Bower suggests that Keith v R Gancia stands for the proposition that the
assumption of legal liabilities to which the representee would not otherwise have been subject is
sufficient to amount to detriment. It is difficult to see the justification for interpreting the case so
widely. If the case is correct at all, it is submitted that it should be limited to the sub-lease or sub-
underlease situation. Such a limitation at least reduces the conflict with conventional principles which
is adverted to in this paragraph.
330 The following cases affirm this outcome without expressly indicating that it is the only remedy
available: Maclaine v Gatty [1921] 1 AC 376 HL Sc per Lord Birkenhead at 386; Knights v Wiffen
[1870] LR 5 QB 660 CA per Blackburn J at 665; Carr v London and North Western Rly Co [1875] LR
10 CP 307 per Brett and Denman JJ at 317; Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at
838; Farrow v Orttewell [1943] Ch 480 CA per Lord Hanworth MR at 498; Evans v Bartlam [1937]
AC 473 per Lord Wright at 484; Jordan v Money [1854] 5 HLC 185, ER 868 per Lord Cranworth LC
at 210; Pickard v Sears [1837] 6 A & E 469; 112 ER 179 at 474; Re Exchange Securities &
Commodities Ltd [1988] Ch 46 per Harman J at 54; Algar v Middlesex County Council [1945] 2 All
ER 243 DC per Humphreys J at 250f–g.
331 So long as the detriment suffered is not de minimis. See paras 11.65 ff below where the de

minimis rule is stated in relation to proprietary estoppel. It is submitted that the same approach is
applicable in estoppel by representation cases.
332 [1983] 1 WLR 605 CA.
333 [1983] 1 WLR 605 CA per Eveleigh LJ at 611b–h and per Slade LJ at 622–4.
334 [1983] 1 WLR 605 CA at 609h.
335 [1896] AC 257 PC (WA) per Lord Watson at 270.
336 [1932] 1 KB 371 CA per Scrutton LJ at 383–4.
337 At paras 9.159 ff below.
338 [1870] LR 5 QB 660 CA.
339 See in particular [1932] 1 KB 371 CA at 386–7.
340 [1825] 4 B & C 281.
341 [1923] 1 KB 504 CA.
342 ibid per Warrington LJ at 512.
343 The defendant parted with his War Savings certificates. See [1923] 1 KB 504 CA per Bankes LJ

at 511.
344 See Burrows at 437.
345 Lipkin Gorman v Karpnale [1991] 2 AC 548. As to the relationship between the estoppel by

representation and change of position, see below.

346 See Paul Key, ‘Estoppel as a defence to restitution’ [1995] CLJ 525.
347 See discussion at paras 9.10–12 above.
348 Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 56.
349 [1991] 2 AC 548.
350 At 578.
351 As pointed out by Cumming Bruce LJ in Avon CC v Howlett [1983] 1 WLR 605 CA 608e–g.
352 Avon CC v Howlett [1983] 1 WLR 605 CA per Cumming Bruce LJ at 609e–f; per Eveleigh LJ
at 611g–612b and per Slade LJ at 622b–c.
353 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369.
354 See Peter Jaffey, ‘Change of position and estoppel’ [2002] LMCLQ 1.
355 See Goff & Jones at 40-025–40-026.
356 See Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48; E

Fung and L Ho, ‘Establishing Estoppel After the Recognition of Change of Position’ [2001]
Restitution Law Review 52; Peter Jaffey, ‘Change of position and estoppel’ [2002] LMCLQ 1.
357 At para 46.
358 [2002] 1 All ER 198; [2001] EWCA Civ 970.
359 At para 35.
360 At para 40.
361 See National Westminster Bank per Clarke LJ at para 61; Scottish Equitable Plc v Derby per

Robert Walker LJ at para 45.

362 See National Westminster Bank per Clarke LJ at para 59 and see Potter LJ at para 48.
363 [1981] 1 WLR 863 CA.
364 [1997] 1 Lloyd’s Rep 96 per Judge Diamond QC at 105 col 1.
365 Elizabeth Cooke points out, with regard to the Australian jurisdiction, ‘we are left with the

position that a reliance measure of relief is advocated, obiter, by the High Court but not evidenced in
its own decisions or in decisions at other levels’: The Modern Law of Estoppel, 1st edn (Oxford
University Press, 2000) at 164. She cites Robertson’s view that ‘there’s an element of
uncompensatable loss in the reliance’ which may render inferior Courts reluctant to apply the High
Court’s guidance: supra, and see Robertson, ‘Satisfying the Minimum Equity: Equitable Estoppel
Remedies After Verwayen’ [1996] 20 Melbourne University LR 805.
366 See para 7.09 above.
367 See Peter Jaffey’s criticism of the use of the concept of a disabled estoppel preferring the

notion of redundance based on hypothetically identical detriments (see ‘Change of Position and
Estoppel’ [2002] LMCLQ 1).
368 Burrows at 437.
369 This was suggested in the dissenting judgment of Viscount Cave LC (with whom Atkin J

concurred): RE Jones v Waring & Gillow [1926] AC 670 at 683. The point was left open by Slade LJ
in Avon at 625a–b.
370 Debs v Sibec Developments Ltd [1990] RTR 91 per Simon Brown J at 98.
371 [1902] AC 117.
372 [1902] AC 117 at 145, applied in National Westminster Bank Ltd v Barclays Bank International

Ltd [1975] 1 QB 654 at 676e–677b. See also Simm v Anglo American Telegraph [1879] 5 QBD 188
CA per Bramwell LJ at 204.
373 See paras 9.40 ff above.
374 George Whitechurch Ltd v Cavanagh [1902] AC 117 per Lord Brampton at 145. See also

National Westminster Bank Ltd v Barclays Bank International Ltd [1975] 1 QB 654 at 676e–677b
where the circumstances ‘reeked of suspicion’.
375 See Simm v Anglo American Telegraph [1879] 5 QBD 188 CA per Brett LJ at 209 as explained

in Dixon v Kennaway & Co [1900] 1 Ch 833 per Farwell J at 840.

376 Re Bankruptcy Notice [1924] 2 Ch 76 CA per Atkin LJ at 97–8; Re Exchange Securities &

Commodities Ltd [1988] Ch 46 per Harman J at 57–60; Shah v Shah [2001] 4 All ER 138; [2001]
EWCA Civ 572; Actionstrength Ltd (t/a Vital Resources) v International Glass Engineering [2003] 2
AC 541; [2003] 2 WLR 1060; [2003] 1 CLC 1003; 88 Con LR 208. See also EDF Energy Networks
(EPN) Plc v BOH Ltd [2009] 49 EG 71; [2010] L & TR 14; [2010] 2 P & CR 3; [2009] EWHC 3193 at
[50].
377 Shah v Shah [2001] 4 All ER 138; [2001] EWCA Civ 572 per Pill LJ at para 21; see also Yaxley

v Gotts [2000] Ch 162 per Beldam LJ at 191: ‘The general principle that a party cannot rely on an
estoppel in the face of a statute depends on the nature of the enactment, the purpose of the provision
and the social policy behind it.’
378 See Shah v Shah [2001] 4 All ER 138; [2001] EWCA Civ 572 at para 30 per Pill LJ.
379 Re Bankruptcy Notice [1924] 2 Ch 76 CA per Atkin LJ at 97–8.
380 Actionstrength Ltd (t/a Vital Resources) v International Glass Engineering [2003] 2 AC 541;
[2003] 2 WLR 1060; [2003] 1 CLC 1003; 88 Con LR 208 per Lord Hoffmann at [29]: ‘It is not
necessary to consider whether circumstances may arise in which a guarantor may be estopped from
relying upon the statute. It is sufficient that in my opinion the estoppel which Actionstrength seeks to
rely upon in this case would be inconsistent with the provisions of the statute.’
381 [1988] Ch 46.
382 ibid per Harman J at 57–60.
383 Daejan Properties Ltd v Mahoney [1995] 2 EGLR 75 CA per Sir Thomas Bingham MR at 77d

and per Hoffmann LJ at 791. In this case the Court of Appeal refers only to estoppel resulting from a
representation. The principles and result (the creation of a legal relationship and interest in property)
fit more easily within the doctrine of proprietary estoppel, however this point appears equally valid in
both doctrines.
384 See Campbell Discount Co v Gall [1961] 1 QB 431 CA per Holroyd Pearce at 442–3 doubting

whether a hire purchase agreement protected under consumer credit legislation could be removed
from it by estoppel. A tenant may, it seems, agree to give up any additional rights which it may have
under a contractual tenancy. Hence, in Harnam Singh v Jamal Pirbhai [1951] AC 688, the tenant was
estopped from relying on its contractual tenancy. The tenant had represented that he was only a
statutory tenant and had no additional rights under contract.
385 Daejan Properties Ltd v Mahoney [1995] 2 EGLR 75 CA per Sir Thomas Bingham MR at 77e–f

and per Hoffmann LJ at 79l–m. However, see London Borough of Waltham Forest v Oakmesh Ltd
[2009] EWHC 1688 (Ch); [2010] JPL 249 per Livesey QC at [45–50] where a housing association
defended enforcement proceedings by arguing that there was no jurisdiction because there had been
no valid agreement under s 106 Town and Country Planning Act 1990. Representations had previously
been made that the agreement was valid and binding. The Deputy held that, as the jurisdiction issue
was not evident on the face of the local authority’s claim, and it was not open to the housing
association to take the point without pleading it, an estoppel could arise to prevent the housing
association from denying the validity of the agreement. It is submitted that, insofar as it relates to
estoppel by representation, the decision in Oakmesh is incorrect.
386 Daejan Properties Ltd v Mahoney [1995] 2 EGLR 75 CA per Sir Thomas Bingham MR at 77e–f
and per Hoffmann LJ at 79l–m; Secretary of State for Employment v Globe Elastic Thread Co Ltd
[1980] AC 506 per Lord Wilberforce at 519. The parties may, however, agree to grant contractual
rights equivalent to those granted by statute and an estoppel can therefore arise to prevent one party
from denying that it has granted such rights. See Daejan supra per Sir Thomas Bingham MR at 77g–h
and per Hoffmann LJ at 79m.
387 [2000] Env LR 582; [1999] EWCH Admin 766.
388 Islington Vestry v Hornsey UDC [1900] 1 Ch 695 CA per Lord Lindley MR at 704–5.
389 York Corpn v Henry Lethal & Sons [1924] 1 Ch 557 per Russell J at 573.
 390 Minister of Agriculture Fisheries and Food v Matthews [1950] 1 KB 148 per Cassels J at 153–
4.
391Western Fish Products v Penrith DC [1981] 2 All ER 204 CA per Megaw at 219b (the estoppel
alleged in the case was proprietary but the comments made cover all types of estoppel considered in
this work); Southendon-Sea Corporation v Hodgson (Wickford) Ltd [1961] 2 WLR 806 DC per Lord
Parker CJ at 423–4, Graham v Secretary of State for the Environment and Anor [1993] JPL 353 per
David Widdicombe QC at 354; Customs & Excise Commissioners v Hebson Ltd [1953] 2 Lloyd’s Rep
382 per Pearson J at 396 col 2.
392 See Rowland v Environment Agency [2003] EWCA Civ 1885 at paras 66–7 and 115–20. The
potential for hardship has led some to suggest that statutory compensation should be available to
members of the public who suffer detriment as a result of reliance on ultra vires representations by
public authorities. See Sir William Wade, Administrative Law, 8th edn (Clarendon Press, Oxford,
2000) at 342–4.
393 Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 PC Canada per Lord Maugham
at 620–1.
394 eg, in Western Fish Products v Penrith DC [1981] 2 All ER 204 CA, it was alleged that the

officer of a planning authority had represented that the development contemplated was covered by the
established use of the premises. It was noted by Megaw LJ at 219e–f that if the authority was bound
by its officer’s representation it would be forced to take the decision without taking into account any
public objection to the development. His Lordship was also concerned that public authorities should
be allowed to advise the public freely, without anxiety that every careless statement might give rise to
an estoppel; see 222a–b.
395 [2002] UKHL 8 at paras 33 and 35.
396 There is authority for the proposition that an estoppel may not operate in favour of a local

authority exercising functions which are regulated by statute: in Stancliffe Stone Company Ltd v Peak
District National Park Authority [2004] EWHC 1475 the local authority was required by the
Environment Act 1995 to designate mineral sites as active or dormant. The local authority argued that
a site owner was estopped by convention from asserting a certain designation. At para 35, Moore-Bick
J said (obiter) ‘the doctrine of estoppel in general does not operate against planning authorities
because of the public law nature of their functions. Moreover, insofar as these functions are regulated
by statutory provisions, I do not think that the doctrine of estoppel can operate in favour of an
authority against an applicant any more than it can operate against an authority in favour of an
applicant.’
397 There is no such limitation where the estoppel is operating in a purely private context and in
relation to purely private law powers. In LB of Bexley v Maison Maurice Limited [2006] EWHC 3192
Lewison J said at [184], ‘In my judgment, section 184 did not confer on the council as highway
authority the power to construct a crossover over the ransom strip. In its capacity as a land owner,
however, it was entitled to authorise the construction of the crossover on its own land.’ On this basis,
the council was estopped from denying that the defendant had permission to vary the position of a
right of way. In Belfields Ltd v Sefton Metropolitan Borough Council [2008] EWHC 1975, HHJ
Pelling QC considered that there was a distinction between cases ‘concerned with the exercise of
statutory powers, the performance of statutory duties or the exercise of statutory discretions in the
field of town and country planning and cases… which are concerned with the activities of local
authorities in their capacity as landowners. Estoppel is available against a local authority acting in the
latter capacity as it is against all land owners but not in the former capacity, where a dissatisfied land
owner seeking redress must do so by reference (in factually appropriate cases) to submissions framed
in legitimate expectation… Where the local authority is acting as a private land owner, it is subject to
the same legal principles as everyone else. Where it is acting pursuant to statutory powers in its
capacity as a planning authority then its activities are governed by principles of public not private
law.’ In RWE Npower Plc v Kent County Council [2005] EWLands ACQ 109 2004, a claim for
compensation on compulsory acquisition, although arising under statute, was considered by the Lands
Tribunal to be a private law claim against the local authority and therefore the Reprotech prohibition
on use of estoppel did not apply.
398 [2002] EWCA Civ 690; [2002] 1 WLR 2601 at para 16.
399 Such public law principles seem to be direct analogues with estoppel. See R v North & East
Devon Health Authority, ex p Coughlan [2001] QB 213; R v Inland Revenue Commissioners, ex p
Unilever Plc [1996] STC 681 CA per Simon Brown LJ at 693c–d, commenting on R v IRC, ex p MFK
Underwriting Agents Ltd [1990] 1 WLR 1545. It has, however, been suggested that the analogy is
flawed, the direct comparison between public and private law doctrines allegedly being misleading.
See para 1.07 above and R v East Sussex CC, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 at para
33. See also R v Inland Revenue Commissioners, ex parte Unilever Plc [1996] STC 681 CA per Simon
Brown LJ at 695b–d.
400 [2002] UKHL 8 at para 34.
401 R v East Sussex CC, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 at para 34; Association of

British Civilian Internees Far East Region v Secretary of State for Defence [2002] EWHC 2119
(Admin) at para 37.
402 [2003] EWHC 622 (Admin) at para 22. See also Rowland v Environment Agency [2003] EWCA

Civ 1885 at [66–67] and [115–120] for a discussion of the hardship created by the withdrawal of
estoppel from the public law sphere and the narrow scope of legitimate expectation; R (Bloggs 61) v
Secretary of State for the Home Department [2003] 1 WLR 2724; [2003] EWCA Civ 686 at [29–46];
Flattery and Japanese Parts Centre Limited v Secretary of State for Communities and Local
Government [2010] EWHC 2868 (Admin); R (Green) v Secretary of State for Communities & Local
Government [2011] EWHC 305 (Admin).
403 See specialist texts. See also Greg Weeks, Estoppel and Public Authorities: Examining the

Case for an Equitable Remedy, University of New South Wales Faculty of Law Research Series
[2010] Paper 70 for a critique of the hardship caused by limiting the scope of estoppel and a
comparison of the positions in Australia and England and Wales.
404 See Eastbourne Borough Council v James Foster [2001] LGR 529. Confusingly, the Court of

Appeal referred to this defence as ‘estoppel by change of position’. A prerequisite for recourse to the
defence was the Court’s finding that the employee had come to equity with clean hands.
405 See Stancliffe Stone Company Ltd v Peak District National Park Authority [2004] EWHC 1475

for limitations on the use of estoppel by a public authority.

406 In R v East Sussex CC, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 at para 33, Lord
Hoffmann stated that introducing estoppel into planning law was ‘unhelpful’ given the wider public
implications. If the case concerns general policy issues then this point has much force. However,
where there is a purely bilateral representation between the local authority and a private party, it is
more difficult to see why wider public implications are relevant (see eg Ealing LBC v SSE [1993]
PLR 12 and the discussion in Wade, Administrative Law at 242–A). In Flanagan v South Bucks DC,
Keene LJ said at [16], ‘estoppel by representation really no longer has any part to play in planning
law’. In R (Wandsworth) v Secretary of State for Transportation Local Government and the Regions
[2003] EWHC 622 (Admin) at [21], Sullivan J considered that, after Reprotech, ‘estoppel no longer
has any place in planning law’.
 407 There is no such limitation where the estoppel is operating in a purely private context and in
relation to purely private law powers: LB of Bexley v Maison Maurice Limited [2006] EWHC 3192;
Belfields Ltd v Sefton Metropolitan Borough Council [2008] EWHC 1975; RWE Npower Plc v Kent
County Council [2005] EWLands ACQ 109 2004.
408 [1981] 2 All ER 204 CA.
409 This twofold classification was adopted in Graham v Secretary of State for the Environment
and Anor [1993] JPL 353 per David Widdicombe QC at 354.
410 [1981] 2 All ER 204 CA per Megaw at 219j, explaining Lever Finance Ltd v Westminster (City)
London Borough Council [1971] 1 QB 222 as an example of the application of this principle.
411 [1981] 2 All ER 204 CA per Megaw LJ at 221b–d, citing Wells v Minister for Housing and
Local Government [1967] 2 All ER 1041 as an example. The Federal Court of Australia canvassed the
possibility of a slightly wider application of the doctrine ‘once it is recognised that the remedies
available for at least equitable estoppel do not necessarily or invarably require the making good of the
assumption on which the party setting up the estoppel relied’. See PT Pabrik Kertas Tjiwi Kimia Tok v
Minister for Justice and Customs [2000] FCA 18 at [42].
412 [2003] EWHC 622 (Admin) at [21].
413 [1967] 1 WLR 1000.
414 See para 35.
415 Eastern Distributors v Goldring [1957] 2 QB 600 CA per Devlin J at 607; Hopgood v Brown

[1955] 1 WLR 213 per Evershed MR at 225. See also the estoppel by deed case of Taylor v Needham
[1810] Taunt 278.
416 [1988] Ch 46 at 53.
417 In Buckinghamshire County Council v Secretary of State for the Environment, Transport and

the Regions and J Brown [2000] EWHC 386, Robin Purchas QC noted that representations to the
Council as to the use of land were not concerned with ownership. Accordingly, past representations by
a landlord as to the use of property, made without complicity of a subsequent licensee, could not
estop the latter in exercising its statutory planning appeal rights.
418 See the comments of Devlin J in Eastern Distributors v Goldring [1957] 2 QB 600 at 607.
419 [1994] 2 All ER 806 per Lord Mustill at 817f–818c, citing with approval the comments of Brett
LJ in Simm v Anglo American Telegraph [1879] 5 QBD 188 CA at 206–7. See also the remarks of
Cotton LJ in Simm, ibid at 215–16 and Eastern Distributors v Goldring [1957] 2 QB 600 CA per
Devlin J at 606.
420 Re Goldcorp [1994] 2 All ER 806 per Lord Mustill at 817f–g. See also Re Exchange Securities

& Commodities Ltd [1988] Ch 46 per Harman J at 57–8, contrasting the debt created by estoppel by
representation with the ‘real debt’ (ie one generated by ordinary substantive principles of law such as
contract, without the assistance of any estoppel) which it was the duty of the liquidator to ascertain in
order that the correct distribution of funds should be available on winding up. For further detail on
this case, see para 9.131 above.
421 Knights v Wiffen [1870] LR 5 QB 660 CA per Mellor J, as approved in Re Goldcorp [1994] 2
All ER 806 per Lord Mustill at 817f–j.
422 As to which see para 16.18 below and particularly Eastern Distributors v Goldring [1957] 2 QB

600 CA per Devlin J at 607.

423 As to which see para 17.64 below.
424 At paras 16.18 ff and 17.65 below.
425 See paras 9.40 ff above.
 426 In re Bahia and San Francisco Railway Company [1893] AC 396 at 403–5 per Lord Herschell
at 408.
427 [1880] 14 ChD 432.
428 Skyring v Greenwood [1825] 4 B & C 281. See also Mackley v Nutting [1949] 1 All ER 413 at
417; Whitmore v Lambert [1955] 2 All ER 147 CA, although these cases concerned tenancies by
estoppel. Such cases give rise to special considerations and it may not be possible to extrapolate the
principles applied in them outside the specific context of tenancies by estoppel.
429 Harnam v Anderson [1809] 2 Camp 243.
430 Re Central Klondike Gold Mining and Trading Co [1898] 5 Mans 336.
431 [1998] QSC 27 per Thomas J at 24–6.
432 Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 58.
433 Re British Farmers Pure Linseed Cake Co [1878] 7 ChD 533; Bloomenthal v Ford [1897] AC

156; Re London Celluloid Co [1888] 39 ChD 190; Burkinshaw v Nicholls [1878] 3 App Cas 1004.
434 [1988] Ch 46.
435 See eg Harris v Truman [1882] 9 QBD 264 per Coleridge CJ at 267 and 269, per Brett LJ at 274

and per Holker LJ at 276 and Re London Celluloid Co [1888] 39 ChD 190 CA per Bowen LJ at 205.
436 [1988] Ch 46 per Harman J at 57–60.
437 See Harman J’s narrower ground outlined above.
438 See Harman J’s wider ground outlined above.
439 At para 9.141 above.
440 Eastern Distributors v Goldring [1957] 2 QB 600 CA per Devlin J at 607.
441 ibid.
442 ibid. See also Re Exchange Securities & Commodities Ltd [1988] Ch 46 per Harman J at 54.
443 Hopgood v Brown [1955] 1 WLR 213.
444 [1955] 1 WLR 213. See also Gresham Life Assurance Society v Crowther [1914] 2 Ch 219 per
Astbury J at 228 (aff’d on other grounds [1915] 1 Ch 214 CA).
445 [1810] Taunt 278.
446 See paras 9.141ff above.
447 See National Provincial Bank v Ainsworth [1965] AC 1175 HL and Midland Bank v Green
[1981] AC 513 for general comments on the importance of the integrity of the land registration
schemes.
448 See paras 9.141 ff above.
449 Eastern Distributors v Goldring [1957] 2 QB 600 CA per Devlin J at 607.
450 As to which see specialist texts.
451 See Chapter 11.
452 De Tchihatchef v Salemi Coupling Ltd [1932] 1 Ch 330. See also Bell v Marsh [1903] 1 Ch 528,

where an estoppel would have been made out against the executors but for the absence of detrimental
reliance by the representee.
453 See Bay of Plenty Energy Corporation v Natural Gas Energy Corp [2002] 1 NZLR 173 at paras

46–9.
454 Re Goldcorp [1994] 2 All ER 806 per Lord Mustill at 818c–g. See also RW Tasker & Sons Ltd

and Hoare v W Tasker & Sons Ltd [1905] 2 Ch 587 CA per Stirling LJ at 599.
455 Re Goldcorp [1994] 2 All ER 806 per Lord Mustill at 818f–g.
456 At paras 9.141 ff above.
 457 See Chapter 11 below passim.
458 [1990] Ch 237 per Warner J at 258f–h. See also Keith v R Gancia and Co Ltd [1904] 1 Ch 774
CA.
459 The terms of the transfer were not sufficient to give rise to a constructive trust in favour of the
subtenants since they amounted to a negative ‘subject to’ clause rather than a positive one: for an
explanation of the distinction and of the operation of such trusts, see Ashburn Anstaldt v Arnold
[1988] 2 WLR 706.
460 Greenwood v Martins Bank Ltd [1932] 1 KB 371 CA per Greer LJ at 388; Bell v Marsh [1903]
1 Ch 528 CA per Lord Collins MR at 541; Freeman v Cooke [1848] 2 Ex 654; ER 652.
461 Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Fraser at 924; per Lord
Salmon at 912; Johnson v Credit Lyonnaise Co [1877] 3 CPD 32 per Cockburn CJ at 42 (Bramwell LJ
concurring at 48); Campbell Discount Co v Gall [1961] 1 QB 431 CA per Holroyd Pearce at 442–3.
462 Bell v Marsh [1903] 1 Ch 528 CA per Lord Collins MR at 541.
463 Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Fraser at 924; per Lord

Salmon at 912.
464 Dixon v Kennaway & Co [1990] 1 Ch 833 per Farwell J at 238; Carr v London and North

Western Rly Co [1875] LR 10 CP 307 per Brett and Denman JJ at 318; Coventry v Great Eastern
Railway Co [1883] 11 QBD 776 CA per Brett LJ at 789 and per Lindley LJ at 781; Seton, Laing v
Lefone [1887] 19 QBD 68 CA per Fry LJ at 73.
465 Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Fraser at 924; per Lord

Salmon at 912; Debs v Sibec Developments Ltd [1990] RTR 91 per Simon Brown J at 99; Campbell
Discount Co v Gall [1961] 1 QB 431 CA per Holroyd Pearce at 442–3; London Joint Stock Bank Ltd v
Macmillan [1918] AC 777 per Lord Haldane at 815.
466 See eg Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 and Abigail v Lapin [1934]

AC 481 PC (NSW), Lord Wright averred at 504.

467 See paras 9.70 ff above.
468 Eastern Distributors v Goldring [1957] 2 QB 600 CA per Devlin J at 610–11.
469 At para 9.142 above.
470 See the Canadian jurisprudence on this point: Boma Manufacturing Limited v Canadian

Imperial Bank of Commerce [1996] 140 DLR (4th) 463 (SCC); Nesbitt Burns Inc v Canada Trustco
Mortgage (22 March 2000, ONCA C32077). The Ontario Court of Appeal, whilst ruling out a plea of
contributory negligence against a bank customer for failure to prevent fraudulent drawing of cheques,
envisaged that an estoppel by negligence, operating as an estoppel by representation, could operate:
see per Feldman JA at paras 27, 37.
471 Bank of England v Vagliano Bros [1891] AC 107.
472 Subject to a number of limited exceptions as to which see specialist texts.
473 LTL 16 March 1999.
474 See also Atiyah/Adams to this effect.
475 See chapters relating to the relevant subject areas below.
476 See generally on this subject, Andrew Burrows, The Law of Restitution (Butterworths, London,

1993) at 431–9; Birks I at 402–10; Goff & Jones; Beatson and Bishop, ‘Mistaken payments in the law
of restitution’ (1986) University of Toronto LJ 149; Paul Key, ‘Estoppel as a defence to restitution’
[1995] 54 CLJ 525.
477 See the discussion at paras 9.109 ff above. This section is included given that there clearly are

cases in which both restitution and estoppel by representation must be considered—see Scottish
Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369; National Westminster Bank Plc v
Somer International Ltd [2002] 1 All ER 198; [2001] EWCA Civ 970—and on the basis that the law
remains unclear—see Goff & Jones at 40-025–40-026.
478 As to which see specialist texts.
479 See further above at paras 9.86ff.
480 Deutsche Bank (London Agency) v Beriro & Co [1895] 73 LT 669 per Mathew J aff’d by CA
(Lindley, Smith, Rigby LJJ at 671) (where there was an express representation and a breach of duty);
Holt v Markham [1923] 1 KB 504 CA.
481 Deutsche Bank (London Agency) v Beriro & Co [1895] 73 LT 669 per Mathew J aff’d by CA
(Lindley, Smith, Rigby LJJ at 671) (where there was an express representation and a breach of duty);
Weld Blundell v Synott [1940] 2 KB 107 per Asquith J at 114–15; RE Jones v Waring & Gillow [1926]
AC 670 per Viscount Cave LC at 683 and per Lord Sumner at 693; Skyring v Greenwood [1825] 4 B &
C 281.
482 [1940] 2 KB 107.
483 [1983] 1 WLR 605 CA per Slade LJ at 622.
484 It should be noted that the finding as to duty was not essential to the outcome of Avon, as the

employer had expressly represented to the employee that the payments he had received were correct.
485 See Birks I at 404.
486 Lipkin Gorman v Karpnale [1991] 2 AC 548 per Lord Goff at 579.
487 [1991] 2 AC 548.
488 Lipkin Gorman v Karpnale [1991] 2 AC 548 per Lord Goff at 580.
489 See the example cited by Robert Walker LJ of ‘an innocent recipient of a payment which is

later stolen from him’ in Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369
at paras 31–2; and see Goff & Jones at 40-008.
490 Cooke concludes that ‘a plea of estoppel is now redundant unless it is actually impossible to

prove the extent of change of position’: The Modern Law of Estoppel, 1st edn (2000) at 153. That is
probably an overstatement. There are limitations to the restitutionary defence, such as (a) the
qualification that the change of position must not precede receipt and (b) its covering merely actual
reductions in the recipient’s wealth. It may thus be that remaining uncertainties as to the scope of the
restitutionary doctrine will result in a continuing, independent role for estoppel principles (see E Fung
and L Ho, ‘Change of Position and Estoppel’ [2001] 117 LQR 14). In any event, it is possible that
estoppel will operate where there is a valid defence to a change of position argument.
491 See the discussion of this issue by Paul Key in ‘Estoppel as a defence to restitution’ [1995] 54

CLJ 525 and in particular the materials cited at fnn 16–18 at 528.
492 [2001] 3 All ER 818; [2001] EWCA Civ 369.
493 Supra at para 45. This approach was not, however, taken up in National Westminster Bank Plc v
Somer International (UK) Limited [2002] 1 All ER 198.
494 As set out in para 9.159 above.
495 Referred to in passing, but not relied upon, in Cadbury Schweppes Plc v Halifax Share Dealing

Ltd [2006] EWHC 1184 at [49], where Lindsay J explained that no relevant principle could be
extracted from Longman v Bath Electric Tramways Ltd [1905] 1 Ch 646 CA at 667.
496 Coventry v Great Eastern Railway Co [1883] 11 QBD 776 CA; Seton, Laing v Lefone [1887] 19

QBD 68 CA. In the latter case, an express representation was made, but not to the party claiming the
benefit of the estoppel.
497 Fung Kai Sun v Chan Fui Hing [1951] AC 489 PC HK per Lord Reid at 501.
 1 This formulation was approved in Ryan v Moore 2005 SCC 38, [2005] 2 S.C.R. 53 at [55, 59].
2 In this sense, estoppel by convention may be nothing more than common construction of the
contract—see MSC Mediterranean Shipping Co SA v The Owners of the Ship ‘TYCHY’ [2001] EWCA
Civ 1198; [2001] 2 Lloyd’s Rep 403 at [34].
3 Note, however, ING Bank SA v Ros Roca SA [2011] EWCA Civ 353 at 66 per Carnwath LJ. There
Lord Justice Carnwath reduced the doctrine to two questions—concerning relevant assumption and
unconscionability.
4 In a broad and non-technical sense—Gillett v Holt [2001] Ch 210 at 232D per Robert Walker LJ;
John v George (1996) 71 P & Cr 375.
5 Hamel-Smith v Pycroft & Jervase Ltd (QBD, 5 February 1987 per Peter Gibson J) applying Keen
v Holland [1984] 1 WLR 251 at 261F–G per Oliver LJ approved Norwegian American Cruises A/S v
Paul Mundy Ltd (‘The Vistafjord’) [1988] 2 Lloyd’s Rep 343 at 351–2 per Bingham LJ. See also
Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 Lloyd’s Rep 570 at 596 col 2 per
Webster J; Bank of Scotland v Wright [1991] BCLC 244 at 261e–f per Brooke J; Lovett v Fairclough
(1991) 61 P & Cr 385 at 401 per Mummery J; Credit Suisse v Beegas Nominees [1994] 4 All ER 803
at 831e–h per Lindsay J; W Middlesex Golf Club Limited v London Borough of Ealing (1994) 68 P &
Cr 461 at 480 per Roger Kaye QC; Republic of India & Anor v India Steamship Co Ltd (‘The Indian
Endurance’) [1996] 13 All ER 641 at 651j per Staughton LJ approved [1998] AC 878 at 913E–H per
Lord Steyn; John v George and Walton (1996) 71 P & Cr 375 at 394–5 per Simon Brown LJ; Triodos
Bank NV v Dobbs [2005] EWCA Civ 630; [2005] 2 Lloyd’s Rep 588 at [22]; Excel Polymers Ltd v
Achillesmark Ltd [2005] EWHC 1927 at [57]; ING Bank v Ros Rpca SA [2011] EWCA Civ 353 at
[55]; Standard Chartered Bank v Ceylon Petroleum Corpn [2011] EWHC 1785 at [535].
6 Some care must be taken with this limb of the formulation. As set out below (at para 10.09),

estoppel by convention does not require one party to induce or encourage the other to act on the
particular assumption—Republic of India v India Steamship Co Ltd (‘The Indian Endurance’) (No 2)
[1998] AC 878 at 891A–B per Staughton LJ; John v George and Walton (1996) 71 P & Cr 375 at 385
per Morritt LJ.
7 HM Revenue & Customs v Benchdollar Ltd [2009] EWHC 1310; [2009] STC 2342; 79 TC 668;

[2009] STI 2058; [2010] 1 All ER 174 at [52] per Briggs J. See also Pearson v Lehman Brothers
Finance SA [2010] EWHC 2914 at [344] (also Briggs J); Catchpole v Trustees of the Alitalia Airlines
Pension Scheme [2010] EWHC 1809; [2010] Pens LR 387 at [41] per Warren J; with one caveat
(namely that the sharing between the parties can be by words or conduct); Stena Line Ltd v Merchant
Navy Ratings Pension Fund Trustees Ltd [2010] EWHC 1805 at [136]–[137] per Briggs J; Wollenberg
v Casinos Austria International Holding GmbH [2011] EWHC 103 at [171] per Lewison J.
8 But see paras 10.04 ff below.
9 Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982]

QB 84 at 126A–B per Eveleigh LJ; 130G–131B per Brandon LJ. If one party merely acts individually
there is no estoppel by convention—see Wilson v Truelove [2003] EWHC 750; [2003] 23 EG 136;
[2003] 2 EGLR 63; [2003] 10 EG 164; [2003] WTLR 609 at [21] per Simon Berry QC; Durham v BAI
(Run Off) Ltd [2008] EWHC 2692 (QB); [2009] 2 All ER 26; [2009] 1 All ER (Comm) 805; [2009]
Lloyd’s Rep IR 295 at [285] per Burton J.
10 See Hiscox v Outhwaite (No 1) [1992] 1 AC 562 at 575G per Lord Donaldson MR; W Middlesex
Golf Club Limited v London Borough of Ealing (1994) 68 P & Cr 461 at 482 per Roger Kaye QC; PW
& Co v Milton Gate Investments Ltd [2003] EWHC 1994; [2004] 2 WLR 443; [2004] Ch 142; [2004]
3 EGLR 103; [2004] L & TR 8 at [170] –[172] per Neuberger J (as he then was).
11 Giving rise to an estoppel by representation—see Chapter 9.
 12 A statement of present fact may, however, impact on the future acts of the parties—see ING
Bank NV v Ros Roca SA [2011] EWCA Civ 353 at 64 per Carnwath LJ.
13 SERE Holdings Ltd v Volkswagen Group United Kingdom Ltd [2004] EWHC 1551 at [25] per
Christopher Nugee QC; Steria Ltd v Hutchison [2005] EWHC 2993 at [94] per Peter Smith J
(overturned on other grounds at [2006] EWCA Civ 1551; [2007] ICR 445 at [81] per Neuberger LJ (as
he then was); Centrica Plc v Premier Power Ltd [2006] EWHC 3068 at [136] per Gloster J—the
rationale being that it cannot be unconscionable to resile from an indefinite future alleged based of
dealing at [137]; Scottish & Newcastle Plc v Lancashire Mortgage Corporation Ltd [2007] EWCA
Civ 684 at [62] per Mummery LJ. A promise would give rise to equitable forbearance—see Chapter 8.
14 Estoppel by convention being essentially a question of evidence—Cooperative Bank v Tipper
[1996] 4 All ER 366 at 372a–d per HHJ Roger Cooke.
15 In the First Edition.
16 London Borough of Hillingdon v ARC Ltd [2000] EWCA Civ 191 at [44] per Arden LJ approving
the test in the First Edition.
17 [1984] 1 WLR 251 at 261F–G per Oliver LJ.
18 [1998] AC 878 at 890H–891A per Staughton LJ approved [1998] AC 878 at 913E–H per Lord

Steyn.
19 [1982] QB 84.
20 At 122.
21 See eg J Murphy & Sons Ltd v Daimler Benz Transportation (Signal) Ltd [1998] EHWC 278;

Woolls v Powling [1999] EWCA Civ 751 at [74].

22 Hiscox v Outhwaite (No 1) [1992] 1 AC 562 at 574H–575D. See also John v George and Walton

(1996) 71 P & Cr 375 at 385 per Morritt LJ.

23 [2001] 2 WLR 72.
24 At 92D–G. Lord Bingham did so within the context of abuse of process. Lords Cooke, Hutton

and Millet agreed with Lord Bingham’s views on abuse of process at 101D; 109H; 120A–C without
expressly considering estoppel by convention.
25 See 92D.
26 See 98D–F.
27 At 99A–B.
28 At 100B–C. See also Baird Textiles Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001]

CLC 999; [2002] 1 All ER (Comm) 737 at paras 35 and 39 per Morritt VC; para 55 per Judge LJ and
paras 95–9 per Mance LJ where Counsel’s attempt to introduce a unified theory into English Law
failed.
29 At 100C.
30 There have been tentative formulations of the possibility of an overarching doctrine at the Court

of Appeal level. The formulations were predicated on the obvious awareness that there was not yet
such a doctrine in English law and that its genesis may not be easy—see Scottish Equitable Plc v
Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48 per Robert Walker LJ; National
Westminster Bank Plc v Somer International Ltd [2002] 1 All ER 198; [2001] EWCA Civ 198 at paras
40, 47 per Potter LJ; paras 58–60 per Clarke LJ. These attempts must now be read against Baird
Textiles Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER
(Comm) 737 at paras 35 and 39 per Morritt VC; para 55 per Judge LJ and paras 95–9 per Mance LJ.
As to the basic difficulties with a unified theory, see paras 7.09 ff above.
31 See Tarmac Construction Ltd v Esso Petroleum Co Ltd (1996) 83 BLR 65 at 109D–E per HHJ
Humphrey Lloyd QC; ING Bank NV v Ros Roca SA [2011] EWCA Civ 353 at 59–60 per Carnwath LJ.
Further, compare, eg, Lord Denning MR with Eveleigh and Brandon LJJ in Amalgamated Investment
& Property Co Ltd v Texas Commerce International Bank Ltd—whilst Lord Denning decided the case
on the basis of a broad principle, the majority of the Court clearly regarded estoppel by convention as
a separate and distinct phenomenon. This difficulty remains in Australia which purports to have a
unified doctrine—see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Commonwealth
of Australia v Verwayen (1990) 170 CLR 394; McCraith v Fraser (1991) 104 FLR (Aus) 227.
32 See Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 914C–D; [1997] 3
WLR 818 per Lord Steyn at 830D–E; Johnson v Gore Wood & Co [2001] 2 WLR 72 at 98D–100C;
[2000] UKHL 65 paras 75–9 per Lord Goff; Baird Textiles Ltd v Marks & Spencer Plc [2001] EWCA
Civ 274; [2001] CLC 999; [2002] 1 All ER (Comm) 737 at paras 35 and 39 per Morritt VC; para 55
per Judge LJ and paras 95–9 per Mance LJ.
33 See eg Cooperative Bank v Tipper [1996] 4 All ER 366 at 372a–d per HHJ Roger Cooke.
34 See Baird Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999; [2002]
1 All ER (Comm) 737 at para 50, where Lord Justice Judge commented that a single doctrine would
avoid the possibilities of unhelpful rigidity. Obviously rigidity for rigidity’s sake is unattractive. If,
however, one bears in mind that the taxonomy is there to allow the appropriate doctrine to give the
appropriate remedy, the result should not be rigidity but certainty and appropriate remedial
flexibility. The alternative benefit canvassed by the Lord Justice was the formulation of a unified
doctrine which could be used as a sword (at para 52). As discussed in Chapter 7, such a unified
doctrine not only collides with the limits on proprietary estoppel but also with the doctrine of
consideration. If a unified principle is to be developed, those collisions must be resolved.
35 See Baird Textiles Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC

999; [2002] 1 All ER (Comm) 737 at para 84 where Lord Justice Mance said that there was inherent
flexibility in the doctrine to take effect in differing forms.
36 This must be proved to the same standard as a claim in rectification—T & N Ltd V Royal & Sun

Alliance Plc [2003] EWHC 1016 at [193] per Lawrence Collins J (as he then was). As with
rectification, evidence of the parties’ negotiations will be admissible in establishing the convention
—Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38; [2009] 27 EG 91; [2009] BLR
551; 125 Con LR 1; [2009] AC 1101; [2009] 3 WLR 267; [2010] 1 P & CR 9; [2009] Bus LR 1200;
[2009] NPC 86; [2009] NPC 87; [2009] CILL 2729; [2009] 4 All ER 677; [2009] 1 AC 1101 at [35,
41, 47]—whereas evidence of the parties’ subjective intentions will not be—T & N Ltd V Royal & Sun
Alliance Plc [2003] EWHC 1016 at [130] per Lawrence Collins J (as he then was); Queen’s Moat
Houses Plc v Capita IRG Trustees Ltd [2004] EWHC 868 at [35] per Lightman J.
37 See Wilson v Truelove [2003] EWHC 750; [2003] 23 EG 136; [2003] 2 EGLR 63; [2003] 10 EG

164; [2003] WTLR 609 at [21] per Simon Berry QC; Durham v BAI (Run Off) Ltd [2008] EWHC 2692
(QB); [2009] 2 All ER 26; [2009] 1 All ER (Comm) 805; [2009] Lloyd’s Rep IR 295 at [285] per
Burton J.
38 See K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (‘The August Leonhardt’)

[1985] 2 Lloyd’s Rep 28 at 35 col 1 per Kerr LJ; Companie Portorafti Commerciale SA v Ultramar
Panama Inc (‘The Captain Gregos’) (No 2) [1990] 2 Lloyd’s Rep 395 at 405 col 2 per Bingham LJ;
The Stolt Loyalty [1993] 2 Lloyd’s Rep 281 at 290 cols 1–2 per Clarke J.
39 K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (‘The August Leonhardt’) [1985] 2

Lloyd’s Rep 28 at 34 col 1–35 col 2 per Kerr LJ; Republic of India v India Steamship Co Ltd (No 2)
[1998] AC 878 at 891D per Staughton LJ.
40 PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994; [2004] 2 WLR 443; [2004] Ch
142; [2004] 3 EGLR 103; [2004] L & TR 8 at [164]–[165] per Neuberger J (as he then was).
41 Republic of India v India Steamship Co Ltd (‘The Indian Endurance’) (No 2) [1998] AC 878 at

913F–G per Lord Steyn. See also Fugaccia v St Martins’ Securities Ltd [1997] EWCA Civ 1488 at
paras 7–8 per Peter Gibson LJ. The performance, however, of an uncontentious contractual obligation
—payment for example—will not suffice—see Centrica Plc v Premier Power Ltd [2006] EWHC 3068
at [128] per Gloster J.
42 Republic of India v India Steamship Co Ltd (‘The Indian Endurance’) (No 2) [1998] AC 878 at
891D–E per Staughton LJ.
43 HIH Casualty & General Insurance Ltd v AXA Corporate Solutions [2002] EWCA Civ 1253;
[2002] 2 All ER (Comm) 1053 at [33] per Tuckey LJ; Fortisbank SA v Trenwick International Ltd
[2005] EWHC 399 at [43] per Gloster J.
44 See Sere Holdings Ltd v Volkswagon Group United Kingdom Ltd [2004] EWHC 1551 and Lloyd
v MGL (Rugby) Ltd [2007] EWCA Civ 153. It must be noted that the presence of an entire agreement
clause may, not will, negative the estoppel, its effect will be a question of fact and degree—see
Jet2.Com Ltd v Blackpool Airport Ltd [2010] EWHC 3166 at [40] per Beatson J.
45 See Attorney-General of Hong Kong v Humphreys Estate (Queens Gardens) [1987] 1 AC 114 at

127–8 per Lord Templeman; London & Regional Investments Ltd v TBI Plc [2002] EWCA Civ 355 at
[42] per Mummery LJ; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] I WLR
1752; compare, however, Gonthier v Orange Contract Scaffolding Limited [2003] EWCA Civ 873 at
[61]. In Spring Finance Ltd v HS Real Company LLC [2011] EWHC 57, the Court noted the apparent
contradiction but found that it did not need resolving (at [58]). Whilst it must be correct that the fact
that discussions are said to be ‘subject to contract’ makes it unlikely that there is a common
assumption, it does not make it impossible. The question must be one of fact and degree.
46 HIH Casualty & General Insurance Ltd v AXA Corporate Solutions [2002] EWCA Civ 1253;

[2002] 2 All ER (Comm) 1053 at [30] per Tuckey LJ. Note, however, that the Courts have expressly
resisted any suggestion that the convention must be ‘clear and unequivocal’—see ING Bank NV v Ros
Roca SA [2011] EWCA Civ 353 at [64] per Carnwath LJ.
47 Republic of India v India Steamship Co Ltd (‘The Indian Endurance’) (No 2) [1998] AC 878 at

891A–B per Staughton LJ; John v George and Walton (1996) 71 P & Cr 375 at 385 per Morritt LJ.
48 In cases where the alleged estoppel is as to the interpretation of a contract, there may be no
difference between the alleged estoppel by convention and the proper construction of the contract—
see Mander v Commercial Union Assurance Co Plc [1999] Lloyd’s Rep IR 93 at 142 col 1 per Rix J
(as he then was).
49 See Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 Lloyd’s Rep 570 at 606

cols 1–2 per Webster J; Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 892E per
Staughton LJ.
50 See Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 at 903 per Lord Wilberforce

(dissenting on the decision at issue but not on this particular point); Pacol Ltd & Ors v Trade Lines
Ltd and R/I Sif IV (‘The Henrik Sif’) [1982] 1 Lloyd’s Rep 456 at 465 cols 1–2 per Webster J; The
Stolt Loyalty [1993] 2 Lloyd’s Rep 281 at 290 cols 1–2 per Clarke J.
51 See Norwegian American Cruises A/S v Paul Mundy Ltd (‘The Vistafjord’) [1988] 2 Lloyd’s Rep
343 at 352 col 1 per Bingham LJ; Shearson Lehman Hutton Inc v Machine Watson & Co Ltd [1989] 2
Lloyd’s Rep 570 at 596 col 2 per Webster J; Furness Withy (Australia) Pty Ltd v Metal Distributors
(UK) Ltd (‘The Amazonia’) [1990] 1 Lloyd’s Rep 236 at 251 per Dillon LJ; Hiscox v Outhwaite (No 1)
[1992] 1 AC 562 at 575G–H per Lord Donaldson MR; R v (i) Secretary of State for Environment,
Transport and the Regions; (ii) Midland Expressway Ltd, ex p The Alliance against the BNRR [1998]
EHWC Admin 979 at paras 109–11 per Sullivan J; Gloyne v Richardson [2001] EWCA Civ 716 per
Laws LJ.
52 PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994; [2004] 2 WLR 443; [2004] Ch

142; [2004] 3 EGLR 103; [2004] L & TR 8 at [222] per Neuberger J (as he then was). See also
Wollenberg v Casinos Austria International Holding GmbH [2011] EWHC 103 at [172], [175] per
Lewison J—the convention must have caused the detriment.
53 See the sections headed ‘Detriment’ in Chapters 11, 9 and 8.
54 Supra.
55 Steria Ltd v Ronald Hutchison [2006] EWCA Civ 1551; [2007] ICR 445 at [109] per Neuberger
LJ (as he then was); Redrow Plc v Pedley [2002] EWHC 983; [2003] OPLR 29; [2002] Pens LR 339;
[2002] PLR 339 at [60]; Trustee Solutions Ltd v Dubery [2006] EWHC 1426; [2007] 1 All ER 308;
[2006] Pens LR 177; [2007] ICR 412; [2006] PLR 177 at [51] per Lewison J; Foster Wheeler Ltd v
Hanley [2008] EWHC 2926; [2009] 1 CMLR 47; [2009] Pens LR 39 at [84]–[86] per Patten J; IMG
Pension Plan HR Trustees Ltd v German [2009] EWHC 2785; [2010] Pens LR 23 at [185]–[186] per
Arnold J; Catchpole v Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809; [2010]
Pens LR 387 at [47] per Warren J.
56 See eg Lovett v Fairclough (1991) 61 P & Cr 385 at 401 per Mummery J; The Stolt Loyalty

[1993] 2 Lloyd’s Rep 281 at 291 col 2 per Clarke J; Ease Faith Ltd v Leonis Marine Management Ltd
[2006] EWHC 232 at [171]. This type of ‘reliance’ may be relatively easily inferred—see by analogy
Nationwide Building Society v Lewis (ChD, 23 May 1997 per Rimer J).
57 See eg Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 Con LR 129 at 185–

6 per HHJ Esyr Lewis QC.

58 ie in allowing a mistaken view of the common assumption to ‘cross the line’—K Lokumal &

Sons (London) Ltd v Lotte Shipping Co Pte Lid (‘The August Leonhardt’) [1985] 2 Lloyd’s Rep 28 at
34 col 1–35 col 2 per Kerr LJ; John v George and Walton (1996) 71 P & Cr 375 at 396 per Simon
Brown LJ.
59 See Norwegian American Cruises A/S v Paul Mundy Ltd (‘The Vistafjord’) [1988] 2 Lloyd’s Rep

343 at 353 col 1 per Bingham LJ; John v George and Walton (1996) 71 P & Cr 375 at 396 per Simon
Brown LJ. See also Ryan v Moore 2005 SCC 38; [2005] 2 SCR 53 at [69].
60 Gloyne v Richardson [2001] EWCA Civ 716 at [40]–[41] per Laws LJ.
61 It could still be unconscionable in a tri-partite estoppel by convention case—PW & Co v Milton

Gate Investments Ltd [2003] EWHC 1994; [2004] 2 WLR 443; [2004] Ch 142; [2004] 3 EGLR 103;
[2004] L & TR 8 at [217]–[218] per Neuberger J (as he then was).
62 Although it is important not to rely too much on the terminology of sword/shield at the expense

of a critical examination of the substance of the issue (see Parry v Edwards Geldard [2001] EWHC
Ch 427 per Jacob J), the terminology is used as an established shorthand.
63 Other than proprietary estoppel.
64 See Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999;

[2002] 1 All ER (Comm) 737 at para 38 per Morritt VC; para 54 per Judge LJ; para 99 per Mance LJ.
See also White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 at [66] per Sir
Peter Gibson.
65 See Godden v Merthyr Tydfil Housing Association [1997] EWCA Civ 780 per Simon Brown LJ.
66 See Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce
International Bank Ltd [1982] 1 QB 84 at 105D–106A per Robert Goff J.
67 See Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 Con LR 129 at 185–6
per HHJ Esyr Lewis QC.
68 See Hiscox v Outhwaite (No 3) [1991] 2 Lloyd’s Rep 524 at 535 cols 1–2 per Evans J.
69 See Sarat Chunder Dey v Gopal Chunder Laha (1892) 19 LR Ind App 203; Calgary Milling Co
Ltd v American Surety Co of New York [1919] 3 WWR 98; De Tchihatchef v Salerni Coupling Ltd
[1932] 1 Ch 330.
70 [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER (Comm) 737.
71 At [38], [55], [88] ff.
72 [2003] EWHC 1487 at [191] ff per HHJ Richard Seymour QC.
73 [2006] EWHC 1586 at [109] ff per Coulson J.
74 [2008] EWHC 1016 at [181] ff per Ramsey J.
75 [2006] EWHC 424 at [268] ff.
76 Especially given the purposive and muscular doctrine of contractual construction advanced by

the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38; [2009] 27 EG
91; [2009] BLR 551; 125 Con LR 1; [2009] AC 1101; [2009] 3 WLR 267; [2010] 1 P & CR 9; [2009]
Bus LR 1200; [2009] NPC 86; [2009] NPC 87; [2009] CILL 2729; [2009] 4 All ER 677.
 1 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 has been described as relaxing the
prerequisites of proprietary estoppel in the domestic context. See Stack v Dowden [2007] 2 AC 432;
[2007] 2 WLR 831; [2007] UKHL 17 for the relaxation of the requirements for a common intention
constructive trust. See also Lord Neuberger, ‘The stuffing of Minerva’s Owl? Taxonomy and
taxidermy in equity’ [2009] CLJ 537 at 542–4.
2 Pettitt v Pettitt [1970] AC 777; [1969] 2 All ER 385; [1969] UKHL 5 per Lord Upjohn, in the
context of constructive trusts, rejected the notion of special rules for family property.
3 The dispute will often arise from things said or done in the context of a personal relationship,
where it would not occur to the parties to express their intentions through a legal instrument or where
a request for formality might be seen as an indication of mistrust.
4 Willmott v Barber [1880] 15 Ch D 96.
5 As explained in Shaw v Applegate [1977] 1 WLR 970 and Taylor Fashions Ltd v Liverpool
Victoria Trustees Co Ltd [1982] QB 133; [1981] 2 WLR 576; [1981] 1 All ER 897.
6 See Coombes v Smith [1986] 1 WLR 808 at 818a; Crabb v Arun DC [1976] Ch 179 CA per

Scarman LJ at 195a–e; Swallow Securities Ltd v Isenberg [1985] EGLR 132 CA (the probanda were
‘guidelines’ which would probably prove to be ‘necessary and essential’ to assist the Court in
establishing whether unconscionable conduct had occurred); Salvation Army Trustee Co Ltd v West
Yorkshire Metropolitan County Council [1981] 41 P & CR 179 at 194; Gloucestershire CC v Farrow
[1983] 2 All ER 1031 at 1036. See also Matharu v Matharu [1994] 68 P & CR 93 CA per Roche LJ at
102 (Hurst LJ concurring) where the active encouragement of the property owner made the
application of the probanda inappropriate albeit that the case was an example of mistake: Milne
[1995] 58(3) MLR 412. See also Veitch v Caldecott [1945] 173 LT 30 at 34 and Stilwell v Simpson
[1983] 133 NLJ 894, which referred generally to a mistake requirement without direct reference to
Willmot.
7 Grant v Edwards [1986] Ch 638 at 656; Yaxley v Gotts [2000] Ch 162 at 176–7.
8 Stack v Dowden [2007] 2 AC 432 at para 37.
9 Yeoman’s Row Management Ltd v Cobbe [2008] UKHL 55; [2008] 1 WLR 1752 per Lord Scott at

paras 14 and 23 of the leading opinion of the majority. This theory also receives support in Crabb v
Arun District Council and Taylor Fashions Ltd v Liverpool Victoria Trustees.
10 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 per Lord Walker at paras 54–67. It is
submitted that Lord Walker’s view is correct. See also Lord Neuberger, ‘The stuffing of Minerva’s
Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537 at 547 and J Getzler ‘Quantum meruit,
estoppel, and the primacy of contract’ [2009] 125 LQR 196 at 198.
11 Yeoman’s Row Management Ltd v Cobbe [2008] UKHL 55; [2008] 1 WLR 1752.
12 See the paper accompanying Etherton LJ’s lecture to the Chancery Bar Association Conference,

‘Constructive Trusts and Proprietary Estoppel: The search for clarity and principle’, delivered on 16
January 2009, available at <http://www.chba.org.uk> and Ben McFarlane and Professor Andrew
Robertson, ‘Death of Proprietary Estoppel’ [2008] LMCLQ 449.
13 Thorner v Major and others [2009] UKHL 18; [2009] 1 WLR 776, see in particular para 31.
14 However, ‘it is important to note at the outset that the doctrine of proprietary estoppel cannot be
treated as subdivided into three… watertight compartments… the quality of the relevant assurances
may influence the issue of reliance, that reliance and detriment are often intertwined… Moreover the
fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the
elements of the doctrine. In the end the court must look at the matter in the round.’ Per Robert Walker
LJ in Gillett v Holt [2001] Ch 210.
15 See below at paras 11.82 ff.
 16 As to which see S Gardner, ‘The remedial discretion in proprietary estoppel’ [1999] 115 LQR
436–68.
17 See Crabb v Arun DC [1976] Ch 179.
18 Ranging from estoppel by representation and convention, where there is limited flexibility (see
paras 9.109 ff), to equitable forbearance/promissory estoppel, where there is more scope for a flexible
remedy (see paras 8.65 ff), through to proprietary estoppel, where remedial discretion is broad. See
also paras 7.33 ff for an outline of the various estoppels and their common elements.
19 Indeed there have been indications that the boundaries between the various estoppel doctrines
are collapsing, although there continue to be significant distinctions. See Crabb v Arun [1976] Ch179
per Scarman LJ at 183; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 at
151g–152a; Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce
International Bank Ltd [1982] 1 QB 84 per Denning MR at 122. For an Australian perspective see The
Commonwealth v Verwayen [1990] 170 CLR 394 per Mason CJ at 413. See also Lord Neuberger, ‘The
stuffing of Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537 for a recent
argument in favour of collapsing the boundaries.
20 [2009] UKHL 18; [2009] 1 WLR 776 at para 20.
21 Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International

Bank Ltd [1982] 1 QB 84 at 103d–g.

22 Section B below.
23 Section G below.
24 Section H below.
25 The taxonomy put forward at para 10.189 of Gray and Gray, Land Law, 4th edn and adopted by

Robert Walker LJ for the purposes of his review of some of the key proprietary estoppel authorities in
Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 at para 48.
26 See paras 11.46 ff below for a discussion of this doctrine in the context of formality

requirements.
27 [1862] 4 De G F & J 517.
28 At 521.
29 [1979] 1 WLR 43; [1979] 2 All ER 945 CA. See also Voyce v Voyce [1991] 62 P & CR 290 CA.
30 [1866] LR 1 HL 129.
31 At 170. His dissent was on the facts not the law. See Crabb v Arun DC [1976] Ch 179 CA at

194a–d. Note that Lord Kingsdown’s approach to the appropriate remedy, namely the enforcement of
the promise, is no longer the invariable or indeed even the preferred approach of the Courts: see paras
11.86 ff below.
32 But see para 11.18 below for Lord Cranworth’s analysis (at 140–1) of the case as being an

example of a unilateral mistake.

33 See eg Sledmore v Dalby [1996] 72 P & CR 196 CA; Wayling v Jones [1995] 69 P & CR 170

CA; Price v Hartwell [1996] EGCS 98; Durant v Heritage [1994] EGCS 134, lexis transcript; Re
Basham dec’d [1986] 1 WLR 1498; Campbell v Griffin [2001] EWCA Civ 990 (27 June 2001). It is in
this area that the potential conflict between proprietary estoppel and the contractual doctrine of
consideration is at its most obvious since the Court is giving legal effect to promises unsupported by
consideration. See further Winstanley v Winstanley [1999] EWCA Civ 1935 (22 July 1999) at 7–8.
34 Per Scarman LJ in Crabb v Arun DC [1976] Ch 179 CA at 188c–d.
35 [1967] 2 QB 379.
36 [1976] Ch 179 at 195C.
 37 (1884) 9 App Cas 699 PC. See also Lorna Bibby v Marguerite Stirling [1998] EWCA Civ 994
(12 June 1998), where the actions of the parties supported a finding that an arrangement had been
reached about the use of a strip of land for life.
38 Inwards v Baker [1965] 2 QB 29 CA at 37b.
39 [2001] Ch 210; [2000] 2 All ER 289 CA at 304e.
40 Inwards v Baker [1965] 2 QB 29 CA.
41 A recent example is Fisher v Brooker [2006] EWHC 3239 (Ch); [2009] IP & T 195; [2008]
EWCA Civ 287; [2008] Bus LR 1123; [2008] EMLR 13; [2008] FSR 26; [2009] UKHL 41; [2009] 1
WLR 1764; [2009] 4 All ER 789, where, although the estoppel claim failed on the facts, it was
accepted at first instance, in the Court of Appeal and in the House of Lords that a claim could arise
from C’s mistake as to his intellectual property rights in a musical work, caused by P’s failure to
assert his rights in that work.
42 [1853] 16 Beav 630, per Sir John Romilly MR at 636–7.
43 P’s conduct in these cases is sometimes referred to as passive encouragement; for clarity, in this

chapter, the term encouragement is used only to describe active conduct by P.

44 See para 11.36 below, for a discussion of the knowledge requirement in passive acquiescence

cases.
45 This head of proprietary estoppel has sometimes been referred to simply as acquiescence or

estoppel by acquiescence. It should be distinguished from the acquiescence doctrine of cases such as
Holder v Holder [1968] Ch 353, which may be used to bar an equitable but not a legal claim. There
are close parallels between proprietary estoppel and this doctrine but they are not identical. Further,
this head of proprietary estoppel is also distinct from acquiescence in the sense used in waiver.
46 Jones v Stones [1999] 1 WLR 1739 CA; Guise v Drew [2001] EWHC Ch 410; Lester v Woodgate

[2010] EWCA Civ 199, [2010] 2 P & CR DG14 per Patten LJ at paras 21–2.
47 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 at 148e.
48 [1866] LR 1 HL 129 at 140–1.
49 At 170. See para 11.11 above.
50 [1866] LR 1 HL 129 HL per Lord Cranworth at 140–1. See also AG to Prince of Wales v Collom

[1916] 2 KB 193; Hamilton v Geraghty [1901] 1 SRNSW Eq 81.

51 [1880] 15 ChD 96.
52 At 105.
53 Finn, ‘Equitable estoppel’ in Finn (ed), Essays in Equity (Law Book Co of Australasia,

Australia, 1985) at chapter 4; Holiday Inns Inc v Broadhead [1974] 232 EG 951 and 1081 at 1087;
Central Street Properties Ltd v Mansbrook Rudd and Co Ltd [1986] 276 EG 414.
54 [1982] 1 QB 133 at 147 and 151–2; See also Swallow Securities Ltd v Isenberg [1985] EGLR

132 CA at 134; Lloyds Bank v Carrick [1996] 4 All ER 630 CA; Shaw v Applegate [1977] 1 WLR 970
CA at 977c–g, 978c–d and 980b–d; Griffiths v Williams (1977) 248 EG 947 CA at 949; Re Basham
dec’d [1986] 1 WLR 1498 at 1507g.
55 [1982] 1 QB 133 at 147g–h.
56 ibid at 151–2.
57 But see Lester v Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR DG14 per Patten LJ at

paras 42–4. C knew of P’s right of way over C’s land. C first dumped rubble on his land, obstructing
the right of way then dismantled the pathway and built over it to create a parking space. These were
potentially acts of nuisance. P’s failure to object amounted to an assurance which permitted C to
believe P’s right of way would not be enforced. This cannot be categorised as a mistake as to C’s
rights. It should be noted that in the case before the Court P was asserting the right of way against C’s
blameless successors in title.
58 Coombes v Smith [1986] 1 WLR 808 at 818a; Crabb v Arun DC [1976] Ch 179 CA per Scarman

LJ at 195a–e; Swallow Securities Ltd v Isenberg [1985] EGLR 132 CA (the probanda were
‘guidelines’ which would probably prove to be ‘necessary and essential’ to assist the Court in
establishing whether unconscionable conduct had occurred); Salvation Army Trustee Co Ltd v West
Yorkshire Metropolitan County Council [1981] 41 P & CR 179 at 194; Gloucestershire CC v Farrow
[1983] 2 All ER 1031 at 1036. See also Matharu v Matharu [1994] 68 P & CR 93 CA per Roche LJ at
102 (Hurst LJ concurring) where the active encouragement of the property owner made the
application of the probanda inappropriate albeit that the case was an example of mistake: Milne
[1995] 58(3) MLR 412. See also Veitch v Caldecott [1945] 173 LT 30 at 34 and Stilwell v Simpson
[1983] 133 NLJ 894, which referred generally to a mistake requirement without direct reference to
Willmot.
59 Dillwyn v Llewelyn [1862] 4 De G F & J 517.
60 Gillett v Holt [2001] Ch 210; [2000] 2 All ER 289 CA.
61 Pascoe v Turner [1979] 1 WLR 43, [1979] 2 All ER 945 CA.
62 Plimmer v Wellington Corporation [1884] 9 App Cas 699 PC.
63 Bibby v Stirling [1998] EWCA Civ 994 (12 June 1998), where the actions of the parties

supported a finding that an arrangement had been reached about the use of a strip of land for life.
64 Successful silent acquiescence cases are becoming rare, the Courts being reluctant to find that P

has a positive obligation to guard his proprietary rights. A relatively recent example is Lester v
Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR DG14 where the assurance was P’s failure to
object to C’s interference with P’s right of way. See also Fisher v Brooker [2006] EWHC 3239 (Ch)
(20 December 2006); [2009] IP & T 195; [2008] EWCA Civ 287; [2008] Bus LR 1123; [2008] EMLR
13; [2008] FSR 26; [2009] UKHL 41; [2009] 1 WLR 1764; [2009] 4 All ER 789; [2010] EMLR 2,
where although the estoppel claim failed on the facts, it was accepted at first instance, in the Court of
Appeal and in the House of Lords that P’s failure to assert his intellectual property rights in a musical
work was capable of amounting to an assurance. In Clark v Clark [2006] 1 FCR 421; [2006] EWHC
275 (Ch) where P had allowed C to use land belonging to him as a haulage yard, spending £38,000 to
adapt the property to meet local authority requirements. Blackburne J, at para 31, found that ‘Whether
or not anything specific was said about [C’s] use of [P’s] land, the fact… that he made it available
and did so… without objection and without anything being said to indicate that its use was merely
temporary’ constituted an assurance. However, this case may also be characterised as a case of
common expectation arising out of a course of dealing and illustrates the overlap between these
categories.
65 See Sarat Chunder Dey v Gopal Chunder Laha, 19 LR Ind App 203 at 215–16; In re Eaves
[1940] Ch 109, per Clauson LJ at 117–18 and Taylors Fashions Ltd v Liverpool Victoria Trustees Co
Ltd [1982] 1 QB 133 at 151a.
66 Encouragement of C’s expectation or mistaken belief if P knows that she will act in reliance on
that expectation or belief; encouraging C to act in reliance on a mistaken belief.
67 To correct C’s mistaken belief if P is aware that it relates to property which he owns and that

she is acting to her detriment on the basis of that mistaken belief.

68 Crabb v Arun District Council [1976] Ch 179 per Scarman LJ at 195b–d.
69 eg, Dillwyn v Llewelyn [1862] 4 De G F & J 517 per Lord Westbury LC at 521 (see para 11.08
above). See also Atiyah, ‘When is an enforceable agreement not a contract? Answer: When it is an
equity’ (1974) 92 LQR 174; criticised by Millet in ‘Crabb v Arun District Council: a riposte’ (1976)
92 LQR 342.
70 See Finn, n 53 above, at chapter 4.
71 [2008] UKHL 55; [2008] 1 WLR 1752; [2008] 1 WLR 2494; [2008] 4 All ER 713; [2009] 1 All
ER (Comm) 205; [2009] 1 All ER 763. See also Capron v Government of Turks & Caicos Islands
(Turks and Caicos Islands) [2010] UKPC 2 (21 January 2010) at paras 32–4.
72 At para 14.
73 In the case of proprietary estoppel, what P is barred from asserting are his pre-existing rights.
74 See Watson v Goldsbrough [1986] 1 EGLR 265 for an example of an assurance relating to land
later acquired by P. P gave an assurance that C would have a lease of fishing rights at a time when P
was a mere licensee of the property. This gave rise to an estoppel when P subsequently obtained the
freehold.
75 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583 per Lord Walker at
para 61.
76 See Layton v Martin [1986] 2 FLR 227. But see also the controversial case of Re Basham [1986]

1 WLR 1498 where Edward Nugee QC, sitting as a Deputy High Court Judge, rejected a submission
that the belief encouraged by the property owner must extend to some clearly identified piece of
property and held that an equity was established in relation to the entirety of the deceased’s estate.
This case was distinguished as relying ‘largely on authorities about mutual wills, which are arguably
a special case’ by Lord Walker in Thorner v Major at para 63. In M acDonald v Frost [2009] EWHC
2276 (Ch) Geraldine Andrews QC, sitting as a Deputy High Court Judge, considered Re Basham dec’d
to be ‘open to doubt’, see paras 13–16. However in Murphy v Rayner [2011] EWHC (Ch) 1; [2011]
All ER (D) 125 (Jan) Jeremy Cousins QC, sitting as a Deputy High Court Judge, said at para 278: ‘I
have kept in mind that C’s claim relates to distinct interests; first, an interest in the Property, and
secondly, an interest in the Investments [the whole of P’s various investment interests held through an
offshore company]. The application of the principles could differ in relation to each, though there is
substantial overlap. On the facts of the case, however, I do not consider that any materially different
considerations have arisen.’
77 Layton v Martin [1986] 2 FLR 227 at 238; Lissimore v Downing [2003] 2 FLR 308.
78 Coombes v Smith [1986] 1 WLR 808 per Jonathan Parker QC at 818d–819c; Murphy v Rayner

[2011] EWHC (Ch) 1; [2011] All ER (D) 125 (Jan) per Jeremy Cousins QC at para 276.
79 Compare Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 and

Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133.

80 Philip Lowe (Chinese Restaurant) Ltd v Sau Man Lee [1989] CA, lexis transcript; Re Schuppan
(A bankrupt) (No 2) [1997] 1 BCLC 256 at 268g–h; cf Windeler v Whitehall [1990] 2 FLR 505 per
Millet J at 516c–e.
81 eg, Rochdale Canal Company v King (No 2) [1853] 16 Beav 630.
82 [1884] 9 App Cas 699 PC.
83 See also Inwards v Baker [1965] 2 QB 29
84 Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776.
85 See Thorner v Major [2009] UKHL 18 at para 64; [2009] Fam Law 583; [2009] 1 WLR 776. See
also Nick Piska, ‘Hopes, expectations and revocable promises in proprietary estoppel’ [2009] 72 MLR
998 at 1005–06.
86 Which first appears in Lord Kingsdown’s formulation of the principle in Ramsden v Dyson
[1866] LR 1 HL 129 at 170–1 and is repeated by Oliver J in Taylors Fashions Ltd v Liverpool Victoria
Trustees Co Ltd [1982] QB 133 at 144. A natural reading of the phrase in its context suggests that
Lord Kingsdown’s use of ‘certain interest’ was intended to mean no more than ‘species of interest’.
87 [2008] UKHL 55; [2008] 1 WLR 1752; [2008] 1 WLR 2494; [2008] 4 All ER 713; [2009] 1 All

ER (Comm) 205; [2009] 1 All ER 763 at paras 18–21.

88 From Lord Scott’s subsequent discussion of Ramsden v Dyson and Plimmer v Wellington at
paras 20–1. See also Lord Walker’s observations in Thorner v Major [2009] UKHL 18, [2009] 1 WLR
776 at paras 64–5.
89 [1997] EWCA Civ 2650.
90 See Parker v Parker [2003] EWHC 1846 (Ch) (24 July 2003) at paras 227–9.
91 [2004] EWCA Civ 446; [2004] All ER (D) 255 (Mar) CA.
92 At para 33.
93 See Ramsden v Dyson [1866] LR 1 HL 129 where the relevant assurances, if made, were made

by an agent of the land owner.

94 See Matharu v Matharu [1994] 2 FLR 597 per Roch LJ at 607, where the assurance was said to

have come from both the owner of the house and his wife.
95 Ramsden v Dyson [1866] LR 1 HL 129 at 170; Elitestone Ltd v Morris [1997] 73 P & CR 259

CA (rev’d on other grounds [1997] EGCS 62 HL).

96 Willmot v Barber [1880] 15 ChD 96 at 105.
97 See paras 11.38 ff below.
98 Dodsworth v Dodsworth [1973] 228 EG 1115 CA; Voyce v Voyce [1991] 62 P & CR 290 CA at

296; Layton v Martin [1986] 2 FLR 227 (where Scott J considered the lack of such an intent in
relation to the contract claim but not that in proprietary estoppel).
99 Holiday Inns Inc v Broadhead (1974) 232 EG 951 at 1087; Lim v Ang [1992] 1 WLR 113 PC

(Brunei), where the assumption relied on was contained in the recital of a contract void for
uncertainty.
100 Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd [1956] 1 QB 529 per Lord

Denning MR at 540–1. See also Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam
Law 583 per Lord Neuberger at paras 84–6.
101 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583 per Lord Walker

at para 56.
102 14 April 1994 CA, para 16, unreported. Cited with approval by Lord Walker in Thorner v

Major at paras 56–7.

103 [2008] UKHL 55; [2008] 1 WLR 1752; [2008] 4 All ER 713.
104 [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583.
105 The facts of Yeoman’s Row Management Ltd v Cobbe.
106 The facts of Thorner v Major.
107 See Brian Sloan, ‘Estop me if you think you’ve heard it’ [2009] CLJ 518.
108 See Amy Goymour, ‘Cobbling together claims where a contract fails to materialise’ [2009]

CLJ 37 at 39.
109 Lord Neuberger, ‘The stuffing of Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009]

CLJ 537 at 542–4. See also para 91 of Cobbe v Yeoman’s Row.

110 See Pettitt v Pettitt [1970] AC 777; [1969] 2 All ER 385; [1969] UKHL 5 per Lord Upjohn.
111 See Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583 per Lord

Walker at para 60.

112 ibid per Lord Hoffmann at para 5.
113 See Capron v Government of Turks and Caicos Islands [2010] UKPC 2. Or where
communications are marked ‘subject to contract’, see Attorney-General for Hong Kong v Humphreys
Estate (Queen’s Gardens) Ltd [1987] AC 114; London and Regional Investments Ltd v TBI [2002]
EWCA Civ 355; [2002] All ER (D) 360 (Mar).
114 See Yeoman’s Row Management Ltd v Cobbe per Lord Scott at para 27; Boxbusher Properties v
Graham [1976] 240 EG 463 at 465 where C took ‘a calculated business risk’ knowing that the
landlord might enforce his rights at any time. See also Holiday Inns Inc v Broadhead [1974] 232 EG
951.
115 But see J Getzler, ‘Quantum meruit, estoppel, and the primacy of contract’ [2009] 125 LQR 196
at 202–03 for the argument that this sets up a ‘feedback loop whereby the doctrine justifies itself
whenever it is applied. It is the liberality with which Courts will enforce non-contractual
undertakings… that helps induce parties to regard each other’s undertakings as binding.’
116 The parties may consider the involvement of lawyers to be an unnecessary cost; in the context
of some relationships a request for a contract would be a sign of mistrust.
117 Crabb v Arun DC [1976] Ch 179.
118 See Capron v Government of Turks & Caicos Islands (Turks and Caicos Islands) [2010] UKPC
2 (21 January 2010).
119 [2000] Ch 162; [1999] Fam Law 700; [1999] 3 WLR 1217; [2000] 1 All ER 711; [1999] EWCA
Civ 3006. See also Whittaker v Kinnear [2011] EWHC 1479 (QB) per Bean J at paras 33–9.
120 A slight simplification of the facts—the assurance was made by P’s father and adopted by P.
121 [2005] EWHC 266 (Ch); [2005] NPC 29; [2005] WTLR 625.
122 And despite Lord Walker, or Robert Walker LJ as he was, giving a reasoned opinion in both
cases.
123 The close relationship between P and C; P’s apparent willingness to provide formal legal
document.
124 [1976] Ch 179.
125 See paras 12, 20 and 78–9 of Thorner v Major. Although see also Ben McFarlane and Professor
Andrew Robertson, ‘Death of Proprietary Estoppel’ [2008] LMCLQ 449 at 454.
126 Thorner v Major per Lord Scott at para 20 and Lord Walker at para 79. See also Haq v Island
Homes Housing Assn [2011] EWCA Civ 805 per Lloyd LJ at paras 80–1. There the claim for a 60-year
lease of commercial premises did not fail solely because the parties had conducted negotiations on a
‘subject to contract’ basis; rather it failed because, on the facts, ‘there was nothing in the [P]’s
conduct on which [C] could fairly or reasonably rely as precluding [P] from insisting on its legal
rights’. The Court of Appeal did not exclude the possibility of conduct amounting to an assurance,
even in circumstances where the relationship between the parties was purely commercial and
negotiations had been conducted on a subject to contract basis. Whilst representations made during
the course of such negotiations will not amount to an assurance, the Court was still prepared to
consider whether P has said or done ‘anything that could amount to a clear and unequivocal
representation either that it would not require the intended formal legal documents to be finalised and
executed or that it would in no circumstances withdraw before that stage’.
127 See Nick Piska, ‘Hopes, expectations and revocable promises in proprietary estoppel’ [2009]

72 MLR 998, for a comprehensive examination of this issue.

128 See Gillett v Holt [2001] Ch 210; [2000] 2 All ER 289 per Robert Walker LJ at 304. In that case

P’s promises were repeated over a long period usually before assembled company on family
occasions and some of them were wholly unambiguous including statements that the property would
all belong to C.
 129 See paras 19 and 87–9.
130 Lord Scott, in the minority, thought this problem was so great that the relief granted in such
circumstances was better described as an entitlement under a remedial constructive trust—see paras
14 and 20. Thorner may not have provided the facts necessary to truly test the ‘revocability’ problem
—there was no express promise and therefore no express qualification. In cases where P’s words, acts
or acquiescence are expressly qualified then it may not be possible to say he has given an assurance.
See also paras 11.131 ff below—whilst the revocability problem may not be a conceptual obstacle to
a proprietary estoppel remedy, the relief given in circumstances where no specific property is
identified may be better described as the result of a remedial constructive trust.
131 Per Lord Neuberger at paras 87–9.
132 [2001] Ch 210 at 229.
133 Thorner v Major per Lord Hoffmann at para 8: ‘The owl of Minerva spreads its wings only
with the falling of the dusk.’
134 See paras 11.64 and 11.82 ff below.
135 eg, it may be appropriate to grant C an interest which compensates her for her detriment but

does not fulfill her expectations: a lease when she was assured of the freehold or a smaller portion of
the land in issue (see Henry v Henry (St Lucia) [2010] UKPC 3 (17 February 2010)).
136 Willmot v Barber [1880] 15 ChD 96 at 105; Taylors Fashions Ltd v Liverpool Victoria Trustees

Co Ltd [1982] 1 QB 133 at 147b.

137 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 at 147b. Further,

Goff & Jones, at 168, describe Lord Cranworth’s formulation as the ‘equitable analogue’ of free
acceptance; the existence of this doctrine is highly controversial but it should be noted that one of its
essential prerequisites is that the recipient of the benefit must have an opportunity to reject the
service rendered. No such opportunity is available unless the recipient knows that it owns the property
in issue.
138 In fulfilling his duty to disabuse C of her error, P presumably need take only such steps as are

reasonable in the circumstances.

139 See Armstrong v Sheppard & Short Ltd [1959] 2 QB 384.
140 Although Oliver J expressed some reservations as to this knowledge requirement, even in the

context of pure acquiescence, in Taylors Fashions supra it was clearly material to the actual decision
made in the two cases there in issue. LV were the assignees of the reversion of numbers 20 to 22
Westover Road, all of which were shop premises. TF had been granted an option to renew its tenancy
of number 22 by LV’s predecessor in title. LV did not wish to be left in the position where the lease
on one of the shops was extended but not the other two; in subsequently letting numbers 20 and 21 to
OC, LV therefore agreed that the duration of OC’s lease would be dependent on whether LV exercised
its option to renew. None of the parties realised, until after extensive works had been performed on
the properties, that TF’s option was void against LV for want of registration as an estate contract
under the Land Charges Act 1972. LV had not encouraged TF to carry out the works which it had done
and ‘so far as acquiescence is concerned the defendants could not lawfully object to the work and
could be under no duty to TF to communicate that which they did not know themselves, namely that
the non-registration of the option rendered it unenforceable’. In contrast, LV had encouraged OC to
expend a considerable sum both on alterations to the premises and in purchasing the two leases, upon
faith of the assumption that it was at least possible that LV’s option might be exercised. LV was thus
estopped from pleading the invalidity of the option against OC but not TF (although TF also failed to
establish detrimental reliance).
141 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 at 147.
 142 ibid at 147b; West Middlesex Golf Club Limited v Ealing London Borough Council [1994] 68 P
& CR 461.
143 Crabb v Arun DC [1976] Ch 179 CA 194a–d; Costagliola v English [1969] 210 EG 1425 at
1431; Gross v French [1976] 238 EG 39 CA 41.
144 Grant v Edwards [1986] Ch 638 CA per Browne-Wilkinson VC at 656g (dicta); Ward v Gold
[1969] 211 EG 155 at 161; Costagliola v English [1969] 210 EG 1425 at 1431; Appleby v Cowley, The
Times, 14 April 1982, lexis transcript; Coombes v Smith [1986] 1 WLR 808 at 812a; JT Developments
v Quinn [1991] 62 P & CR 33 CA at 46; Holiday Inns Inc v Broadhead [1974] 232 EG 951 at 1087;
Barclays Bank plc v Zaroovabli [1997] 2 All ER 19; Film Investors Overseas Services SA v The Home
Video Channel (trading as the Adult Channel), The Times, 2 December 1996.
145 [2009] UKHL 18; [2009] Fam Law 583; [2009] 1 WLR 776 per Lord Hoffmann at para 5.
146 [1976] 1 Ch 179 CA.
147 ibid at 189c–d.
148 ibid at 198c–d; JT Developments v Quinn [1991] 62 P & CR 33 CA.
149 [1976] 1 Ch 179 CA at 198d–g.
150 [1981] P & CR 179 per Woolfe J at 196.
151 [1985] EGLR 132 CA per Cumming Bruce LJ. These two cases are cited by Goff & Jones at

244 as authority for the proposition referred to in the text; also cited is Watson v Goldsbrough [1986]
1 EGLR 265 at 266–7 but there it was found as a fact in that case that P actually knew about the
works; they were so substantial that he could not possibly have failed to notice them. Hence the case
was one of actual conscious knowledge albeit inferred from evidence of the surrounding
circumstances. See also AG to Prince of Wales v Collom [1916] 2 KB 193 at 199.
152 And see Ward v Gold [1969] 211 EG 155 161 for a contradictory view.
153 See paras 11.71 ff below.
154 Swallow Securities Ltd v Isenberg [1985] EGLR 132 CA; AG to Prince of Wales v Collom

[1916] 2 KB 193.
155 Pascoe v Turner [1979] 1 WLR 43 CA; Re Basham dec’d [1986] 1 WLR 1498.
156 ‘S 2(1) A contract for the sale or other disposition in land can only be made in writing and only

by incorporating all the terms which the parties have expressly agreed in one document or, where
contracts are exchanged, in each.
(5).… and nothing in this section affects the creation or operation of resulting, implied or
constructive trusts.’
157 Yaxley v Gotts [2000] Ch 162 per Walker LJ at 175; [1999] 3 WLR 1217; [2000] 1 All ER 711;

[1999] Fam Law 700; [2000] 32 HLR 547; [2000] 79 P & CR 91; [1999] 2 EGLR 181; [1999] 2 FLR
941; [1999] EWCA Civ 3006.
158 See Lester v Foxcroft (1701) Colles PC 108; Maddison v Alderson (1883) 8 App Cas 467.
159 Where there was a clear oral contract which was capable of specific performance and one party

had done acts which were unequivocally referable to the performance of its part of the contract, then
the other party, having stood by and permitted these acts to be carried out on the faith that the
contract was valid, would not be permitted to plead a statutory bar to enforcement of the contract. The
equitable principle underlying the doctrine was that the Courts of equity will not permit the statute to
be made an instrument of (in its wider, equitable sense) fraud.
160 See Kok Hoong v Leong Cheong Kweng Mines [1964] AC 993 for Viscount Radcliffe’s

consideration of this distinction and the public policy grounds which underlie the Statute of Frauds
Act 1677.
 161 Which had to be pleaded in order to be given effect.
162 Parliament having decided that oral contracts for the disposition of land were void, it was no
longer possible to found a cause of action on such an agreement and the concept of an equitable bar to
raising a statutory defence disappeared with the elimination of the need to raise a statutory defence.
See Yaxley v Gotts [2000] Ch 162; [1999] 3 WLR 1217; [2000] 1 All ER 711; [1999] Fam Law 700;
[2000] 32 HLR 547; [2000] 79 P & CR 91; [1999] 2 EGLR 181; [1999] 2 FLR 941; [1999] EWCA Civ
3006.
163 Law Commission Report on Formalities for Contract for Sale of Land (No 164, 1987).
164 [2000] Ch 162; [1999] 3 WLR 1217; [2000] 1 All ER 711; [1999] Fam Law 700; [2000] 32
HLR 547; [2000] 79 P & CR 91; [1999] 2 EGLR 181; [1999] 2 FLR 941; [1999] EWCA Civ 3006.
Discussed in Roger Smith, ‘Oral Contracts for the Sale of Land: Estoppels and Constructive Trusts’
(2000) 116 LQR 11–15.
165 The findings of fact at first instance on this point were unclear.
166 Clarke LJ agreed with the reasoning of both Robert Walker LJ and Beldam LJ.
167 Historically, the evidentiary requirements for a constructive trust have been more stringent

than for establishing proprietary estoppel, see paras 11.147 ff below, see also Patricia Ferguson,
‘Constructive Trusts—A Note of Caution’ [1993] 109 LQR 114. However, post Stack v Dowden
[2007] 2 AC 432; [2007] 2 WLR 831; [2007] 2 All ER 929; [2007] UKHL 17 this may no longer be
the case.
168 [2000] 1 All ER 711, see 721–2, 724h–725b.
169 Both are considered by Walker LJ in Yaxley v Gotts—ultimately he found it unnecessary to

determine whether s 2 negated the proprietary estoppel claim, having decided that a constructive trust
had arisen.
170 Although this was the approach suggested in Goff & Jones, The Law of Restitution, 5th edn

(1988), immediately after the passing of the 1989 Act. See 579–80.
171 [2005] EWCA Civ 45 (01 February 2005) per Arden LJ at para 32, ‘the policy of section 2(1) of

the 1989 Act is to protect the public by preventing parties from being bound by a contract for the
disposition of an interest in land unless it has not been fully documented in writing’. See also
Brightlingsea Haven Ltd v Morris [2009] 1 EGLR 117; [2008] EWHC 1928 (QB); [2009] 2 P & CR
11 at paras 39–47.
172 At para 29.
173 See Yaxley v Gotts [2000] Ch 162 at 193D where Beldam LJ expressed the view that nothing in

s 2 prevented a party establishing an equity pursuant to a proprietary estoppel; Whittaker v Kinnear

[2011] EWHC 1479 (QB) at paras 28–30, where Bean J cited Beldam LJ before accepting the
proposition that ‘proprietary estoppel in a case involving a sale of land has survived the enactment of
s 2 of the 1989 Act ’. See also Lord Neuberger, ‘The stuffing of Minerva’s Owl? Taxonomy and
taxidermy in equity’ [2009] CLJ 537 at 545–7.
174 See para 11.94 below. This argument is only credible if the aim of the remedial discretion is
something other than the fulfilment of C’s belief or expectation: if, in practice, the Courts tackle
unconscionability by giving C the rights she was assured she had or would have then there will be a
clear conflict between proprietary estoppel and the policy underlying the statute.
175 See Yeoman’s Row Management v Cobbe [2006] 1 WLR 2964; [2006] WTLR 1473; [2006] 3

EGLR 107; [2007] 1 P & CR DG14; [2007] 1 P & CR 8; [2006] EWCA Civ 1139 per Mummery LJ at
para 66.
176 There are references in the authorities to the concept of ‘reasonable reliance’, see Thorner v
Major [2009] UKHL 18; [2009] Fam Law 583; [2009] 1 WLR 776 at paras 15, 29 and 73–81. This
concept is actually referable to the assurance rather than a quality of the act of reliance—the question
is whether the assurance was something that could reasonably be relied upon.
177 Paraphrasing Robert Walker LJ in Gillett v Holt [2001] Ch 210 at 232.
178 ‘[T]he categories of detriment are not closed’: Watts v Story (1984) 134 NLJ 631 CA per Dunn
and Slade LJJ.
179 No estoppel will arise where the acts in reliance are unlawful eg by reason of trespass. See
Hanning v Top Deck Travel Group Ltd [1994] 68 P & CR 14 CA at 21–2.
180 The absence of pleaded reliance will be fatal to a claim. See Magrath v Parkside Hotels Ltd
[2011] EWHC 143 (Ch) (03 February 2011) at para 30.
181 See Wayling v Jones [1993] 69 P&CR 170 per Balcombe LJ at 173, Campbell v Griffin [2001]
EWCA Civ 990 (27 June 2001) at 8–9 where C’s domestic services were carried out in reliance on a
home for life promise as well as out of a sense of responsibility and duty.
182 Swallow Securities Ltd v Isenberg [1985] EGLR 132 CA per Cumming Bruce LJ at 134.
183 Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International

Bank Ltd [1982] 1 QB 84 per Goff J at 105a; Layton v Martin [1986] 2 FLR 227 at 235f–g; Wayling v
Jones (1993) 69 P & CR 170 CA per Balcombe LJ at 173.
184 Credit Suisse v Allerdale BC [1996] 1 Lloyd’s Rep 315 at 369 (aff’d on other grounds [1996] 2

Lloyd’s Rep 241).

185 [1982] 1 QB 133.
186 See generally paras 11.63 ff below on detriment. There is some confusion as to whether the

reversal of the burden applies to proof of detriment or proof of reliance, probably resulting from a
failure to distinguish clearly between the two concepts. It appears likely that the onus of proving
detriment remains, in all cases, with the claimant: Coombes v Smith [1986] 1 WLR 808 at 821b–f,
contra Durant v Heritage [1994] EGCS 134. The underlying rationale of the Greasley principle lies in
the Courts’ reluctance to engage in speculation as to what the claimant would have done in a
hypothetical situation, namely one where the promise had not been made: Greasley v Cook [1980] 1
WLR 1306 CA at 1311d. See also Campbell v Griffin [2001] EWCA Civ 990, 82 P & CR D43; [2001]
All ER (D) 294 (Jun) at paras 26–9. Investigating what acts were performed and what harm will flow
from them involves no such speculation.
187 Greasley v Cooke [1980] 1 WLR 1306 CA per Lord Denning MR at 1311b–d; Waller LJ at
1313c–f; Dunn LJ at 1314a; Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 at
262c–d; Grant v Edwards [1986] Ch 638 CA per Browne-Wilkinson VC at 657c–d (dicta); Maharaj v
Chand [1986] AC 898 PC Fiji at 907g–h (referring to constructive trusts rather than estoppel); Re
Basham dec’d [1986] 1 WLR 1498 at 1507f–g (dicta); Wayling v Jones (1993) 69 P & CR 170 CA
ratio per Balcombe LJ at 173 (Hoffmann and Leggat LJJ concurring); Coombes v Smith [1986] 1 WLR
808 per Jonathan Parker QC at 821b–f; Hamp v Bygrave (1983) 266 EG 720 per Boreham J at 726
(ratio); Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265 CA per Oliver LJ at 1287a–c;
Clarke v Meadus [2010] EWHC 3117 (Ch) at para 67. Lord Templeman in Attorney-General for Hong
Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] 1 AC 114 PC HK at 124c–d might be taken
to suggest the contrary position but C failed in that case because there was affirmative proof that it
performed the relevant acts in reliance not on the alleged assumption but on a different basis,
insufficient to found an estoppel (127g–h); the burden of proof point was not discussed.
188 [1980] 1 WLR 1306 CA at 1311.
189 The authorities tend to refer to statements or promises but there is no indication that the burden
could in no circumstances be reversed where P’s conduct has been solely passive, although it would
obviously be more difficult to establish in such cases.
190 [1980] 1 WLR 1306 CA at 1311d per Lord Denning MR; Re Basham dec’d [1986] 1 WLR 1498

at 1506a.
191 ibid at 1313c–e per Waller LJ; see also Grant v Edwards [1986] Ch 638 CA per Browne-
Wilkinson VC at 657c–d (dicta).
192 (1981) 261 EG 1192 CA at 1194.
193 The landlord’s estoppel claim also failed on a number of other grounds.
194 (1993) 69 P & CR 170 CA per Balcombe LJ at 173 (Hoffmann and Leggat LJJ concurring).
195 The requirement is reminiscent of that for acts in support of part performance of a contract
under the now repealed s 40 Law of Property Act 1925; see C Davies, ‘Estoppel—reliance and
remedy’ [1995] Conv 409 at 411–12. There are also historic parallels with the conditions which will
cause a Court to infer reliance in constructive trust cases: see Grant v Edwards [1986] Ch 638 CA per
Nourse LJ at 648g.
196 See First National Bank Plc v Thompson [1996] Ch 231 CA per Millett LJ at 236 in a claim

based on estoppel by representation.

197 See Elizabeth Cooke, The Modern Law of Estoppel (Oxford University Press, 2000) at 80–1.
198 Greasley v Cooke [1980] 1 WLR 1306 CA per Lord Denning MR at 1311d; Waller LJ at 1313a–

b; Dunn LJ at 1314a; Re Basham dec’d [1986] 1 WLR 1498 at 1506f–g.

199 Wayling v Jones (1993) 69 P & CR 170 CA per Balcombe LJ at 175 (Hoffmann and Leggat LJJ

concurring).
200 See Campbell v Griffin [2001] EWCA Civ 990; 82 P & CR D43; [2001] All ER (D) 294 (Jun)

where C succeeded although he stated in cross-examination that he would have cared for the old
couple he was lodging with even if they had not made a promise of a home for life because he would
not have walked past them if they were in distress. At paras 26–9 Robert Walker LJ stressed the
limited assistance to P of C’s oral evidence that, in a number of hypothetical situations, he might have
behaved in a similar way.
201 Gloucestershire CC v Farrow [1983] 2 All ER 103 CA.
202 Thomas v Fuller-Brown [1988] 1 FLR 237; further, such claimants would have difficulty

establishing that it would be unconscionable to deny them a remedy.

203 Further, there is some doubt as to whether domestic services are capable of constituting
sufficient acts in reliance, ie whether performance of such tasks can ever be said to give rise to
detriment. See, further, para 11.76 below.
204 Coombes v Smith [1986] 1 WLR 808 at 820a–821b; Re Basham dec’d [1986] 1 WLR 1498 at
1505E–H; Layton v Martin [1986] 2 FLR 227 at 235F–H. See, however, Greasley v Cooke [1980] 1
WLR 1306, where a claim was successfully based on performance of domestic services. See also
James v Thomas [2007] EWCA Civ 1212 per Chadwick LJ at para 36 for an example of the same
principle operating in the context of a common intention constructive trust.
205 An unattractive feature of the concept of reliance is that, strictly speaking, an act performed for
solely altruistic reasons is not an act undertaken in reliance of a belief or expectation of an interest in
land.
206 [1977] 248 EG 947 CA. See para 11.59 above on the benevolent approach taken to rebutting the

presumption in Wayling v Jones [1993] 69 P & CR 170 CA per Balcombe LJ at 175.

207 [1977] 248 EG 947 CA at 949.
208 Grant v Edwards [1986] Ch 638 CA; Lloyds Bank v Rosset [1991] 1 AC 107; Risch v McFee

[1991] FLR 105. The Courts are particularly ready to recognise such contributions as founding a
claim to P’s property where they have facilitated P’s discharging the mortgage on the asset to which
the assumption relates.
209 Pascoe v Turner [1979] 1 WLR 43 CA; Veitch v Caldecott (1945) 173 LT 30.
210 Griffiths v Williams [1977] 248 EG 947 CA at 947; Stratulatos v Stratulatos [1988] 2 NZLR
424 at 432–3.
211 Bostock v Bryant and Anor [1991] 61 P & CR 23 CA; Stilwell v Simpson [1983] 133 NLJ 894; E
and L Berg Homes Ltd v Grey [1979] 253 EG 473 CA; Costagliola v English [1969] 210 EG 1425 at
1431; cf the grounds on which Taylors failed in their claim in Taylors Fashions Ltd v Liverpool
Victoria Trustees Co Ltd [1982] 1 QB 133.
212 Hannaford v Selby [1976] 239 EG 811, where only the possibility of a constructive trust was
considered but the same approach would be likely to be applied in relation to proprietary estoppel.
213 Philip Lowe (Chinese Restaurant) Ltd v Sau Man Lee (CA, 9 July 1985, lexis transcript);
Lloyds Bank v Rosset [1991] 1 AC 107 at 131d–f.
214 Grundt v Great Boulder Pty Gold Mines Ltd [1937] 59 CLR 641 per Dixon J at 674 (an estoppel

by representation case but the relevant principle would seem to be equally applicable in this context).
215 ibid at 674–5; Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR 387 (HC of Australia)

per Brennan J at 419.

216 A benefit is received via the enhanced enjoyment of the property even if the expected interest,

or long-term right of occupation, is denied. See, however, para 11.62 above for the difficulty in
establishing reliance in such situations. In Brinnand v Ewens [1987] 2 EGLR 67 CA per Nourse LJ at
68B–C (Sir Roualeyn Cumming-Bruce concurring) it was held that the interest which C expects must
be of sufficient magnitude to justify the expenditure made; this suggests that expenditure which is not
so justifiable and is, therefore, genuinely detrimental to C (even where the assumption is adhered to)
is insufficient to raise a proprietary estoppel. This approach seems inconsistent with Baker v Baker
[1993] 25 HLR 408 CA, where C’s contribution was not commensurate with the advantages which it
was contemplated that he would receive; this did not prevent an estoppel arising but did restrict the
relief awarded. The latter approach is more likely to be correct.
217 Commonwealth of Australia v Verwayen [1990] 170 CLR 394 per Brennan J at 429.
218 See further para 11.160 below.
219 Matharu v Matharu [1994] 68 P & CR 93 CA. At 102, Roch LJ justified this conclusion on the

grounds that the husband’s expenditure ‘meant that the amount of his income available to benefit [C]
and her children was reduced… it would be wrong to consider that the money belonged solely to [C’s
husband]’. As Welstead points out, this amounts to a somewhat surprising introduction of community
of property into English matrimonial law: see ‘Proprietary estoppel—a flexible familial equity’
[1995] Conv 6.
220 See Stevens v Stevens [1989] CA, lexis transcript.
221 Lloyds Bank v Rosset [1991] 1 AC 107 per Lord Bridge at 131g–h, considering the analogous
area of express common intention constructive trusts. Compare Coombes v Smith [1986] 1 WLR 808.
222 Pascoe v Turner [1979] 1 WLR 431 CA at 436f.
223 Though it seems that where orthodox detriment is established, the additional presence of

personal distress may be taken into account in assessing what remedy is appropriate: see Pascoe v
Turner supra and para 11.88 below.
224 Christian v Christian [1981] 131 NLJ 43 CA, lexis transcript, per Brightman LJ.
225 See below at paras 11.95 ff.
226 [1980] 1 WLR 1306 CA at 1311. ‘But that is not a necessary element. I see that in Snell on
Equity… it is said that A must have incurred expenditure or otherwise have prejudiced himself. But I
do not think that that is necessary… the assurances given by [P] to the defendant, leading her to
believe that she would be allowed to stay in the house as long as she wished, raised an equity in her
favour. There was no need for her to prove that she acted on the faith of those assurances. It is to be
presumed that she did so.’
227 Watts v Story (1984) 134 NLJ 631 CA per Dunn and Slade LJJ; Coombes v Smith [1986] 1 WLR
808 per Jonathan Parker QC at 821b–f; Hutchinson v Steria Ltd [2006] EWCA Civ 1551; [2006] All
ER (D) 349 (Nov) per Mummery LJ at para 131.
228 Watts v Story (1984) 134 NLJ 631 CA, lexis transcript.
229 See Pawlowski, The Doctrine of Proprietary Estoppel (Sweet & Maxwell, London, 1996) at 57.
See also see Lester v Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR DG14 per Patten LJ at para
39. C’s act of reliance was said to be selling the property on without notifying the purchasers of the
right of way, it is difficult to see how C suffered detriment as a consequence of this (if anything C
was gaining an advantage by remaining silent). However, the actual claimant in the proceedings was
C’s blameless successor in title.
230 [1991] 1 AC 107 per Lord Bridge at 132f–h.
231 [1990] Ch 237 at 261a–c.
232 See paras 9.85 ff.
233 cf the position where the transaction entered into involves an element of risk. Hobhouse J

suggested in The Vistafjord [1988] 2 Lloyd’s Rep 343 at 368 (an estoppel by convention case) that the
fact of taking the risk was sufficient detriment and that the Court would not investigate whether the
transaction had been a successful one.
234 This may explain the finding that granting an underlease amounted to detriment regardless of

its terms. Potentially, such a transaction might result in benefit to the claimant. Such cases cannot
sensibly be explained in terms of the Court’s distaste for speculation because the consequences of the
tenant’s decision may be clearly analysed by reference to the terms of the underlease.
235 Sledmore v Dalby [1996] 72 P & CR 196 CA at 207; Godfrey v John Lees [1995] EMLR 307;

Wayling v Jones [1993] 69 P & CR 170 CA; Lim v Ang [1992] 1 WLR 113 PC; Taylors Fashions Ltd v
Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133; Elitestone Ltd v Morris [1997] 73 P & CR 259
CA (rev’d on other grounds [1997] EGCS 62 HL); Gillett v Holt [2001] Ch 210 per Robert Walker LJ
at 232d ‘overwhelming weight of authority shows that detriment is required’.
236 See Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583 per Lord
Scott at para 15 and Lord Walker at para 29; Fisher v Brooker [2006] EWHC 3239 (Ch) (20
December 2006); [2009] IP & T 195 per Blackburne J at para 67; [2008] Bus LR 1123; [2008] EMLR
13; [2008] EWCA Civ 287; [2008] FSR 26 per Mummery LJ at paras 63 and 84; [2009] UKHL 41;
[2009] 1 WLR 1764; [2009] 4 All ER 789; [2009] FSR 25; [2010] EMLR 2 per Lord Neuberger at
para 63.
237 ‘[T]he categories of detriment are not closed’: Watts v Story [1984] 134 NLJ 631 CA per Dunn

LJ.
238 ibid, lexis transcript.
239 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 at 259c–d.
240 Greasley v Cooke [1980] 1 WLR 1306 at 1311–12; Re Basham dec’d [1986] 1 WLR 1498 per
Edward Nugee QC at 1509c.
241 Gillett v Holt [2001] Ch 210 [2000] 2 All ER 289 CA at 308d per Robert Walker LJ; Campbell

v Griffin [2001] EWCA Civ 990 per Robert Walker LJ.

 242 Gillett v Holt, ibid.
243 Rochdale Canal Co v King (No 2) [1853] 16 Beav 630; 51 ER 924; Crabb v Arun DC [1976] Ch
179 CA.
244 Jones v Jones [1977] 1 WLR 438 CA; Grant v Edwards [1986] Ch 638 CA per Browne-
Wilkinson VC at 657b; this used to be a point where proprietary estoppel and the express common
intention constructive trust diverged but it is now clear that the requirement applies to neither
doctrine.
245 Thus preventing the classification of proprietary estoppel as wholly within the scope of the law
of restitution.
246 [1976] Ch 179 CA. See also Ward v Kirkland [1966] 1 WLR 601; Ives v High [1967] 2 QB 379
CA; Tanner v Tanner [1975] 1 WLR 1346 CA; Habib Bank Ltd v Habib Bank AG Zurich [1981] WLR
1265.
247 There is no clear authority for this proposition but see Lester v Woodgate [2010] EWCA Civ
199; [2010] 2 P & CR DG14 per Patten LJ at paras 42–4. C knew of P’s right of way over C’s land. C
first dumped rubble on his land, obstructing the right of way then dismantled the pathway and built
over it to create a parking space. These were potentially acts of nuisance. Although the act of reliance
was said to be C’s selling the property on without notifying the purchasers of the right of way, it is
difficult to see how C suffered detriment as a consequence of this (if anything C was gaining an
advantage by remaining silent). There are indications in the judgment that were it not for the absence
of evidence that C’s dismantling of the pathway and creation of a parking space was not undertaken in
reliance on the assurance, these acts would have been found to have constituted detriment.
248 The categorisation adopted is derived, subject to some modifications, from Malcolm Clarke’s

article, ‘Banker’s Commercial Credits among the High Trees’ [1974] 33 CLJ 260 at 283. See paras
9.98 ff above for a third category whereby the claimant has altered her budget and expenditure in
reliance on the windfall promised by the property owner.
249 Armstrong v Sheppard and Short [1959] 2 QB 384; Ward v Kirkland [1966] 1 WLR 601.
250 Crabb v Arun DC [1976] Ch 179 CA.
251 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237.
252 John v George and Walton [1996] 71 P & CR 375 CA. See also Stevens v Stevens [1989] CA,
lexis transcript.
253 Re Basham dec’d [1986] 1 WLR 1498 at 1505e–h.
254 cf Windeler v Whitehall [1990] 2 FLR 505 per Millet J at 516c–e: C’s conduct (acting as P’s

escort and hostess at social functions connected with his business as a theatrical agent and supervising
builders renovating the home) could not support a claim to P’s house or business since it had no real
financial value—‘[P] would not have paid anyone to do what [C] did’; to characterise C’s actions as
contributing to the business represented ‘a schoolgirl’s view’ of what she did.
255 [1967] 2 QB 379 CA.
256 [1981] 131 NLJ 43.
257 The only disadvantage suffered by C was that she was not given the land she was promised. As

stated above (at para 11.64) such hardship is insufficient to raise a proprietary estoppel. cf the
position where the transaction entered into involves an element of risk. Hobhouse J suggested in The
Vistafjord [1988] 2 Lloyd’s Rep 343 at 368 (an estoppel by convention case) that the fact of taking the
risk was sufficient and that the Court would not investigate whether the transaction had been a
successful one.
258 [1984] 134 NLJ 631 CA; Coombes v Smith [1986] 1 WLR 808. See also the similar approach in
the contractual licence case, Horrocks v Foray [1976] 1 WLR 231. Such conduct has, however, been
taken into account where accompanied by other acts which are capable of amounting to detriment:
Jones v Jones [1977] 1 WLR 438 CA (contribution to the purchase price of the property); Maharaj v J
Chand [1986] AC 898 PC Fiji (supporting an application to the housing authority, financial
contributions to the household, domestic services and child care). See Robert Walker LJ’s judgment
in Gillett v Holt [2001] Ch 210; [2001] 2 All ER 289 CA for an indication that this is not an
immutable rule.
259 Tanner v Tanner [1975] 1 WLR 1346 CA.
260 Stevens v Stevens [1989] CA, lexis transcript. Sir Roger Ormrod suggested obiter that
detriment is established once it is shown that C moved into the property in the expectation of
obtaining a secure home for life, whereas, in fact, P’s change of mind makes the right to occupy
tenuous. However, his Lordship’s approach of comparing that which C had been promised with that to
which she was legally entitled seems to equate detriment with the prejudice flowing simply from a
broken promise which is generally accepted as insufficient to raise a proprietary estoppel.
261 Dillwyn v Llewellyn [1862] De GF & J 517; 45 ER 1285; Huning v Ferrars (1711) Gilb 85, 25

ER 59; Stiles v Cowper [1748] 3 Atk 382; 26 ER 1198; Unity Joint Stock Mutual Banking Association
v King (a bankrupt) [1858] 25 Beav 72; 53 ER 563; Inwards v Baker [1965] 2 QB 29 CA; Salvation
Army Trustee Co Ltd v West Yorkshire Metropolitan County Council [1981] P & CR 179 (where the
land in question had passed to a successor authority).
262 There seems to be no requirement that the works objectively enhance the value of the land: see

the comments in Pawlowski, The Doctrine of Proprietary Estoppel (Sweet & Maxwell, London, 1996)
at 63 on Pennine Raceway v Kirklees MBC [1983] QB 382 CA.
263 Duke of Beaufort v Patrick [1853] 17 Beav 59, 51 ER 954 (building a canal); Voyce v Voyce

[1991] 62 P & CR 290 CA (modernisation and decoration); Durant v Heritage [1994] EGCS 134
(improvements including construction of an extension and new garage); Pascoe v Turner [1979] 1
WLR 43 CA (sums spent on improvement, decoration and repair were all taken into account, without
distinction); the refusal of Jonathan Parker QC, in Coombes v Smith [1986] 1 WLR 808, to accept
commission of works of redecoration and alteration as giving rise to detriment is questionable and is
probably best explained as an example of detriment which is too trifling or de minimis to give rise to
liability.
264 Pascoe v Turner [1979] 1 WLR 43 CA; Stevens v Stevens 1989 CA, lexis transcript, although C

failed to establish reliance, because she admitted in her evidence that she would have carried them out
even in the absence of P’s assurance. See further paras 11.79 ff below for the problems relating to
reliance and detriment in repairs cases.
265 Jones v Jones [1977] 1 WLR 438 CA; Ungurian v Lessnoff [1990] Ch 206; Gillett v Holt [2001]

Ch 210; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583; cf Eves v Eves
[1975] 1 WLR 1338 CA, applying the same approach to constructive trust principles.
266 Rochdale Canal Co v King (No 2) [1853] 16 Beav 630; 51 ER 924; Willmot v Barber [1880] 15

ChD 96 at 104; ER Ives Investment Ltd v High [1967] 2 QB 379; Ward v Kirkland [1966] 1 WLR 601.
267 Jones v Jones [1977] 1 WLR 438 CA; Abbey National BS v Cann [1991] AC 56, where C’s

contribution took the form of an owner-occupier discount rather than cash.

268 Oates v Stimson [2006] EWCA Civ 548; [2006] All ER (D) 219 (May) CA. See paras 4 and 11–
13. The case was pleaded as proprietary estoppel/constructive trust and although relief was given
through a constructive trust the proprietary estoppel principles relating to detriment were applied.
269 Price v Hartwell [1996] EGCS 98; Burrows v Sharpe [1991] Fam Law 67 CA; [1989] 23 HLR
82; Preston and Henderson v St Helens Metropolitan Borough Council, lands tribunal [1989] 58 P &
CR 500; Veitch v Caldecott [1945] 173 LT 30, but see the particular problems associated with
payments of day-to-day outgoings discussed at para 11.62 above.
270 Hammond v Mitchell [1992] 4 All ER 109; cf Windeler v Whitehall [1990] 2 FLR 505.
271 Wayling v Jones [1993] P & CR 170 CA.
272 Habib Bank Ltd v Habib Bank AG Zurich [1981] WLR 1265; Film Investors Overseas Services
SA v The Home Video Channel (trading as the Adult Channel), The Times, 2 December 1996.
273 Godfrey v John Lees and others [1995] EMLR 307 at 332–5. But see Fisher v Brooker [2006]
EWHC 3239 (Ch) (20 December 2006); [2009] IP & T 195 per Blackburne J at paras 76–7; [2008]
EWCA Civ 287; [2008] Bus LR 1123; [2008] EMLR 13 per Mummery LJ at para 84; [2009] UKHL
41; [2009] 1 WLR 1764; [2009] 4 All ER 789, for an example where the promotional efforts were
either de minimis or would have been undertaken in any event.
274 E and L Berg Homes Ltd v Grey [1979] 253 EG 473 CA.
275 Risch v McFee [1991] FLR 105 per Balcombe LJ 110f–h.
276 Watkins v Emslie [1981] 261 EG 1192 CA per Sir David Cairns (Donaldson and Dunn LJJ

concurring) at 1194.
277 Hammersmith and Fulham BC v Top Shop Centres Ltd [1990] Ch 237 at 261f–262c.
278 Re Foster, Hudson v Foster (No 2) [1938] 3 All ER 610.
279 Gillett v Holt [2001] Ch 210 per Robert Walker LJ at 235a–c.
280 ibid at 233d–235b; Ottey v Grundy [2003] WTLR 1253.
281 Campbell v Griffin [2001] EWCA Civ 990.
282 The English Courts have been notoriously reluctant to reward purely domestic services (cf

Burns v Burns [1984] 1 Ch 317 CA), in marked contrast to other Commonwealth jurisdictions. See,
eg, Gillies v Keogh [1989] 2 NZLR 327 (New Zealand CA) per Richardson J at 346 (no presumption
that domestic contributions are any less valuable than financial ones), and the use of the unjust
enrichment principle in Canada: Peter v Beblow [1993] 101 DLR (4th) 621 (Canadian Supreme
Court).
283 Grant v Edwards [1986] Ch 638 CA at 657b.
284 [1986] 1 WLR 808 at 820b–821a.
285 C also failed to establish that the acts were done in reliance on her belief that P would provide

her with a permanent home. As far as ending her marriage is concerned, it is not quite clear whether C
failed on the reliance ground alone or whether she also failed to establish detriment (see 820c–f) but
the latter view seems to be the most likely, given the approach of the remainder of the judgment.
286 Greasley v Cooke [1980] 1 WLR 1306. See also Re Basham dec’d [1986] 1 WLR 1498.
287 Per Lord Denning MR at 1312a.
288 cf the analysis used by Howard and Hill in their article, ‘The informal creation of interests in

land’ [1995] 15 LS 356.

289 Doris Cooke had originally joined the Greasley household as a salaried maid and later

housekeeper. See also Campbell v Griffin [2001] EWCA Civ 990 where the Court of Appeal noted
that a lodger does not usually cook meals for his landlord or attend to his personal hygiene.
290 See cases cited at nn 272–3 above.
291 The conflict may, in any event, be reconciled by characterising Coombes as laying down no

general principle as to domestic services but establishing only that detriment had not occurred on the
facts of the particular case, see Murphy v Rayner [2011] EWHC (Ch) 1; [2011] All ER (D) 125 (Jan)
per Jeremy Cousins QC, sitting as a Deputy High Court Judge, at para 260.
292 Might the approach in Coombes have been different had W given up a more prestigious and
highly paid job? See Jones v Jones [1977] 1 WLR 438 CA; Greasley v Cooke [1980] 1 WLR 1306 CA
at 1312a.
293 The problems faced by claimants in establishing that detriment has occurred as a result of the

commission of domestic services should not be confused with those faced in establishing that such
services were rendered in reliance on the expected interest in property, namely the expectation that
such services are performed by reason of love and affection (as to which see above at para 11.61).
294 [1980] 1 WLR 1306 at 1512a.
295 Stevens v Stevens 1989 CA, lexis transcript; see also Pascoe v Turner [1979] 1 WLR 431 CA,
sums spent on improvement, decoration and repair were all taken into account, without distinction.
296 See Lalani v Crump Holdings Ltd [2007] EWHC 47 (Ch); [2007] All ER (D) 127 (Jan) at para
71.
297 Although in Appleby v Cowley, The Times, 14 April 1982, lexis transcript, Megarry VC was
prepared to take such expenditure into account, albeit acknowledging that it could carry little weight.
298 As to which see para 11.41 above. It is submitted that failure to establish reliance was the

reason why expenditure on outgoings and repairs was disregarded in Griffiths v Williams [1977] 248
EG 947 CA at 947. See also Dr Kong Bok Gan v Graeme Wood [1998] EWCA Civ 784 and First
National Bank v Ashkok Krishna [1998] EWCA 682. In the latter case, the wife contributed to
mortgage payments after moving into a property already owned by her husband prior to their
marriage. Her contributions were insufficient to establish a common intention that the property was to
be jointly owned. If the arrangement or understanding was reached post acquisition of property, proof
of considerable detriment is required, eg considerable expenditure on improvements paid for by the
wife justifying the inference that she was to acquire a beneficial interest.
299 Baker v Baker [1993] 25 HLR 408 CA at 413–14; Watts v Story [1984] 134 NLJ 631; E and L

Berg Homes Ltd v Grey [1979] 253 EG 473 CA; Coombes v Smith [1986] 1 WLR 808 at 820h–821b;
Lovett v Fairclough [1991] 61 P & CR 385; Durant v Heritage [1994] EGCS 134 (though doubts were
expressed by Andrew Park QC); Powell v Benney [2007] EWCA Civ 1283 (05 December 2007). In
Appleby v Cowley, The Times, 14 April 1982, Megarry VC held that no remedy should be granted
because C had had sufficient satisfaction for her expenditure. His Lordship declined to decide whether
the benefits received prevented an estoppel arising or whether one arose but deserved no remedy.
300 Henry v Henry (St Lucia) [2010] UKPC 3 (17 February 2010) at para 51: ‘the judge clearly
misdirected himself in his approach to the issue of detriment. He said… that [C] could not say that he
had acted to his detriment and that, far from having suffered detriment because of his reliance on the
deceased’s promises, he positively benefited. But he did not attempt to weigh the disadvantages
suffered by [C] by reason of his reliance on [P’s] promises against the countervailing advantages
which he enjoyed as a consequence of that reliance.… the fact that he had lived rent-free on the plot,
the fact that the plot was the source of his livelihood in large measure, and the fact that he had reaped
the produce of the plot and was able to sell any surplus and retain all the proceeds of such sales
[should be weighed against]… the evidence that [C] had kept [P] supplied with produce from the plot
and that he had cared for her.’
301 Sledmore v Dalby [1996] 72 P & CR 196 CA per Roch LJ.
302 Watts v Story [1984] 134 NLJ 631 (the NLJ report suggests that benefits received under the will

of P were taken into account but the lexis transcript reveals that it was only the rent-free
accommodation which was expressly taken into account by their Lordships); E and L Berg Homes Ltd
v Grey [1979] 253 EG 473 CA; Lovett v Fairclough [1991] 61 P & CR 385; Durant v Heritage [1994]
EGCS 134; Henry v Henry (St Lucia) [2010] UKPC 3 (17 February 2010) at para 51.
303 Namely the examination of the entirety of the relationship between the parties. But see Re
Basham dec’d [1986] 1 WLR 1498, where it was suggested that other benefits provided by P during
the course of his relationship with C could be taken into account. Re Basham dec’d is a controversial
case because the assurance did not relate to specific property. This absence of a link to specific
property explains the suggestion that more general benefits could be taken into account: there was no
‘specific property transaction’ from which C could derive benefit or suffer detriment.
304 [1965] 2 QB 29 CA.
305 [2003] 1 P&CR 8. Used as an example, there was no assessment of benefit in this case.
306 There is no suggestion that P’s £2000 gift to C was taken into account.
307 Coombes v Smith [1986] 1 WLR 808. See also Lissimore v Downing [2003] 2 FLR 308 per HHJ
Norris QC at para 5. The obiter suggestion that he would have resolved the question of detriment by
‘looking at the position in the round, balancing the burdens assumed in the relationship against the
benefits derived from it’ which is explicable on the same basis.
308 Some losses may be deemed unworthy of compensation: Burrows v Sharpe (1989) 23 HLR 82
at 92.
309 For a discussion of the remedial aspects of proprietary estoppel, see S Gardner, ‘The remedial

discretion in proprietary estoppel’ [1999] 115 LQR 438–68.

310 Stevens v Stevens 1989 CA, lexis transcript per Ormrod LJ.
311 See Appleby v Cowley, The Times, 14 April 1982, lexis transcript and Sledmore v Dalby [1996]

72 P & CR 196 CA. However, the former case certainly, and the latter probably, may be explained on
the basis that the respective claimants suffered no net detriment, once the benefits accorded to them
by P were taken into account.
312 Plimmer v Wellington Corpn [1884] 9 App Cas 699 PC NZ at 414; Chalmers v Pardoe [1963] 1

WLR 677; Griffiths v Williams (1977) 248 EG 947 CA at 949; Voyce v Voyce (1991) 62 P & CR 290
CA; Stratulatos v Stratulatos [1988] 2 NZLR 424 at 438; Pascoe v Turner [1979] 1 WLR 43 CA at
438f.
313 As to which see paras 11.95 ff below.
314 In a way comparable to equitable remedies such as specific performance or injunction.
315 In Appleby v Cowley The Times, 14 April 1982, lexis transcript, Megarry VC understandably

declined to consider the issue (‘a nice academic point’), finding it sufficient to dismiss the claim in
proprietary estoppel. The issue may have a practical connotation in reference to the enforceability of
estoppel interests against third parties; if the former approach is correct, it becomes more difficult to
justify recognition of any pre-adjudication rights vested in the claimant. See paras 11.115 ff below.
316 Plimmer v Wellington Corpn [1884] 9 App Cas 699 PC NZ at 714; Inwards v Baker [1965] 2
QB 29 CA at 36g–37b; Crabb v Arun DC [1976] Ch 179 CA at 193a–c, where Lord Scarman held that
the Court must ascertain both the extent of the equity and, second, the appropriate way in which to
satisfy it.
317 See Simon Gardner, ‘The remedial discretion in proprietary estoppel—again’ [2006] 122 LQR

492 at 504–11.
318 [1996] 72 P & CR 196 CA.
319 Sledmore v Dalby (1996) 72 P & CR 196 CA at 203 and 209, quoting Snell’s Equity at 576 (now
397–9). See also Inwards v Baker [1965] 2 QB 29 CA at 37c; Griffiths v Williams (1977) 248 EG 947
CA at 949; Durant v Heritage [1994] EGCS 134; Re Basham dec’d [1986] 1 WLR 1498.
320 Sledmore v Dalby [1996] 72 P & CR 196 CA at 208–9 quoting Mason CJ in Commonwealth of
Australia v Verwayen (1990) 170 CLR 394 at 413. A similar divergence of opinion can be seen
between the judges in Verwayen itself with Mason CJ, Brennan J, Dawson J (at 454), Toohey J (at
475) and McHugh J (at 501) taking the detriment-based approach and Deane J (at 441) and Gaudron J
(at 487) favouring the expectation measure.
321 Hunting v Ferrars [1711] Gilb 85; 25 ER 59; Ramsden v Dyson [1866] LR 1 HL 129 HL (see

particularly Lord Kingsdown at 170); Michand v City of Montreal [1923] 129 LT 417 PC Canada; AG
to Prince of Wales v Collom [1916] 2 KB 193.
322 Unity Joint Stock Mutual Banking Association v King (a bankrupt) [1858] 25 Beav 72; 53 ER
563; Re Foster, Hudson v Foster (No 2) [1938] 3 All ER 610.
323 The example discussed in Commonwealth of Australia v Verwayen [1990] 170 CLR 394 at 441.
324 Although this defect may be of reduced importance with the increasingly elastic nature of the
doctrine of consideration (see Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 CA
and paras 2.18 ff above), there are still strong arguments in favour of the proposition that if English
law is to expand the scope of promises which it is prepared to enforce, this should come from an open
appraisal of the law of contract rather than the side wind created by estoppel.
325 See generally paras 11.113 ff below.
326 See paras 11.50 ff above.
327 [1967] 2 QB 379 per Denning MR at 394F–395A; see also his comments in Inwards v Baker

[1965] 2 QB 29 CA at 37c.
328 [1976] Ch 179 at 198–9.
329 [1979] 1 WLR 431 CA per Cumming-Bruce LJ at 437H–438A.
330 Crabb v Arun DC [1976] Ch 179 CA per Scarman LJ at 198g; Pascoe v Turner [1979] 1 WLR

431 CA at 437H–438A; Veitch v Caldecott (1945) 173 LT 30 per Atkinson J at 34; Baker v Baker
(1993) 25 HLR 408 CA at 418; Burrows and Burrows v Sharpe (1989) 23 HLR 82 CA at 92; Henry v
Henry (St Lucia) [2010] UKPC 3 (17 February 2010) at para 66.
331 Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR 387 at 423.
332 Professor Finn, n 53 above, at chapter 4, 68.
333 As in Thorner v Major [2009] UKHL 18 [2009] 1 WLR 776; [2009] Fam Law 583.
334 Here, the principles governing the grant of injunctive relief provide an interesting comparator.

See Jennings v Rice [2003] 1 P&CR 8 per Robert Walker LJ at para 56.
335 [1990] 95 ALR 321 at 333.
336 [1996] 72 P & CR 196 CA at 208–9.
337 [2003] 1 P & CR 8. See also Mark Pawlowski, ‘Satisfying the equity in estoppel’ [2002] 118

LQR 519.
338 At para 36.
339 At paras 50–1.
340 See also Sledmore v Dalby [1996] 72 P & CR 196 CA per Roch LJ at 204; Baker v Baker [1993]

25 HLR 408 CA at 412 and 415; Watson v Goldsbrough [1986] EGLR 265 CA; Dodsworth v
Dodsworth [1973] 228 EG 1115 CA at 1115.
341 See Simon Gardner, ‘The remedial discretion in proprietary estoppel—again’ [2006] 122 LQR

492 at 498–500.
342 Per Aldous LJ at para 36. Applied in Hopper v Hopper [2008] EWHC 228 (Ch) (19 February

2008) at para 116 but see also para 109.

343 See Yeoman’s Row Management v Cobbe [2006] 1 WLR 2964; [2006] WTLR 1473; [2006] 3

EGLR 107; [2007] 1 P & CR DG14; [2007] 1 P & CR 8; [2006] EWCA Civ 1139 per Mummery LJ
and Dyson LJ for an example of a case where the Court grappled with both approaches and plumped
for ‘somewhere between the two’.
 344 Examples of this would be Dillwyn v Llewelyn [1862] 4 De G F & J 517 and Inwards v Baker
[1965] 2 QB 29 CA.
345 See Simon Gardner, ‘The remedial discretion in proprietary estoppel—again’ [2006] 122 LQR
492 at 492–7.
346 Per Robert Walker LJ at para 45.
347 The following factors were said to be relevant: the parties’ conduct, the need for a clean break,

alterations in P’s circumstances, the effect of taxation, other claims on P’s estate. See Jennings v Rice
[2003] 1 P & CR 8 per Robert Walker LJ at para 52.
348 [2005] EWCA Civ 45 (1 February 2005) per Arden LJ at para 32. See also Brightlingsea Haven
Ltd v Morris [2009] 1 EGLR 117; [2008] EWHC 1928 (QB); [2009] 2 P & CR 11 at paras 39–47.
349 [2008] UKHL 55; [2008] 4 All ER 713 per Lord Scott at para 29.
350 As a consequence of s 2 Law of Property (Miscellaneous Provisions) Act 1989. See paras 11.44
ff above in relation to formality.
351 See paras 11.157 ff below.
352 [2010] UKPC 3 (17 February 2010). See also Hopper v Hopper [2008] EWHC 228 (Ch) (19

February 2008) at paras 104–19. See also McGuane v Welch [2008] EWCA Civ 785 (11 July 2008). C
had struck a specific bargain for the purchase of P’s property and the judge at first instance believed
that he was bound to satisfy C’s expectations, having found that an estoppel arose. The Court of
Appeal reversed his decision. Per Mummery LJ at para 44: ‘It is true that there are circumstances in
which the equity arising from proprietary estoppel is satisfied by fulfilling the expectation and
compelling the transfer of property which the party, who has acted to his detriment, had been led to
expect would be transferred to him. It is not, however, necessarily the right response to every instance
of expectation. In this case, for example, the detriment established by [C] is quantifiable in financial
terms and can, without complication or difficulty, be completely reversed by compensating him for
expenditure of money on the Property.’
353 At paras 65–6.
354 Gillett v Holt [2001] Ch 210.
355 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583.
356 It is submitted that the detriment is the key to liability and therefore it is only appropriate that
the relief afforded should be governed by it.
357 See the criticisms in Birks I at 290–1.
358 As to which see Hobhouse LJ in Sledmore v Dalby (1996) 72 P & CR 196 CA at 208–9.
359 (1988) 164 CLR 387 at 423–4.
360 See paras 11.44 ff above in relation to formality
361 See further Evans, ‘Choosing the right estoppel’ [1988] Conv 346.
362 Jennings v Rice [2003] 1 P & CR 8 per Robert Walker LJ at para 52. Stratulatos v Stratulatos

[1988] 2 NZLR 424 at 438.

363 Contrary to one reading of Robert Walker LJ’s judgment in Jennings v Rice [2003] 1 P & CR 8,

it appears that these considerations will be relevant even when the assurance has the nature of a
‘bargain’.
364 Jennings v Rice [2003] 1 P & CR 8 per Robert Walker LJ at para 52. See eg Williams v Staite

[1979] Ch 291 per Goff LJ at 299–300 and Cumming-Bruce LJ at 300. P’s property consisted of two
adjoining cottages and an equity had arisen in respect of one of these properties to the benefit of C.
Whilst it was ultimately unnecessary to decide the point because in separate prior proceedings the
equity had been established and the Court had given effect to it by granting C an equitable licence, it
was said that conduct on the part of C in relation to the property which prevented P from exercising
his property rights (ie in respect of the part of his property which was not subject to the estoppel)
could limit or extinguish C’s equity.
365 Jennings v Rice [2003] 1 P & CR 8 per Robert Walker LJ at para 52. eg, in Crabb v Arun DC

[1976] Ch 179 CA at 199c–e P’s conduct in shutting off the promised access route and thus leaving
C’s property landlocked was ‘high handed’; in Pascoe v Turner [1979] 1 WLR 431 CA P had been
‘ruthless’ in his efforts to evict C.
366 Thomas v Fuller-Brown [1988] 1 FLR 237. Further it is doubtful whether sufficient reliance
could be established in such a case.
367 Beaton v McDivett [1985] 13 NSWLR 134 per Kirby P at 172.
368 Examples of misconduct at trial include adducing documents at trial known not to reflect the
true position between the parties. See Burrows v Sharpe [1989] 23 HLR 82 at 92; J Willis and Son v
Willis [1986] 1 EGLR 62.
369 Deakin v Faulding [2001] EWHC Ch 7, where a claim based on an alleged contract to transfer

shares in a company and in the alternative proprietary estoppel failed. The relationship was found to
attract the doctrine of undue influence.
370 [1979] Ch 291 CA per Denning MR at 298B–C; J Willis and Son v Willis [1986] 1 EGLR 62 at

63E–F.
371 J Willis and Son v Willis [1986] 1 EGLR 62 at 63E–F.
372 Goff LJ at 300A–C and Cumming Bruce LJ at 300D.
373 [1986] 1 EGLR 62 at 63E–F.
374 Both Willis and Williams were licence cases. See generally Thompson, ‘Estoppel and clean

hands’ [1986] Conv 406, on the distinction between remedies which are, and those which are not,
meant to amount to a final adjudication of the matter between the parties. The general principles of
res judicata were considered in neither Willis nor Williams and might also prove to be a problem.
375 Williams v Staite [1979] Ch 291 CA per Goff LJ at 300A–C.
376 Sledmore v Dalby [1996] 72 P & CR 196 CA at 204 and 209; Pascoe v Turner [1979] 1 WLR

431 CA 438F (in comparison to C, P was a rich man); Baker v Baker [1993] 25 HLR 408 per Dillon LJ
at 412 and per Roche LJ at 419, ‘the task of the court here is not to assess loss as though it were
awarding damages but to maintain a more flexible approach, designed to achieve justice between the
parties’.
377 [1996] 72 P & CR 196 CA at 204 and 209 respectively; Hobhouse LJ reached the same decision

without reference to P’s parlous circumstances.

378 [1993] 2 FLR 247 at 256. See also Durant v Heritage [1994] EGCS 134, lexis transcript.
379 Dodsworth v Dodsworth [1973] 228 EG 1115 CA; Burrows v Sharpe [1991] Fam Law 67 CA;
[1989] 23 HLR 82.
380 Stratulatos v Stratulatos [1988] 2 NZLR 424 at 439 per McGechan J.
381 Pascoe v Turner [1979] 1 WLR 431 CA; Gillett v Holt [2001] Ch 210 at 238.
382 See Stallion v Albert Stallion Holdings [2009] EWHC 1950 (Ch); [2009] WTLR 1437; [2009] 2

P & CR DG25 at paras 137–8.

383 eg Matharu v Matharu [1994] 68 P & CR 93 CA, where the claimant was granted such a right

on condition that she pay mortgage and outgoings, keep the property in good decorative repair and
repay mortgage payments previously made by P; P was to be responsible for structural repair. See
also Stevens v Stevens 1989 CA, lexis transcript.
384 [2001] EWCA Civ 990 (27 June 2001); [2001] All ER (D) 294 (Jun) per Robert Walker LJ at
para 34. See Jennings v Rice [2003] 1 P & CR 8 per Robert Walker LJ at para 52.
385 However, see also the estoppel by representation and convention cases relating to pensions, at

paras 9.46 and 10.12 for the relevance of third party interests to the assessment of unconscionability.
386 [1993] 25 HLR 408.
387 Baker v Baker [1993] 25 HLR 408 per Beldam LJ at 416 (Roch LJ concurring at 419 and Dillon
LJ dissenting at 413).
388 See Gillett v Holt [2001] Ch 210 at 235–8.
389 Chalmers v Pardoe [1963] 1 WLR 677. In Maharaj v Chand [1986] AC 898 PC this problem
was bypassed by resorting to promissory instead of proprietary estoppel.
390 At para 11.63 above.
391 Hussey v Palmer [1972] 1 WLR 1286 CA (this was not strictly a compensation case but the

beneficial interest granted was quantified by reference to the amount spent); Burrows v Sharpe [1991]
Fam Law 67 (mortgage payments to be refunded).
392 Stratulatos v Stratulatos [1988] 2 NZLR 424 at 439. See also Hopper v Hopper [2008] EWHC

228 (Ch) (19 February 2008) at para 112.

393 Stratulatos v Stratulatos [1988] 2 NZLR 424 at 439.
394 ibid.
395 See Jennings v Rice [2003] 1 P & CR 8.
396 eg, a job offer at a higher salary or pay statistics for a career that C was qualified to pursue but

gave up in reliance on the assurance.

397 Dodsworth v Dodsworth [1973] 228 EG 1115 CA (award of compensation and right of

occupation).
398 Lim v Ang [1992] 1 WLR 113 PC (Brunei).
399 Matharu v Matharu [1994] 68 P & CR 93 CA.
400 Lim v Ang [1992] 1 WLR 113 PC (Brunei) 118–19.
401 Ward v Kirkland [1966] 1 WLR 601.
402 Shaw v Applegate [1977] 1 WLR 970 CA.
403 Inwards v Baker [1965] 2 QB 29 CA.
404 As well as the obvious practical inconvenience, the result inhibits the free alienation of land,
since C will be encouraged to stay in the property making sale virtually impossible.
405 Stevens v Stevens 1989 CA, lexis transcript.
406 Ungurian v Lessnoff[1990] Ch 206; Matharu v Matharu [1994] 68 P & CR 93 CA; Stevens v

Stevens 1989 CA, lexis transcript; Price v Hartwell [1996] EGCS 98; Stallion v Albert Stallion
Holdings [2009] EWHC 1950 (Ch); [2009] WTLR 1437; [2009] 2 P & CR DG25 at paras 137–8.
407 Which governs the operation of all life interest settlements created on or after 1 January 1997.
408 It is possible to define the right with sufficient precision to ensure that it is no more than a

nontransmissible personal licence to occupy.

409 Ungurian v Lessnoff[1990] Ch 206; Bannister v Bannister [1948] 2 All ER 133 CA; Griffiths v

Williams [1977] 248 EG 947 CA at 949–50; Dodsworth v Dodsworth [1973] 228 EG 1115 CA.
410 See Gray and Gray, Elements of Land Law (Oxford University Press, 2008) at Chapter 7.6 for

further details.
411 Griffiths v Williams [1977] 248 EG 947 CA at 949–50 (tenancy at a nominal rent, determinable

on death of C); Dodsworth v Dodsworth [1973] 228 EG 1115 CA (charge on the property coupled with
a right to occupy until the expenditure on it repaid); Sledmore v Dalby [1996] 72 P & CR 196 CA at
200 (grant, at first instance, non-assignable, non-transmissible personal licence to occupy,
determinable on C’s ceasing to live in the property) and Law Commission Report Number 181 of
1989 at paras 1.3 and 4.2.
412 Although see Stallion v Albert Stallion Holdings [2009] EWHC 1950 (Ch); [2009] WTLR

1437; [2009] 2 P & CR DG25 where, unusually, the order was made in favour of P’s first spouse to
protect the interests of P’s second spouse who also resided at the property. A further reason for
making such an order was to establish a proprietary interest binding on third parties; see further Law
Commission Report Number 181 of 1989 at para 4.2.
413 Dillwyn v Llewellyn [1862] De GF & J 517; 45 ER 1285; Pascoe v Turner [1979] 1 WLR 43; Re
Basham dec’d [1986] 1 WLR 1498; Voyce v Voyce [1991] 62 P & CR 290 CA; Durant v Heritage
[1994] EGCS 134.
414 Lim v Ang [1992] 1 WLR 113 PC (Brunei); Sleebush v Gordon [2004] All ER (D) 148 (Sep).
415 Crabb v Arun DC [1976] Ch 179 CA; Ives v High [1967] 2 QB 379 CA.
416 Huning v Ferrars [1711] Gilb 85; 25 ER 59; Stiles v Cowper [1748] 3 Atk 382; 26 ER 1198;
Gregory v Mighell [1811] 18 Ves 238; 34 ER 341. Siew Soon Wah v Yong Tong Hong [1973] AC 836
PC (Malaysia); Watson v Goldsbrough [1986] EGLR 265 CA; Toogood v Farrell [1988] EGLR 233
CA (sub-lease granted); JT Developments v Quinn [1991] 62 P & CR 33 CA. See also Dann v Spurrier
[1802] 7 Ves Jun 232; 32 ER 94; Ramsden v Dyson [1866] LR 1 HL 129 and Watkins v Emslie [1981]
261 EG 1192 CA, where leases were claimed but an estoppel was not established on the facts.
417 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 (the Olds case) and
West Middlesex Golf Club Limited v Ealing London Borough Council [1993] 68 P & CR 461. See also
John v George and Walton [1996] 71 P & CR 375 CA, where the landlord was estopped from relying
on a valid ground for termination of a lease.
418 Jones v Jones [1977] 1 WLR 438 CA; Hammond v Mitchell [1992] 4 All ER 109.
419 Holiday Inns Inc v Broadhead [1974] 232 EG 951 and Wayling v Jones [1993] 69 P & CR 170
CA, where the property in issue had been sold; Burrows v Sharpe [1991] Fam Law 67 CA (where the
relationship had broken down between the parties); Baker v Baker [1993] 25 HLR 408 (same); Tanner
v Tanner [1975] 1 WLR 1346 CA (C left the premises after a possession order was made at first
instance).
420 Campbell v Griffin [2001] EWCA Civ 990 (27 June 2001); [2001] All ER (D) 294 (Jun) where
the sum of £35,000 was awarded to permit the sale of the property and protect the interest of third
parties with a call on the estate. There was no explanation of how it had been arrived at: Dodsworth v
Dodsworth [1973] 228 EG 1115 CA.
421 [2003] 1 P & CR 8. Where C was awarded a sum reflecting the market value of the services he

had rendered to P.
422 See Van Laethem v Brooker and Caradoc Estates Ltd [2005] EWHC 1478 (Ch) [2006] 2 FLR

495; Powell v Benney [2007] EWCA Civ 1283 (05 December 2007); McGuane v Welch [2008] EWCA
Civ 785 (11 July 2008); Hopper v Hopper [2008] EWHC 228 (Ch) (19 February 2008).
423 See Hopper v Hopper [2008] EWHC 228 (Ch) (19 February 2008) at paras 123–5.
424 See Giumelli v Giumelli [1999] HCA 10 (24 March 1999), austlii transcript, where the award of

a monetary sum to represent one son’s interest in the family’s land avoided injustice to other family
members which would result from the grant of a section of the land to that son. Hopper v Hopper
[2008] EWHC 228 (Ch) (19 February 2008) at paras 123–5.
425 Baker v Baker (1993) 25 HLR 408 per Beldam LJ at 416.
426 Unity Joint Stock Mutual Banking Association v King [1858] 25 Beav 72; 53 ER 563; Re

Foster, Hudson v Foster (No 2) [1938] 3 All ER 610; Dodsworth v Dodsworth [1973] 228 EG 1115
CA; Giumelli v Giumelli [1999] HCA 10 (24 March 1999), austlii transcript; Campbell v Griffin
[2001] EWCA Civ 990 (27 June 2001); [2001] All ER (D) 294 (Jun).
427 Dodsworth v Dodsworth [1973] 228 EG 1115 CA.
428 See Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council [1981] 41 P
& CR 179 at 195, where a successor public authority was bound by the proprietary estoppel which
arose against, and as a consequence of the acts of, its predecessor. The case against the successor
authority was, however, strengthened by the fact that it had itself also been guilty of conduct capable
of giving rise to an estoppel, see ibid at 195–7.
429 Ashburn Anstalt v Arnold [1989] Ch 1 per Fox LJ at 16–27.
430 Pascoe v Turner [1979] 1 WLR 43 CA at 435f.
431 Preston and Henderson v St Helens Metropolitan Borough Council, lands tribunal [1989] 58 P
& CR 500; Pennine Raceway v Kirklees MBC [1983] QB 382 CA.
432 Unity Joint Stock Mutual Banking Association v King (a bankrupt) [1858] 25 Beav 72 at 79, 53
ER 563 at 566; Hamilton v Geraghty [1901] 1 SRNSW Eq 81 at 86–91; Pennine Raceway v Kirklees
MBC [1983] QB 382 CA at 390a and 393e (dicta since the scope of those entitled to compensation
under the statute in issue was wider than those holding proprietary interests in the strict conveyancing
sense); Voyce v Voyce [1991] 62 P & CR 290 CA at 294.
433 Re Basham dec’d [1986] 1 WLR 1498 at 1504a–b and d–e; Commonwealth of Australia v
Verwayen [1990] 170 CLR 394 at 437; Sen v Headley [1991] Ch 425 at 439h–440a; Re Dale (dec’d)
[1993] 4 All ER 129 at 141g–h.
434 John v George and Walton [1996] 71 P & CR 375 CA (the point was conceded).
435 Duke of Beaufort v Patrick [1853] 17 Beav 59; 51 ER 954; Dillwyn v Llewellyn [1862] De GF
& J 517; 45 ER 1285; Inwards v Baker [1965] 2 QB 29 CA; Dodsworth v Dodsworth [1973] 228 EG
1115; Griffiths v Williams [1977] 248 EG 947 CA; Greasley v Cooke [1980] 1 WLR 1306 CA; Re
Basham dec’d [1986] 1 WLR 1498; Voyce v Voyce [1991] 62 P & CR 290 CA; Wayling v Jones [1993]
69 P & CR 170 CA. See also Errington v Errington [1952] 1 QB 290 CA; the case was decided on
contract principles but the Court of Appeal, in Ashburn Anstalt v Arnold [1988] 2 WLR 706 CA at
720f–h (per Fox LJ), held that whilst the contractual analysis was incorrect, the result was justifiable
on the basis of an estoppel which was capable of binding a third party.
436 Re Sharp [1980] All ER 198, although it is questionable as to whether the finding on estoppel

was material to Browne-Wilkinson J’s decision as to the transmissibility of the right in issue.
437 Plimmer v Wellington Corpn [1884] 9 App Cas 699 PC NZ (although the point was

circumvented—all that was material was that the land had been vested continuously in the
government ‘under whatever form’).
438 E and L Berg Homes Ltd v Grey [1979] 253 EG 473 CA.
439 Duke of Beaufort v Patrick [1853] 17 Beav 59, 51 ER 954. ER Ives Investment Ltd v High

[1967] 2 QB 379, where the estoppel point formed part of the ratio—despite the parallel operation of
the benefit and burden principle of Halsall v Brizell [1957] Ch 169. Where two reasons are given by
the Court for reaching its decision, generally both are classified as forming part of the ratio even
where one alone would have been sufficient to dispose of the case. Further, the right acquired by Mr
High under the benefit and burden principle was precarious. Had ER Ives removed their foundations
from his premises, Mr High’s right would have determined. The easement arising under estoppel
principles was not qualified in this way and would have survived such a change of mind by ER Ives.
See also dicta in Lloyds Bank v Carrick [1996] All ER 630 CA at 642b–c and Re Sharp [1980] All ER
198 at 204 f.
440 [1967] 2 QB 379.
441 [1853] 17 Beav 59; 51 ER 954. See also Inwards v Baker [1965] 2 QB 29 CA per Lord Denning
at 37f.
442 In both of these cases, the purchaser had actual knowledge of the relevant facts. Assuming the
general principle is correct, it must now be qualified, in respect of real property, by modern statutory
modifications made to the doctrine of notice, as to which see specialist texts. Dicta in Hopgood v
Brown [1955] 1 WLR 213 at 225, 228 and 230 (the purchaser had actual notice) indicates that a
transferee will be bound regardless of notice. The reasons given for this conclusion are, however,
unconvincing and, in any event, may be confined to the estoppel by representation which undoubtedly
also arose in that case.
443 [1974] 232 EG 951 at 961.
444 As to which see para 11.96 above.
445 Hayton, ‘Equitable rights of co-habitees’ [1990] Conv 370; Ferguson, ‘Constructive trusts—a
note of caution’ [1993] 109 LQR 114; Lord Browne-Wilkinson’s 1991 Holdsworth Lecture,
‘Constructive Trusts and Unjust Enrichment’. See also Re Basham dec’d [1986] 1 WLR 1498 at 1503;
Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 per Lord Scott at para 20.
446 See Re Sharp [1980] All ER 198 at 203d–204a.
447 See paras 11.148–156 below.
448 See the strict approach of the House of Lords in National Provincial Bank v Ainsworth [1965]
AC 1175 at 1226e–1227a and 1238c–e.
449 According to Davis, ‘Proprietary estoppel: future interests and future property’ [1996] Conv
193, such an analysis is supported by terminology used in the case law; namely those authorities
where a declaration has been made seemingly recognising a pre-existing interest (see the authorities
listed at n 3 supra) which refer to an equity arising out of acquiescence or encouragement. Examples
include Ramsden v Dyson [1866] LR 1 HL 129 HL at 140–1; Plimmer v Wellington Corpn [1884] 9
App Cas 699 PC NZ at 713–14 and Crabb v Arun DC [1976] Ch 179 CA at 188b–d and 192–3. Contra
Evans, ‘Choosing the right estoppel’ [1988] Conv 346 (references to satisfying the equity are
inconsistent with the view that it amounts to an enforceable proprietary right prior to Court order).
450 National Provincial Bank v Ainsworth [1965] AC 1175 per Lord Upjohn at 1238b–g.
451 See Baughan, ‘Estoppels over land and third parties’ [1994] 14 LS 147. It is conceded that those
third party cases where a licence has been granted such as Plimmer v Wellington Corpn [1884] 9 App
Cas 699 PC NZ; Re Sharpe [1980] 1 All ER 198 and Pennine Raceway v Kirklees MBC [1983] QB 382
CA are not explicable on this basis.
452 See also Susan Bright and Ben McFarlane, ‘Proprietary estoppel and property rights’ (2005) 64

Cambridge Law Journal 449.

453 The same principles will be applicable if, contrary to the above, a full equitable interest is

generated prior to trial.

454 In this case registration would be under ss 5(1), 5(3)(a) and 17(1) Land Charges Act 1972. This

seems implicit in the judgment in Haslemere Estates Ltd v Baker [1982] 1 WLR 1109 at 1119, where
registration was inappropriate because the relevant proceedings involved a claim for money rather
than interest in land. If proceedings have commenced, failure to register the pending land action
makes judgment unenforceable against a purchaser without actual knowledge of the proceedings see s
5(7). If the assurance relied on by C to found the estoppel amounts to a valid and enforceable contract
to grant a legal estate in land, a class C(iv) land charge should be registered or else the Court will not
‘confer on the claimant indirectly and by means of a proprietary estoppel… that which Parliament
prevented her from obtaining directly by a contract which it has declared to be void’, see Lloyd’s
Bank v Carrick [1996] All ER 630 CA at 641j–642a. See Gray at 1149 for a commentary on the 1972
Act.
 455 The mechanism, created by the Law of Property Act 1925, by which a purchaser takes the legal
estate free of beneficial interests. See Gray at 989 for a description of the operation of this
mechanism.
456 Shiloh Spinners v Harding [1973] AC 691 per Lord Wilberforce at 721a–e. This proposition
probably remains true even where an orthodox overreachable interest is eventually granted by the
Court: the overreaching transaction can only operate at the time of sale; its effect cannot extend to the
date of Court adjudication. See Evans, ‘The fall and rise of the remedial constructive trust’ [1989]
Conv 418 at 427 and Hanbury and Martin at 895 but contra Thompson, ‘Registration, fraud and
notice’ [1985] 44 CLJ 280 at 299 and Baughan, ‘Estoppels over land and third parties’ [1994] 14 LS
147 at 154–5. The difficulty in assessing the effect of the overreaching provisions on estoppel rights
is an inevitable consequence of the uncertainty surrounding the precise nature of those rights.
457 Shiloh Spinners v Harding [1973] AC 691; ER Ives Investment v High [1967] 2 QB 379; Duke
of Beaufort v Patrick (1853) 17 Beav 59; 51 ER 954. See specialist texts on the operation of the
doctrine of notice.
458 Phillips v Phillips [1861] 4 De GF & J 208 at 215–17, 45 ER 1164. Thus the protection given to

mere equities is less extensive than that given to full equitable interests which are vulnerable only to
purchasers of a legal estate or interest.
459 ER Ives Investment Ltd v High [1967] 2 QB 379.
460 Duke of Beaufort v Patrick [1853] 17 Beav 59, 51 ER 954.
461 See Gray at 1083–94 for a detailed commentary on the 2002 Act.
462 Land Registration Act 2002, s 116.
463 ibid ss 28–29.
464 ibid ss 32–39.
465 ibid ss 40–47.
466 ibid s 29.
467 ibid Sch 3, s 2. See also Abbey National Building Society v Cann [1991] AC 56; Thompson v

Foy [2009] EWHC 1076 (Ch) at paras 118–33.

468 Land Registration Act 2002, Sch 3, s 2(c)(ii).
469 ibid Sch 3, s 2(c)(i).
470 See Gray 1238–9.
471 [2010] UKPC 3 (17 February 2010) at paras 46–56. Briefly—it was dismissed because it had

not been pleaded. See also Thomspon v Foy [2009] EWHC 1076 (Ch) at para 134.
472 Para 56: ‘The Board does not rule out the possibility that cases may arise in which the

particular circumstances surrounding a third party purchase may, notwithstanding the claimant’s
overriding interest, require the Court to reassess the extent of the claimant’s equity in the property.’
473 Perhaps misconduct as between C and the third party.
474 Hamilton v Geraghty [1901] 1 SRNSW Eq 81 at 86–91.
475 [1884] 9 App Cas 699 PC NZ.
476 [1858] 25 Beav 72 at 79; 53 ER 563 at 566.
477 See paras 11.115–117 above.
478 The Times, 4 August 1984; [1998] BPIR 687 per Oliver LJ. Limited weight should be given to

the case since the relevant point was immaterial to the result.
479 The transmissibility of licences depends on their particular terms. There is no single rule

applicable to all licences. Where the licence arises as a result of estoppel, those terms are set by the
Court (see, eg, the remedy of a personal and non-assignable licence awarded at first instance in
Sledmore v Dalby [1996] 72 P & CR 196 CA at 200).
480 Dillwyn v Llewellyn [1862] De GF & J 517; 45 ER 1285; Plimmer v Wellington Corpn [1884] 9

App Cas 699 PC; Crabb v Arun DC [1976] Ch 179 CA at 187e; Pascoe v Turner [1979] 1 WLR 431
CA at 436f; Wayling v Jones [1993] 69 P & CR 170 CA; Durant v Heritage [1994] EGCS 134; JT
Developments v Quinn [1991] 62 P & CR 33 CA at 45; Fisher v Brooker [2008] Bus LR 1123; [2008]
EMLR 13; [2008] EWCA Civ 287; [2008] FSR 26 per Mummery LJ at para 59.
481 Shaw v Applegate [1977] 1 WLR 970 CA 1979.
482 See eg Ives v High [1967] 2 QB 379 CA; Crabb v Arun DC [1976] Ch 179 CA at 187e; Pascoe v
Turner [1979] 1 WLR 431 CA; Wayling v Jones [1993] 69 P & CR 170 CA; Durant v Heritage [1994]
EGCS 134.
483 Paras 11.107 ff above.
484 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 at 147; Finn, n 53
above, at chapter 4, 70.
485 The flexibility of the remedies available means that this abrogation may take the form of an

order for a money payment. See generally paras 11.107 ff above.

486 Ramsden v Dyson [1866] LR 1 HL 129; Durant v Heritage [1994] EGCS 134; Layton v Martin

[1986] 2 FLR 227 at 238; Re Sharpe [1980] 1 All ER 198 at 210; West Middlesex Golf Club Limited v
Ealing London Borough Council [1994] 68 P & CR 461 at 478; JT Developments v Quinn [1991] 62 P
& CR 33 CA at 45.
487 As in Pascoe v Turner [1979] 1 WLR 43 CA.
488 Lloyds Bank v Rosset [1991] 1 AC 107; Hammond v Mitchell [1992] 4 All ER 109; [1991] 1

WLR 1127.
489 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133; JT Developments

v Quinn [1991] 62 P & CR 33 CA.

490 Lovett v Fairclough [1991] 61 P & CR 385 (fishing rights); no remedy was granted in the case

because the claimant had 12 years’ use of the pool in dispute and therefore had suffered no detriment
in contributing to its upkeep.
491 Crabb v Arun DC [1976] Ch 179 CA; Ives v High [1967] 2 QB 379 CA; Lester v Woodgate

[2010] EWCA Civ 199; [2010] 2 P & CR DG14 per Patten LJ at paras 42–4. P’s right of way over C’s
land.
492 Shaw v Applegate [1977] 1 WLR 970 CA. In such cases, proprietary estoppel principles tend to
blend almost seamlessly into parallel equitable doctrines of acquiescence and laches so that it may be
difficult to ascertain the precise juristic basis of the decision.
493 Baker v Baker [1993] 25 HLR 408 CA.
494 [1976] 1 QB 225 at 242.
495 [1981] 2 All ER 204 CA at 218h–j.
496 But see West Middlesex Golf Club Limited v Ealing London Borough Council [1994] 68 P &

CR 461 at 478 (said to be applicable to land only).

497 Strover v Strover [2005] EWHC 860 (Ch) 10 May 200; [2005] EWHC 860 (Ch) per Hart J at

paras 23–41—a proprietary estoppel arose in respect of the benefits payable under a life insurance
policy. Policy taken out in the name of C with P (his business partner as a beneficiary). After C
retired he continued to make premium payments under the policy in the mistaken belief that his wife
would benefit if he died. After C’s death a dispute arose between C’s estate and P, the beneficiary
under the policy. The Court held that a proprietary estoppel arose to prevent P from asserting his
rights to the proceeds of the policy; Re Foster, Hudson v Foster (No 2) [1938] 3 All ER 610 appears to
be an example of the application of the proprietary estoppel doctrine to an insurance policy, though
the judgment contains a puzzling inconsistency: C had paid a number of premiums on a life insurance
policy, which he mistakenly thought would accrue to his benefit, whereas in fact it was his father who
was so entitled; at 613e, Crossman J affirmed the general principle that payment by mistake is
insufficient to ground a claim unless the property owner knows of his own inconsistent title;
curiously, C’s estate was granted a lien for his expenditure, despite a finding that ‘all parties… at all
material times’ believed that C was entitled to the policy (614a–b). See also Falcke v Scottish
Imperial Insurance Co [1886] 34 ChD 234 CA at 241, 252 and 253, though there C failed to establish
such a claim.
498 Re Vandervelle dec’d (No 2) [1974] 1 Ch 269 per Lord Denning MR at 321 and per Lawton LJ
at 325; Murphy v Rayner [2011] EWHC 1; [2011] All ER (D) 125 (Jan), per Jeremy Cousins QC,
sitting as a Deputy High Court Judge, at para 278: ‘I have kept in mind that C’s claim relates to
distinct interests; first, an interest in the Property, and secondly, an interest in the Investments [the
whole of P’s various investment interests held through an offshore trust]. The application of the
principles could differ in relation to each, though there is substantial overlap. On the facts of the case,
however, I do not consider that any materially different considerations have arisen.’
499 Re Basham dec’d [1986] 1 WLR 1498; Yeoman’s Row Management Ltd v Cobbe [2008] UKHL

55; [2008] 1 WLR 1752; [2008] 4 All ER 713; [2009] 1 All ER (Comm) 205; [2009] 1 All ER 763 at
para 14.
500 Godfrey v John Lees [1995] EMLR 307; Film Investors Overseas Services SA v The Home

Video Channel (trading as the Adult Channel), The Times, 2 December 1996; Beckingham v Hodgens
[2003] EWCA Civ 143; [2003] EMLR 18—the claim failed as C could not establish detriment but no
question that an estoppel could arise; Fisher v Brooker [2008] Bus LR 1123; [2008] EMLR 13; [2008]
EWCA Civ 287; [2008] FSR 26 at para 60. P failed to establish an estoppel on the facts but there was
no suggestion either in the Court of Appeal or in the House of Lords [2009] UKHL 41; [2009] 1 WLR
1764; [2009] 4 All ER 789 that the doctrine of proprietary estoppel was incapable of being applied to
intellectual property rights and other rights that did not relate to land. Per Mummery LJ at para 62:
‘This case is prima facie within the familiar territory of proprietary estoppel. [C] claims title to
property in the form of a joint interest in the copyright in the Work.’
501 Wayling v Jones [1993] 69 P & CR 170 CA, a hotel business; Thorner v Major [2009] UKHL
18; [2009] 1 WLR 776, the associated assets of a farming business, see paras 48 and 104. See also
Windeler v Whitehall [1990] 2 FLR 505, where a claim to a share in the business failed for a number
of reasons none of which depended on the type of property in issue.
502 See Crabb v Arun DC [1976] Ch 179 CA; Re Basham dec’d [1986] 1 WLR 1498; Durant v

Heritage [1994] EGCS 134; Wayling v Jones [1993] 69 P & CR 170 CA; Thorner v Major [2009]
UKHL 18; [2009] 1 WLR 776.
503 In Crabb v Arun DC [1976] Ch 179 CA, C knew that further formalities would have to be

executed before he would be vested with the right of way promised him by the Council’s agents but
neither party specified a date by which such execution was to take place.
504 Jones v Jones [1977] 1 WLR 438 CA; Re Basham dec’d [1986] 1 WLR 1498; Burrows v Sharpe

[1991] Fam Law 67; [1989] 23 HLR 82 CA; Wayling v Jones [1993] 69 P & CR 170 CA; Durant v
Heritage [1994] EGCS 134; Gillett v Holt [2001] Ch 210; [2000] 2 All ER 289; Thorner v Major
[2009] UKHL 18; [2009] 1 WLR 776.
505 Jones v Jones [1977] 1 WLR 438 CA; Re Basham dec’d [1986] 1 WLR 1498; Wayling v Jones

[1993] 69 P & CR 170 CA; Durant v Heritage [1994] EGCS 134; Thorner v Major [2009] UKHL 18;
[2009] 1 WLR 776.
 506 Burrows v Sharpe [1991] Fam Law 67; [1989] 23 HLR 82 CA; Gillett v Holt [2001] Ch 210;
[2000] 2 All ER 289.
507 Gillett v Holt, [2001] Ch 210 at 229.
508 Burrows v Sharpe [1989] 23 HLR 82 CA. P agreed with C1 and C2 that they could move in with
her and would receive her house on her death. The relationship broke down. Lord Justice Dillon held
(at 91) that one of the remedies available was an order that P hold the property on trust for herself for
life, remainder to C. In the event, his Lordship declined to make such an order because it would have
been unworkable in the light of the breakdown in relations between the parties. See also Philip Lowe
(Chinese Restaurant) Ltd v Sau Man Lee 1989 CA, lexis transcript, where May LJ, obiter, doubted
that a promise of entitlement on death could be consistent with an intent to make an immediate grant
of a future interest in property.
509 See para 11.98 above.
510 See Burrows v Sharpe [1991] Fam Law 67; [1989] 23 HLR 82 CA.
511 See also Campbell v Griffin [2001] EWCA Civ 990, where the Court took into account the

Council’s charge on the home for satisfaction of care home fees when assessing the remedy to grant
to C. Also see Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 at para 19.
512 Henry v Henry (St Lucia) [2010] UKPC 3 (17 February 2010); [2010] UKPC 3.
513 See paras 11.112ff above.
514 [1993] 69 P & CR 170 CA.
515 See also Susan Bright and Ben McFarlane, ‘Proprietary estoppel and property rights’ (2005) 64

Cambridge Law Journal 449.

516 Abbey National BS v Cann [1991] AC 56 at 89a–d; Windeler v Whitehall [1990] 2 FLR 505 at

516c–e; Re Goldcorp Exchange Limited [1994] 2 All ER 806 PC NZ at 818c–g.

517 Watson v Goldsbrough [1986] 1 EGLR 265 P gave an assurance that C would have a lease of

fishing rights at a time when P was a mere licensee of the property. This gave rise to an estoppel when
P subsequently obtained the freehold; Abbey National BS v Cann [1991] AC 56 at 102a–c. There was
no doubt that the estoppel was fed by P’s acquisition of a property interest: C’s failure to establish
priority stemmed from the finding that P only ever acquired a limited interest in the property, namely
one that was subordinate to the security interest granted to the Abbey National, the mortgagee, who
lent him the money to complete the transaction. See also Banner Homes Group Plc v Luff
Developments Limited [2000] 2 All ER 117.
518 In Abbey National BS v Cann [1991] AC 56, the detrimental reliance consisted of moving out

of a jointly owned property and allowing it to be sold and its proceeds to be used to purchase a new
house. By the time these acts took place, the property to be purchased must have been selected.
Similarly, in Re Basham dec’d [1986] 1 WLR 1498, discussed below, no property was purchased after
cesser of the acts in reliance, since they continued up until the death of P.
519 Indeed in Abbey National BS v Cann [1991] AC 56.
520 See further para 11.131 on the necessity for specific and identifiable property.
521 [1986] 2 FLR 227 at 238. In Re Goldcorp [1994] 2 All ER 806 PC NZ at 816d–f, the Privy

Council clearly held that there was no possibility of establishing a proprietary estoppel in relation to
goods which had yet to be ascertained or separated from the general fluctuating stock held by P;
however, the case was one where C expected an interest only in specific assets. No express comment
is made on the position where claimants believe that they are to obtain general rights over all of P’s
property, namely the situation under discussion here.
522 Re Basham dec’d [1986] 1 WLR 1498 at 1510c. For criticism of the case see Hayton, ‘By-
passing Testamentary Formalities’ [1987] CLJ 215; Clarke, ‘Estoppel interests’ [1987] All ER Review
156; Martin, ‘Estoppel and the ubiquitous constructive trust’ [1987] Conv 211; Davey, ‘Testamentary
promises’ [1988] LSG 92.
523 Applying the mutual wills cases, Re Cleaver dec’d [1981] 1 WLR 939 at 946a–947d and

Birmingham v Renfrew [1937] 57 CLR 666.

524 Supra at 1505 adopting the approach of Nourse J in Re Cleaver supra at 947.
525 On the principle that the remedy for proprietary estoppel must never exceed the expectation
generated: see further para 11.91 above.
526 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 at para 63 Lord Walker distinguishes Re
Basham as a case where the judge relied ‘largely on authorities about mutual wills, which are
arguably a special case’; MacDonald v Frost [2009] EWHC 2276 (Ch) at paras 13–16, Geraldine
Andrews QC, sitting as a Deputy High Court Judge, considered Re Basham to be ‘open to doubt’.
527 See Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 per Lord Scott at paras 14 and 20.
The point there is slightly different—Lord Scott believes the remedial constructive trust provides a
better description of the remedy where the assurance relates to a future interest in property, given the
possibility that the assurance may be revoked before the relevant trigger point. This ‘revocability’
problem is not necessarily a conceptual obstacle to a remedy based on proprietary estoppel. See para
11.35 above.
528 [1986] Ch 638 at 656; [1986] 3 WLR 114; [1986] 2 All ER 426; [1986] EWCA Civ 4; [1986]

Fam Law 300. See also Morris v Morris [2008] EWCA Civ 257 (22 February 2008) per May LJ at
para 36; Oxley v Hiscock [2004] 3 All ER 703; [2004] EWCA Civ 546 per Chadwick LJ at paras 65–6;
Yaxley v Gotts [2000] Ch 162 per Robert Walker LJ 177.
529 [2007] 2 AC 432; [2007] 2 WLR 831; [2007] 2 All ER 929; [2007] UKHL 17 at para 37. See

also Herbert v Doyle [2010] EWCA Civ 1095 at paras 54–6.

530 [2000] Ch 162.
531 Discussed above at paras 11.09–16 above.
532 [2010] EWCA Civ 519; [2010] 2 FCR 251; [2010] Fam Law 805 at paras 50–1.
533 [1991] 1 AC 107 at 132E–133B.
534 But will not always, see paras 11.84 ff above.
535 Although one explanation of the proprietary nature of the equity is that P holds the property as

constructive trustee of C’s proprietary interest this does not explain the fact that in proprietary
estoppel the relief may be a monetary award. See further the discussion at paras 11.115 ff above.
536 [2000] Ch 162.
537 [2008] UKHL 55; [2008] 1 WLR 1752; [2008] 1 WLR 2494; [2008] 4 All ER 713; [2009] 1 All

ER (Comm) 205; [2009] 1 All ER 763 at para 27.

538 See Stack v Dowden [2007] 2 AC 432; [2007] 2 WLR 831; [2007] 2 All ER 929; [2007] UKHL
17; Oxley v Hiscock [2004] EWCA Civ 546; [2005] Fam 211.
539 See Cobbe v Yeoman’s Row Management [2008] UKHL 55; [2008] 1 WLR 1752; [2008] 1

WLR 2494; [2008] 4 All ER 713; [2009] 1 All ER (Comm) 205; [2009] 1 All ER 763. But see Crabb v
Arun DC [1976] Ch 179 a commercial case where the assurance was not merely an undertaking to
grant a right of way but P’s construction of a point of access from C’s land.
540 See paras 11.30 ff above.
541 [2008] UKHL 55; [2008] 1 WLR 1752 at paras 24 and 30–1.
542 [1974] 232 EG 951. See also Banner Homes Group Plc v Luff Developments [2000] 2 All ER

117; [2000] EWCA Civ 18 (28 January 2000) at paras 22–36.

 543 Often described as a ‘Pallant v Morgan equity’. See Pallant v Morgan [1952] 2 All ER 951;
Banner Homes v Luff Developments Limited [2000] 2 All ER 117 per Chadwick LJ at 138–9, 140f–
141f.
544 Indeed Lord Scott considered the necessary belief in a certain future interest to be such a
conceptual problem that in Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 he suggested that
the remedy for a representation as to a future interest should be provided by the doctrine of
constructive trust rather than proprietary estoppel—see para 20.
545 See also Clarke v Corless [2010] EWCA Civ 338; [2010] WTLR 751 at paras 36–8.
546 Where the assurance may be given before or after P acquires the property in question.
547 [2011] EWHC 803 (Ch) (31 March 2011) at para 364. See also Lloyd’s Bank v Rosset [1991] 1
AC 107 per Lord Bridge at 132F ‘prior to acquisition or exceptionally at some later date’; Banner
Homes Group Plc v Luff Developments [2000] 2 All ER 117; [2000] EWCA Civ 18 per Chadwick LJ
at sub-para 36(1); Kilcarne Holdings v Targetfollow [2004] EWHC 2547 (Ch); [2004] NPC 167;
[2005] 2 P & CR 8 per Lewison J at para 242; Cobbe v Yeoman’s Row [2008] UKHL 55; [2008] 1
WLR 1752 per Lord Scott at paras 35–8.
548 [2008] UKHL 55; [2008] 1 WLR 1752 at para 37.
549 [2010] EWCA Civ 1095. See also Brightlingsea Haven Ltd v Morris [2009] 1 EGLR 117;

[2008] EWHC 1928 (QB); [2009] 2 P & CR 11.

550 [2008] EWHC 1950 (Ch); [2009] WTLR 589.
551 Para 56.
552 Para 42.
553 Para 71.
554 See Crossco No 4 v Jolan [2011] EWHC 803 (Ch) (31 March 2011) at paras 328 and 330.

Morgan J, who was also a member of the panel in Herbert v Doyle, was careful to emphasise this
point when considering the principles that could be extracted from that case.
555 Para 56.
556 See Thorner v Major [2009] UKHL 18 at para 93 for Lord Neuberger’s explanation of the

certainty requirement after Cobbe.

557 This might even be a third party, see SQ v RQ [2009] Fam Law 17; [2008] EWHC 1874 (Fam).
558 [2007] 2 AC 432.
559 [2004] 3 All ER 703; [2004] EWCA Civ 546. See also Drake v Whipp [1996] 1 FLR 826 at 827.
560 [1970] AC 777; [1969] 2 All ER 385; [1969] UKHL 5.
561 [1971] 1 AC 886; [1970] 3 WLR 255; [1970] UKHL 3.
562 See Stack v Dowden [2007] 2 AC 432 at paras 15–24 for Lord Walker’s discussion of this point.
563 See the discussion of this distinction in Lord Neuberger’s minority opinion in Stack v Dowden

[2007] 2 AC 432; [2007] UKHL 17 at paras 124–8.

564 [1991] 1 AC 107; [1990] 2 WLR 867; [1990] 1 All ER 1111; [1990] UKHL 14.
565 See Metall & Rohstoff v Donaldson Inc [1990] 1 QB 391, 478–80.
566 See Re Polly Peck International Plc (No 2) [1998] 3 All ER 812 at 823–5 and De Bruyne v De

Bruyne [2010] EWCA Civ 519; [2010] 2 FCR 251; [2010] Fam Law 805 at para 48. But see also signs
of change in the minority opinion of Lord Scott in Thorner v Major [2009] UKHL 18; [2009] 1 WLR
776 at paras 14 and 20–1—His Lordship is prepared to grant relief on the basis of a remedial
constructive trust.
567 It is recognised in Canada and some US States (eg, New York).
568 [1996]2 AC 669; [1996] UKHL 12; [1996] 2 All ER 961; [1996] 2 WLR 802.
 569 [2007] 2 AC 432; [2007] 2 WLR 831; [2007] 2 All ER 929; [2007] UKHL 17.
570 Para 58. See also Laskar v Laskar [2008] Fam Law 638; [2008] 1 WLR 2695; [2008] EWCA
Civ 347; [2008] 2 FLR 589; [2008] EWCA Civ 347. Mother (P) and daughter (C) purchased the
property in which the mother lived from the local authority. The conveyance was into their joint
names. Shortly after the purchase, P moved out and the property was let to successive tenants. The
Court of Appeal differentiated between domestic and commercial cases by reference to the primary
purpose of the property. It held that, since the primary purpose of the purchase of the property was not
as a home but as an investment there was ‘no reason not to fall back on the resulting trust analysis,
namely that in the absence of any relevant discussion between the parties, their respective beneficial
shares should reflect the size of their contributions to the purchase price, subject to any subsequent
actions or discussions having the effect of varying those shares.’ However, even the ‘primary
purpose’ test poses problems: will a dispute in relation to a property which has both residential and
commercial uses, such as the combined residential and business premises in Thorner v Major, be
considered to fall within the ‘domestic consumer context’?
571 Para 56.
572 The relevant factors listed by Baroness Hale at para 69 include: ‘any advice or discussions at

the time of the transfer which cast light upon their intentions then; the reasons why the home was
acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a
receipt for the capital moneys; the purpose for which the home was acquired; the nature of the
parties’ relationship; whether they had children for whom they both had responsibility to provide a
home; how the purchase was financed, both initially and subsequently; how the parties arranged their
finances, whether separately or together or a bit of both; how they discharged the outgoings on the
property and their other household expenses’.
573 Para 61: ‘the search is still for the result which reflects what the parties must, in the light of

their conduct, be taken to have intended. Second, therefore, it does not enable the Court to abandon
that search in favour of the result which the Court itself considers fair. For the Court to impose its
own view of what is fair upon the situation in which the parties find themselves would be to return to
the days before Pettitt v Pettitt.’
574 At para 60.
575 [2010] EWCA Civ 578; [2010] Fam Law 806; [2010] 1 WLR 2401; [2010] 3 All ER 423 at para

77.
576 But note that, as stated above, inference of intention from evidence of direct contribution to the
purchase price was permitted before Stack v Dowden.
577 By distancing itself from Chadwick LJ’s statement to that effect in Oxley v Hiscock [2004]

EWCA Civ 546; [2005] Fam 211.

578 See Morris v Morris [2008] EWCA Civ 257 (22 February 2008) per Sir Peter Gibson at para
23.
579 At para 63.
580 [2007] UKPC 53 (26 July 2007).
581 Para 18.
582 [2007] EWCA Civ 1212.
583 At para 24.
584 See Lloyd’s Bank v Rosset [1991] 1 AC 107; [1990] 2 WLR 867; [1990] 1 All ER 1111; [1990]

UKHL 14; Paragon Finance Plc v D B Thakerar [1999] 1 ALL ER 400; [1998] EWCA Civ 1249.
585 [2010] EWCA Civ 578; [2010] Fam Law 806; [2010] 1 WLR 2401; [2010] 3 All ER 423.
 586 See para 58.
587 See paras 45–50 and 75–7.
588 The awaited judgment of the Supreme Court in Kernott v Jones may provide some answers.
589 See 28–9 of the paper accompanying Etherton LJ’s lecture to the Chancery Bar Association

Conference, ‘Constructive Trusts and Proprietary Estoppel: The search for clarity and principle’,
delivered on 16 January 2009, available at <http://www.chba.org.uk >; Lord Neuberger, ‘The stuffing
of Minerva’s Owl? Taxonomy and taxidermy in equity’ [2009] CLJ 537 at 547–9.
590 See paras 11.31 and 11.50 above.
591 [2000] Ch 162. Although see 193D where Beldam LJ expressed the view that nothing in s 2
prevented a party establishing an equity pursuant to a proprietary estoppel.
592 [2005] EWCA Civ 45 (1 February 2005).
593 [2008] UKHL 55; [2008] 1 WLR 1752 at para 29.
594 See the discussion at paras 11.50 ff above.
595 See paras 11.113 ff above for further discussion.
596 See the discussion at paras 11.84 ff above.
597 Pascoe v Turner [1979] 1 WLR 431 at 438A.
598 See para 11.111 above.
599 But see the discussion of the effect of Stack v Dowden at paras 11.150 ff above.
600 [2000] Ch 162. See also Herbert v Doyle [2010] EWCA Civ 1095 at para 76.
601 See Stack v Dowden [2007] 2 AC 432; [2007] 2 WLR 831; [2007] 2 All ER 929; [2007] UKHL

17 per Lord Walker at para 37; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 per Lord Scott
at paras 14 and 20. See also SQ v RQ [2009] WTLR 1591; [2009] 1 FLR 935; [2008] EWHC 1874
(Fam); 11 ITELR 748; [2009] Fam Law 17 at paras 113 and 143–5.
602 Atiyah 1 at 771. According to Atiyah, this model of consideration has never received

unqualified acceptance in the English Courts (although it has, he concedes, in English universities);
he contrasts this position with that of the US, where it emerged as the governing orthodoxy, after the
celebrated 1930s’ dispute between Corbin and Williston on the respective merits of the
reliance/bargain-based models; the dispute was compromised with an amendment to s 90 of the
Restatement to allow reliance-based claims to take effect in promissory estoppel. The emergence of a
US promissory estoppel doctrine of a more wide-ranging and muscular nature than its English
counterpart was, according to Atiyah, the direct result of the inflexibility of the American approach to
consideration: Atiyah 1 at 776.
603 See Atiyah, ‘When is an enforceable agreement not a contract? Answer: When it is an equity’

[1974] 92 LQR 174; criticised by Millet in ‘Crabb v Arun District Council: a riposte’ [1976] 92 LQR
342.
604 Holiday Inns Inc v Broadhead [1974] 232 EG 951 at 1087; Lint v Ang [1992] 1 WLR 113 PC

(Brunei), where the assumption relied on was contained in the recital of a contract void for
uncertainty.
605 Dodsworth v Dodsworth [1973] 228 EG 1115 CA; Voyce v Voyce (1991) 62 P & CR 290 CA at

296; Layton v Martin [1986] 2 FLR 227 (where Scott J considered the lack of such an intent in
relation to the contract claim but not that in proprietary estoppel).
606 S 2 Law of Property (Miscellaneous Provisions) Act 1989. See also Yaxley v Gotts [2000] Ch

162 (CA).
607 See specialist texts.
608 See para 11.84 above.
 609 A well-known example is provided by Lord Westbury LC in Dillwyn v Llewellyn: ‘if A puts B
in possession of a piece of land, and tells him “I give it to you that you may build a house on it” and B
on the strength of that promise, with the knowledge of A, expends a large sum of money in building a
house, accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to
call on the donor to perform that contract and complete the imperfect donation which was made.’ His
Lordship later refers to the donee’s acts in reliance (building a house on land promised him by the
donor) as providing ‘the valuable consideration originally wanting’. The Lord Chancellor was
probably using the term consideration in the sense of providing a reason for equity’s intervention,
according to Baughan, ‘Estoppels over land and third parties’ [1994] 14 LS 147.
610 In Mcmanus v Cooke [1887] 35 ChD 631 at 693–7, Kay J so categorised a considerable number
of the early authorities including East India Company v Vincent [1740] 2 Atk 83; 26 ER 451; Ramsden
v Dyson [1866] LR 1 HL 129 HL and Plimmer v Wellington Corpn [1884] 9 App Cas 699 PC NZ.
611 See Matthews, ‘Swords and Shields’ [1982] LSG 662; Baker, ‘From sanctity of contract to
reasonable expectation?’ (1979) CLP 17.
612 Re Sharpe [1980] 1 All ER 198 at 211a–d (the criticism of the case in Ashburn Anstalt v Arnold

[1988] 2 WLR 706 CA at 728b–f was confined to the constructive trust point); Errington v Errington
[1952] 1 QB 290 CA (the Court of Appeal in Ashburn Anstalt supra at 720f–h characterised the case
as giving rise to both a contract and an estoppel); Tanner v Tanner [1975] 1 WLR 1346 CA at 1350
per Lord Denning MR; Moriarty, ‘Licences and Land Law: Legal Principles and Public Policies’
[1984] 100 LQR 376 at 393. See also Battersby, ‘Contractual and estoppel licences as proprietary
interests in land’ [1991] Conv 36 at 45 and Thompson, ‘Licences: questioning the basics [1983] Conv
50; contra Briggs, ‘Licences: back to basics’ [1981] Conv 212.
613 It should be noted that this analysis is confined to situations where there is no independent, pre-

existing duty to perform the acts in issue. If there is performance of that duty it cannot amount to
detriment.
614 Ives v High [1967] 2 QB 379 CA where two neighbours, Westgate and High, entered an

enforceable contract to create an easement. Westgate sold to Wright who sold to Ives. The contract
was void against Ives for want of registration. Despite this, their Lordships had no hesitation in
concluding that the conduct of Westgate and Wright, in standing by while High relied on the contract
in building a house and garage accessible only across his neighbour’s land, gave rise to an estoppel.
 1 Greer v Kettle [1938] AC 156 per Lord Maugham at 171 (obiter); Re Distributors and
Warehousing Ltd [1986] BCLC 129 per Walton J at 139c–d (obiter); Williams v Pinckney [1897] 67
LJ Ch 34.
2 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Ward LJ at 149J; Greer v Kettle
[1938] AC 156 per Lord Maugham at 171 (obiter); Re Distributors and Warehousing Ltd [1986]
BCLC 129 per Walton J at 139c–d (obiter); Williams v Pinckney [1897] 67 LJ Ch 34.
3 In this respect, the doctrine operates in the same way as estoppel by representation. For further
discussion of the evidential/substantive and sword/shield controversies, see paras 9.04 ff and 10.13 ff
above.
4 Wiles v Woodward [1850] 1 Exch 557; 155 ER 244.
5 Rudd v Bowles [1912] 2 Ch 60.
6 The Supreme Court of New South Wales has held ‘whether estoppel by deed is a rule of evidence
or something more, if the point is not taken as soon as practical after it is raised, it is waived’. In that
case, Counsel argued the estoppel point only in his closing speech. The Court found that, having
received evidence of the true position in the course of the hearing without objection, the estoppel
must have been waived. See Berry v Wong [2000] NSWSC 1002 per Young J at para 23.
7 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Jessel MR at 24–5; Onward Building Society v Smithson [1893] 1 Ch 1
per Lindley LJ at 13.
8 As far back as 1893, Bowen LJ was moved to remark that the law on estoppel by deed was ‘as old

as the hills’: Onward Building Society v Smithson [1893] 1 Ch 1 at 14. Examples of early cases which
still exert profound and lasting effects on the modern law include, Right de Jefferys v Bucknell [1831]
2 B & Ad 278; 109 ER 1146; Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108; Webb v Austin
[1844] 7 Man & G 701; 135 ER 282; Carpenter v Buller [1841] 8 M & W 209, 212, 151 ER 1013 and
Cuthbertson v Irving [1859] 4 H & N 742; 157 ER 1034. Prior to First National Bank Plc v Thompson
[1996] 1 All ER 144 CA, the leading case was Greer v Kettle [1938] AC 156 which was decided in
1937.
9 Contractual estoppel operates in the absence of detrimental reliance—strictly speaking, it is not a

species of estoppel. See further paras 13.21 ff.

10 See Springwell Navigation Corporation v JP Morgan Chase Bank [2010] EWCA Civ 1221;
Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386;
[2006] 1 CLC 582; [2006] 2 Lloyd’s Rep 511.
11 See Alexander Trukhtanov, ‘Misrepresentation: Acknowledgement of Non-Reliance as a
Defence’ [2009] 125 LQR 648 at 665; McMeel, ‘Documentary Fundamentalism in the Senior Courts;
the myth of contractual estoppel ’[2011] LMCLQ 185 at 206.
12 [1996] 1 All ER 144 CA, discussed further at para 12.06 below.
13 Greer v Kettle [1938] AC 156 per Lord Maugham at 171, obiter. Contrast First National Bank v
Thompson [1996] 1 All ER 144 CA per Millet LJ at 145a–d.
14 Greer v Kettle [1938] AC 156 per Lord Maugham at 171, obiter. See also para 12.50 below.
15 See below at para 12.07.
16 Coke, A Commentary on Littleton, 11th edn (London, 1719) at 352a.
17 His later text (at 352b) shows that in using the term ‘estoppel by writing’, he meant to signify

the doctrine (or doctrines) now generally referred to as estoppel by deed.

18 See paras 13.15 ff.
19 Chitty at para 1.112 (‘there seems little point in preserving any separate category of estoppel by
Deed since the basis of the estoppel appears now to be covered by estoppel by representation or by
convention’). The trend in Australia appears to be in favour of classifying the doctrine as a species of
estoppel by convention, reflecting the common basis upon which the parties have based their
dealings. See dicta to this effect by Batt JA in the Victoria Court of Appeal: Cousens v Grayridge Pty
Ltd; Hillside Way Pty Ltd v Grayridge Pty Ltd [2000] VSCA 96 (2 June 2000) at para 57.
20 [1996] 1 All ER 144 CA.
21 First National Bank v Thompson [1996] 1 All ER 144 CA per Millet LJ at 144h–145d.
22 Cooke labels the former type ‘estoppel by statement of fact in a deed’ and the latter ‘estoppel as
to title’, see Elizabeth Cooke, The Modern Law of Estoppel, 1st edn (Oxford University Press, 2000)
at 8–9, and see Spencer Bower at 208.
23 As contractual estoppel is a recent development, perhaps of doubtful standing, and none of the
contractual estoppel cases purported to overrule the estoppel by deed cases or to abolish estoppel by
deed, contractual estoppel is not considered here. If, however, the concept does continue to gain
traction, a contractual estoppel will completely subsume estoppel by deed in all cases (save, arguably,
for the imperfect grant cases) as it relies on the statements made by the parties in and by their
contract.
24 See paras 10.09 ff above.
25 See paras 12.47 ff below.
26 See para 12.31 below.
27 See para 12.37 below.
28 See para 12.41 below.
29 See paras 12.40–45 below.
30 See paras 12.55–64 below.
31 Albeit not exactly desirable.
32 Although it is not wholly unsupported by authority; see Hopgood v Brown [1955] 1 WLR 213.

See Chapter 9 above passim.

33 As opposed to their transferees, as to which see the preceding paragraph.
34 As to which see paras 12.64–76 below.
35 Those named as parties to a deed and those executing it need not necessarily be the same people.

This formulation of the first element of the doctrine reflects two principles. First, a party is only
bound by an estoppel by deed arising from an instrument which it, M, has executed. Second, an
estoppel may only arise in an action on the deed. Only someone named as a party to the deed may
maintain an action on it (apart from certain limited exceptions). Hence W must be a party to the deed.
36 Re Balkis Consolidated Co Ltd [1888] 58 LT 300 per North J at 301. There must be some doubt

as to whether this is good authority for the point since the case concerned estoppel by negligence
which may not be part of the law of estoppel at all. Even assuming that it is a species of estoppel, it
has traditionally been categorised as an example of estoppel by representation rather than estoppel by
deed. The principle is sound, however, particularly in the light of those cases which make it clear that
no estoppel will lie in respect of a deed which is void or voidable, for reasons other than lack of form.
See paras 12.50–52 below.
37 See TCB v Gray [1986] Ch 62.
38 See in particular Halsbury’s Laws, Volume 13 ‘Deeds and other instruments’.
39 See Chitty para 1.085.
40 Law of Property (Miscellaneous Provisions) Act 1989, s 1(1).
41 ibid s 1(2)–(3).
 42 ibid s 1(3)(b).
43 Companies Act 2006, ss 43–46 (and before that Companies Act 1985, s 36A).
44 See eg First National Securities v Jones [1978] Ch 109.
45 Halsbury’s Laws, Volume 13 ‘Deeds and other instruments’, para 3.
46 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281–2,

1147–8.
47 See below at para 12.37.
48 It should be noted, however, that estoppel by representation may operate on statements made to

others, whether they are parties to a particular transaction or not. Thus statements contained in a deed
poll could readily give rise to such an estoppel so long as they were directed towards and
communicated to another who has relied on them to its detriment. See below at para 12.61.
49 Halsbury’s Laws, Volume 13 ‘Deeds and other instruments’, para 3.
50 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281–2,

1147–8; Greer v Kettle [1938] AC 156; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd
[1982] 1 QB 133.
51 Greer v Kettle [1938] AC 156 per Russell of Killowen at 166–7 (approving Young v Raincock 7

CB 310 per Coltman J at 338); Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J
at 139e (obiter).
52 Greer v Kettle [1938] AC 156 per Russell of Killowen at 166–7 (approving Young v Raincock 7

CB 310 per Coltman J 338); Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at
139e (obiter); Onward Building Society v Smithson [1893] 1 Ch 1 per AL Smith LJ at 15; Taylors
Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 per Oliver J at 159c–d; Right de
Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 282, 1148; Salter v
Kidley [1688] 1 Show Rep 58; 89 ER 447 per Holt CJ at 59, 448.
53 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133: the relevant

statement was that a neighbour had a valid option to renew its lease which involves questions both of
fact and law.
54 Cannon v Hartley [1949] Ch 213. The remedies available will be confined to common law

damages. Equitable remedies such as an injunction or specific performance will not be available since
equity does not recognise the formality of a deed as a substitute for consideration: ibid.
55 Greer v Kettle [1938] AC 156 per Russell of Killowen at 166–7 (approving Young v Raincock 7

CB 310 per Coltman J at 338); Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1
QB 133 Oliver J at 159c–d.
56 cf Grundt v Great Boulder Pty Gold Mines [1937] 59 CLR 641 at 676.
57 Greer v Kettle [1938] AC 156 per Lord Maugham at 169–70; Bowman v Taylor [1834] 2 AD & E

279; 111 ER 108 per Lord Denman CJ at 289–90, 112.

58 Foster v Mentor Life Assurance Co [1854] 3 El & Bl 48; 118 ER 1058 per Erle J at 65, 1066.
59 See the comments of Brett LJ in Simm v Anglo American Telegraph [1879] 5 QBD 188 CA at

206.
60 Re Maddy’s Estate [1901] 2 Ch 820 per Joyce J at 820; Lovett v Lovett [1898] 1 Ch 82 per

Romer J at 87–8.
61 Wiles v Woodward [1850] 1 Exch 557; 155 ER 244.
62 Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108 per Patteson J at 292 per Lord Denman CJ

at 289–90, 112; per Taunton J at 291 and per Williams J at 294, 114 (although see below at paras
12.31–36 as to whether it was proper to construe the deed as containing this statement).
 63 Davis v Stone [1992] 2 EGLR 222, lands tribunal (Chair DP Flynn) at 223e–f.
64 Doe de Gaisford v Stone [1846] 3 CB 176; 136 ER 71; Onward Building Society v Smithson
[1893] 1 Ch 1 per Lindley LJ at 13–14; per Bowen LJ at 14 and per AL Smith LJ at 15; Bensley v
Burdon [1830] 8 LJOS Ch 85. See further paras 12.34–36 below on the principles applicable to such
statements.
65 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 Oliver J at 159.
66 See para 12.28 below.
67 Greer v Kettle [1938] AC 156, although the estoppel claim failed for the reasons set out in para
12.48 below.
68 Poulton v Moore [1915] 1 KB 400 CA (release of a right of way); District Bank Ltd v Webb
[1958] 1 WLR 148 (conveyance of real property); Williams v Pinckney [1897] 67 LT 34 (conveyance
of property to a settlement).
69 Or, more frequently, M’s successors in title.
70 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15.

71 Discussed at paras 12.66–79 below.
72 See the Victoria Court of Appeal’s decision of Cousens v Grayridge Pty Ltd; Hillside Way Pty

Ltd v Grayridge Pty Ltd [2000] VSCA 96 (2 June 2000) at para 57: ‘Estoppel by deed is not confined
to statements in recitals but applies also, and indeed originally applied only, to statements in
operative provisions.’
73 Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108 per Lord Denman CJ at 289–90, 112; per

Taunton J at 291 and per Williams J at 294, 114 (departing from a statement in Coke, A Commentary
on Littleton, 11th edn (London, 1719) at 352b); Re Distributors and Warehousing Ltd [1986] BCLC
129 per Walton J at 139c–g (obiter); Poulton v Moore [1915] 1 KB 400 CA per Buckley LJ at 412–13;
per Phillimore LJ at 415.
74 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 per Oliver J at

159d–e.
75 ibid.
76 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Jessel MR at 24; First National Bank Plc v Thompson [1996] All ER
144 CA per Staughton LJ at 151b–c.
77 See further para 12.31 below.
78 As to which see below at para 12.34.
79 For deeds executed before 31 July 1990 it also links the seal to the remainder of the document.

See para 12.16 above for the formalities required for the creation of deeds.
80 Further, some doubt as to whether the testimonium formed part of deed was expressed in Pearse

v Morrice [1834] 2 AD & E 84; 111 ER 32 per Lord Denman CJ at 94, 36; Taunton J at 95, 37;
Patteson J at 95, 38. If it is not part of the deed it cannot give rise to an estoppel by deed.
81 Taylor v McCalmont [1855] 4 WR 59 per Pollock CB at 59 (ratio).
82 [1912] 2 Ch 60 per Neville J at 65.
83 Low v Bouverie [1891] 3 Ch 82 CA per Kay LJ at 113. His Lordship’s comments on estoppel by

deed were obiter, given the case concerned estoppel by representation.

84 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281–2,

1147–8.
85 Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at 139e (certain, precise
and unambiguous); District Bank Ltd v Webb [1958] 1 WLR 148 per Dankwerts J at 149–50 (same);
Williams v Pinckney [1897] 67 LT 34 per Chitty, Lindley and Vaughan Williams LJJ at 40 (distinct
and precise); General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit
Building Society [1878] 10 ChD 15 per Jessel MR at 23 (precise, clear and unambiguous); Poulton v
Moore [1915] 1 KB 400 CA per Buckley LJ at 412 (precise and unambiguous) per Phillimore LJ at
415 (unambiguous); Onward Building Society v Smithson [1893] 1 Ch 1 per Bowen LJ at 14 (clear and
precise); Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133 per Oliver J at
159d (clear and distinct language necessary); Sydenhams Ltd v CHG Holdings Ltd [2007] EWHC 1129
(TCC); 112 Con LR 49, per HHJ Coulson QC at para 102 (no estoppel because the statement was
ambiguous).
86 [1891] 3 Ch 82 CA.
87 [1972] AC 741.
88 See also Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] Fam Law 583; [2009] 2
FLR 405 at para 5 for Lord Hoffmann’s view that the scope of the assurance in proprietary estoppel
was to be ascertained by ‘objective examination of the meaning… reasonably… conveyed’ and not by
reference to the ‘subjective understanding of the effect which those words’ held by the representee.
89 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281,

1147; Saunders v Merryweather [1865] 3 H & C 902; 159 ER 790 per Martin B at 908, 792 and per
Channell B at 909, 793. By contrast, the broader-based doctrine of estoppel by deed, which is based
on a defective grant rather than a representation, is not barred by such conflicting statements. See
below at para 12.69.
90 Saunders v Merryweather [1865] 3 H & C 902; 159 ER 790 per Martin B at 908, 792 and per

Channell B at 909, 793; Gillet v Abbott [1838] Ad & El 783; 112 ER 665.
91 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 282,

1148; Doddington’s Case, Hall d Doddington v Peart [1594] 2 Co Rep 32b; 76 ER 484 per Popham
CJ, Clench J, Gawdy J and Fenner J at 34a, 488; Salter v Kidley [1688] 1 Show Rep 58; 89 ER 447 per
Holt CJ at 59, 448; Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at 139f
(obiter); CP Holdings Ltd v Dugdale [1998] NPC 97 per Park J.
92 [1893] 1 Ch 1.
93 ibid per Lindley LJ at 13–14; per Bowen LJ at 14 and per AL Smith LJ at 15; Right de Jefferys v
Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281, 1147; Re Distributors and
Warehousing Ltd [1986] BCLC 129 per Walton J at 139e–f; PW & Co v Milton Gate Investments Ltd
[2004] Ch 142; [2004] 2 WLR 443; [2004] 3 EGLR 103; [2004] L & TR 8; [2003] EWHC 1994 (Ch)
per Neuberger J at paras 150–1.
94 Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108 per Patteson J at 292, 113; Re Distributors
and Warehousing Ltd [1986] BCLC 129 per Walton J at 139e–f.
95 Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at 139e–f; PW & Co v

Milton Gate Investments Ltd [2004] Ch 142; [2004] 2 WLR 443; [2004] 3 EGLR 103; [2004] L & TR
8; [2003] EWHC 1994 (Ch) per Neuberger J at paras 150–1, where it was implicit in a clause of the
head lease that an underlease would survive the exercise of a right to determine the head lease.
96 Harris v Hooper [1847] 10 LTOS 137; Onward Building Society v Smithson [1893] 1 Ch 1 per
Lindley LJ at 13–14; per Bowen LJ at 14 and per AL Smith LJ at 15.
97 [1982] 1 QB 133. See also Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108 per Patteson J at

292, per Lord Denman CJ at 289–90, 112, per Taunton J at 291 and per Williams J at 294, 114. A
recital in a licensing agreement under seal stated that P had invented a power loom which he licensed
D to exploit in exchange for payment of certain fees. D was estopped from denying that the loom was
a new invention.
98 [1982] 1 QB 133 at 159d–f.
99 [1986] BCLC 129.
100 Taylors and Smithson might reasonably be reconciled by restricting the latter case to the
representations as to title. They formed the subject matter of the case and there are clear reasons why
such statements should be narrowly construed: they create a clog on the title to property which may
be a hazard to subsequent purchasers. See paras 12.59 ff below for the effect of estoppel by deed on
purchasers. However, this does not explain the application of the strict test in Re Distributors, which
was not a title case.
101 See PW & Co v Milton Gate Investments Ltd [2004] Ch 142; [2004] 2 WLR 443; [2004] 3
EGLR 103; [2004] L & TR 8; [2003] EWHC 1994 (Ch) per Neuberger J at paras 150–1.
102 At para 12.69 below.
103 [1893] 1 ch 1, discussed in the preceding paragraph.
104 Of the sort under consideration in the bulk of this chapter, namely that identified with estoppel

by representation in First National Bank Plc v Thompson [1996] 1 All ER 144 CA as opposed to the
wider doctrine depending purely on a grant discussed at paras 12.66 ff below.
105 Onward Building Society v Smithson [1893] 1 Ch 1 per Lindley LJ at 13–14; per Bowen LJ at

14 and per AL Smith LJ at 15. See eg Doe de Gaisford v Stone [1846] 3 CB 176; 136 ER 71; Bensley v
Burdon [1830] 8 LJOS Ch 85.
106 See generally Emmet on Title para 14.006.
107 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Lord Jessel MR at 24; Re Distributors and Warehousing Ltd [1986]
BCLC 129 per Walton J at 139e–f.
108 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Lord Jessel MR at 24.

109 Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at 139e–f.
110 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Lord Jessel MR at 23.

111 Onward Building Society v Smithson [1893] 1 Ch 1 per Lindley LJ at 13.
112 Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146 per Lord Tenterden at 281–2,

1147–8; General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building
Society [1878] 10 ChD 15 per Jessel MR at 21–2.
113 General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building

Society [1878] 10 ChD 15 per Jessel MR at 21–2.

114 [1915] 1 KB 400 CA.
115 ibid CA per Buckley LJ at 412–13; per Phillimore LJ at 415.
116 See also the dissent of Pickford LJ: [1915] 1 KB 400 CA at 416; PW & Co v Milton Gate

Investments Ltd [2004] Ch 142; [2004] 2 WLR 443; [2004] 3 EGLR 103; [2004] L & TR 8; [2003]
EWHC 1994 (Ch) per Neuberger J at para 154.
117 [1897] 67 LT 34.
118 Williams v Pinckney [1897] 67 LT 34.
119 [1958] 1 WLR 148.
120 ibid per Dankwerts J at 149–50.
121 Carpenter v Buller [1841] 8 M & W 209; 151 ER 1013 per Parke B at 212–13, 1014–15; South

Eastern Rly Co v Warton [1861] 6 H &N 520; 158 ER 214 per Martin B at 527, 217; Sydenhams Ltd v
CHG Holdings Ltd [2007] EWHC 1129 (TCC); 112 Con LR 49 per HHJ Coulson QC at para 102.
122 [1841] 8 M & W 209, 151 ER 1013. See also Ali v Khan [2002] EWCA Civ 974 (11 July 2002)

at para 23.
123 [1841] 8 M & W 209; 151 ER 1013 per Parke Bat 213, 1014.
124 [1850] 1 Exch 557; 155 ER 244.
125 Chesterfield and Midland Silkstone Colliery Co Ltd v Hawkins [1865] 3 H & C 677 at 692. The

general rule admits of two limited exceptions. First, a non-party may sue where the provisions of the
deed constitute that party the beneficiary of a trust of the benefit of the covenant: Gandy v Gandy
[1885] 30 ChD 57. Second, a non-party may sue where s 56(1) Law of Property Act 1925 applies.
126 But see Foster v Mentor Life Assurance Co [1854] 3 El & Bl 48; 118 ER 1058 per Lord
Campbell CJ at 79, referring to one of the parties having acted to its prejudice. See also Re King’s
Settlement [1931] 2 Ch 294, where Farwell J held that estoppel can only operate in favour of those
who have acted on faith of the representation, although it is debatable whether this was an estoppel by
deed case at all. Similarly in Sydenhams Ltd v CHG Holdings Ltd [2007] EWHC 1129 (TCC); 112
Con LR 49, an estoppel by deed was alleged and HHJ Coulson QC suggested, at para 102, that the
claim failed because there had been no detrimental reliance. However, it was also pointed out that the
claim was not an action on the deed and it seems likely that Judge was simply excluding the
possibility of an estoppel by representation claim based on the statement in the deed. See further at
para 12.63 below.
127 [2004] Ch 142; [2004] 2 WLR 443; [2004] 3 EGLR 103; [2004] L & TR 8; [2003] EWHC 1994

(Ch) at paras 149 and 155.

128 See paras 13.15–23 below.
129 First National Bank Plc v Thompson [1996] 1 All ER 144 CA.
130 See Alexander Trukhtanov, ‘Misrepresentation: Acknowledgement of Non-Reliance as a

Defence’ [2009] 125 LQR 648 at 665.

131 Detrimental reliance is clearly essential to establishing an estoppel by representation. The

analysis in this section is therefore consistent with those suggestions that the species of estoppel by
deed under consideration is directly analogous to or part of the law of estoppel by representation, as
to which see, eg, First National Bank v Thompson [1996] 1 All ER 144 CA per Millet LJ at 145a–b
and per Staughton LJ at 151a–b. See above for the relationship between estoppel by deed and estoppel
by representation.
132 See Springwell Navigation Corporation v JP Morgan Chase Bank [2010] EWCA Civ 1221 at

paras 177–8.
133 Or those claiming in right of those parties. See generally paras 12.37 above and 12.60 ff below.
134 As to which see below at para 12.55.
135 See above at para 12.37.
136 Webb v Spicer [1849] 13 QB 886; 116 ER 1502 and 1505.
137 [1938] AC 156.
138 See the proprietary estoppel case of Christian v Christian [1981] 131 NLJ 43.
139 Excluding recategorisation of estoppel by deed as a contractual estoppel—where detriment is

not needed.
140 See para 9.107 above and Keith v R Gancia and Co Ltd [1904] Ch 774 CA.
141 For the reasons set out in paras 8.05–07 above, this term signifies the doctrine more commonly

referred to as promissory estoppel.

142 See paras 12.41 ff above.
 143 Greer v Kettle [1938] AC 156 per Lord Maugham at 171, obiter; Re Distributors and
Warehousing Ltd [1986] BCLC 129 per Walton J at 139c–d, obiter; Williams v Pinckney [1897] 67 LJ
Ch 34; Onward Building Society v Smithson [1893] 1 Ch 1 per Lindley LJ at 14.
144 Although there is some doubt on the matter, it seems that the same approach applies in estoppel
by representation; see paras 9.04 ff above. The problems which may be caused by such an inflexible
approach are discussed at 9.109 ff above.
145 As to which see the cases cited at n 1 at para 12.01 above.
146 Or parties.
147 Or those parties.
148 Greer v Kettle [1938] AC 156 per Russell of Killowen at 167; per Lord Maugham at 170
(ratio); Stroughill v Buck [1850] 14 QB 781.
149 Greer v Kettle [1938] AC 156 per Russell of Killowen at 167.
150 [1938] AC 156.
151 Saunders v Anglia Building Society [1971] AC 1004; Mitchel v Renolds [1711] 1 P Wms 181;

24 ER 347 per Parker CJ; Norfolk’s Case [1667] Hard 464; 145 ER 549.
152 Saunders v Anglia Building Society [1971] AC 1004 per Lord Hodson at 1019d–h.
153 Saunders v Anglia Building Society [1971] AC 1004.
154 Doe d Preece v Howells [1831] 2 B & Add 744; 109 ER 1320 per Lord Tenterden CJ at 750,

1323.
155 Greer v Kettle [1938] AC 156 per Lord Maugham at 171 (obiter). See also Norwich and

Peterborough Building Society v Steed [1993] 1 All ER 330 CA per Scott LJ at 340b–d (no right to
estoppel where deed procured by fraud). The operation of estoppel by deed will not be displaced by
the fact that an agent acts fraudulently in entering the deed, provided entry is within the latter’s actual
or apparent authority: see Grayridge Pty Ltd v Cousens & Anor [1999] VSC 199 (3 June 1999) per
O’Bryan J at para 11.
156 Greer v Kettle [1938] AC 156 per Lord Maugham at 171 (obiter).
157 Re Distributors and Warehousing Ltd [1986] BCLC 129 per Walton J at 139d–e (obiter).
158 Wilson v Wilson [1969] 1 WLR 1470 per Buckley J at 1417 b–d, applied in Pink v Lawrence

[1978] 36 P & CR 98 CA per Buckley LJ at 101.

159 Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 PC Canada per Lord Maugham

at 623; Doe d Chandler v Ford [1835] 3 A & E 649.

160 See Shah v Shah [2001] 4 All ER 138; [2001] EWCA Civ 527 at para 30 per Pill LJ.
161 See paras 9.131 ff above.
162 See Berry v Wong [2000] NSWSC 1002 at paras 25–6. Young J endorsed a broad application of

the public policy exception in this area since the doctrine ‘prevented the Court from enquiring what
the real situation is’.
163 See above at para 12.37.
164 Woodard v Battersea BC [1911] 51 LT 51; Chesterfield and Midland Silkstone Colliery Co Ltd

v Hawkins [1865] 3 H & C 677 at 692. The general rule admits of two limited exceptions. First, a non-
party may sue where the provisions of the deed constitute that party the beneficiary of a trust of the
benefit of the covenant: Gandy v Gandy [1885] 30 ChD 57. Second, a non-party may sue where s
56(1) Law of Property Act 1925 applies.
165 Coke, A Commentary on Littleton, 11th edn (London, 1719) at 352a; Doe de Marchant v

Errington [1839] 6 Bing (NC) 79; 133 ER 31 per Tindal CJ at 83, 33; Gaunt v Wainman [1836] 3 Bing
(NC) 69; 132 ER 335 per Tindal CJ.
 166 The caveat is discussed at para 12.47 above: if the parties intended to attribute the statement,
on which the estoppel is founded, to one particular party to the deed, the other parties will not be
bound by it.
167 Greer v Kettle [1938] AC 156 per Lord Maugham at 171, obiter.
168 Coke, A Commentary on Littleton, 11th edn (London, 1719) at 352a; Doe de Marchant v
Errington [1839] 6 Bing (NC) 79; 133 ER 31 per Tindal CJ at 83, 33; Gaunt v Wainman [1836] 3 Bing
(NC) 69; 132 ER 335 per Tindal CJ; Woodard v Battersea BC [1911] 51 LT 51 per Neville J at 53.
169 Doe de Shelton v Shelton [1835] 3 AD & E 265; 111 ER 413 per Lord Denman CJ at 283, 420;
Foster v Mentor Life Assurance Co [1854] 3 El & Bl 48; 118 ER 1058 per Lord Campbell CJ at 79,
1071.
170 Doe de Shelton v Shelton [1835] 3 AD & E 265; 111 ER 413 per Lord Denman CJ at 283, 420.
171 Webb v Spicer [1849] 13 QB 886; 116 ER 1502 and 1505; cf Dalton v Fitzgerald [1897] 2 Ch
86 CA.
172 Mackley v Nutting [1949] 2 KB 55 CA.
173 Dalton v Fitzgerald [1897] 2 Ch 86 CA per Lindley LJ at 92; per Lopes LJ at 93 and per Rigby

LJ at 94. See also the estoppel by record case of R v Hebdon [1738] Andrews 388; 95 ER 447 at 390,
448.
174 Re King’s Settlement [1931] 2 Ch 294 per Farwell J at 301 but see below at para 12.63 as to

whether this is truly an estoppel by deed case.

175 Doe de Gaisford v Stone [1846] 3 CB 176; 136 ER 71 per Tindal CJ, Coltman, Maule and

Cresswell JJ. Here the term purchase refers generally to the acquisition for value of any interest, right
or estate from the relevant party whether by way of a full fee simple, mortgage, lease etc.
176 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Millet LJ at 147d–f; Taylor v

Needham [1810] Taunt 278; Sumner v Schofield [1880] 43 LT 763 per Kelly CB at 767.
177 See paras 12.75–76 below.
178 Mackley v Nutting [1949] 2 KB 55 CA.
179 Norwich and Peterborough Building Society v Steed [1993] 1 All ER 330 CA per Scott LJ at

340b–d but see Re King’s Settlement [1931] 2 Ch 294 per Farwell J at 299 discussed at para 12.63
below. cf Doe d Williams v Lloyd [1839] 5 Bing (NC) 741 per Bosanquet, Coltman and Erskine JJ at
744, where the heir of an original party to the deed was allowed to challenge it on the grounds that it
contravened a statute. This was permitted despite the fact that the heir claimed through a person who
had deliberately set out to evade the statute.
180 Of the technical type described in the bulk of this chapter, as distinguished from the doctrine
which depends purely on a defective grant rather than an express recital, as to which see below.
181 Greer v Kettle [1938] AC 156 per Lord Maugham at 171, obiter; Doe de Marchant v Errington

[1839] 6 Bing (NC) 79; 133 ER 31 per Tyndall CJ at 83, 33; Taylor v Needham [1810] Taunt 278.
182 See National Provincial Bank v Ainsworth [1965] AC 1175 HL and Midland Bank v Green

[1981] AC 513 for general comments on the importance of certainty and the integrity of the land
registration schemes.
183 Hence the important role they continue to play in unregistered conveyancing. This formal

character was underlined by the Supreme Court of New South Wales in TV Shopping Network Ltd v
Scutt & anor, Matter No 4389/98 [1998] NSWSC 705 (4 December 1998). Young J stated: ‘Deeds are
the most solemn formal act that parties can enter into and the law is that they meant what they say.
Should this action have been an action on the deed, no-one would have been allowed to deny any
statement of fact in it. As the action is not on the deed, as Mr Foster SC said, it is not, strictly
speaking, a case of estoppel by deed, but the fact that the deed was made and what it says is very
strong evidence to support the truth of what is said.’
184 As to which see specialist texts.
185 In Hopgood v Brown [1955] WLR 213 CA, the Court of Appeal applied estoppel by deed
principles to estoppel by representation. This has approach has not been followed and appears to be
incorrect.
186 First National Bank Plc v Thompson [1996] 1 All ER 144 CA. See further para 12.77 below.
187 Re King’s Settlement [1931] 2 Ch 294 per Farwell J at 299.
188 [1931] 2 Ch 294.
189 cf TCB Ltd v Gray [1986] Ch 621, and the estoppel by representation cases discussed in paras
9.60 ff above and the so-called estoppel by negligence cases discussed at paras 9.159 ff above.
190 Either because they ordinally executed the deed or claim the rights through someone who did,
in accordance with the principles set out in paras 12.56 ff above.
191 See paras 12.66 ff below where this issue is discussed in detail.
192 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] 1 QB 580

per Lord Denning MR at 596 and per Roskill LJ at 599; Cuthbertson v Irving [1859] 4 H & N 742;
157 ER 1034 per Martin B at 754–5, 1039.
193 Goodtitle d Edwards v Bailey [1777] 2 Cowp 597 at 600–1; Right de Jefferys v Bucknell [1831]

2 B & Ad 278, 109 ER 1146.

194 Cuthbertson v Irving [1859] 4 H &N 742; 157 ER 1034 per Martin B at 754–5, 1039; EH Lewis

& Son Ltd v Morelli [1948] 2 All ER 1021 CA per Harman J and Asquith LJ at 1024–5; Industrial
Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] 1 QB 580 per Lord Denning
MR at 596, per Roskill LJ at 599 and per Lawton LJ at 613.
195 Cuthbertson v Irving [1859] 4 H & N 742; 157 ER 1034 per Martin B at 754–5, 1039; EH Lewis

& Son Ltd v Morelli [1948] 2 All ER 1021 CA per Harman J and Asquith LJ at 1024–5.
196 Cuthbertson v Irving [1859] 4 H & N 742; 157 ER 1034 per Martin B at 757–8, 1041.
197 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] 1 QB 580

per Lord Denning MR at 596 and per Roskill LJ at 599.

198 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] 1 QB 580
per Lord Denning MR at 596 and per Roskill LJ at 599.
199 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Millet LJ at 14b–c.
200 Cuthbertson v Irving [1859] 4 H & N 742; 157 ER 1034 per Martin B at 754–5, 1039.
201 Contra EH Lewis & Son Ltd v Morelli [1948] 2 All ER 1021 CA per Harman J at 1024–5.
202 Greer v Kettle [1938] AC 156 per Lord Maugham at 169, commenting on Clark v Adie [1877] 2

App Cas 423 and Bowman v Taylor [1834] 2 AD & E 279; 111 ER 108.
203 Biddle v Bond [1865] 6 B & S 225. See also the ‘feeding title’ doctrine in sale of goods

transactions which is directly analogous to the ‘feeding of the estoppel’ doctrine described below.
204 First National Bank v Thompson [1996] 1 All ER 144 CA per Millet LJ at 145b–d and per

Staughton LJ at 151a–c.
205 [1996] 1 All ER 144 CA.
206 [1996] 1 All ER 144 CA per Millet LJ at 145a–b, per Staughton LJ at 151a–b. See eg Doe de

Gaisford v Stone [1846] 3 CB 176; 136 ER 71.

207 See eg Universal Permanent Building Society v Cooke [1951] 1 Ch 95; Cuthbertson v Irving

[1859] 4 H & N 742; 157 ER 1034 per Martin Bat 757–8, 1041.
208 Hence Cooke labels the doctrine ‘estoppel as to title’: The Modern Law of Estoppel at 8 ff.
 209 Javad v Aqil [1991] 1 WLR 1007. Such an intent is likely to be lacking where the parties have
been negotiating for the sale of the freehold or for a long lease and the purchaser is let into possession
pending finalisation of term: ibid.
210 Universal Permanent Building Society v Cooke [1951] 1 Ch 95; EH Lewis & Son Ltd v Morelli
[1948] 2 All ER 1021 CA per Harman J and Asquith LJ at 1024–5; Mackley v Nutting [1949] 2 KB 55
CA per Cohen LJ at 62.
211 [1948] 2 All ER 1021 CA per Harman J (giving the judgment of the Court) at 1024–5.
212 At para 12.20 above.
213 ER Ives Investment Ltd v High [1967] 2 QB 379 CA at 394, 399 and 405; Halsall v Brizell
[1957] 1 All ER 90.
214 Webb v Austin [1844] 7 Man & G 701; 135 ER 282 per Tyndall CJ at 724, 291; Cuthbertson v
Irving [1859] 4 H & N 742; 157 ER 1034 per Martin B at 754–5, 1039; Mackley v Nutting [1949] 2
KB 55 CA per Cohen LJ at 62–3; First National Bank Plc v Thompson [1996] 1 All ER 144 CA.
215 First National Bank Plc v Thompson [1996] 1 All ER 144 CA.
216 ibid per Millet LJ at 147b–d.
217 ibid CA per Millet LJ at 147c–d and per Staughton LJ at 151a–b.
218 See para 12.74 below.
219 [1991] 1 AC 56. Had this assumption not been made there would have been no reason to

discuss the scintilla temporis point on which Mrs Cann’s case ultimately foundered (as to which see
below at para 12.79). If the doctrine does operate on grants of equitable interests, this throws some
doubt on the emphasis in First National Bank v Thompson [1996] 1 All ER 144 CA that the relevant
doctrines were the product of the common law and not equity; ibid per Millet LJ at 145a–c and per
Staughton LJ at 151a–c.
220 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Millet LJ at 147d–f.
221 Cuthbertson v Irving [1859] 4 H & N 742; 157 ER 1034 per Martin B at 757–8, 1041; Universal

Permanent Building Society v Cooke [1951] 1 Ch 95 per Evershed MR at 102–3; First National Bank
v Thompson [1996] 1 All ER 144 CA per Millet LJ at l47f–h. The estoppel is not barred and may
operate in the normal manner where the grantor has only an equitable interest in the property: Cooke
supra. As is set out above, at para 12.73, there is authority to suggest that the purported grant of
equitable title may be fed by this doctrine. Presumably in such a situation the estoppel would be
defeated where the grantor had some equitable title, albeit insufficient to make good the grant.
222 See para 12.67 above.
223 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Millet LJ at 147d–f (obiter);
Poulton v Moore [1915] 1 KB 400 CA per Phillimore LJ at 415.
224 First National Bank v Thompson [1996] 1 All ER 144 CA per Millet LJ at 147j and per

Staughton LJ at 151f–g (obiter); Right de Jefferys v Bucknell [1831] 2 B & Ad 278; 109 ER 1146;
General Finance, Mortgage, and Discount Company v Liberator Permanent Benefit Building Society
[1878] 10 ChD 15 per Jessel MR.
225 First National Bank Plc v Thompson [1996] 1 All ER 144 CA per Millet LJ at 147j–148a

(obiter).
226 [1996] 1 All ER 144 CA per Millet LJ at 148g–149j; per Ward LJ at 150b–c and per Staughton

LJ at 151g–j.
227 [1991] 1 AC 56.
228 [1954] Ch 553, CA.
229 [1991] 1 AC 56.
 230 In Church of England Building Society v Piskor [1954] Ch 553 CA, the Court of Appeal based
their decision on the additional subordinate ground that the mortgage deed had recited that the
purchaser was the owner of the property. It was held that the mortgagee could not contradict this
express statement (at 559, 562 and 565). It is possible that this part of the decision survived Abbey
National v Cann. Lord Oliver considered that Piskor might be justified on this ground although Lord
Jauncey disagreed: [1991] 1 AC 56 at 92 and 99.
 1 For a robust argument that contractual estoppel constitutes more than a mere ‘anomaly’ see
McMeel, ‘Documentary Fundamentalism in the Senior Courts: the myth of contractual estoppel’
[2011] LMCLQ 185. For a more favourable view—but without considering the jurisprudential nature
of the doctrine, see Trukhtanov, ‘Exclusion of Liability for Pre-Contractual Misrepresentation: A
Setback’ [2011] LQR 345.
2 Usually where the inconsistency does not relate to any obligation on the part of the party
changing its position, X, but to X’s reaction to Y’s performance or non-performance.
3 [1970] 1 Lloyd’s Rep 53.
4 At 57 col 1.
5 At 58 col 1.
6 At 59 col 1.
7 See eg Plasticmoda Societa per Azioni v Davidsons (Manchester) Ltd [1952] 1 Lloyd’s Rep 527
at 538 col 2–539 col 1; Bremer Handelsgesellschaft mbH v C Macprang Jr (No 1) [1979] 1 Lloyd’s
Rep 221 at 225 cols 1–2, 226 col 1.
8 See Chapter 7 passim above. Suffice it to say that there are powerful dicta against the existence

of such a wide-ranging principle—see Johnson v Gore Wood & Co [2001] 2 WLR 72 at 98D–100C;
[2000] UKHL 65 at paras 75–9 per Lord Goff.
9 Further, Panchaud-type reasoning (but not the case itself) has been applied in ‘The Astraea’

[1971] 2 Lloyd’s Rep 494, at 502; The Vladimir Illich [1975] 1 Lloyd’s Rep 322; Alfred C Toepfer v
Peter Cremer [1975] 2 Lloyd’s Rep 118; The Shackleford [1978] 1 WLR 1080; Bunge GmbH v Alfred
C Toepfer [1978] 1 Lloyd’s Rep 506; [1979] 1 Lloyd’s Rep 554; Avimex SA v Dewulf & Cie [1979] 2
Lloyd’s Rep 57; Bunge AG v Fuga AG [1980] 2 Lloyd’s Rep 513.
10 See Alfred C Toepfer v Cramer [1975] 2 Lloyd’s Rep 118; Warren Import Gesellschaft Krohn &

Co v Alfred C Toepfer [1975] 1 Lloyd’s Rep 322 at 329 col 2 per Donaldson J.
11 See Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 Con LR 129 at 186 per

HHJ Esyr Lewis QC. Compare, however, Tesco Stores Ltd v Costain Construction Ltd [2003] EWHC
1487 at [191] ff per HHJ Richard Seymour QC; Investments Ltd v Development Ventures Ltd [2006]
EWHC 1586 at [109] ff per Coulson J and Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008]
EWHC 1016 at [181] ff per Ramsey J.
12 [1978] 1 Lloyd’s Rep 191.
13 At 195 col 2–196 col 1.
14 At 198 col 1.
15 V Berg & Son Ltd v Vanden Avenue Izegem PVBA [1977] 1 Lloyd’s Rep 499 at 504.
16 [1997] 4 All ER 514; [1997] EWCA Civ 1958.
17 Following BP Exploration Co v Hunt (No 2) [1979] 1 WLR 783 at 811G; The Manila [1988] 3

All ER 843 at 852G per Hirst J.

18 At 582j, 530h–531c, paras 47, 50 and 58 per Evans LJ.
19 Alma Shipping Corporation v Union of India (‘The Astraea’) [1971] 2 Lloyd’s Rep 494 at 502.
20 V Berg & Son Ltd v Vanden Avenne Izegem PVBA [1977] 1 Lloyd’s Rep 499 at 504.
21 Tracomin SA v Sudan Oil Seeds Co Ltd [1983] 1 All ER 404 at 415 per Staughton J.
22 [1979] 1 WLR 783; contra Mitsui Babcock Limited v John Brown Engineering Ltd (1997) 51

Con LR 129. But now see Tesco Stores Ltd v Costain Construction Ltd [2003] EWHC 1487 at [191] ff
per HHJ Richard Seymour QC; Investments Ltd v Development Ventures Ltd [2006] EWHC 1586 at
[109] ff per Coulson J and Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008] EWHC 1016 at
[181] ff per Ramsey J.
 23 At 811B–C.
24 At 811G.
25 Certainly at the Supreme Court level—see Republic of India v India Steamship Co Ltd (No 2)

[1998] AC 878 at 914C–D; [1997] 3 WLR 818 per Lord Steyn at 830D–E; Johnson v Gore Wood &
Co [2001] 2 WLR 72 at 98D–100C; [2000] UKHL 65 at paras 75–9 per Lord Goff. There have been
contradictory suggestions as to whether the Court of Appeal may be more inclined to adopt a unified
theory—see Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48
per Robert Walker LJ; National Westminster Bank Plc v Somer International Ltd [2002] 1 All ER
198; [2001] EWCA Civ 198 at paras 40, 47 per Potter LJ; 58–60 per Clarke LJ; compare Baird
Textiles Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER
(Comm) 737 at paras 35 and 39 per Morritt VC; para 55 per Judge LJ and paras 95–9 per Mance LJ
where Counsel’s attempt to introduce a unified theory into English law failed.
26 See Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67 col 2–68 col 1 where, on similar
facts, Mr Justice Goff held that there was no representation and no patent defect in the notices.
27 Supra at 810.
28 [1979] 2 Lloyd’s Rep 57 at 69–71.
29 Paal Wilson & Co A/S v Partenreederei Hannah Blumenth al [1983] 1 AC 854 at 916A–C per

Lord Diplock.
30 See Mitsui Babcock Energy Ltd v John Brown Engineering Ltd (1997) 51 Con LR 129 at 185 per

HHJ Esyr Lewis QC. But now see Tesco Stores Ltd v Costain Construction Ltd [2003] EWHC 1487 at
[191] ff per HHJ Richard Seymour QC; Investments Ltd v Development Ventures Ltd [2006] EWHC
1586 at [109] ff per Coulson J and Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008] EWHC
1016 at [181] ff per Ramsey J.
31 See Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 914C–D; [1997] 3

WLR 818 per Lord Steyn at 830D–E; Johnson v Gore Wood & Co [2001] 2 WLR 72 at 98D–100C;
[2000] UKHL 65 at paras 75–9 per Lord Goff; also Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR
245 at 263. In Scottish Equitable Plc v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369 at para 48
per Robert Walker LJ; National Westminster Bank Plc v Somer International Ltd [2002] 1 All ER
198; [2001] EWCA Civ 198 at paras 40, 47 per Potter LJ; 58–60 per Clarke LJ, two different Courts
of Appeal felt that a general principle of unconscionability underlay estoppel but recognised that
there was powerful authority to the contrary. Further, Robert Walker LJ recognised that his positing
of a unified theory was tentative. Scottish Equitable and National Westminster Bank cannot, therefore,
be taken as authority that the doctrine exists, merely that it may at some future date be considered. In
Baird Textiles Ltd v Marks & Spencer Plc [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER
(Comm) 737 at paras 35 and 39 per Morritt VC; para 55 per Judge LJ and paras 95–9 per Mance LJ,
however, Counsel’s attempt to introduce a unified theory into English Law failed. If, as and when an
attempt to formulate a unified theory is made, it will have to overcome the difficulties set out at paras
7.13 ff above.
32 See The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 449.
33 [2001] 2 WLR 72; [2000] UKHL 65.
34 At 99A–B.
35 Contracts uberrimae fides and as set out in Council Directive 93/13/EEC on Unfair Terms in

Consumer Contracts, art 3.

36 For a contrary view, see Dugdale and Yates (1976) 39 MLR 680 at 691.
37 See eg Braithwaite v Foreign Hardwood Co [1905] 2 KB 543.
 38 In Esmail v J Rosenthal & Sons Ltd [1964] 2 Lloyd’s Rep 447, Lord Justice Salmon was the only
one of the three Lord Justices who felt able to attempt even a tentative explanation of Braithwaite.
39 Which would explain why Panchaud Frères has been considered once since the Second Edition
and then without any form of judicial analysis—Sentinel International Ltd v Cordes (‘The Bahamas’)
[2008] UKPC 60 at [41].
40 See Deepak Fertilisers and Petrochemical Corporation v ICI Chemicals and Polymers Ltd
[1999] 1 Lloyd’s Rep 387; Sere Holdings Ltd v Volkswagen Group United Kingdom Ltd [2004] EWHC
1551; Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153; Jet2.Com Ltd v Blackpool Airport Ltd [2010]
EWHC 3166 at [40].
41 See Sere Holdings Ltd v Volkswagen Group United Kingdom Ltd [2004] EWHC 1551 and Lloyd
v MGL (Rugby) Ltd [2007] EWCA Civ 153. As the Court recognised in Lloyd, such clauses may
preclude a waiver (or estoppel)—whether they do so, is fact dependent—see Jet2.Com Ltd v
Blackpool Airport Ltd [2010] EWHC 3166 at [40] per Beatson J.
42 [2006] EWCA Civ 386; [2006] 1 CLC 582; [2006] 2 Lloyd’s Rep 511.
43 ibid.
44 At [56]–[57].
45 Zentralbank Österreich AG v The Royal Bank of Scotland Plc [2010] EWHC 1392 at [241] ff per

Clarke J.
46 Foodco UK Llp (t/a Muffin Break) v Henry Boot Developments Ltd [2010] EWHC 358 at [169] ff

per Lewison J.
47 JP Morgan Chase Bank v Springwell Navigation Corporation [2008] EWHC 1186 at [559] per

Gloster J.
48 See eg Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd [2008] EWHC 1686; [2008] 2

Lloyd’s Rep 581; [2009] 1 All ER (Comm) 16 at [31] ff per Aikens J; BSkyb Ltd & Anor v HP
Enterprise Services UK Ltd & Anor (Rev 1) [2010] EWHC 86 (TCC); 26 Const LJ 289; [2010] BLR
267; (2010) 26 Const LJ 289; [2010] CILL 2841; 129 Con LR 147 at [384] per Ramsey J; Titan Steel
Wheels Ltd v The Royal Bank of Scotland Plc [2010] EWHC 211; [2010] 2 Lloyd’s Rep 92 at [87] ff
per David Steel J; Foodco UK Llp (t/a Muffin Break) v Henry Boot Developments Ltd [2010] EWHC
358 at [169] ff per Lewison J; Zentralbank Österreich AG v The Royal Bank of Scotland Plc [2010]
EWHC 1392 at [241] ff per Clarke J; Proactive Sports Management Ltd v Rooney (Rev 1) [2010]
EWHC 1807 at [667] ff per Judge Hegarty QC; Morgan v Pooley [2010] EWHC 2447 [at 113] ff per
Edwards-Stuart J; Cassa Di Risparmio Della Republica Di San Marino SpA v Barclays Bank [2011]
EWHC 484 at [493] ff esp [505] per Hamblen J; Bank Leumi (UK) Plc v Wachner [2011] EWHC 656
at [184] per Flaux J; Standard Chartered Bank v Ceylon Petroleum Corpn [2011] EHWC 1785 at
[526] ff.
49 Proactive Sports Management Ltd v Rooney (Rev 1) [2010] EWHC 1807 at [667] ff per Judge
Hegarty QC.
50 [2010] EWCA Civ 1221.
51 Springwell has also been regarded as good law by Lord Justice Rix in Axa Sun-Life Services Plc

v Campbell Martin Ltd [2011] EWCA Civ 133 at [93].

52 As Gerard McMeel puts it, the doctrine is ‘an illegitimate species of estoppel’—see McMeel,
‘Documentary Fundamentalism in the Senior Courts; the myth of contractual estoppel’ [2011]
LMCLQ 185 at 206.
53 See para 7.48 above.
54 On the basis that the more general—applicable to all contracts—subsumes the more particular
—applicable just to deeds. Indeed, it is for this reason that the contractual estoppel decisions are per
incuriam—as irreconcilable with Greer v Kettle [1938] AC 156 at 171—see McMeel, ‘Documentary
Fundamentalism in the Senior Courts; the myth of contractual estoppel’ [2011] LMCLQ 185 at 206.
55 This third possibility could go some way to explaining the difficulty there is in identifying

detriment in some of the estoppel by deed cases.

56 [1992] Ch 421.
57 At 435 B–C per Dillon LJ.
58 Alghussein Establishment v Eton College [1988] 1 WLR 587.
 1 See Coke, A Commentary on Littleton, 11th edn (London, 1719) at 352a.
2 For extensive discussion, see Peter Barnett, Res Judicata, Estoppel and Foreign Judgments
(Oxford University Press, Oxford, 2001) and Spencer Bower and Handley, Res Judicata, 4th edn
(Butterworths Law UK, 2009).
3 Barnett at 1.15.
4 See Henderson v Henderson [1843] 3 Hare 100; 67 ER 313; House of Spring Gardens v Waite

[1991] 1 QB 241 at 254; Ashmore v British Coal Corp [1990] 2 QB 338. Contrast Bradford & Bingley
Building Society v Seddon [1999] 1 WLR 1482 at 1490 per Auld LJ; Johnson v Gore Wood & Co
[2001] 2 WLR 72; [2000] UKHL 65 at 90A–B per Lord Bingham MR; Coflexip S.A. v Stolt Offshore
Ms Ltd [2004] FSR 34; [2004] EWCA Civ 213 per Neuberger LJ at [39]–[54].
5 Hence their exclusion from the First Edition of this work—see para 8.02 above.
6 The etymology of the word estoppel is Old French ‘estouper’ and ‘estoupail’ meaning to stop or
to cork and stopped and corked respectively. The link between all the doctrines is that X is prevented
from discussing a fact.
7 There is a historical link with estoppel by representation and proprietary estoppel in that the

Henderson v Henderson principles were devised in the Court of Chancery—see Meagher at 4-030.
8 [2001] EWCA Civ 777 (23 May 2001).
9 At paras 22–3; approved Gribbon v Lutton [2001] EWCA Civ 1956 at para 66. See also Thoday v

Thoday [1964] P 181 per Diplock LJ at 197–8; R (Coke-Wallis) v Institute of Chartered Accountants
in England and Wales [2011] UKSC 1; [2011] 2 WLR 103; [2011] 2 All ER 1 per Lord Clarke at
[25]–[27].
10 [2001] 2 WLR 72; [2000] UKHL 65.
11 At 90A–D.
12 See Thoday v Thoday [1964] P 181 at 197–8 per Diplock LJ.
13 See Arnold v National Westminster Bank [1991] 2 AC 93 at 109 per Lord Keith.
14 See ibid at 104 per Lord Keith; Zurich Insurance Company Plc v Hayward [2011] EWCA Civ

641 per Smith LJ at [26]–[34].

15 See New Brunswick Rly Co Ltd v British and French Trust Corp Ltd [1939] AC 1; Carl Zeiss

Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853.

16 See Jackson v Goldsmith [1950] 81 CLR 446 at 467–8 per Fullagar J.
17 See Blair v Curran [1939] 62 CLR 464 at 532.
18 See Republic of India v India Steamship Co Ltd (‘The Indian Grace’ and ‘The Indian Endurance

’) [1993] AC 410 at 417 per Lord Goff.

19 See Kendall v Hamilton [1879] 4 App Cas 504.
20 In Australia, the doctrine is referred to as Anshun estoppel after Port of Melbourne Authority v

Anshun Pty Ltd [1981] 147 CLR 589. The US doctrine of collateral estoppel does not require any form
of privity and is therefore distinct—Saffron v Federal Commissioner for Taxation [1991] 102 ALR
19. This categorisation of Henderson v Henderson will be controversial to some. There is, however,
support for it in the Court of Appeal (see Yorkshire Bank Plc v Hall [1999] 1 WLR 1713 at 1730) and
the House of Lords (see Johnson v Gore Wood & Co [2001] 2 WLR 72).
21 [1873] 3 Hare 100; 67 ER 313. For a detailed analysis of the case law, to some extent

contradicting the approach here, see The Hon Justice KR Handley, ‘A Closer Look at Henderson v
Henderson’ [2002] 118 LQR 397.
22 See Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 per Lord Diplock;

Johnson v Gore Wood & Co [2001] 2 WLR 72; [2000] UKHL 65 at 81 per Lord Bingham MR. See
also Bragg v Oceanus Mutual Underwriting Assn (Bermuda) Ltd [1982] 2 Lloyd’s Rep 132 at 137 per
Kerr LJ; House of Spring Gardens v Waite [1991] 1 QB 241 at 255 per Stuart Smith LJ; Barrow v
Bankside Agency [1996] 1 WLR 257 at 263 per Lord Bingham MR.
23 See Talbot v Berkshire CC [1994] QB 290 at 296; Barrow v Bankside Agency Ltd [1996] 1 WLR

257; Manson v Vooght [1999] BPIR 376 at 387–9 per May LJ; Woodhouse v Consignia Plc [2002] 2
All ER 737; [2002] EWCA Civ 275 at para 55 per Brooke LJ.
24 There is powerful authority that the preclusion only applies to those acting in the capacity of
claimants (see Johnson v Gore Wood & Co [2001] 2 WLR 72; [2000] UKHL 65 at 118–19 per Lord
Millett), the doctrine flowing from the vexatious effect of twice being sued on the same claim. If the
point applies to those claiming in whatever capacity (ie by original action or by Part 20 claim) that
would be correct.
25 See Johnson v Gore Wood & Co [2001] 2 WLR 72; [2000] UKHL 65 at 91 per Lord Bingham
MR.
26 See Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at 515 per Megarry VC; House of Spring
Garden v Waite [1991] 1 QB 241 at 255 per Stuart Smith LJ; compare with C v Hackney LBC [1996] 1
WLR 789 and Special Effects Ltd v L’Oreal SA [2007] EWCA Civ 1; [2007] Bus LR 759 per Lloyd LJ
at [82].
27 See Ashmore v British Coal Corp [1990] 2 QB 338; Time Group Ltd v Computer 2000

Distribution Ltd [2002] EWHC 126 (TCC) at para 78 per HHJ Bowsher QC.
28 Johnson v Gore Wood & Co [2001] 2 WLR 72; [2000] UKHL 65 at 118 per Lord Millett; Zurich

Insurance Company Plc v Hayward [2011] EWCA Civ 641 per Smith LJ at paras 13–15 and 23–5.
29 Johnson v Gore Wood & Co [2001] 2 WLR 72; [2000] UKHL 65.
30 At 90 per Lord Bingham MR.
 1 ‘Commercial law’ is a nebulous and complex area of law. Detailed consideration of all aspects of
a particular subject therefore falls outwith this work. Where appropriate, cross-references are
provided to the relevant specialist work for the detailed consideration of a particular aspect of any
given topic.
2 Either as a result of some bilateral or unilateral intentional act (as in variation, waiver and
affirmation respectively) or of a response to another party’s conduct.
3 See, eg, the chapters on waiver and the Panchaud Frères doctrine.
4 And therefore designated commercial court business.
5 See paras 17.02 ff below.
6 Used loosely and in the practitioners’ sense.
7 Waiver by election has a limited ambit in insurance law (see paras 21.14 ff below). As such,

analogies cannot easily be directly drawn from insurance law on that topic and care must be taken in
so doing.
 1 See eg Thornton Hall & Partners v Wembley Electrical Appliances Ltd [1947] 2 All ER 629.
2 Waiver as far as knowledge is concerned is identical to ratification; it therefore follows that as a
matter of logical consistency ratification, in all save the most extreme circumstances, will require an
unequivocal representation coupled with knowledge of the facts and the principal’s legal rights,
although such knowledge may be easily imputed to him—see Bank Melli Iran v Barclays Bank
(Dominion, Colonial and Overseas) [1951] 2 Lloyd’s Rep 367 at 376 col 2–377 col 2 per McNair J;
Westminster Bank v Banca Nazionale di Credito (1928) 31 Ll L R 306 at 312 cols 1–2; Atlantic Bay
Shipping v Binham Group of Establishments & Ors (Comm Ct, 10 October 1996); paras 17.16 ff
below; Bowstead 2-067 ff. Suggestions that ratification is not directly akin to waiver, having differing
requirements (eg that ratification must be within a reasonable time—see eg Metropolitan Asylums
Board v Kingham & Sons (1890) 6 TLR 217 at 218) result from the application of estoppel-type
reasoning and should not therefore be taken as properly outlining the scope of the doctrine.
3 Tenax Steamship Co Ltd v Owners of the Brimnes (‘The Brimnes’) [1973] 1 WLR 386 at 414D–E
per Brandon J.
4 See Peyman v Lanjani [1985] Ch 457.
5 See Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Company Ltd) v Dawsons Bank

Ltd (1935) 51 Ll L R 147 at 150 col 2 per Lord Russell.

6 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502 per

Diplock LJ.
7 Or apparent authority.
8 The distinction between a manifestation or representation is important. Although representation

is the concept traditionally used (see Bowstead Article 72 and Freeman & Lockyer v Buckhurst
Properties (Mangal) Ltd [1964] 2 QB 480 at 503), the reference to a representation suggests estoppel-
type reasoning is being deployed and that ostensible authority is nothing more than an estoppel. That,
as indicated below, is probably not correct. As such and as used in the Restatement, Third (American
Law Institute 2007) ‘manifestation’ is probably more accurate—see discussion at Bowstead 8-014.
9 See Bowstead 8-013 ff.
10 However, for the application of the doctrine to particular areas, see paras 20.39, 17.16 ff and

18.05 ff below.
11 See Bowstead 8-044 ff for examples.
12 Taylor v Yorkshire Insurance Co [1913] 2 Ir R 1 at 21 per Palles CB.
13 cf Restatement, Third §§ 5.01 ff; Bowstead 8-205.
14 See the discussion in Meridian Global Funds Management Asia Ltd v Securities Commission

[1995] 2 AC 500 as to general rules of attribution (agency) versus specific rules of attribution to
companies. See also El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685; Lebon v Aqua Salt Co
Ltd [2009] UKPC 2; [2009] BCC 425. For a recent discussion see Eilis Ferran, ‘Corporate
Attriubution and the Directing Mind and Will’ [2011] 127 LQR 239.
15 For instance, in landlord and tenant cases, the relevant knowledge may be provided by the notice

to quit.
16 On the basis that notice (a specific and formal mechanism of imparting knowledge) ex hypothesi
includes the lesser requirement of knowledge.
17 As waiver is a contractual doctrine, these are general principles in the contractual as opposed to

statutory, restitutionary or tortious context—see Bowstead 8-208 for the distinction.

18 Restatement, Third uses this concept of materiality as the sole criterion by which the attribution

of knowledge is to be decided at §5.03

 19 El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685 at 702c–d per Hoffmann LJ.
20 ibid at 702g per Hoffmann LJ.
21 ibid at 702h–j per Hoffmann LJ. Note, however, the criticism of this approach in Bowstead at 8-

211.
22 El Ajou at 703c–d per Hoffmann LJ; Blackley v National Mutual Life Assn of Australia [1972]

NZLR 1038. See also Re Brewery Assets Corporation, Truman’s Case [1894] 3 Ch 272 at 275 per
Wright J; Whitney v Great Northern Insurance Co (1917) 32 DLR 756; Beasant v Northern Life
Insurance Co (1923) 2 DLR 1086 at 1088–9 per Cameron JA; Evans v Employers Mutual Insurance
Association Ltd [1936] 1 KB 505 at 515 per Greer LJ; Mahli v Abbey Life Insurance [1995] 4 Re LR
305 at 310 per Rose LJ.
23 Hadenfayre v British National Insurance Society Limited [1984] 2 Lloyd’s Rep 393 at 401 col 1
per Lloyd J.
24 Thus, an agent appointed to receive Notices of Readiness and/or instruct discharge will be able
to waive (and thus impute the relevant knowledge to its principal) defects in the Notices—Ocean
Pride Maritime Ltd v Qingdao Ocean Shipping Company [2007] EWHC 2796 at [108].
25 See PCW Syndicates v PCW Reinsurers [1996] 1 Lloyd’s Rep 241 at 254 col 1–247 col 2 per

Staughton LJ.
26 See Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250 at 261H–262A per

Buckley LJ. Anomalously, however, the principal will be liable for the frauds of the agent.
27 See Bowstead 8-213 for further discussion; Stone & Rolls Ltd v Moore Stephens Ltd [2009]

UKHL 39; [2009] 1 AC 1391 for an example where the company’s sole shareholder and controller
was aware of the fraud and knowledge was imputed; and Lebon v Aqua Salt Co Ltd [2009] UKPC 2;
[2009] BCC 425; [2009] 1 BCLC 549.
28 See Bowstead 8-208.
29 (1887) 12 App Cas 531.
30 At 537 per Lord Halsbury LC.
31 See para 20.40 below.
32 Compare Mahli v Abbey Life Insurance [1995] 4 Re LR 305 with Evans v Employers Mutual

Insurance Association Ltd [1936] 1 KB 505.

33 eg, a sole representative of the principal in a particular area would have this type of authority:

see Farquharson v Pearl Assurance Co Ltd [1937] 3 All ER 124 at 132G–H per Singleton J—
however, on its facts, it appears that the Court held that the insurer was estopped; compare Ocean
Pride Maritime Ltd v Qingdao Ocean Shipping Company [2007] EWHC 2796 at [108] where the
delegated charterer’s agent had the requisite authority in a waiver case.
34 See Acey v Fernie (1840) 7 M & W 151; 151 ER 717 at 155; 719 per Abinger CB and per Parke

B; Wing v Harvey (1845) 5 De G & M 265; 43 ER 872; at 270; 874 per Lord Justice Knight Bruce; at
271; 875 per Lord Justice Turner; Linford v The Provincial Horse and Cattle Insurance Company
(1864) 34 Beav 291; 55 ER 647 per Lord Romilly MR at 293; 648; Whitney v Great Northern
Insurance Co (1917) 32 DLR 756; Ayrey v British Legal and United Provident Assurance Company
Ltd [1918] 1 KB 136 at 140 per Lawrence LJ; Beasant v Northern Life Insurance Co (1923) 2 DLR
1086 at 1088–9 per Cameron JA; Evans v Employers Mutual Insurance Association Ltd [1936] 1 KB
505 at 515 per Greer LJ; Mahli v Abbey Life Insurance [1995] 4 Re LR 305 at 310 per Rose LJ. See
also paras 17.14 and 20.40 below.
35 Société Generale de Paris v Tramways Union Co (1884) 14 QBD 424 at 443 per Cotton LJ; see

also Re Fenwick Stobart & Co [1902] 1 Ch 507 at 511 per Buckley J.

 36 Thus ‘The mind… of a company is not reached or affected by information merely possessed by
its clerks’, Houghton & Co v Nothard Lowe & Wills [1928] AC 1 at 18 per Lord Sumner; Fitchpatrick
v Hawkeye Insurance Co 53 Iowa 335 (1880).
37 Re Carew’s Estate Act (No 2) (1862) 31 Beav 39; 54 ER 1051 at 42–3; 1053; 46; 1054 per Lord
Romilly MR.
38 ie the obverse of Meridian Global Funds Management Asia Ltd [1995] 3 WLR 413 at 419 per
Lord Hoffmann. For a recent discussion of the applicable principles, see Eilis Ferran, ‘Corporate
Attriubution and the Directing Mind and Will’ [2011] 127 LQR 239.
39 Re Carew’s Estate Act (No 2) supra at 42; 1053 per Lord Romilly MR; see also Bank of Ireland
v Cogry Spinning Co [1900] 1 IR 219.
40 Re Peruvian Rlys Co v Thames and Mersey Marine Insurance Co (1867) 2 Ch App 617 at 618;
Powles v Page (1846) 3 CB 16. Thus where the agent is authorised to deal with a particular
transaction and therefore able to appreciate the significance of the information, knowledge will be
imputed—Evans v Employers Mutual Insurance Association Ltd [1936] 1 KB 505 at 515 per Greer LJ;
Mahli v Abbey Life Insurance [1995] 4 Re LR 305 at 310 per Rose LJ.
41 See eg Société Générale de Paris v Tramways Union (1884) 14 QBD 424; Welsbach

Incandescent Gas Lighting Co v New Sunshine Incandescent Co [1900] 2 Ch 1 at 12 per Rigby LJ.
42 See PCW Syndicates v PCW Reinsurers [1996] 1 Lloyd’s Rep 241 at 254 col 1–257 col 2 per

Staughton LJ.
43 See Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250 at 261H–262A per

Buckley LJ. Anomalously, however, the principal will be liable for the frauds of the agent.
44 As pointed out elsewhere (Chapter 15 above passim), estoppel does not comprise proprietary

estoppel. Even the wide-ranging concept of estoppel in the agency context enunciated in Pacol Ltd &
Ors v Trade Lines Ltd and R/I Sif IV (‘The Henrik Sif’) [1982] 1 Lloyd’s Rep 456 at 466–7 per
Webster J does not suggest that proprietary estoppel has a role to play.
45 Readers requiring a detailed exposition should refer to Bowstead.
46 ie in addition to the issues arising from ostensible authority.
47 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503 per

Diplock LJ.
48 As indicated above, although representation is the term classically used, the better concept (and

one less linked to estoppel) may be manifestation—see n 8 above.

49 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 506 per
Diplock LJ. Where one party owes the other a duty to speak, the ostensible authority may be created
by silence or inaction on the part of the principal (see Wilson & Meeson v Pickering [1946] KB 422 at
425 per Lord Greene MR; contra Phoenix Insurance Co Ltd v Berechee (1906) 3 CLR 946 at 959–60;
Tobin v Broadbent (1947) 75 CLR 378; Press v Mathers [1927] VLR 326; Rockland Industries Inc v
Amerada Minerals Corpn of Canada (1978) 95 DLR (3d) 64; Daniell v Paradiso (1991) 55 SASR
359); Norfolk County Council v Secretary of State for the Environment [1973] 1 WLR 1400 at 1405F–
G per Lord Widgery CJ.
50 George Whitechurch Ltd v Cavanagh [1902] AC 117 at 129–31; Farquharson Bros v King & Co

[1902] AC 325 at 330–1 per Lord Halsbury LC; MacFisheries v Harrison (1924) 93 LJKB 811 at 815–
16 per Swift J; Wilson & Meeson v Pickering [1946] KB 422 at 426 per Lord Greene MR.
51 See para 16.18 below.
52 York Corpn v Henry Leetham & Sons [1924] 1 Ch 557 at 573 per Russell J; Rolled Steel

Products (Holdings) Ltd v British Steel Corpn [1985] 3 All ER 52 at 86g–h per Slade LJ. In relation to
the inability of an estoppel to undermine a statute, see paras 9.131 ff above.
53 Freeman & Lockyer v Buckhurst Park Properties (Mangel) Ltd [1964] 2 QB 480 at 506.
54 Cleveland Mfg Co Ltd v Muslim Commercial Bank Ltd [1981] 2 Lloyd’s Rep 646 at 650 col 2–
651 col 1 per Robert Goff J; Polish SS Co v AJ Williams (Overseas Sales) Ltd (‘The Suwalki’) [1989]
1 Lloyds Rep 511 at 514 col 1–515 col 2 per Steyn J.
55 See eg Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480.
56 Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147 at 149 per
Slade J; Freeman & Lockyer v Buckhurst Properties (Mangal) Ltd [1964] 2 QB 480 at 503; R v
Charles [1977] AC 177 at 183.
57 Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd (‘The Raffaella’)
[1985] 2 Lloyds Rep 36 at 41 cols 1–2 per Browne-Wilkinson LJ: ‘Ostensible authority comes about
where the principal, by words or conduct, has represented that the agent has the requisite actual
authority, and the party dealing with the agent has entered into a contract and relied on that
representation. The principal in these circumstances is estopped from denying that the actual
authority existed’; Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717 at 777A–B per
Lord Keith. See also Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing
Co Pty Ltd (1975) 133 CLR 72; Northside Developments Pty v Registrar General (1990) 170 CLR
146.
58 Polish SS Co v AJ Williams (Overseas Sales) Ltd (‘The Suwalki’) [1989] 1 Lloyd’s Rep 511 at

514 col 1 per Steyn J.

59 See Bowstead 8-029.
60 Hely-Hutchinson v Brayhead [1968] 1 QB 549 at 583D–F per Lord Denning MR.
61 Waugh v HB Clifford & Sons [1982] Ch 374.
62 Ebeed v Soplex Wholesale Supplies Ltd and PS Refson & Co Ltd [1985] BCLC 404 at 411f–h per

Browne-Wilkinson LJ; Armagas Ltd v Mundo Gas SA [1986] AC 717.

63 First Energy (UK) v Hungarian International Ltd [1993] BCC 533 at 540E–G per Steyn LJ;

British Bank of the Middle East v Sun Life Assurance of Canada [1983] 2 Lloyd’s Rep 9 at 17 col 2–
18 col 1 per Lord Brandon.
64 There being no such thing as a self-authorising agent—see Ebeed v Soplex Wholesale Supplies

Ltd and PS Refson & Co Ltd [1985] BCLC 404 at 414a–g per Browne-Wilkinson LJ.
65 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; IRC v Ufitec
Group Ltd [1977] 3 All ER 924 at 937c–938c per May J; British Bank of the Middle East v Sun Life
Assurance of Canada [1983] 2 Lloyd’s Rep 9 at 17 col 2 per Lord Brandon; Rhodian River Shipping v
Halla Maritime [1984] 1 Lloyd’s Rep 373 at 379 col 2 per Bingham J. Thus, in a company law
context, there can be a chain of authorisations where the company authorises A who then authorises B
and so on—see IGN Re (UK) Lyd v R & V Versichung [2007] 1 BCLC 108 at [100].
66 See Bowstead at 8-014; 8-029 for a discussion of this point.
67 Pole v Leask (1863) 33 LJ CH 155.
68 Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147 at 149 per

Slade J; Freeman & Lockyer v Buckhurst Properties (Mangal) Ltd [1964] 2 QB 480 at 503; R v
Charles [1977] AC 177 at 183.
69 Pole v Leask (1863) 33 LJ CH 155 at 161–2 per Lord Cranworth.
70 Consistent with this, Bowstead now recategorises ‘agency by estoppel’ as nothing more than

occasions on which an estoppel, properly analysed, arises in the context of an agency relationship—
see 2-100 ff; for an example, see AJU Remicon Co Ltd v Alida Shipping Co Ltd [2007] EWHC 2246.
 71 Thus, eg, handing over a logbook on sale of a car was not a sufficiently clear representation
—Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QB 371 at 390 per Hodson LJ; 398
per Morris LJ.
72 The reliance must be clearly established. Therefore where X’s and the third party’s interests are
contradictory, there will be no reliance by the third party—Heane v Rogers (1820) 9 B & C 577; 109
ER 215 at 586–7; 218–19 per Bayley J, followed in Richards v Johnston (1859) 4 H & N 660; 157 ER
1000 at 664; 1002 per Martin B.
73 Where title does not pass—see In re Goldcorp Exchange Ltd [1995] 1 AC 74 at 93F–94G per
Lord Mustill.
74 Eastern Distributors Ltd v Goldberg [1957] 2 QB 600 at 611 per Devlin J.
75 See Bowstead 8-127; 8-130. This is the analysis adopted in the Commonwealth—see Motor
Credits (Hire Finance) v Pacific Motor Auctions Pty Ltd (1963) 109 CLR 87 at 97; 103; Curtis v
Perth & Freemantle Bottle Exchange Co (1914) 18 CLR 17 at 23; 38; Thomas Australia Wholesale
Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd [1985] 2 NSWLR 452.
76 See Bowstead 8-029.
77 Thus, eg, ostensible authority may be irrevocable either where the authority has arisen to

provide the agent with a security (Smart v Saunders (1848) 5 CB 895) or where, arguably, the special
circumstances of the case require it to be so (Society of Lloyds v Leighs & ors Comm Ct, 21 February
1997, Coleman J).
78 See also para 16.26 below.
79 McEvoy v Belfast Banking Co Ltd [1935] AC 24 at 45 per Lord Atkin.
80 eg, receipt of the funds generated by the agent’s acts: The Bonita; The Charlotte (1861) 1 Lush

252; 167 ER 111 at 265; 118.

81 Therefore there will be no estoppel where the principal is unaware of the third party’s state of

mind—see Marsh v Joseph [1897] 1 Ch 213 at 246–7 per Lord Russell CJ.
82 The Courts will impose on the principal a duty to inform the third party in such circumstances,

the failure so to inform constituting the representation required for the estoppel—see Suncorp
Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd’s Rep 225 at 241 col 1 per Waller
J; contrast Yona International Ltd and Heftsiba Overseas Works Ltd v La Reunion Francaise Société
Anonyme d’Assurancees et de Reassurances [1996] 2 Lloyd’s Rep 84 at 103 col 1 per Moore-Bick J
where no estoppel arose on the facts of that case.
83 See Bowstead 9-030. Although the idea that an agent may estop itself is not controversial, the

proposition (as advanced by Bowstead) that an agent may estop itself from denying that it is a party to
a contract might effectively create a cause of action which an estoppel (other than proprietary
estoppel) cannot do—see paras 10.13 ff above and the cases discussed there. Thus, the example given
by Bowstead at 9-030 is too stark.
84 In which case, the principal becomes solely liable—see Bowstead article 97.
85 There will, of course, be the rare cases where the elements for an estoppel are made out but

there is no election.
86 This will usually take place when judgment is entered—Neilson v Betts (1871–2) LR 5 HL 1.
87 See Island Records Ltd v Tring International Ltd [1995] 3 All ER 444 at 447 per Lightman J;

Bonus Garment Company v Karl Rieker GmbH & Co KG [1995] 3 HKC 721.
88 See Bowstead 6-111–112 and cases cited.
89 Bowstead deals with this type of estoppel as follows ‘Although the word “estoppel” is not much

used in the cases relating to these propositions, the first and second constitute situations where an
agent is not allowed to make such allegations against his principal, and so they can conveniently be
regarded as based on a form of estoppel’ (6-111). Whilst this may be convenient, it does not alter the
fact that the requisite elements for an estoppel are missing.’
90 This former ‘estoppel’ was abolished by statute—the Torts (Interference with Goods) Act 1977

—on policy grounds, a fact which highlights not only the anomalous nature of the ‘estoppel’ which
was formerly in play but also the policy considerations at play.
91 See paras 17.55 ff below.
92 Swan v North British Australasian Co (1863) 2 H & C 175; 159 ER 73 at 189–90; 79; London
Joint Stock Bank v Macmillan [1918] AC 777 at 793–4 and 811 per Lord Finlay LC; 817–18 per
Viscount Haldane; Greenwood v Martins Bank Ltd [1933] AC 51 at 57–8, 59 per Lord Tomlin. See
also Tina Motors Pty Ltd v Australia and New Zealand Banking Group Ltd [1977] VR 205 at 208 ll
45–50; Paget at 316–17.
93 As to whether the doctrine can be properly described as an estoppel see paras 17.55 ff below.
94 See Bowstead 2-059(5).
95 Cooke & Sons v Eshelby (1887) 12 App Cas 271 at 278–9 per Lord Watson.
96 Fish v Kempton (1849) 7 CB 687; 137 ER 272 at 691–2; 274 per Wilde CJ; Ramazotti v Bowring

(1859) 7 CB (NS) 851; 141 ER 1050 at 856; 1052 per Erie CJ.
97 See Bowstead 8-110, 8-112. A further alternative is by analogy with an assignee—though it is

difficult to see how the analogy is any more persuasive (as pure legal reasoning) than the application
of policy.
98 As opposed to principal/agent which is dealt with at para 16.20 above.
99 Smyth v Anderson (1849) 7 CB 21; 137 ER 9 at 40–2; 17–18 per Maule J.
100 Horsfall v Fauntelroy (1830) 10 B & C 755; 109 ER 630 at 759; 632 per Lord Tenterden CJ;

Wyatt v Hereford (1802) 3 East 147; 102 ER 553 at 148; 553 per Lord Ellenborough CJ.
 1 This chapter considers the operation of variation, waiver and estoppel in traditional paper-based
banking. The application of the doctrines to paperless banking (ie Electronic Funds Transfer and the
inter-bank (eg BACS, CHAPS, TARGET) and consumer activated (eg ATM, EFTPOS, internet
banking, electronic money) electronic funds transfer systems) is not considered in detail. However, it
is suggested that the principles set out in this chapter will apply to paperless banking although the
physical means by which any variation or unequivocal representation is made may be different from
those set out below.
2 Provided that care is taken to ensure that any variation or provision allowing for variation does
not fall foul of the Unfair Contract Terms in Consumer Contracts Regulations 1999.
3 Many of these difficulties can be avoided by careful drafting and have therefore led to the rise of
standard form guarantees.
4 See para 17.03 and n 13 below.
5 See eg Barclays Bank Plc v Caldwell (25 July 1986, Harman J).
6 Re A Debtor (No 517 of 1991) [1991] TLR 25 November.
7 See, by analogy, Ogle v Earl Vane [1868] LR 3 QB 272 at 278–9 per Kelly CB; Hickman v

Haynes [1875] LR 10 CP 598; Levey & Co v Goldberg [1922] 1 KB 688; Besseler Waecheter Glover
& Co v South Derwent Coal Co Ltd [1938] 1 KB 408.
8 See Morris v Baron & Co [1918] AC 1; United Dominions Corpn (Jamaica) Ltd v Shoucair

[1969] 1 AC 340 and the cases discussed at paras 2.28 ff above.

9 Hunt v South Eastern Rly Co [1875] 45 LJ QB 87 at 94 col 2–96 col 1 per Lord Hatherley;

Williams Bros v ET Agius Ltd [1914] AC 510 at 527 per Lord Atkinson; Raggow v Scougall & Co
[1915] 31 TLR 564 at 565 per Darling J; Rose and Frank Co v JR Crompton & Bros Ltd [1925] AC
445 at 456 per Lord Phillimore.
10 See para 2.36 above.
11 See also the analogy with the position that an unenforceable variation of the principal contract

will not discharge the guarantor—see Holland Commercial Mortgage Co v Hutchings [1936] SCR
165; Manulife Bank of Canada v Corbin 120 DLR (4th) 234 [1994]; Ankhan Pty Ltd v National
Westminster Finance [1987] 162 CLR 549 at 559 per Mason ACJ, Wilson, Brennan, Dawson JJ;
Corumo Holdings v Itoh [1991] 5 ACSR 720 at 729, 753.
12 Credit Suisse v Borough Council of Allerdale [1995] 1 Lloyd’s Rep 315 at 370–2 per Coleman J;
a finding not disturbed on appeal at [1996] 3 WLR 894; Kok Hoong v Leong Cheang Kweng [1964]
AC 993 at 1015 per Viscount Radcliffe.
13 See para 2.15 above.
14 An immaterial alteration will not so discharge. The test is not whether the guarantor would or
would not have agreed, but whether the alteration: (a) affects the very nature and character of the
instrument; or (b) is ‘potentially prejudicial’ to the obligor’s legal rights or obligations. See
Raiffeisen Zentralbank Österreich v Crossseas Shipping Ltd [2000] Lloyd’s Rep Bank 108 per Potter
LJ at paras 15–28 (citing Pigot’s Case [1614] 11 Co Rep 26b); Bank of Scotland v Henry Butcher &
Co [2003] EWCA Civ 67; [2003] 2 All ER (Comm) 557 at paras 71–2.
15 Pigot’s Case [1614] 11 Co Rep 26b; Lombard Finance v Brookplain Trading Ltd [1991] 1 WLR

271 at 274B–F per Dillon LJ; for examples, see Aldous v Cornwall [1868] LR 3 QB 573; Suffell v
Bank of England [1882] 9 QBD 555; Ellesmere Brewery v Cooper [1896] 1 QB 75; Bishop of Crediton
v Bishop of Exeter [1905] 2 Ch 455; CIBC v Hardy Bay Inns Ltd [1985] 1 WWR 405.
16 See Holme v Brunshill [1878] 3 QBD 495 at 505–6 per Cotton LJ; Lloyds TSB v Hayward [2005]
EWCA Civ 466; [2005] All ER (D) 384 (Apr); Triodosbank NV v Dobbs [2005] 2 Lloyd’s Rep 588.
 17 Holme v Brunshill supra at 508 per Brett LJ.
18 See Polak v Everett [1876] 1 QBD 669 at 673–4 per Blackburn J; National Bank v Awolesi
[1964] 1 WLR 1311.
19 Egbert v National Crown Bank [1918] AC 903 at 908–9 per Lord Dunedin.
20 Credit Suisse v Borough Council of Allerdale [1995] 1 Lloyd’s Rep 315 at 365 col 2–366 col 1

per Coleman J; [1996] 2 Lloyd’s Rep 241 CA (issue not raised on appeal).
21 Holland Commercial Mortgage Co v Hutchings [1936] SCR 165; Manulife Bank of Canada v
Corbin 120 DLR (4th) 234 [1994]; Ankhan Pty Ltd v National Westminster Finance [1987] 162 CLR
549 at 559 per Mason ACJ, Wilson, Brennan, Dawson JJ; Corumo Holdings v Itoh [1991] 5 ACSR 720
at 729, 753.
22 Stewart v M’Kean [1855] 10 Exch 675; 156 ER 610 at 688; 616 per Alderson B; 691; 618 per
Parke B; British Motor Trust v Hyams [1934] 50 TLR 230; Woodcock v Oxford and Worcester
Railway Co [1853] 1 Drew 521 at 529–30 per Kindersley VC; 61 ER 551 at 555.
23 And, in most modern guarantees, does so include.
24 However, the Unfair Contract Terms in Consumer Contracts Regulations 1999 may apply to

such clauses, rendering them unenforceable in consumer contracts if, on the facts of the particular
case, the clause is unfair (see reg 5(1) and Sch 2).
25 See eg Cowper v Smith [1838] 4 M & W 519; 150 ER 1534; Perry v National Provincial Bank of

England [1910] 1 Ch 464; also Moschi v Lep Air Services [1973] AC 331 at 349C per Lord Diplock;
344G per Lord Reid. See also Wood Hall Ltd v Pipeline Authority & Anor [1979] 24 ALR 385.
26 The position can be contrasted with, eg, that between shipowners and charterer during the period

of a charter party. The owners will know little of the charterer’s affairs unless and until notified by
the charterer under the terms of the charter party.
27 Cubitt v Gamble [1919] 35 TLR 223 at 224 col 1 per McCardie J; Cohen v Roche [1927] 1 KB

169 at 180 per McCardie J.

28 Gyles v Hall [1726] 2 P Wms 378; 24 ER 774 per Lord King LC.
29 Subject to points made on agent’s authority below.
30 If both parties benefit—see paras 2.15 ff above.
31 However, the acceptance of the non-conforming payment will in all likelihood generate an
estoppel if the borrower suffers detriment.
32 Waiver by election may also occur where there is acceptance of a non-conforming payment

under the facility—see para 17.08 above.

33 See Seal v Gimson [1914] 110 LT 583 at 584 col 2 per Coleridge J.
34 The position may be different, eg, if the lending bank makes some other representation to the

borrower.
35 See Oceanic Freighters Corp v MV Libyaville Reederei und Schiffarhts GmbH (The Libyaville)

[1975] 1 Lloyd’s Rep 537.

36 See Keene v Biscoe [1878] 8 ChD 201 at 203 per Fry J.
37 See Re Royal British Bank, Mixer’s Case [1859] 4 De G & J 575; 45 ER 223 at 586; 228 per

Lord Campbell LC; 587; 228 per Turner LJ.

38 See para 4.10 above.
39 See Allen v Robles [1969] 2 Lloyd’s Rep 61 at 63–4 per Fenton-Atkinson LJ. As pointed out

above (para 4.10), the better analysis of such cases is that the lending bank has affirmed the facility or
is estopped.
40 Hill v Citadel Insurance Co Ltd [1995] LRLR 218 at 239 col 2 per Cresswell J.
 41 See paras 4.11 ff above.
42 See para 20.83 below.
43 See para 21.19 below.
44 See Davenport v R [1877] 3 App Cas 115 at 132 per Sir Monatgue E Smith; Croft v Lumley

[1856] 5 E & B 648 at 652; Stone v Stringer [1880] 61 LT 470; R v Paulson [1921] 1 AC 271 at 286
per Lord Atkinson; Haynes v Hirst [1927] 27 SR (NSW) 480 per Long Innes J; Carter v Green [1950]
2 KB 76; Antaios Naviera SA v Salen Rederierna AB [1983] 1 WLR 1362 at 1370H–1371C per Lord
Donaldson MR; 1377A–C per Fox LJ.
45 The position can be contrasted with that of an insurer—the investigation by an insurer of the
claim may well be a ‘neutral’ act which is not inconsistent with the reservation of rights.
46 Or was put on inquiry as to the breach.
47 See para 4.23 above.
48 As a waiver is an unequivocal act committed in light of the requisite knowledge, if the

knowledge of the agent is not to be imputed to the bank, then the agent will not have authority to
waive breaches on the bank’s behalf and vice versa.
49 The borrower will only have to do so where the decision to call in the facility rested with the

syndicate or a majority of the banks involved as opposed to with the agent.

50 See paras 16.04 and 16.08 above.
51 See Chapter 16 passim.
52 See by analogy Mardorf Peach & Co Ltd v Attica Sea Carriers Corp of Liberia (‘The Laconia’)

[1977] AC 850.
53 See by analogy Whitney v Great Northern Insurance Co [1917] 32 DLR 756; Beasant v Northern

Life Insurance Co [1923] 2 DLR 1086 at 1088–9 per Cameron JA; Evans v Employers Mutual
Insurance Association Ltd [1936] 1 KB 505 at 515 per Greer LJ; Mahli v Abbey Life Insurance [1995]
4 Re LR 305 at 310 per Rose LJ.
54 Re Carew’s Estate Act (No 2) [1862] 31 Beav 39; 54 ER 1051 at 42–3; 1053; 46; 1054 per Lord

Romilly MR.
55 Re Carew’s Estate Act (No 2) supra at 42; 1053 per Lord Romilly MR; see also Bank of Ireland

v Cogry Spinning Co [1900] 1 IR 219.

56 Re Peruvian Rlys Co v Thames and Mersey Marine Insurance Co [1867] 2 Ch App 617 at 618;

Powles v Page [1846] 3 CB 16.

57 Société Generale de Paris v Tramways Union Co [1884] 14 QBD 424 at 443 per Cotton LJ; see

also Re Fenwick Stobart & Co [1902] 1 Ch 507 at 511 per Buckley J.

58 Re Brewery Assets Corporation, Truman’s Case [1894] 3 Ch 272 at 275 per Wright J.
59 Re European Bank, ex p Oriental Commercial Bank [1870] 5 Ch App 358 at 361–2 per Sir GM

Giffard LJ; see also Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250 at 261H–
262A per Buckley LJ; PCW Syndicates v PCW Reinsurers [1996] 1 Lloyd’s Rep 241 at 254 col 1–257
col 2 per Staughton LJ.
60 [1602] 5 Co Rep 117a; see also Foakes v Beer [1884] 9 App Cas 605.
61 See Pinnel’s Case [1602] 5 Co Rep 117a.
62 See Vanbergen v St Edmunds Properties Ltd [1933] 2 KB 223 at 232–3 per Lord Hanworth MR.
63 Kemp v Watt [1846] 15 M & W 672; 153 ER 1020 at 680–1; 1024 per Parke B; Henderson v

Stobart [1850] 5 Exch 99; Hirachand Punamchand v Temple [1911] 2 KB 330 at 339 per Fletcher
Moulton LJ.
64 See para 17.29 below.
 65 See R v Paulson [1921] 1 AC 271 at 280 per Lord Atkinson. See para 20.50 below.
66 See para 17.02 above.
67 See Chapter 4 passim.
68 See para 17.04 above.
69 See Bank of Baroda v Patel [1996] 1 Lloyd’s Rep 391 at 396 col 2 per Potter J. Where the effect

of the waiver is ‘marginal and of no impact’ the guarantor is not discharged: see Arab Banking Corp v
Saad Trading and Financial Services [2010] EWHC 509 (Comm) per Steel J at paras 27–8.
70 eg, the effectiveness of the lending bank’s due diligence tests or the extent to which the lending
bank is risk averse.
71 See Arab Banking Corp v Saad Trading and Financial Services [2010] EWHC 509 (Comm) per

Steel J at paras 27–8. Note Steel J’s reasoning that the provision waived was ‘a protection for the
bank, entirely for their benefit and which they are entitled to and did waive’—it is difficult to see why
this should improve the bank’s position, vis-à-vis the guarantor, unless the guarantor is taken to have
assumed the risks inherent in the bank’s business practices. See also ‘Guarantees: the Co-
extensiveness Principle’, Johan Steyn [1974] 90 LQR 246 at 256–8, 260–1.
72 Re Bulmer, ex p Johnson [1853] 3 De GM & G 218; 43 ER 86 at 235; 93 per Lord Cranworth LC.
73 Lake v Brutton [1856] 8 De GM & G 440; 44 ER 460 at 452; 465 per Knight Bruce LJ.
74 Cooper v Jenkins [1863] 32 Beav 337; 55 ER 132 at 339–40; 133 per Lord Romilly MR.
75 Usually the agent bank will be permitted to waive minor breaches of the facility and less minor

breaches where its actions have been approved by a certain proportion of the syndicate, that
proportion being calculated by reference to the ratio between the amounts advanced by each voting
bank and the overall amount of the facility.
76 See para 17.11 above.
77 A cheque is a bill of exchange (see ss 73 and 3(1) Bills of Exchange Act 1882). However, as

cheques are no longer, in the main, negotiable instruments, many of the points raised here do not
apply to cheques. The following paragraphs should therefore be treated as dealing with bills of
exchange simpliciter unless expressly stated otherwise (see eg n 92 below).
78 Governed by s 62 Bills of Exchange Act 1882.
79 Dobson v Espie [1857] 26 LJ Ex 240 at 241 per Pollock CB; Martin B.
80 Foster v Dawber [1851] 6 Ex 839; 155 ER 785 at 851; 790–1 per Parke B.
81 ibid at 852; 791 per Parke B.
82 ibid.
83 Subsection (2); Jones & Co v Whitaker [1887] 3 TLR 723.
84 To present the bill and receive payment.
85 Abrey v Crux [1869] LR 5 CP 37.
86 Dod v Edwards [1827] 2 C & P 602.
87 In re George Francis v Bruce [1890] 44 ChD 627 at 632 per Chitty J.
88 Dickinson v Lucas [1909] 101 LT 27 at 29 per Eve J.
89 Midland Bank v Harris [1963] 1 WLR 1021 at 1025 per Megaw J; Cohn v Warner [1891] 8 TLR

11 per Collins J; contra Rimalt v Cartwright [1925] 132 LT 40 at 42.

90 Except, of course, where the waiver is effected by means of an indorsement to the bill under s 16

Bills of Exchange Act 1882.

91 Potter v Rayworth [1811] 13 East 417; 104 ER 432 at 418–19; 433 per Lord Ellenborough CJ;

Bayley J; Gunson v Metz [1823] 1 B & C 193; 107 ER 72 at 195; 73.

 92 Waiver of presentation was the way by which cheque truncation, the process in electronic
banking by which physical presentation of the cheque to the paying bank can be avoided, had to take
place. However, since the coming into effect of the Deregulation (Bills of Exchange) Order 1996, SI
1996/2993, presentation of the cheque can now take place by notification of the essential details of
the cheque by electronic means. Waiver is therefore no longer required.
93 In theory, the drawer on a cheque is entitled to a notice of dishonour (s 48 Bills of Exchange Act
1882) and if it is not given, or is not required in the circumstances, no liability will accrue. However,
in practice, notices of dishonour are normally not required on cheques either because the bank on
which the cheque is drawn is under no obligation to pay (s 50(2)(c) Bills of Exchange Act 1882) or
because the drawer has counter-manded payment.
94 Bills of Exchange Act 1882, s 50(2)(b).
95 ibid s 46(2)(e).
96 ibid s 16; see Blou v Georgiades [1959] (1) SA 219 (waiver of requirement of notice of
dishonour).
97 Cordery v Colville [1863] 32 LJCP 210, 211 col 1 per Byles J.
98 Woods v Dean [1862] 32 LJQB 1 at 5 per Cockburn CJ.
99 See Vaughan v Fuller [1746] 2 Stra 1246; 93 ER 1159; Hopley v Dufresne [1812] 15 East 275;

104 ER 848; Hodge v Fillis [1813] 3 Camp 462; 170 ER 1447 at 465; 1447 per Ellenborough CJ
(promise to pay or partial payment on account); Newman v Browne [1925] 1 DLR 676 (payment of
interest due under the bill).
100 Phipson v Kneller [1815] 4 Camp 285; 171 ER 91 per Lord Ellenborough CJ; Burgh v Legge

[1839] 5 M & W 418; 151 ER 177 at 420–2; 178–9 per Parke B.

101 Coulcher v Toppin [1866] 2 TLR 657 at 658 col 2 per Lord Herschell LC.
102 Pickin v Graham [1833] 1 Cr & M 725; 149 ER 591 at 727–30; 592–3 per Vaughan B; Prideaux

v Collier [1817] 2 Stark NPC 57; 171 ER 571.

103 Fletcher v Frogatt [1827] 2 C & P 569; 172 ER 259 per Abbott CJ; contra Standage v

Creighton [1832] 5 C & P 406; 172 ER 1029 at 1030 per Denman CJ.
104 As opposed to knowledge of the rights arising from the known facts.
105 Stevens v Lynch [1810] 12 East 38; 104 ER 16.
106 See paras 4.18 ff above.
107 See eg Lombard Banking Ltd v Central Garage and Engineering Co Ltd [1963] 1 QB 220 at 233

per Scarman J.
108 Discussed in the banking context at para 17.16 above. See also Chapter 16 passim.
109 Standage v Creighton [1832] 5 C & P 406; 172 ER 1029 at 1030 per Denman CJ.
110 Pickin v Graham [1833] 1 Cr & M 725; 149 ER 591 at 727; 592 per Vaughan B; Carter v

Flower [1847] 16 M & W 743; 153 ER 1390 at 749; 1392 per Parke B; Byles at 181.
111 Assuming that there is a distinction in English law, cf Bowstead 8.205.
112 Taylor v Jones [1809] 2 Camp 105; 170 ER 1096 at 106; 1096 per Bayley J; Swift Canadian Co

v Duff [1916] 38 OLR 163.

113 Blesard v Hirst [1770] 5 Burr 2670; 98 ER 402 at 2671–2; 403 per Lord Mansfield.
114 Taylor v Jones [1809] 2 Camp 105; 170 ER 1096 at 106; 1096 per Bayley J; Swift Canadian Co

v Duff [1916] 38 OLR 163.

115 Coulcher v Toppin [1866] 2 TLR 657 at 658 col 2 per Lord Herschell LC; Bank of Toronto v

Bennett [1925] 57 OLR 326.

116 Turner v Leech [1821] 4 B & Ald 451; 106 ER 1002 at 452–3; 1003 per Abbott CJ.
 117 Smith v Mullett [1809] 2 Camp 208; 170 ER 1131.
118 Pole v Ford [1816] 2 Chit Rep 125.
119 Ian Stach v Baker Bosley Ltd [1958] 2 QB 130 at 137–8 per Diplock J.
120 See Hamzeh Malas & Sons v British Imex Industries Ltd [1958] 2 QB 127 at 129 per Jenkins LJ

for an early statement relating to the autonomy of such contracts. Autonomy is central to the use and
need for documentary credits—see Uniform Customs and Practice for Documentary Credits, 2007
Revision, ICC 600 (UCP 600) art 4. The UCP 600 applies to a documentary credit when the text of the
credit expressly indicates that it is subject to those rules (see art 1). UCP 600 provisions can be
overridden by the express requirements laid down in the credit.
121 For ease the parties to the underlying contract are referred to as the buyer and seller.
122 Bank Melli Iran v Barclays Bank (Dominion, Colonial and Overseas) [1951] 2 Lloyd’s Rep 367
at 376 col 2 per McNair J.
123 United City Merchants (Investments) Ltd v Royal Bank of Canada [1983] 1 AC 168 at 182H–
183D per Lord Diplock; Bankers Trust Co Ltd v State Bank of India [1991] 2 Lloyd’s Rep 443 at 445
col 1 per Lloyd LJ.
124 As to which see UCP 600 art 14(a).
125 It must be remembered that two categories of documents are at issue—those relating to

payment, the documentary credit(s), and those relating to the underlying transaction, most usually
those relating to the transfer of goods, the shipping documents and/or documents relating to title. The
former are referred to as documentary credits and the latter as the documents of sale.
126 For the relationship between the non-documentary elements of the sale/carriage of goods

contract and waiver see paras 21.14 ff below.

127 The word ‘documents’ here refers to all the documentary elements of the transaction.
128 For a consideration of the relevant documents, see Paget.
129 Compliance with the contractual requirements is strict—see Equitable Trust Co of New York v

Dawson Partners Ltd [1927] 27 LI LR; Skandinaviska Akt v Barclays Bank [1925] 22 LI LR 523;
Kydon Compania Naviera SA v National Westminster Bank [1981] 1 Lloyd’s Rep 68; Glencore
International AG v Bank of China [1996] 1 Lloyd’s Rep 135 at 150 cols 1–2 per Lord Bingham MR,
as he then was.
130 As they are in a significant number of cases—see Banque de l’Indochine et de Suez SA v JH
Rayner (Mincing Lane) Ltd [1983] QB 711; Clive Schmitthoff, ‘Discrepancy of documents in Letter
of Credit transactions’ [1987] JBL 94.
131 Which relates to the possibility of a unilateral waiver.
132 Guaranty Trust of New York v Van Den Berghs Ltd [1925] 22 Ll L R 447 at 454 per Scrutton LJ.
133 See Jack at 4.26
134 See paras 17.46–51 below.
135 See Cape Asbestos Co Ltd v Lloyd’s Bank Ltd [1921] WN 274.
136 Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd’s Rep 340.
137 Bank Melli Iran v Barclays Bank [1951] 2 TLR 1057.
138 This rule is based on estoppel or equitable forbearance principles—see Allen v Robles [1969] 1

WLR 1193 at 1196 G–H per Fenton-Atkinson LJ; para 4.10 above.
139 See para 4.23 above.
140 Midland Bank v Seymour [1955] 2 Lloyd’s Rep 147 at 169 col 1 per Devlin J.
141 Bank Melli Iran v Barclays Bank (Dominion, Colonial and Overseas) [1951] 2 Lloyd’s Rep 367

at 376 col 2 per McNair J.

 142 Bank Melli Iran v Barclays Bank (Dominion, Colonial and Overseas) [1951] 2 Lloyd’s Rep 367
at 376 col 2–377 col 2 per McNair J; Westminster Bank v Banca Nazionale di Credito [1928] 31 Ll LR
306 at 312 cols 1–2.
143 See para 16.01 n 2 above.
144 Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB 473; Enrico Furst & Co v
WE Fischer Ltd [1960] 2 Lloyd’s Rep 340.
145 WJ Alan & Co Ltd v El Nasr Export [1972] 2 QB 189.
146 See Cape Asbestos Co Ltd v Lloyd’s Bank Ltd [1921] WN 274 at 275 per Bailhache J.
147 As in WJ Alan & Co Ltd v El Nasr Export [1972] 2 QB 189 at 218; 221.
148 Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB 473.
149 See eg WJ Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189 at 217 per Megaw

LJ.
150 See the findings of fact in Bankers Trust Co v State Bank of India [1991] 2 Lloyd’s Rep 443.

The introduction to the UCP 600 states that approximately 70% of documents presented under letters
of credit are rejected on first presentation.
151 Bankers Trust supra at 455 col 1 per Farquharson LJ.
152 ibid at 449 col 2 per Lloyd LJ.
153 ibid at 451 col 1 per Lloyd LJ.
154 See para 17.41 above.
155 It has been suggested that the ‘preclusion’ is ‘akin to an estoppel’. However, given the above

and the fact that no detrimental reliance is required, it is submitted that the preclusion is founded on
waiver. There is an additional debate as to whether the result achieved by art 16(f) is in fact a
ratification by the issuing bank of the defects (see Westminster Bank Ltd v Banca Nazionale di
Credito [1928] 31 LI L R 306 at 312 per Roche J). However, given that the elements and effect of
ratification and waiver are identical for present purposes, in practice little turns on the distinction.
156 Bank Melli Iran v Barclays Bank [1951] 2 TLR 1057.
157 See art 16(c)ii.
158 See art 16(f) and Hip Hing Hip Fat Co Ltd v Daiwa Bank [1991] 2 HKLR 35.
159 Kydon Compania Naviera SA v National Westminster Bank Ltd ‘The Lena’ [1981] 1 Lloyd’s

Rep 68 at 79 cols 1–2 per Parker J; Skandinaviska Akt v Barclays Bank [1925] 22 Ll L R 523 at 525
per Greer J; Westminster Bank v Banca Nazionale di Credito [1928] 31 Ll L R 306 at 311 col 1 per
Roche J. In the US, a failure to state all the discrepancies relied on will be a waiver of other grounds
—Barclays Bank DCO v Mercantile National Bank [1973] 2 Lloyd’s Rep 541 at 549 col 1 per
Ingraham LJ, relying on Bank of Taiwan v Union National Bank 1 F 2d 65 at 66 (3rd Cir 1924);
Continental National Bank v National City Bank 69 F 2d 312, 318–19 (9th Cir 1934).
160 Floating Dock Ltd v Hong Kong and Shanghai Banking Corporation [1986] 1 Lloyd’s Rep 65 at

76 cols 1–2 per Evans J; Astro Exito Navegacion SA v Chase Manhattan Bank NA, the Messiniaki
Tolmi [1986] 1 Lloyd’s Rep 455 at 458 col 2–459 per Leggatt J.
161 Thus, eg, a waiver of the failure to open a documentary credit in time (by a request for the

credit after the time for its opening has passed) will not waive the requirement that time is of the
essence in opening that credit—see Ian Stack v Baker Bosley Ltd [1958] 2 QB 130 at 144 per Diplock
J.
162 Skandinaviska Akt v Barclays Bank [1925] 22 Ll L R 523 at 525 col 1 per Greer J.
163 Midland Bank v Seymour [1955] 2 Lloyd’s Rep 147 at 168 col 2–171 col 1 per Devlin J, obiter.
164 Contrast paras 16.22 ff above.
 165 See Cresswell, Encyclopaedia of Banking Law at C:401; it is scarcely necessary to point out
that the elements of estoppel are necessary in this area.
166 Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1 WLR 1335 at 1341B–C per
Brightman J; see also TSB Bank of Scotland Plc v Welwyn Hatfield District Council [1993] 2 Bank LR
267.
167 Holland v Manchester and Liverpool District Banking Co Ltd [1909] 25 TLR 386 at 387 col 1
per Alverstone CJ; United Overseas Bank v Jiwani [1977] 1 All ER 733.
168 National Westminster Bank Ltd v Barclays Bank International Ltd [1975] QB 654.
169 Whether cheque, other bill of exchange or use of a PIN.
170 See Swan v North British Australasian Co [1863] 2 H & C 175; 159 ER 73 at 189–90; 79;
London Joint Stock Bank v Macmillan [1918] AC 777 at 793–4 per Lord Finlay LC; Greenwood v
Martins Bank Ltd [1933] AC 51 at 57–8, 59 per Lord Tomlin. See also Tina Motors Pty Ltd v
Australia and New Zealand Banking Group Ltd [1977] VR 205 at 208 ll 45–50 per Crockett J; Paget at
316–17; Byles at 275–6.
171 Customer in this sense may include the presentor of a bill (M’Kenzie v British Linen Co [1881]

6 App Cas 82); the holder of a promissory note (William Ewing & Co v Dominion Bank [1904] AC
806; Ogilvie v West Australian Mortgage and Agency Corpn Ltd [1896] AC 257 at 268 per Lord
Watson) but not consecutive holders of a bill (Scholfield v Earl of Londesborough [1986] AC 514).
The word ‘customer’ is used here as a generic term to cover such persons.
172 Brown v Westminster Bank Ltd [1964] 2 Lloyd’s Rep 187 at 200 col 1–203 col 2 per Roskill J.

Therefore, where the customer only discovers the last in a series of forged instructions but has
previously made a very clear representation that all the instructions were to be treated as valid, the
customer will be precluded from arguing that any of the instructions were forged.
173 [1918] AC 777.
174 At 834.
175 At 811 per Lord Finlay.
176 As to estoppel by negligence, see eg Greenwood v Martins Bank Ltd [1933] AC 51 at 57–8, 59

per Lord Tomlin; Brown v Westminster Bank Ltd [1964] 2 Lloyd’s Rep 187 at 200 col 1–203 col 2 per
Roskill J. As to circuity, see Swan v North British Australasian Co [1863] 2 H & C 175; 159 ER 73 at
189–90; 79.
177 See Wilson & Meeson v Pickering [1946] KB 422 at 425 per Lord Greene MR for a criticism of
the reliance on estoppel.
178 M’Kenzie v British Linen Co [1881] 6 App Cas 82.
179 William Ewing & Co v Dominion Bank [1904] AC 806; Ogilvie v West Australian Mortgage

and Agency Corpn Ltd [1896] AC 257 at 268 per Lord Watson.
180 The Guardians of Halifax Union v Wheelwright [1875] LR 10 Exch 183 at 191 per Cleasby B;
Lewes Sanitary Steam Laundry Co v Barclay & Co Ltd [1906] 95 LT 444 at 447 col 1; 448 col 2 per
Kennedy J.
181 Thus where the bank is itself in breach of the mandate or has concealed a material fact, that

breach will break the chain of causation and prevent circuity of action from arising—see George
Whitchurch Ltd v Cavanagh [1902] AC 117 at 145 per Lord Brampton; National Westminster Bank
Ltd v Barclays Bank International Ltd [1975] QB 654 at 676 per Kerr J; Secretary of State for
Employment v Wellworthy Ltd (No 2) [1976] ICR 13 at 25A per Nield J; Varker v Commercial
Banking Co of Sydney Ltd [1972] 2 NSWLR 967 at 976A–B per Macfarlan J.
182 Bank of England v Vagliano Bros [1891] AC 107 at 114 per Lord Halsbury LC; 126–7 per Lord
Selborne; 134 per Lord Watson; 159 per Lord McNaghten; Farquharson Bros & Co v King & Co
[1902] AC 325.
183 For the contractual analysis, see Commonwealth Trading Bank of Australia v Sydney Wide

Stores Pty Ltd [1981] 35 ALR 513 at 519 ll 30–5; 520 l 5–521 l 15; Bad Boy Appliances and Furniture
Ltd v Toronto Dominion Bank [1972] 25 DLR (3d) 257 at 261 ff; Arrow Transfer Co Ltd v Royal Bank
of Canada [1972] 27 DLR (3d) 81 at 87 per Martland J.
184 Bank of England v Vagliano Bros [1891] AC 107 at 117 per Lord Halsbury LC; at 123–4 per
Lord Selborne.
185 Tina Motors Pty Ltd v Australian and New Zealand Banking Group Ltd [1977] VR 205 at 210 ll
5–30 per Crockett J.
186 Joachimson v Swiss Bank Corporation [1921] 3 KB 110 at 127.
187 See Tai Hing Cotton Mill v Liu Chong Hing Bank Ltd [1986] AC 80 at 106E–107A per Lord
Scarman.
188 M’Kenzie v British Linen Co [1881] 6 App Cas 82 at 109, 111, 112 per Lord Watson.
189 The fact that those proceedings might hypothetically have failed is irrelevant for these

purposes—see M’Kenzie v British Linen Co [1881] 6 App Cas 82 at 110 per Lord Watson; Ogilvie v
West Australian Mortgage and Agency Corpn Ltd [1896] AC 257 at 270 per Lord Watson; Knights v
Wiffen [1870] LR 5 QB 660 at 666 per Blackburn J; Brown v Westminster Bank [1964] 2 Lloyd’s Rep
187 at 200 col 1–203 col 2 per Roskill J; Ontario Woodsworth Memorial Foundation v Grozbord
[1969] 4 DLR (3d) 194 at 202; but cf Imperial Bank of Canada v Bank of Hamilton [1903] AC 49 at
57 per Lord Lindley.
190 [1986] AC 80.
191 It appears that this duty is only breached if the customer has actual, as opposed to constructive,

knowledge—see Price Meats v Barclays Bank Plc [2000] 2 All ER (Comm) 346 per Arden J.
192 See Tai Hing at 108G–110C per Lord Scarman. A bank can arguably therefore protect its

position by inserting into the mandate a clear requirement that its customer verify all debits to the
account and notify the bank as soon as discrepancy occurs—Bad Boy Appliances and Furniture Ltd v
Toronto Dominion Bank [1972] 25 DLR (3d) 257 at 261 ff; Arrow Transfer Co Ltd v Royal Bank of
Canada [1972] 27 DLR (3d) 81 at 87 per Martland J.
193 London Joint Stock Bank v Macmillan [1918] AC 777 at 810 per Lord Finlay.
194 Fung Kai Sun v Chan Fui Hing [1951] AC 489 at 506 (PC). Therefore, the customer will be in

breach if its silence gives the forger the chance to escape and the customer was aware of the potential
dangers associated with the forger—Ogilvie v West Australian Mortgage and Agency Corp [1896] AC
257 at 269; 270.
195 Therefore, where a cheque was properly drawn save for one space, there was no breach
—Colonial Bank of Australia v Marshall [1906] AC 559; London Joint Stock Bank v Macmillan
[1918] AC 777 at 814–15 per Viscount Haldane.
196 Slingsby v District Bank Ltd [1931] 2 KB 588 at 602 per Wright J.
197 Brewer v Westminster Bank [1952] 2 All ER 650 at 655E–G; 656E–F per McNair J; Welch v
Bank of England [1955] Ch 508 at 537 per Harman J.
198 Lewes Sanitary Steam Laundry Co v Barclay & Co Ltd [1906] 95 LT 444 at 448 cols 1–2 per

Kennedy J.
199 Keptigalla Rubber Estates v National Bank of India [1909] 2 KB 1010 at 1023–6 per Bray J;
Morison v London County and Westminster Bank [1913] 18 Comm Cas 137 at 145 per Lord Coleridge
J.
 200 Wealden Woodlands (Kent) Ltd v National Westminster Bank Ltd [1983] 133 NLJ 719 (unless
the customer is a sophisticated commercial entity that is expected to monitor its finances strictly
—Canadian Pacific Hotels Ltd v Bank of Montreal [1981] 122 DLR (3d) 519 at 532 per Mongomery
J).
201 The plea could be one of either estoppel by convention or estoppel by representation.
202 Bank of Scotland v Wright [1991] BCLC 244 at 265a–b per Brooke J.
203 ibid at 266g per Brooke J, applying Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC
993 at 1015 per Viscount Radcliffe.
204 Lowe v Lombank Ltd [1960] 1 WLR 196 at 205–6 per Diplock J (for CA).
205 Raiffeisen Zentralbank Österreich AG v The Royal Bank of Scotland Plc [2010] EWHC 1392
(Comm); [2011] 1 Lloyd’s Rep 123; [2011] Bus LR D65 per Clarke J at paras 250–70. See also
Springwell Navigation Corporation v JP Morgan Chase Bank [2010] EWCA Civ 1221 at paras 141–
86; Titan Steel Wheels Ltd v The Royal Bank of Scotland Plc [2010] 2 Lloyd’s Rep 92; [2010] EWHC
211 (Comm) at paras 87–92.
206 See further paras 13.15 ff.
207 See Lowe v Lombank [1960] 1 WLR 196.
208 Thus, eg, an estoppel will not arise between the collecting and issuing bank of a cheque:

Marquess of Bute v Barclays Bank Ltd [1955] 1 QB 202 at 213–14 per McNair J; Orbit Mining and
Trading Co v Westminster Bank Ltd [1963] 1 QB 794 at 827–9 per Harman LJ. Similarly, it is not
possible to suggest that the operation of clearing houses is assisted by estoppel (see Barclays Bank v
Bank of England [1985] 1 All ER 385 at 391e–h; 392d–g; 394b–e per Bingham J).
209 Bills of Exchange Act 1882, s 54(2).
210 ibid s 55(2).
211 ibid s 66(1).
212 Goodwin v Robarts [1876] 1 App Cas 476 at 489–90 per Lord Cairns LC; Easton v London

Joint Stock Bank [1886] 34 ChD 95 at 113–14 per Bowen LJ.

213 Easton v London Joint Stock Bank [1886] 34 ChD 95 at 113 per Bowen LJ; Colonial Bank v

Cady and Williams [1890] 15 App Cas 267 at 285 per Lord Herschell.
214 France v Clark [1884] 26 ChD 257 at 262 per Lord Selborne LC; Lloyds Bank v Cooke [1907] 1
KB 794 at 800 ff per Lord Collins MR; 804–5 per Cozens-Hardy LJ; Lilly v Farrar [1908] 17 QRBR
554.
215 See para 16.18 above.
216 Farquharson Bros & Co v King & Co [1902] AC 325 at 330 per Lord Halsbury. See also

Brocklesby v Temperance Permanent Building Society [1895] AC 173; Rimmer v Webster [1902] Ch
163; Lloyds Bank v Cooke [1907] 1 KB 794; Smith v Prosser [1907] 2 KB 735.
217 Smith v Prosser [1907] 2 KB 735 at 749 per Vaughan-Williams LJ; 752–3 per Fletcher Moulton

LJ; 755 per Buckley LJ.

218 Colonial Bank v Cady and Williams [1890] 15 App Cas 267 at 285 per Lord Herschell; Fuller v

Glyn Mills & Co [1914] 2 KB 168 at 176–7 per Pickford J.

219 219 Smith v Prosser [1907] 2 KB 735 at 746 per Vaughan Williams LJ.
220 See In re Goldcorp [1995] 1 AC 74 at 94G–H per Lord Mustill.
221 See para 17.48 above.
222 Kydon Cia Naviera SA v National Westminster Bank Ltd, The Lena [1981] 1 Lloyd’s Rep 68 at

79 col 2–80 col 1 per Parker J; European Asian Bank AG v Punjab and Sind Bank [1983] 1 WLR 642
at 661 per Robert Goff LJ.
 223 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.
224 Skyring v Greenwood [1825] 4 B & C 281; 107 ER 1064 at 289–90; 1066–7 per Abbott CJ.
225 See National Westminster Bank Ltd v Barclays Bank International Ltd [1975] QB 654 at 662F–

G per Kerr J and para 17.55 above.

226 See paras 17.56 ff above.
227 There was also an obvious input from estoppel by representation principles—the estoppel being

evidential in nature and permitting of no remedial flexibility—see Avon CC v Howlett [1983] 1 WLR
605 at 624D–E per Slade LJ. However, it is important to note that prorating was not argued in Howlett
and that all three Lord Justices reserved the question of whether prorating might occur in an
appropriate case: see 611C–D, 611G–612B per Everleigh LJ; 620H–621A per Slade LJ; at 622B–C per
Slade LJ; at 609E–F per Cumming Bruce LJ. As to whether estoppel by representation can operate pro
tanto see para 17.71 below and paras 9.109 ff above.
228 See eg Skyring v Greenwood [1825] 4 B & C 281; 107 ER 1064 at 289–90; 1066–7 per Abbott
CJ; Holt v Markham [1923] 1 KB 504 at 511 per Bankes LJ; 514–15 per Scrutton LJ.
229 Thus, eg, in National Westminster Bank Ltd v Barclays Bank International Ltd [1975] QB 654,

the Court held that no representation capable of founding an estoppel was made where a bank pays on
a forged instrument (at 672D–F per Kerr J) even where the cheque was presented for special
collection (at 675 per Kerr J).
230 See Lloyds Bank v The Hon Cecily K Brooks [1950] 6 Legal Decisions Affecting Bankers 161 at

169 per Lynskey J (where the comparative blameworthiness of the parties was examined) and United
Overseas Bank v jiwani [1976] 1 WLR 964 at 968; 970 (where a duty-based analysis was applied).
231 [1991] 2 AC 548.
232 At 578G–579E per Lord Goff.
233 eg, payment to third party from whom no recovery can be made—Deutsche Bank (London

Agency) v Beriro & Co [1895] 73 LT 669—or investment in a company which has gone into
liquidation—Holt v Markham [1923] 1 KB 504.
234 At 580F–G per Lord Goff; South Tyneside MBC v Svenska International Plc [1995] 1 All ER

545 at 565f–g per Clarke J.

235 Larner v LCC [1949] 2 KB 683 at 688–9 per Lord Denning MR (an analysis based on estoppel
by negligence reasoning which, however, accords with the rules applicable to change of position).
236 For more detailed consideration, reference should be had to the standard restitution textbooks

—in particular Goff & Jones.

237 At 579E per Lord Goff.
238 See Westdeutsche Landesbank Girozentrale v Islington London BC [1994] 4 All ER 890 at 948

per Hobhouse J.
239 See Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 at 579F per Lord Goff.
240 ibid at 580C per Lord Goff.
241 Necessary in deciding whether or not it is just for the defendant to retain the monies.
242 Necessary to establish that there was an estoppel by negligence.
243 See Lloyds Bank v The Hon Cecily K Brooks [1950] 6 Legal Decisions Affecting Bankers 161 at

169 per Lynskey J and compare United Overseas Bank v Jiwani [1976] 1 WLR 964 at 968; 970.
244 244 Given the expansive nature of the restitutionary jurisdiction, it may well be that there are a

limited number of cases where change of position does not apply. It was once thought that there was a
possibility that it would not apply where there was anticipatory but not actual receipt—see Peter
Jaffey, ‘Change of Position and Estoppel’ [2002] LMCLQ 1 at 6. Given, however, the Privy Council
decision in Dextra Bank v Bank of Jamaica (Privy Council, 26 November 2001) at para 38, it now
appears clear that change of position will apply in cases of anticipatory receipt.
245 [2001] 3 All ER 818; [2001] EWCA Civ 369.
246 [2002] 1 All ER 198; [2001] EWCA Civ 198.
247 Applying Avon CC v Howlett [1983] 1 WLR 605.
248 At para 44. It appears that the Court in National Westminster Bank Plc v Somer International

Ltd [2002] 1 All ER 198 adopted a similar view of Avon CC—see paras 40; 55; 67 per Potter; Clarke
and Peter Gibson LJJ respectively.
249 See paras 9.116 ff above.
250 At para 49.
251 At paras 45–7; see also Peter Jaffey, ‘Change of Position and Estoppel’ [2001] LMCLQ 1; E

Fung and L Ho, ‘Establishing estoppel after the recognition of change of position’ [2001] RLR 52.
252 See paras 9.10–12 above.
253 [2002] 1 All ER 198; [2001] EWCA Civ 970.
254 At paras 40, 47 per Potter LJ; paras 58–60 per Clarke LJ.
255 See paras 7.09 and 9.121 above.
256 See paras 7.09 ff above; see Roger Halson, ‘The Offensive Limits of Promissory Estoppel’

[1999] LMCLQ 256 at 270; Professor Jack Beatson QC and G Virgo, ‘Contract, unjust enrichment and
unconscionability’ [2002] 118 LQR 352.
257 At para 9.123 above.
 1 For a full discussion of the difficulties, reference should be made to Hudson, chapters 3, 4, 6 and
8.
2
Hudson, paras 3.19–3.20 at p 389. eg, the general obligation will be to construct a building, and
the specification will set out the depth at which the foundations have to be laid or refer to the
drawings from which the works will be carried out.
3 By way of contrast, the contract will rarely set out a mechanism by which the general obligations
assumed in the contract may be altered.
4 See Hudson, para 1.023, p 28; paras 5.022 ff, p 783. Where the distinction is said to be as
between variation of the terms of the contract and variation of the scope of work.
5 See eg Williams v Fitzmaurice [1858] 3 H & N 844; Re Walton on the Naze Urban District
Council and Moran [1905].
6 See paras 2.43 ff above.
7 eg, as a mechanism for approaching the considerable case law in this area.
8 ie where the contractor has agreed to carry out a particular set of works, it will be taken to have

impliedly agreed to do everything necessary to carry out those works and to have assumed the risks
associated with said carrying out (see eg Tharsis Sulphur & Copper Co v McElroy & Sons [1878] 3
App Cas 1040 at 1054 per Lord Blackburn). Therefore, where the contractor agrees to construct a
railway for a lump sum, it will be taken to have agreed to carry out the excavation works required to
build that railway even if those works are far greater than originally envisaged—see Sharpe v San
Paulo Rly [1873] LR 8 Ch App 597.
9 Therefore, subject to Williams v Roffey [1991] 1 QB 1 discussed at paras 2.18 ff above, the work

to be carried out cannot be remedial. As remedial works, ex hypothesi, are to remedy the defective
performance of the contract, a contractor agreeing to carry out remedial works is merely agreeing to
carry out that which it was already obliged to carry out, namely to complete the works in a good and
workmanlike fashion.
10 Watson Lumber Co v Guennewig 226 NE (2d) 270 [1967] Ap Ct IL.
11 This conclusion is subject to there being some provision in the contract allowing for such a

claim.
12 See McAlpine Humberoak Ltd v McDermott International [1992] 58 BLR 1 at 28; Boyajian v US

423 F (2d) 1231 [1970].

13 See paras 2.43 ff above.
14 [1862] 13 CBNS 149, 143 ER 59.
15 Per Byles J at 199–200, 80–1. See also Attorney-General v McLeod [1893] 14 NSWLR 246 at
251. More recent jurisprudence, outwith the construction context, suggests that a written variation
clause which provides that variations will be ineffective unless agreed in writing does not prohibit
consensual oral variation. See World Online Telecom Ltd v I-Way Ltd [2002] EWCA Civ 413 per
Sedley LJ at paras 6–11. There the common law position was compared to that under the United
States Uniform Commercial Code, which provides, at section 2-209(2): ‘An agreement in a signed
record which excludes modification or rescission except by a signed record may not be otherwise
modified or rescinded… ’; Spring Finance Ltd v HS Real Company LLC [2011] EWHC 57 (Comm)
per HHJ Mackie QC (obiter) at para 53 ‘My first impression, having heard the submissions of
Counsel, was that there could in theory be an oral variation, notwithstanding a clause requiring that to
be in writing, but that the court would be likely to require strong evidence before reaching such a
finding.’ It is submitted that the effect of such a clause is not to prohibit consensual oral variation but
to raise a rebuttable presumption that, in the absence of writing, there has been no variation. The
presumption will be rebutted only by strong evidence that both parties intended to vary the terms of
the contract. See also Hudson at para 5.055.
16 The Courts may also find that the employer has waived its rights arising from the

noncompliance with the contractual provisions governing variation—see paras 19.13 ff below.
17 See Liebe v Molloy [1906] 4 CLR 347 at 354.
18 See Lamprell v Billericay Union [1849] 18 LJ Ex 282; Blue Circle Industries Plc v Holland
Dredging Co [1987] 37 BLR 40.
19 See Brown v Lord Rollo [1831] 10 S 667.
20 See The Olanda [1919] 2 KB 728; see Goff & Jones at 48–50.
21 The difficulty being that if the contractor carries out work, the employer may be physically
unable to refuse to accept the benefit of that work. Thus, the employer’s conduct may not be unjust so
as to found a restitutionary claim.
22 See eg Watson v O’Beirne [1850] 7 Up Can QB 345. Air-a-Plane Corp v US 408 F (2d) 1030 at
1033: ‘The basic standard… is whether the modified job was essentially the same work as the parties
bargained for when the contract was awarded.’
23 See eg Hansen and Yuncken v Chadmix Plastics [1985] BCLR 52, where a variation to the scope

of the works repudiated the subcontract.

24 It may be said that the effect of this argument is to bypass the established provisions of, eg, the

ICE or JCT Contracts. It is submitted that since these cases only arise where the ICE and JCT
requirements have not been complied with, that objection has more form than substance.
25 A non-consensual variation, whether repeated or not, may also constitute a repudiation of the

contract.
26 [1792] 1 Peake NP 139 at 140.
27 ie, the importance that may attach to a change to any one obligation.
28 ie, the number of obligations which have changed.
29 Which occurs in all variations—see para 2.40 above.
30 As with other non-waiver or entire agreement clauses, a non-waiver clause in this context may

be bypassed—see Deepak Fertilisers and Petrochemical Corp v ICI Chemicals & Polymers Ltd
[1999] 1 Lloyd’s Rep 387; Sere Holdings Ltd v Volkswagon Group United Kingdom Ltd [2004]
EWHC 1551 and Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153; compare, however, McGrath v
Shah (1989) 53 P & CR 452 and the recent trend towards giving ‘boiler plate’ clauses like entire
agreement clauses full force and effect—see eg Springwell Navigation Corp v JP Morgan Chase Bank
[2010] EWCA Civ 1221; Axa Sun-Life Services Plc v Campbell Martin Ltd [2011] EWCA Civ 133.
Further, as the Court recognised in Lloyd, such clauses may preclude a waiver (or estoppel). Whether
they do so, is fact dependent—see Jet2.Com Ltd v Blackpool Airport Ltd [2010] EWHC 3166 at [40]
per Beatson J.
31 See Chapter 4, passim.
32 However, see Hudson 1.081 where the authors appear to suggest that for there to be a waiver

there must be a change of position on the part of the representee. This is incorrect.
33 MR Hornibrook v Eric Newham [1971] 45 AJLR 523.
34 Meyer v Gilman [1899] 18 NZLR 129.
35 Indeed, a Court may well readily find that the employer is precluded from relying on

noncompliance with the contractual mechanism for approving variations as a defence to a claim by
the contractor for monies arising from those variations—see Hudson 5.063–5.064.
36 See Hudson 8.059–8.060.
37 Thornhill v Neats [1860] 8 CB NS 831.
 38 See Mitsui Babcock Ltd v John Brown Engineering Ltd [1997] 51 Con LR 129 at 185 ff per HHJ
Esyr Lewis QC.
39 Absent express agreement to the contrary.
40 See para 4.08 above for analogous examples.
41 See Clayton v Woodman & Son Ltd [1962] 1 WLR 585.
42 AMF International Ltd v Magnet Bowling [1968] 1 WLR 1028 at 1053 per Mocatta J. Thus the

fact that the architect or engineer fails to notice defective works and is thereby in breach of its
obligations to the employer cannot confer the benefit on the contractor of exempting that contractor
from liability: East Ham Corporation Council v Bernard Sunley [1966] AC 406 at 444 per Lord Reid.
43 It is to be noted that the limit on the architect’s or engineer’s authority arises more as a matter
of policy than of strict legal analysis.
44 The alternative, and more difficult, way of putting this argument is to suggest that the architect
or engineer is not the employer’s agent to know for this specific purpose. Therefore, the architect’s or
engineer’s knowledge of the defects will not be imputed to the employer and there will be no waiver
of the employer’s rights—see Chapter 16, passim.
45 See paras 4.23 ff above.
46 See para 5.07 above.
47 Or a section of them.
48 See Platt v Parker [1886] 2 TLK 786.
49 See Hudson 8.059.
50 See eg Walker v North Western Railway [1876] 1 CPD 518; Ex p Newitt re Garrud [1881] 16

ChD 522.
51 See Cooper v Uttoxeter Burial Board [1864] 11 LT 565.
52 See para 6.09 above.
53 See para 19.21 below.
54 As pointed out in Chapter 15, estoppel is used in the sense of estoppel by representation,

estoppel by convention and equitable forbearance unless the contrary is expressly stated.
55 See Hudson 1.080.
56 Ata Ul Haq v City Council of Nairobi [1985] 28 BLR 29.
57 AMF International Ltd v Magnet Bowling [1968] 1 WLR 1028 at 1053 per Mocatta J.
58 Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008] EWHC 1016 (TCC) per Ramsey J, at

para 192; Jones Engineering Services Ltd v Balfour Beatty Building Ltd [1992] 42 Con LR 1 per Hirst
J at 11–12.
59 Acme Investments v York Structural Steel [1974] 9 NBR (2d) 699—employer’s agent represents

that steel roof can be altered to make cost savings—employer is estopped from claiming damages
arising from said alteration.
60 Update Construction Ltd v Rozelle Child Care Centre [1990] 9 ACLR 66—variations to works

to be in writing, employer’s agent notified of variations orally and agreed that payment would be
made—employer estopped from denying liability to pay for the variations.
61 [1997] 51 Con LR 129 at 185 ff per HHJ Esyr Lewis QC. In this case an estoppel of the most

general kind was relied on (at 186) making analysis of the type of estoppel in play difficult (the Court
may have been applying principles set out in Panchaud Frères—see Chapter 13 passim) and placing
particular emphasis on the question of fairness.
62 Haden Young Ltd v Laing O’Rourke Midlands Ltd [2008] EWHC 1016 (TCC) per Ramsey J at

paras 165–92; Stent Foundations Ltd v Carillion Construction 78 Con LR 188 per Dyson J at 198. See
also the reasoning of the Court of Appeal in Baird Textiles v Marks & Spencer Plc [2002] 1 All ER
(Comm) 737 and SmithKline Beecham Plc v Apotex Europe [2006] 4 All ER 1078.
 1 Brook v Trafalgar Insurance Co Ltd (1947) 79 Ll L R 265 at 367, a dictum on waiver which, it is
submitted, is of general application.
2 Often pleaded and argued as if it was synonymous with estoppel.
3 [2008] EWCA Civ 147; [2008] Bus LR 931.
4 See Clarke 20.7A n 1; Barratt (Bros) v Davies [1966] 2 Lloyd’s Rep 1 at 5 per Lord Denning MR.

Contrast Garnet Trading & Shipping (Singapore) Pte Ltd v Baominh Insurance Corporation [2010]
EWHC 2578 at [135].
5 See para 3.15 above; Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068; [2002]
2 All ER (Comm) 896; [2002] 2 Lloyd’s Rep 487 at [64] per Potter LJ. In an insurance context, see eg
Shapiro v Shapiro 701 SW 2d 205 (Mo App 1985) at 206; Insurance Corporation of the Channel
Islands v The Royal Hotel Ltd [1998] LRLR 151 at 162 col 1–163 col 1 per Mance J (as he then was);
National Insurance and Guarantee Corpn Plc v Imperio Reinsurance Co (UK) Ltd [1999] LRLR 249
at 258 col 2 per Colman J; Baghbadrani v Commercial Insurance Co Plc [2000] LRLR 94 at 122 col
2–123 col 1 per HHJ Gibbs QC; Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008]
EWCA Civ 147; [2008] Bus LR 931 at [33] ff per Rix LJ.
6 Brown at 387 col 1 per Robertson J.
7 See Saunders v Lloyds of London 779 P 2d 249 (Wash 1989) at 254 col 2 per Utter J; see also

Pitts v American Security Life Insurance Co 931 F2d 351 (5th Cir 1991) at 357per Duhé CJ; Intel
Corpn v Hartford Accident and Indemnity Co 692 F Supp 1171 at 1179 (ND Cal 1988); Federated
Service Insurance Co v Granados 889 P 2d 1312 (1995).
8 Misssisippi-Fox Drainage District v Plenge 735 SW 2d 748 (Mo App 1987) at 754; Farm Bureau

Mutual Automobile Insurance Co v Houle 118 Vt 1545; 102 A 2d 326 (1954) at 330; see also
Buchanan v Switzerland General Insurance Co 455 P 2d 344 (1969); McDaniels v Carlson 738 P 2d
2554 (1987).
9 See Chapter 3 passim.
10 See para 20.63 below.
11 Garnat Trading & Shipping (Singapore) Pte Ltd v Baominh Insurance Corporation [2010]

EWHC 2587 at [135].

12 Beatty v Mutual Reserve Fund Life Association 75 F 65 (1896) at 69 per Hawley DJ.
13 Teasdell v Sun Life Assurance Co of Canada (1927) 2 DLR 502 at 509 per Riddell JA; DS Ashe

Trucking Ltd v Dominion Insurance Corpn (1966) 56 DLR (2d) 730 at 745 per Tysoe J.
14 See eg Alexander v Standard Accident Insurance Co Detroit Michigan 122 F 2d 995 (1941) at
997 col 2 per Huxman CJ: ‘Strictly speaking, the inability of a party to an action to assert as a defense
a right given by a contract does not arise from a waiver thereof, but from estoppel resulting from a
waiver. Mere failure to insist on a right or taking affirmative steps which would not be required until
the other party to the contract had performed a condition required of him will of itself work an
estoppel. It is only when the waiver causes the other party to the contract to change his position to his
detriment which he would not have done save for his reliance upon the conduct of the other party, that
an estoppel results.’
15 See J Kirkaldy & Sons Ltd v Walker [1999] LRLR 410 at 422 col 2–423 col 1 per Longmore J

(as he then was). This waiver by estoppel is, when analysed, an equitable forbearance—see paras 3.10
ff above. This ability to fail on waiver and succeed on an equitable forbearance will now frequently
arise in insurance law as a result of a series of decisions where the Courts have found that there can be
no waiver where there has been a breach of warranty and of condition precedent and, for differing
reasons, a non-disclosure—see paras 20.14 ff below.
 16 Equitable Life Assurance Society v McElroy 83 F 631 (1897) at 683 per Sanborn CJ; Spoeri v
Massachusetts Mutual Life Insurance Co 39 F 752 (1889) at 753 per Thayer J; Barratt (Bros) v
Davies [1966] 2 Lloyd’s Rep 1 at 5 per Lord Denning MR.
17 Union Life Insurance Co v Brewer 309 SW 2d 740 (1958) at 743 col 2–744 col 1 per Holt J; see
also American Life Assocation v Vaden 261 SW 320 (1924) at 324; American Insurance Union v
Benson 291 SW 1007 (1927) at 1011.
18 See Craine v Colonial Mutual Fire Insurance Co (1920) 28 CLR 305 at 327 per Isaacs J; Brown
v State Farm Mutual Automobile Insurance Co SW 2d 384 (Mo banc 1989) at 386 col 2 per Robertson
J; Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (‘The Kanchenjunga’)
[1990] 1 Lloyd’s Rep 391 at 399 col 2 per Lord Goff.
19 See Brown v State Farm Mutual Automobile Insurance Co SW 2d 384 (Mo banc 1989) at 388 col
1 per Robertson J.
20 See Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus
LR 931 at [33] ff per Rix LJ.
21 Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ; Liberian Insurance

Agency Inc v Mosse [1977] 2 Lloyd’s Rep 560 at 565 per Donaldson J.
22 Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton Atkinson LJ.
23 Chapter 8, Equitable Forbearance at 8.03.
24 See paras 4.01 ff above.
25 See paras 4.28 ff; 4.36 ff above.
26 Defined at paras 4.36 ff above.
27 Defined at paras 4.28 ff above.
28 Henthorn v Fraser [1892] 2 Ch 27 (CA) at 33 per Lord Herschell.
29 See Taylor v Allon [1966] 1 QB 305 at 311 per Lord Parker CJ, obiter.
30 The waiver described would probably also be an estoppel—the detrimental reliance being taking

the car out onto the road.

31 For instance, if it fails to state the risk assumed or the period of insurance.
32 See eg Walford v Miles [1992] 2 AC 128.
33 At paras 21.14–26; 21.29; and 21.32 ff.
34 In HIH Casualty & General Insurance Ltd v AXA Corporate Solutions [2002] EWCA Civ 1253;

[2002] 2 All ER (Comm) 1053, the Court proceeded on the basis that a waiver by election could not
apply to a breach of warranty but did not directly consider the point.
35 [2008] EWCA Civ 147; [2008] Bus LR 931. See also Argo Systems FZE v Liberty Insurance

(Pte) [2011] EWHC 1111 at [25].

36 [2008] EWHC 1170; [2009] 1 All ER (Comm) 35; [2009] 1 Lloyd’s Rep IR 1.
37 Kosmar at [33] ff per Rix LJ; Lexington at [52]–[63] per Clarke J.
38 See eg Lexington Insurance Co v Multinacional de Seguros [2009] EWHC 1170; [2009] 1 All

ER (Comm) 35; [2009] Lloyd’s Rep IR 1 at [52]–[63] per Clarke J.

39 [1992] 1 AC 233.
40 Kosmar at [33] ff.
41 As to the distinction between conditions and warranties, see Glencore International AG v Ryan

(‘The Buersgracht’) [2001] EWCA Civ 2051.

42 Allen v Robles [1969] 2 Lloyd’s Rep 61 at 63–4 per Fenton-Atkinson LJ. See also paras 7.02 ff

above.
 43 [1989] 2 Lloyd’s Rep 277.
44 At 287 col 2. See also Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 301 where the
Court having held that a breach of warranty could only trigger an estoppel not a waiver went on to
analyse and find that there was a separate waiver by election. The Court did not, however, explain
why this was the case.
45 As discussed below there could be still be an equitable forbearance. It must be emphasised this
reasoning applies to cases of breach of warranty and of condition precedent—there can still be
affirmation in cases of non-disclosure—see Wise (Underwriting Agency) Ltd v Grupo Nacional
Provincial SA [2004] EWCA Civ 962 at [82] ff.
46 [2004] EWCA Civ 962.
47 As the Court pointed out in Wise, as a matter of analysis, it is incorrect to refer to a ‘waiver of
non-disclosure’ as where s 18(3)(b) applies there is nothing to disclose and as such no scope for a
non-disclosure (at [45]). The phrase ‘waiver of non-disclosure’ is, however, well established and for
convenience’ sake is still used here.
48 At [46] per Rix LJ; at [109] ff per Longmore LJ; at [130] per Peter Gibson LJ. Their Lordships

agreed on the role of fairness but disagreed as to whether the question of waiver was inextricably tied
into the question of fairness—with Rix LJ in the minority.
49 Described as a ‘waiver by estoppel’—see Kosmar Villa Holidays Plc v Trustees of Syndicate

1243 [2008] EWCA Civ 147; [2008] Bus LR 931 at [33] ff applying J Kirkaldy & Sons Ltd v Walker
[1999] Lloyd’s Rep IR 410 per Longmore J; Brownsville Holdings Ltd v Adamjee Insurance Co Ltd
(The Milasan) [2000] 2 Lloyd’s Rep 458 at 467 per Aikens J; Agipatos Laiki Bank (Hellas) SA v
Agnew (No 2) [2002] EWHC 1558; [2003] Lloyd’s Rep IR 542 at [66] per Moore-Bick J.
50 Clarke at 20.7A.
51 See eg P Samuel & Co v Dumas [1924] AC 431 at 442 per Viscount Cave.
52 See, in particular, Chapter 4 passim.
53 As to which see Chapter 16 passim.
54 See paras 4.18 ff above and 20.39 below. Specific to the insurance context—see Insurance

Corporation of the Channel Islands v The Royal Hotel Ltd [1998] LRLR 151 at 162 col 1–163 col 1
per Mance J (as he then was); National Insurance and Guarantee Corpn Plc v Imperio Reinsurance
Co (UK) Ltd [1999] LRLR 249 at 258 col 2 per Colman J; Baghbadrani v Commercial Insurance Co
Plc [2000] LRLR 94 at 122 col 2–123 col 1 per HHJ Gibbs QC.
55 McCormick and another v National Motor and Accident Union Ltd (1934) 49 Ll L R 361 at 365

col 2 per Scrutton LJ; see also Melik & Co v Norwich Union [1980] 1 Lloyd’s Rep 523 at 534 col 1
per Woolf J. This requirement obviously permits some form of investigation—see Baghbadrani v
Commercial Insurance Co Plc [2000] LRLR 94 at 122 col 2–123 col 1 per HHJ Gibbs QC.
56 See Insurance Corporation of the Channel Islands v The Royal Hotel Ltd [1998] LRLR 151 at
162 col 1–163 col 1 per Mance J (as he then was); National Insurance and Guarantee Corporation v
Imperio Reinsurance Co (UK) Ltd [1999] LRLR 249 at 258 col 2 per Colman J.
57 P Samuel v Dumas [1924] AC 431 at 476; at 483 per Lord Sumner.
58 cf in New York and Missouri, state law requires an insurer to state all the grounds on which it
seeks to avoid the policy as soon as possible after discovery of said grounds, absent such a statement,
silence will equate to a delay which will prevent the insurer from raising those points—see Allstate
Insurance Company v Flaumenbaum 308 NYS 2d 447 (1970) at 456–8 per Levy J; Consolidated
Electrical Cooperative v Employers Mutual Liability Insurance Co 106 F Supp 322 (1952) at 331 col
1 per Hulen DJ; Salerno v Western Casualty & Surety Co 336 F 2d 14 (1964) at 17 col 2 per Ridge CJ;
Boston Old Colony Insurance v Lumbermans Mutual Casualty Company 889 F 2d 1245 (2nd Cir 1989)
at 1247 col 2 per Feinberg J; Dependable Janitorial Services Inc v Transcontinental Insurance Co 622
NYS 632 (1995); In re Balfour Maclaine International Ltd 873 F Supp (1995).
59 See Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ. It is submitted that

the reference to the insured being ‘prejudiced’ by the delay shows that the Court was, in fact, relying
on an equitable forbearance—see para 8.03 above.
60 See, however, Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 1111 at [41] where a
particularly long silence against the background of other positive acts amounted to a sufficient
representation.
61 See Accident Insurance Co v Young (1891) 20 SCR 280; State Farm Mutual Automobile
Insurance Co v Elgot 369 NYS 2d 719 (1975) at 721 per Stevens PJ; see also Scali McCabe Sloves Inc
v North River Insurance Co 532 F Supp 203 (1981) at 207 per Sweet DJ; FDIC v Duffy 47 F 3d 146
(1995).
62 See para 20.86 below.
63 See Charter Reinsurance v Fagan [1996] 2 WLR 76; Arbuthnott v Fagan (1993) CA, unrep

transcript 1024 per Sir Thomas Bingham MR and Steyn LJ; The Antaios [1985] AC 191 at 200–1 per
Lord Diplock; Reardon Smith Line v Hansen Tangen [1976] 1 WLR 989 at 996 per Lord Wilberforce;
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 at 251 per Lord Reid.
64 See eg Svenska Handelsbanken v Sun Alliance and London Insurance Plc [1996] 1 Lloyd’s Rep

519.
65 See National Insurance and Guarantee Corpn Plc v Imperio Reinsurance Co (UK) Ltd [1999]

LRLR 249 at 259 col 1 per Colman J.

66 Beatty v Mutual Reserve Fund Life Association (1896) 75 F 65 at 72 per Hawley DJ; see also

Phoenix Mutual Life Insurance Co v Raddin 120 US 183 (1886) at 196.

67 Wing v Harvey (1845) 5 De G & M 265; 43 ER 872; Hemmings v Sceptre Life Ass Ltd [1905] 1

Ch 365 at 369–70 per Kekewich J; Armstrong v Turquand (1858) 9 Ir CL Rep 32; General Accident v
Campbell (1925) 25 Ll L R 151 at 158.
68 Simpson v Accidental Death Co (1857) 2 CB (NS) 257 at 292–3.
69 See Tennant v Travellers Insurance Co (1887) 31 F 322.
70 Edge v Duke (1848) 18 LJ Ch 183; Neal v Gray 52 SE 622 (1905); London & Lancs Life Ass v
Fleming [1897] AC 499.
71 Redmond v Canadian Mutual Aid Association (1891) 18 OAR 335 at 340 per Burton JA.

However, in certain US states, acceptance of late payment in one year will constitute a waiver of the
insurer’s right to avoid for late payment in future years—see Saunders v Lloyd’s of London 779 P 2d
249 (Wash 1989) at 254 col 1 per Utter J.
72 Duncan v Missouri State Life Insurance Co (1908) 160 F 646 at 648 per Hook CJ.
73 (1872) LR8 Ex 197.
74 At 205 per Honyman J.
75 As only the type of unequivocal representation necessary to found a waiver is being considered,

the fact that the jury was being asked to consider waiver by election in the context of a non-disclosure
(which would constitute a further basis for distinguishing Morrison—see para 20.16 above) can be
parked.
76 The Sulphite Pulp Company Limited v Faber & Anor (1895) 1 Comm Cas 143 at 153–4 per Lord

Russell CJ; Svenska Handelsbanken v Sun Alliance and London Assurance Plc [1996] 1 Lloyd’s Rep
519 at 569 col 1 per Rix J.
 77 Hadenfayre v British National Insurance Society Limited [1984] 2 Lloyd’s Rep 393 at 400 col 2
per Lloyd J.
78 Roberts v Security Company Ltd [1897] 1 QB 111 at 114–15 per Lord Esher MR; 115; 116 per
Lopes LJ.
79 Western Assurance Company v Provincial Insurance Company (1880) 5 OAR 190 at 192–3 per
Burton JA.
80 One effect of such clauses should prevent the issue of the policy from constituting any form of
unequivocal representation—see Clarke 13.11A.
81 Forsikringsaktieselskapet Vesta v Butcher (No 1) [1989] 1 All ER 402 at 413b per Lord Lowry.
82 Alexander v Standard Accident Insurance Co Detroit Michigan 122 F 2d 995 (1941) at 997 col
1; 998 col 1 per Huxman J; Boyer v American Casualty Company 332 F 2d 708 (1964); see also Globe
Savings Co v Employers’ Liability Assurance Co (1900) 13 Man R 531.
83 Donnison v Employer’s Accident and Life Stock Insurance (1897) 24 R 681.
84 King v Commercial Union Insurance Company of New York 306 F Supp 9 (1969) at 11 per

Woodward DJ. See Sproul v National Fire Insurance Co (1925) 1 DLR 1152 at 1155–8 per Harris CJ.
85 James v Royal Insurance Co (1907) 10 NZ Gaz LR 244; Canada Landed Credit v Canada

Agricultural (1870) 17Grant 418; Kiamie v Equitable Life Insurance Co 44 NYS 2d 510 (1943).
86 See, by analogy, Southland Corporation v Mir 748 F Supp 969 (1990)—a two-month

investigation by the franchisor into a credit card fraud on the part of the franchisee was not a waiver
of the franchisor’s right to terminate the franchise.
87 The position may be different in the US—see Lee v Casualty Corporation of America 90 Conn

202 (1916); United States Fidelity & Guarantee Co v Bimco Iron & Metal Corpn 464 SW 2d 353
(1971).
88 Fortisbank SA v Trenwick International Ltd [2005] EWHC 399 at [50]; Inframatrix Investments

Ltd v Dean Construction [2011] EWHC 1947 at [62].

89 Kosmar Villa Holidays Plc v Svenska Sun Alliance [2007] EWHC 458 at [75]–[80]—not

challenged on appeal and citing Svenska v Sun Alliance [1996] 1 Lloyd’s Rep 519 at 567–9.
90 [1971] 2 Lloyd’s Rep 332.
91 A contention drawn from the then current edition of MacGillivray.
92 At 339 col 2.
93 At 339 col 2–340 col 1. Soole remains good law—see Kosmar Villa Holidays Plc v Trustees of

Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR 931 at [69].
94 The former is the application of Soole supra the latter the application of Kosmar supra.
95 McCormick and another v National Motor and Accident Union Ltd (1934) 49 Ll L R 361 at 365

col 2 per Scrutton LJ.

96 McCormick and another v National Motor and Accident Union Ltd (1934) 49 Ll L R 361 at 369

col 1 per Greer LJ.

97 The latter, more general approach, was favoured in Kosmar Villa Holidays Plc v Trustees of

Syndicate 1243 [2008] EWCA Civ 147; [2008] Bus LR 931 at [69] per Rix LJ.
98 See, however, Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 1111 where the

insurer, having alleged a particular breach of warranty, was held to be precluded from relying on
subsequent and alternative breaches of warranty of which it had been previously aware at [24] ff and,
similarly, having relied on misrepresentation but not asserting a right to avoid from subsequent
seeking to avoid at [37] ff.
99 Welch v Royal Exchange Assurance [1939] 294 at 305–6 per Slesser LJ.
 100 Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ
50; [2006] 1 WLR 1492; [2007] Lloyd’s Rep IR 173 at [33].
101 McCormick v The Royal 163 Pa 184 (1894); Cleaver v Trader’s Insurance 40 F 711 (1989);
Lugo v AIG Life Insurance Co 852 F Supp 187 (1994).
102 Appell v Liberty Mutual Insurance Co 255 NYS 2d 545 (1964); Pensky v Aetna Life & Cas Co
375 NYS 2d 780 (1975); Consolidated Electrical Cooperative v Employers Mutual Liability
Insurance Co 106 F Supp 322 (1952) at 331 col 1; 332 col 1 per Hulen DJ; Fowlie v Ocean Accident
and Guarantee Corporation Limited (1902) 4 OAR 146.
103 Harrison v Douglas (1835) 3 Ad & E 394; 111 ER 463 at 403; 466–7 per Lord Denman CJ.
104 Vitol SA v Esso Australia Ltd (‘The Wise’) [1989] 2 Lloyd’s Rep 451 at 460 col 2 per Mustill
LJ.
105 See Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 1111 at [41]. Argo did turn on
unusual facts—namely a vigorous and prolonged defence of the claim on specific grounds and then an
attempt, seven years later, to raise further grounds of which the insurer had been aware all along. The
insurer was precluded from so doing.
106 See para 4.10 above.
107 See Argo Systems FZE v Liberty Insurance (Pte) [2011] EWHC 1111 at [41] where a long-

running silence against the background of other positive acts sufficed.

108 Allen v Robles [1969] 1 WLR 1193 at 1196G–H per Fenton-Atkinson LJ.
109 The practical result will, in all probability, be identical.
110 See Svenska Handelsbanken v Sun Alliance and London Assurance Plc [1996] 1 Lloyd’s Rep

519 at 569 cols 1–2 per Rix J.

111 See Svenska Handelsbanken v Sun Alliance and London Assurance Plc [1996] 1 Lloyd’s Rep

519 at 569 col 2 per Rix J—where the possibility that the insured would have conducted its affairs
differently coupled with the fact that the insured’s options were decreasing all the time sufficed.
112 However, in US law the requirement in some states that the insurer notify the insured of its

grounds of avoidance as soon as possible may circumvent the requirement of knowledge—see In re

Balfour Maclaine International Ltd 873 F Supp (1995). Where state law does not incorporate such a
requirement, knowledge is required—Norrington v Wright 115 US 188 (1885).
113 P Samuel v Dumas [1924] AC 431 at 483 per Lord Sumner. As a matter of merit, it may be very
difficult for an insured to persuade a Court that an insurer is estopped where the insurer had no
knowledge whatsoever of the facts giving rise to the alleged estoppel.
114 At least where waiver by election is concerned, where the insurer is responding to the insured’s
act. In pure and unilateral waiver, the insurer will presumably be aware of its own rights.
115 It is therefore respectfully submitted that cases in which the Courts have found that there was a

‘waiver’ but made no finding as to the insurer’s knowledge, relying instead on the prejudice or
detriment suffered by the insured, were in fact cases of estoppel—see Toronto Railway Company &
ors v National British & Irish Millers Co (1914) 111 LT 555 at 563 per Scrutton LJ; Burridge and Son
v Haines and Sons (1918) 118 LT 681 at 685 per Avory J.
116 See paras 4.18 ff above.
117 Kelly v Solari (1841) 9 M & W 54; 152 ER 24 at 58; 26 per Abinger CB; see eg Keehn v Excess

Insurance Co of America 129 F 2d 503 (1942) at 506 col 1 per Major CJ; Deaves v CML Fire and
General Insurance Co Ltd (1979) 53 AJLR 382 at 389 col 1 per Gibbs ACJ.
118 Dalzell v Northwestern Mutual Insurance Company 32 Cal Rptr 125 (1963) at 128 col 1 per

SchottkyJ; Bailey v Robert V Neuhoff Ltd Partnership 665 So 2d 16 (1995).

 119 Simner v New India Assurance Co Ltd [1995] LRLR 240 at 260 col 1 per Judge Diamond QC.
120 Boyer v American Casualty Company 332 F 2d 708 (1964) at 711 per Smith CJ; Richmond v
Grabowski 781 PP 2d 192 (1989); Shane v WCAU-TV, CBS Televisions, Div of CBS Inc 719 F Supp
353 (1989); Lone Mountain Production Co v Natural Gas Pipeline Co of America 710 F Supp 305
(1989). However, problems may arise where a waiver is alleged to have taken place as a result of X’s
conduct, see eg Community Convalescent Center of Naperville Inc v First Interstate Mortgage Co of
Illinois 537 NE 2d 1162; app denied 545 NE 2d 106 (1989); Ebrahimi v EF Hutton & Co Inc 794 P 2d
1015 (1989).
121 In Australia and New Zealand, the position is confused. There is authority to suggest that
intention is required but will be simply spelt out from the insurer’s conduct (see Watson v Healy
Lands Ltd [1965] NZLR 511 at 514 per Woodhouse J—ll 33–5) but the better view is that intention is
not required: Tropical Traders v Goonan (1964) 111 CLR 41 at 55 per Kitto J; Sargent v ASL
Developments (1974) 131 CLR 634 at 646 per Stephen J; Champtaloup v Thomas [1976] 2 NSWLR
264 at 268E per Glass JA. See para 4.26 above.
122 Webster v General Accident Fire and Life Assurance Corporation Ltd [1953] 1 QB 520 at 532

per Parker J.
123 See Watson v Healy Lands Ltd [1965] NZLR 511 at 514 ll 33–5 per Woodhouse J.
124 (1896) 12 TLR 142.
125 At 142 col 2 per Vaughan-Williams J.
126 At 142 col 2–143 col 1 per Vaughan-Williams J, expressly distinguishing Acey v Fernie (1840)

7 M & W 151; 151 ER 717; see also Ayrey v British Legal and United Provident Assurance Company
Ltd [1918] 1 KB 136 at 142 per Atkin LJ.
127 Again, in cases of estoppel, the mechanism by which the insurer has any relevant knowledge

will be less important.

128 Billington v Provincial Insurance (1877) 2 OAR 1558; Western Assurance Company v

Provincial Insurance Company (1880) 5 OAR 190 at 192–3 per Burton JA; Wheeler v Waterton Fire
131 Mass 1 (1881); Atlas Assurance Co v Brownell (1899) 29 SCR 537; Bible v John Hancock Mutual
Life Insurance Co 176 NE 838 (1931); Connecticut Fire Insurance Co v Fox 361 F 2d 1 (1961);
Jackson v National Flood Insurers Assn 398 F Supp 1383 (1974) at 1388 col 2.
129 Newsholme Bros v Road Transport & General Ins Co Ltd [1929] 2 KB 356, doubting Bawden v

London Edinburgh & Glasgow Ass Co [1892] 2 QB 534; Hough v Guardian Fire & Life Ass Co (1902)
18 TLR 273; Holdsworth v Lancashire and Yorkshire Insurance Company (1907) 23 TLR 521 on this
point.
130 The simple reason being that to do so would unnecessarily restrict the insurer’s business
operations. The insurer would have to select a particular person at any branch to take over dealings
with insureds when any issue of its knowledge arose.
131 Malhi v Abbey Life Insurance [1995] 4 Re LR 305 at 313 per Balcombe LJ (agreeing with Rose
LJ—McCowan LJ dissenting).
132 United States Fidelity and Guaranty Co v Bimco Iron Corpn 464 SW 2d 353 (Tex 1971).
133 Splents v Lefevre (1864) 11 LT 114.
134 Blair v National Reserve Insurance Co 199 NE 337 (1936).
135 See paras 16.06 and 16.09 above.
136 (1887) 12 App Cas 531.
137 At 537 per Lord Halsbury LC.
138 See Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 WLR 413
at 418F–G per Lord Hoffman.
139 Holdsworth v Lancashire and Yorkshire Insurance Company (1907) 23 TLR 521.
140 Linford v The Provincial Horse and Cattle Insurance Company (1864) 34 Beav 291; 55 ER 647
at 293; 648 per Lord Romilly MR.
141 Acey v Fernie (1840) 7 M & W 151; 151 ER 717 at 155; 719 per Abinger CB and per Parke B.
142 See contra Ayrey v British Legal and United Provident Assurance Company Ltd [1918] 1 KB

136 at 140 per Lawrence LJ.

143 Wing v Harvey (1845) 5 De G & M 265; 43 ER 872 at 270; 874 per Lord Justice Knight Bruce;
at 271; 875 per Lord Justice Turner.
144 Where, eg, an executive director’s authority will be much wider than that of an employee.
145 Houghton & Co v Nothard Lowe & Wills [1928] AC 1 at 18 per Lord Sumner: ‘The mind… of a

company is not reached or affected by information merely possessed by its clerks’; Fitchpatrick v
Hawkeye Insurance Co 53 Iowa 335 (1880).
146 Malhi v Abbey Life Insurance [1995] 4 Re LR 305 at 309 per Rose LJ.
147 Whitney v Great Northern Insurance Co (1917) 32 DLR 756; Beasant v Northern Life

Insurance Co (1923) 2 DLR 1086 at 1088–9 per Cameron JA.

148 Evans v Employers Mutual Insurance Association Ltd [1936] 1 KB 505 at 515 per Greer LJ;

Malhi v Abbey Life Insurance [1995] 4 Re LR 305 at 310 per Rose LJ. Notwithstanding suggestions to
the contrary (see Bowstead 8.214 n 1321), Malhi did not distinguish Evans and each remains good law
on its facts.
149 Hadenfayre v British National Insurance Society Limited [1984] 2 Lloyd’s Rep 393 at 401 col 1

per Lloyd J.
150 Farquharson v Pearl Assurance Co Ltd [1937] 3 All ER 124 at 132G–H per Singleton J—a

district manager can waive payment of premium by the insured. However, on its facts, it appears that
the Court held that the insurer was estopped from claiming payment of the premium.
151 O’Brien v Prescott Insurance Co 134 NYS 28 (1892); Levy v Scottish Employers Insurance

(1901) 17 TLR 229; John Hancock Mutual Life Insurance Co v Luzio 176 NE 446 (1931)—such
knowledge on the part of the insured would prevent the agent from possessing ostensible authority. It
follows that the insured’s knowledge of the agent’s vires would be irrelevant where the agent has
actual authority.
152 See PCW Syndicates v PCW Reinsurers [1996] 1 Lloyd’s Rep 241 at 254 col 1–247 col 2 per

Staughton LJ.
153 See Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250 at 261H–262A per
Buckley LJ.
154 See para 3.10 above and the contrast with variation.
155 Subject to the points made at paras 20.14 ff above as to the scope of waiver.
156 Proper v Oswego County Fire Relief Assn 190 NY 12 (1907); Harrison v Liberty Mutual

Insurance Co 290 F 2d 900 at 903–4 (1961).

157 Zappone v Home Insurance Co Ct App 447 NYS 2d 911 (1982) at 914 col 1 per Meyer J.
158 Conner v Union Automobile Insurance Co 9 P 2d 863 (1932) at 865; Insurance Company of

North America v Atlantic National Insurance Co 329 F 2d 769 (1964) at 775 cols 1–2 per Boreman
CJ.
159 eg, New York and Missouri.
160 Consolidated Electrical Cooperative v Employers Mutual Liability Insurance Co 106 F Supp

322 (1952) at 331 col 1 per Hulen DJ (Missouri).

 161 Salerno v Western Casualty & Surety Co 336 F 2d 14 (1964) at 17 col 2 per Ridge CJ; Boston
Old Colony Insurance v Lumbermans Mutual Casualty Company 889 F 2d 1245 (2nd Cir 1989) at
1247 col 2 per Feinberg J; Bucon Inc v Pennsylvania Manufacturing Association Insurance Company
547 NYS 2d 925 (AD 3 Dept 1989) at 927 cols 1–2 per Levine J; Lumbermans Mutual Casualty
Insurance Co v Aggesen 618 NYS 2d 441 (1994); Presbyterian Hospital of New York v Empire
Insurance Co 633 NYS 2d 339 (1995); Dependable Janitorial Services Inc v Transcontinental
Insurance Co 622 NYS 632 (1995).
162 Calocerinos & Spina Consulting Engineers PC v Prudential Reinsurance Co 856 F Supp 775
(1994); Lumbermans Mutual Casualty Co v Peaceful 638 So 2d 1026 (1994); Emscor Manufacturing
Inc v Alliance Insurance Group 879 SW 2d 894 (1994); Steptore v Masco Construction Co Inc 643 So
2d 1213 (1994).
163 Insurance Company of North America v Atlantic National Insurance Co 329 F 2d 769 (1964) at
775 col 2–779 col 1 and cases there cited per Boreman CJ; see also Challoner v Pennings 94 NW 2d
654 (1959); Henthorn v MGC Corp 83 NW 2d 759 (1957); Behringer v State Farm Mutual Insurance
Co 82 NW 2d 915 (1957).
164 See eg Reliance Insurance Co v The Escapade 280 F 2d 482 (1960); Albert J Schiff Associates

Inc v Flack Ct App 435 NYS 2d 972 (1980) at 975 col 1 per Fuchsberg J; Kaminer v Franklin Life
Insurance Co 472 F 2d 1073 (1973) at 1077 col 1 per Rives CJ; Matia v Carpet Transport Inc 888 F
2d 118 (11th Cir 1989) at 121 col 1; Aetna Casualty and Surety Co v Richmond App, 143 Cal Rptr 75
(1977) at 79 col 2–80 col 1 per Hanson AJ; Rhinebeck Bicycle Shop v Sterling Insurance 546 NYS 2d
499 (AD 3 Dept 1989) at 501 col 2 per Levine J; Budget Rent-ACar Systems Inc v Shelby Insurance
Group 541 NW 2d 178 (1995).
165 Draper v Oswego County Fire Relief Assn 82 NE 755 (1907) at 756 col 2 per Cullen CJ: ‘The

rule prevailing in this state, that an insurance company will not be permitted to defeat recovery on a
policy issued by it by proving the existence of facts which render it void where it had full knowledge
of the facts when the policy was issued… rests rather on the doctrine of estoppel than on that of
waiver’; see also Robbins v Springfield Fire & Marine Insurance Co 44 NE 159 (1896) at 161 col 1
per Martin J.
166 Thus, if the insurer misrepresents the scope of cover, then an estoppel will operate to expand

cover to comply with representation if the elements are made out. Standard Fire Insurance Company
v Marine Contracting and Towing Company 392 SE 2d 460 (SC 1990) at 462 col 1 per Finney J;
Anderson v Minnesota Insurance Guaranty Association 520 NW 2d 155 (1994); and an estoppel will
operate (at least in New Hampshire) despite clear policy wording to the contrary: Trefethen v New
Hampshire Insurance Group 645 A 2d 72 (1994); but see contra Bailey v Robert V Neuhoff Ltd
Partnership 665 So 2d 16 (1995); Black v Aetna Insurance Co 909 SW 2d 1 (1995).
167 Connecticut Fire Insurance Co v Fox 361 F 2d 1 (1966) at 7 col 1 per Hill CJ. This is consistent

with the UCC §2–209(2).

168 Keehn v Express Insurance Co of America 129 F 2d 503 (1942) at 505 per Major CJ.
169 In the US, an insured’s refusal to enter into a non-waiver agreement will also relieve the
insurer of any requirement that it defend actions for and on behalf of the insured—see Ezell v Hayes
Oilfield Construction Co Ltd 693 F 2d 489 (1982) at 494 col 2 per Goldberg CJ; Clement v Marathon
Oil Company 724 F Supp 431 (ED La 1989).
170 Connecticut Fire Insurance Co v Fox 361 F 2d 1 (1966) at 7 col 1 per Hill CJ.
171 Phoenix Insurance Co v Grovel 74 NE 141 (1905); Knickerbocker Life Insurance Co v Norton

96 US 234 (1878). See para 4.36 above for an explanation of unilateral waiver.
172 King v Commercial Union Insurance Company of New York 306 F Supp 9 at 11 (1969)
Woodward DJ.
173 Federal Insurance Co v Matthews (1956) 3 DLR (2d) 322 at 340–1 per Clyne J, citing Beattie v

US Fidelity & Guaranty Co (1933) 2 DLR 133 at 162–3 per Harvey CJ.
174 eg, a sue and labour clause is frequently accompanied by a non-waiver clause. Non-waiver
clauses are also found in Institute Cargo Clauses (A) clause 17; Institute Cargo Clauses (C) clause 17
(both in respect of any waiver of notice of abandonment); Institute War Clauses (Cargo) clause 12;
Institute Strikes Clauses clause 12; Institute Time Clauses (Hulls) clause 20; Institute Voyage Clauses
(Hulls) clause 20 (in respect of waiver of claims for freight).
175 See Deepak Fertilisers and Petrochemical Corporation v ICI Chemicals and Polymers Ltd
[1999] 1 Lloyd’s Rep 387; Sere Holdings Ltd v Volkswagen Group United Kingdom Ltd [2004] EWHC
1551 and Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153; compare, however, McGrath v Shah
(1989) 53 P & CR 452. Further, as the Court recognised in Lloyd, such clauses may preclude a waiver
(or estoppel), whether they do so, is fact-dependent—see Jet2.Com Ltd v Blackpool Airport Ltd
[2010] EWHC 3166 at [40] per Beatson J.
176 See I-Way Ltd v World Online Telecom UK Ltd [2002] EWCA 413 at para 11.2, compare UCC

§2–209(2). It is noticeable that in the numerous cases which have considered waiver since the Second
Edition, many of the contracts have contained no waiver clauses—the presence of which has had little
impact on the outcome. Note, however, the recent trend towards giving ‘boiler plate’ clauses like
entire agreement clauses full force and effect, see eg Springwell Navigation Corp v JP Morgan Chase
Bank [2010] EWCA Civ 1221; Axa Sun-Life Services Plc v Campbell Martin Ltd [2011] EWCA Civ
133.
177 See, by analogy, R v Paulson [1921] 1 AC 271 at 280 per Lord Atkinson.
178 Electronic Holdings v United Parcel Service Ltd [2005] EWHC 221; [2005] 1 Lloyd’s Rep 470;

at [114(i)].
179 93/13/EEC. See Clarke 19.5A; Chitty 15-083.
180 SI 1995/3169.
181 This, of course, is the case in marine insurance.
182 See Clarke at 20–7A n 1; Barratt (Bros) v Davies [1966] 2 Lloyd’s Rep 1 at 5 per Lord Denning

MR.
183 Compagnia Tirrena Di Assicurazioni v Grand Union Fire Insurance Co Ltd [1991] 2 Lloyd’s

Rep 143 at 153 cols 1–2; 154 cols 1–2 per Waller J; see also para 20.56 below in relation to
reinstatement.
184 See paras 5.02 ff above.
185 See paras 5.07 ff above.
186 See in the context of construing a waiver clause in a settlement, The Mayor and Commonalty

and Citizens of the City of London v (1) Reeve & Co Ltd; (2) G Lawrence Wholesale Meat Co Ltd; (3)
Citigen (London) Ltd [2000] BLR 211.
187 Washington v Allstate Insurance Co 901 F 2d 1281 (5th Cir 1990) at 1288 col 1 per Duhé CJ.
188 Maple Leaf Milling Co v Colonial Assurance Co (1917) 36 DLR 202 at 204–5 per Perdue JA.
189 In re an arbitration between Carr and the Sun Fire Assurance Company (1897) 13 TLR 186 at

186 per Lord Esher MR.

190 See Laing v Commercial Union Assurance Co Ltd (1922) 11 Ll L R 54; see also Howell v

Kightley (1856) 21 Beav 331; 152 ER 887 at 335–6; 889 per Sir John Romilly MR.
191 See Beatty supra at 70; Thompson v Knickerbocker Life Insurance Co (1881) 104 US 252 at

259–60; Spoeri v Massachusetts Mutual Life Insurance Co (1889) 39 F 752 at 753 per Thayer J; cf in
Canada, if the insurer accepts persistently late payments, it can later demand timeous payment of the
premiums—Whitehorn v Canadian Guardian Life Insurance Co (1909) 19 OLR 535.
192 See paras 20.16 above and 20.63 below.
193 Clarke 29-2A.
194 See para 6.09 above.
195 Allwright v Queensland Ins Co Ltd (1966) 84 WN (Pt 1) (NSW) 378 at 391.
196 Bowes v National Fire & Marine Ins Co of New Zealand (1888) 7 NZLR 27 at 30; 33 per
Williams J.
197 See para 20.57 above; para 6.09 above.
198 Scottish Amicable Heritable Securities Assn Ltd v Northern Assurance Co 1883 11 R 287.
199 As part of such negotiations, the insured could, of course, accept less than ‘perfect’

reinstatement by way of compromise of the claim under the policy—see Clarke 29-2A.
200 Sutherland v Sun Fire Office (1852) 14 D 775 at 777.
201 Anderson v Commercial Union Assurance Corp (1885) 55 LJQB 146 at 150 per Bowen LJ.
202 (1859) 1 El & El 853; 120 ER 1131.
203 At 858–9; 1133 per Lord Campbell.
204 Maker v Lumbermen’s Mutual Casualty Co (1932) 2 DLR 593 at 600–1; Carlyle v Elite Ins Co

(1984) 56 BCLR 331 at 335 per Wood J.

205 See Clarke 29-2C.
206 Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1446A–C per Diplock LJ; C

Czamikow Ltd v Koufos [1966] 2 QB 695 at 730F–731B per Diplock LJ; RV Ward Ltd v Bignall [1967]
1 QB 534 at 548B–E per Diplock LJ; Banning v Wright [1972] 1 WLR 972 at 990C–D per Lord
Simon; Moschi v Lep Air Services [1973] AC 331 at 350C–D per Lord Diplock; 355G per Lord
Simon; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848–50 per Lord Diplock;
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at
982C–E per Lord Diplock; Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 at 478F–G per
Lord Diplock; Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 915D–
E per Lord Diplock; Afovos Shipping Co v Pagnan [1983] 1 WLR 195 at 203C–G per Lord Diplock;
State Trading Corpn of India v M Golodetz Ltd [1989] 2 Lloyd’s Rep 285 col 2–286 col 1 per Kerr LJ.
207 See also Johnson v Agnew [1980] AC 367 at 392E–393E per Lord Wilberforce; 398E–H per

Lord Wilberforce.
208 Vantol v Fairclough Dodd & Jones Ltd [1955] 1 Lloyd’s Rep 546 at 552 cols 1–2 per McNair J;

Agricultures Federados Argentinos v Ampro SA [1965] 2 Lloyd’s Rep 157 at 167 col 2 per Widgery J.
209 See paras 5.02 ff above.
210 See Hickman v Hayes (1875) LR 10 CP 598 at 607.
211 As pointed out elsewhere (Chapter 15), estoppel is used in the sense of estoppel by

representation, estoppel by convention and equitable forbearance unless explicitly stated otherwise.
212 See Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723; Yovich v Collyer

[1972] WAR 143.

213 It may, therefore, be difficult to rely on estoppel in fraud cases—Baghbadrani v Commercial

Insurance Co Plc [2000] LRLR 94 at 123 cols 1–2 per HHJ Gibbs QC.
214 See Morrison v Universal Marine (1873) LR 8 Ex 197 at 204–5; Baghbadrani v Commercial

Insurance Co Plc [2000] LRLR 94 at 123 cols 1–2 per HHJ Gibbs QC.
215 At paras 20.15 ff above
216 See Glencore International AG v Ryan (‘The Beursgracht’) [2001] EWCA Civ 2051 as to the
possible difficulties of establishing breach of warranty without clear wording to that effect.
217 [1982] 1 Lloyd’s Rep 188.
218 At 198 col 2–199 col 1.
219 As to which see Pan Atlantic Insurance Co v Pine Top Ins Co [1995] AC 501.
220 See also the discussion at para 20.16 above
221 See Garnat Trading & Shipping (Singapore) Pte Ltd v Baominh Insurance Corporation [2010]

EWHC 2578 at [135].

222 Wise (Underwriting Agency) Ltd v Grupo Nacional Provincial SA [2004] EWCA Civ 962 at
[46] per Rix LJ.
223 In US law, a failure to ask questions will constitute a waiver—see eg Allesina v London & L &

G Insurance Co 78 P 392 (1904).

224 Clarke 23-12C. The obvious rationale for the doctrine is that the question—Is there anything

about the insured that may constitute a moral hazard/expose fraudulent conduct?—is so obvious as to
be unnecessary to ask and is, in any event, unlikely to obtain an accurate answer where moral
hazard/fraud exist—James v CGU Insurance Plc [2002] LRLR 206 at 220.
225 Greenhill v Federal Insurance Co Ltd [1927] 1 KB 65 at 85 per Scrutton LJ; McCormick v

National Motor Accident Insurance Union Ltd (1934) 49 Ll L R 361 at 363 per Scrutton LJ; March
Cabaret Club & Casino Ltd v The London Assurance [1975] 1 Lloyd’s Rep 169 at 176 per May J;
James v CGU Insurance Plc [2002] LRLR 206 at 225 para 85 per Moore-Bick J.
226 Becker v Marshall (1922) 11 Ll L R 114 at 117 col 2, 119 col 1 per Salter J; Glicksman v

Lancashire & General Assurance Company Ltd [1927] AC 139 at 143 per Lord Dunedin; see also
Taylor v Eagle Star Insurance Co Ltd (1940) 67 Ll LR 136 at 140 col 1–141 col 2 per Macnaghten J.
227 See Schoolman v Hall [1951] 1 Lloyd’s Rep 139 at 142 col 2–143 col 1 per Cohen LJ.
228 Arterial Caravans Ltd v Yorkshire Insurance Co Ltd [1973] 1 Lloyd’s Rep 169 at 180 col 2–181

col 1 per Chapman J.

229 (1782) 3 Dougl 161; 99 ER 591.
230 See finding of fact at 162; 592.
231 At 163; 592.
232 [1908] 2 KB 863 at 878.
233 [1983] 2 Lloyd’s Rep 667 at 673 cols 1–2.
234 R&E Developments Ltd v AXA Insurance UK Plc [2009] EWHC 2429 at [40]; Synergy Health

(UK) Ltd v CGU Insurance Plc [2010] EWHC 2583 at [164 ff].
235 [2004] EWCA Civ 1705; [2005] Lloyd’s Rep IR 251 at [17]–[20] per Longmore LJ.
236 Doheny supra at [38] per Potter LJ; see also Laing v Union Marine Insurance Company (1865)

1 Comm Cas 11 at 15 per Mathew J: the insured ‘is not bound to give information which the
underwriter waives or as to which the assured may reasonably infer that the underwriter is
indifferent’.
237 The questions in Hair were widely drawn and the insurer had also inserted a very wide

warranty into the proposal and policy so that, on one construction, the truth of the facts in the
proposal was warranted at the date on which the proposal was completed and the future truth of the
facts was also warranted. Unsurprisingly, Woolf J rejected that construction and construed the
questions narrowly (at 672 col 2 per Woolf J).
238 [2004] EWCA Civ 1705; [2005] Lloyd’s Rep IR 251 at [17]–[20].
239 See paras 20.15 ff above.
240 See Pacific Queen Fisheries et al v L Symes (‘The Pacific Queen’) [1963] 2 Lloyd’s Rep 201 at
208–9 per Barnes Ct J (US Court of Appeals, Ninth Circuit)—the insurer will be taken to know that
which is in general usage and universally known to all engaged in the relevant trade.
241 Marc Rich & Co v Portman [1997] 1 Lloyd’s Rep 225 at 232 col 2 per Leggatt LJ.
242 See Cantiere Meccanico Brindisino v Janson [1912] 3 KB 452 at 461 per Vaughan Williams
LJ; at 466 per Fletcher Moulton LJ; North British Fishing Boat Insurance Co Ltd v Starr (1922) 13 Ll
L Rep 206 at 210 per Rowlatt J.
243 See Carter v Boehm (1766) 3 Burr 1905 at 1910 per Lord Mansfield; Mann, Macneal and
Steeves v Capital and Counties Insurance Co [1921] 2 KB 300 at 309 per Bankes LJ; cf Asfar & Co v
Blundell [1896] 1 QB 123 at 129 per Lord Esher MR. However, if one proposed cargo has a
particularly perilous and not immediately apparent nature or has a problematic history, the insured
must disclose that cargo to the insurer—Greenhill v Federal Insurance Company Limited [1927] 1 KB
65 at 73 per Lord Hanworth MR; at 84 per Scrutton LJ.
244 Charlesworth v Faber (1900) 55 Comm Cas 408 at 412 per Bigham J; Sumitomo Marine & Fire
Insurance Co Ltd v Cologne Reinsurance Company of America 552 NYS 2d 891 (Ct App, 1990) at 896
col 1 per Kaye J.
245 See Aiken v Stewart Wrightson Members’ Agency Limited [1995] 3 All ER 449 at 481a–e per

Potter J.
246 Roberts v Plaisted [1989] 2 Lloyd’s Rep 341 at 347 col 2–348 col 1 per Purchas LJ. See also St

Paul Fire & Marine Insurance Co v McConnell Dowell Constructors Limited [1993] 2 Lloyd’s Rep
503; Newbury International v Reliance National Insurance Co [1994] 1 Lloyd’s Rep 83.
247 Greenhill v Federal Insurance Co Ltd [1927] 1 KB 65 at 84 per Scrutton LJ.
248 Marc Rich & Co v Portman [1997] 1 Lloyd’s Rep 225 at 231 col 1–232 col 2 per Leggatt LJ—

the insurer did not have deemed knowledge of the extensive demurrage claims being made against
Marc Rich.
249 See Harrower v Hutchinson (1870) LR 5 QB 584 at 592–3 per Kelly CB; at 594 per Willes J;

Container Transport International Ltd v Oceanus Mutual Underwriting Association (Bermuda) Ltd
[1984] 1 Lloyd’s Rep 476 at 511 per Parker LJ; Newbury International v Reliance National Insurance
Co [1994] 1 Lloyd’s Rep 83 at 90 col 1 per Hobhouse J; Marc Rich & Co AG v Portman [1997] 1
Lloyd’s Rep 225 at 233 col 2–234 col 1 per Leggatt LJ.
250 Roberts v Avon Insurance Company Ltd [1956] 2 Lloyd’s Rep 240 at 249 cols 1–2 per Barry J;
Marcovitch v The Liverpool Victoria Friendly Society (1912) 28 TLR 188 at 189.
251 Which will only happen rarely (Marcovitch v The Liverpool Victoria Friendly Society (1912)

28 TLR 188 at 189).

252 See eg Saunders v Queensland Insurance Co Ltd (1931) 45 CLR 557; Calder v Batavia Sea and
Fire Insurance Co Ltd [1932] SASR 46.
253 In American law, the rule appears to be that a failure to answer a question with subsequent

issue of policy is a waiver of the materiality of the answer or of the requirement to answer that
question: Mutual Reserve Fund Life Assn v Farmer 47 SW 850 (1898) at 852 col 2 per Bunn CJ;
Bowles v Mutual Benefit Health and Accident Assn 99 F 2d 44 (1938) at 46 col 1 per Parker CJ;
Transamerica Premier Insurance Co v Miller 41 F 3d 438 (1994). In Australia, unless there is express
provision in the proposal (see Saunders v Queensland Insurance Co Ltd (1931) 45 CLR 557; Calder v
Batavia Sea and Fire Insurance Co Ltd [1932] SASR 46) a parallel rule applies: London and
Lancashire Insurance Co Ltd v Honey (1876) 2 VLR (L) 7; Calder v Batavia Sea and Fire Insurance
Co Ltd [1932] SASR 46.
254 See Freeland v Glover (1806) 7 East 457; 103 ER 177 at 462; 179 per Lord Ellenborough CJ;

Ellingwood v NN Investors Life Insurance Company Inc 805 P 2d 70 (NM 1991) at 77 col 2 per
Ransom J.
255 See Duren v Northwestern National Life Insurance Co 5581 So 2d 810 (Ala 1991) at 816 col 1

per Almon J; Steptore v Masco Construction Co Inc 643 So 2d 1213 (1994).

256 See New Hampshire Insurance Co v Oil Refineries Ltd (Comm Ct, 10 April 2002) per HHJ
Chambers QC.
257 See eg Prudential Insurance Co v Saxe 134 F 2d 16 (1943) at 29 per Rutledge J.
258 See paras 20.45 ff above.
259 Hiscox v Outhwaite (No 3) [1991] 2 Lloyd’s Rep 524 at 535 cols 1–2 per Evans J.
260 Hully v Aluminium Co of America 143 F Supp 508 at 512–13 per District Judge Davies (SD
Iowa 1956).
261 Balent v National Insurance Co of New Zealand Ltd (1959) SR (NSW) 275 at 280–1.
262 See paras 20.21 ff above.
263 See Ace Insurance SA-NV v Seechurn [2002] EWCA Civ 67—engaging in negotiations and

considering the claim for an extended period did not amount to an unequivocal representation that the
insurer would not take a limitation point.
264 Jones v Bangor Mutual Shipping Ins Sy Ltd (1889) 61 LT 727 at 729 col 1 per Mathew J;

Keeling v Pearl Assurance Co (1923) 129 LT 573.

265 Jones v Bangor Mutual Shipping Ins Sy Ltd (1889) 61 LT 727, 729; Hemmings v Sceptre Life

Assn Ltd [1905] 1 Ch 365 at 369–70 per Kekewich J.

266 Under US law the position is different—see para 20.32 above.
267 [1971] 2 Lloyds Rep 332—see para 20.29 above.
268 If there were not, the detriment would not be connected to the representation complained of.
269 Clarke 20-7E.
270 M’Millan v Accident Ins Co 1907 SC 484 (PA).
271 Western Canada Accident and Guarantee Ins Co v Parrott (1921) 61 SCR 595 at 600 per

Idington J.
272 Wing v Harvey (1854) De GM & G 265; 43 ER 872 at 270; 874 per Knight Bruce LJ;

Holdsworth v Lancashire & Yorkshire Ins Co (1907) 23 TLR 521 at 523 per Bray J.
273 Hargett v Gulf Ins Co 55 P 2d 1258 (1936) at 1261.
274 Western Canada Accident and Guarantee Ins Co v Parrott (1921) 61 SCR 595 at 603 per

Anglin J; 605 per Mignault J.

275 Hansen v Marco Engineering (Aust) Pty Ltd [1948] VLR 198 at 211; compare Territory

Insurance Office v Adlington (1992) 2 NTLR 55.

276 See para 20.14 above.
277 ibid.
278 See para 20.15 above.
279 Discussed at paras 17.66 ff above.
280 Where the insured is estopped from pursuing the claim, the insurer will also be estopped—the

insurer being unable to place itself in a better position than the party to whose rights it is subrogating
—see Northern Assurance Co Ltd v Wolk (1944) 49 NYS 2 d 754 at 756.
281 So, eg, the closer and more informal the relationship between the insurer and the insured, the

more likely is the insurer’s failure actively to seek information in and by the proposal form, the more
likely it is that the insurer has waived the materiality of the issues not raised in and by the proposal
form—Taylor v Eagle Insurance Co (1940) 67 Ll L R 136.
 282 [1982] 1 Lloyd’s Rep 188.
283 [1971] 2 Lloyd’s Rep 332.
284 See eg Svenska Handelsbanken v Sun Alliance and London Assurance Plc [1996] 1 Lloyd’s Rep

519 at 569 col 1 per Rix J—requesting the insured to alter the terms of a facility insured under a
Commercial Mortgage Indemnity Policy will amount to waiver.
285 Simner v New India Assurance Co Ltd [1995] LRLR 240 at 260 col 1 per Judge Diamond QC.
286 National Trust v Sterling Accident (1916) QR 551 SC 481.
287 Gillis v Bourgard (1983) 145 DLR (3d) 570 at 571–2.
288 Hill v Citadel Insurance Co Ltd [1995] LRLR 218 at 239 col 2 per Cresswell J; CA, 5

December 1996.
289 Reid v Campbell Wallis Moule & Co Pty [1990] VR 859 at 874 l 30 per Tadgell J.
290 Barber v Imperio Reinsurance Co (UK) Ltd (CA, 15 July 1996).
291 Simon Haynes Barlas & Ireland v Beer (1946) 78 Ll L R 337 at 369 col 2–370 col 1 per

Atkinson J.
292 Further, if the insured pleads waiver and estoppel in the alternative, any attempt to manufacture

a waiver will preclude a claim in estoppel (as the insured will lack the necessary detriment).
293 Hill v Citadel Insurance Co Ltd [1995] LRLR 218 at 239 col 1 per Cresswell J. There could

still, however, be an estoppel.

294 See Locker & Woolf v W Australian Insurance Co [1936] 1 KB 408; Busteed v West of England

Fire and Life Insurance Co (1857) 5 Ir Ch R 553; Phillips v Grand River Farmers’ Mutual Fire
Insurance Co (1881) 46 UCR 334; De Maurier v Bastion Insurance [1967] 2 Lloyd’s Rep 550.
295 See Brook v Trafalgar Insurance Co Ltd (1947) 79 Ll L R 265 at 367.
296 The counterclaim will arise as the prudent insurer will seek declarations as to the status of the

policy and may argue that if the terms of the policy were not conditions entitling it to avoid the
policy, they were terms which were breached allowing it to claim damages. The damages will be the
sums claimed by the insured in the action and the insured’s claim will fail for circuity.
297 See Peyman v Lanjani [1985] Ch 457; paras 4.18 ff above.
298 But not estoppel—where there is only the issue of the representation and detriment.
299 See Marcovitch v The Liverpool Victoria Friendly Society (1912) 28 TLR 188.
300 See Hill v Citadel Insurance Co Ltd [1995] LRLR 218 at 238 col 2 per Cresswell J; CA, 5

December 1996; Svenska Handelsbanken v Sun Alliance and London Assurance Plc [1996] 1 Lloyd’s
Rep 519 at 560 col 1 per Rix J.
301 See The Susan V Luckenbach [1951] P 197 at 203.
 1 This section solely addresses those cases dealing with international trade or shipping in which
terminological difficulties have arisen. For a consideration of the terminological difficulties across
the common law, see Chapter 3 passim.
2 [1978] 2 Lloyd’s Rep 109.
3 Discussed at paras 4.39 ff above.
4 See Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67–8 per Robert Goff J; Cook

Industries v Tradax Export SA [1985] 2 Lloyd’s Rep 454 at 462 cols 1–2 per Kerr LJ.
5 See also Bremer Handelsgesellschaft mbH v C Macprang JR [1979] 1 Lloyd’s Rep 221 at 226 col
1; 229 col 1; 231 col 1.
6 See paras 2.45 ff above for an explanation of the GAFTA 100 contract.
7 At 127 col 1.
8 See paras 4.39 ff above.
9 Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67–8 per Robert Goff J; Cook Industries v

Tradax Export SA [1985] 2 Lloyd’s Rep 454 at 462 cols 1–2 per Kerr LJ.
10 See para 21.32 below.
11 See paras 4.33 ff above.
12 See paras 4.34 and 4.35 above.
13 Hain SS Co Ltd v Tate and Lyle Ltd [1936] 2 All ER 597 at 608; Bentsen v Taylor, Sons & Co

[1893] 2 QB 274.
14 But cf Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459 at 477; The

Democritos [1975] 1 Lloyd’s Rep 368 at 398 for the contrary view.
15 Hartley v Hyams [1920] 3 KB 475 at 495 per McCardie J; Charles Rickards Ltd v Oppenheim

[1950] 1 KB 616 at 624 per Denning LJ.

16 Bottigilieri Di Navigazione SpA v Cosco Qingdao Ocean Shipping Company [2005] EWHC 244;

[2005] 2 Lloyd’s Rep 1 at [30]–[32]; see para 21.31 below.

17 See Benjamin para 12-036 and n 188.
18 See paras 4.26 and 4.36 above.
19 See Napiers FE v Dexters (1926) 26 Ll L R 62; 63 col 2–64 col 1 per Roche J; 184; 187 col 2–
188 col 1 per Bankes LJ.
20 See s 43(1)(c) Sale of Goods Act 1979.
21 This proposition derives from the relationship between ss 41(1)(b) and 43(1)(c) Sale of Goods

Act 1979 (see Benjamin 15-033). The lien will be suspended for so long as the credit lasts.
22 See Atiyah/Adams at 407.
23 Jones v Tarleton (1842) 9 M & W 675; 152 ER 285 at 677; 286 per Parke B; 678; 286 per

Alderson B.
24 Thus retaining the goods and demanding payment in respect of other goods will waive the

sellers’ lien in respect of the particular goods—see Boardman v Sill (1808) 1 Camp 410(n); 170 ER
1003 per Lord Ellenborough CJ; Weeks v Goode (1859) 6 CBNS 367; 141 ER 499 at 370; 500 per
Cockburn CJ; White v Garnier (1824) 2 Bing 23; 130 ER 23.
25 Bank of S Africa v Salisbury Gold Mining Co Ltd [1892] AC 281 at 284 per Lord Watson.
26 Mulliner v Florence (1878) 3 QBD 484.
27 ‘The Scaptrade’ [1983] 2 QB 529.
28 Buckland v Farmer & Moody [1979] 1 WLR 221 at 231D per Buckley LJ. The principle applies

to any waiver of time being of the essence—performance within the extended period then becomes of
the essence—Barclay v Messenger (1874) 43 LJ Ch 449.
29 Charles Rickards Ltd v Oppenheim [1950] 1 KB 616; State Trading Corp of India v Compagnie

Francaise d’Importation et de Distribution [1983] 2 Lloyd’s Rep 679 at 682 cols 1–2.
30 See Benjamin 8-030 and cases there cited and in particular Ogle v Earl Vane (1868) LR 3 QB
272 at 278–9 per Kelly CB; Hickman v Haynes (1875) LR 10 CP 598; Levey & Co v Goldberg [1922]
1 KB 688; Besseler Waecheter Glover & Co v South Derwent Coal Co Ltd [1938] 1 KB 408. If the
alleged waiver is the grant of an extension of time in which to perform, performance within that
extension of time becomes of the essence—Barclay v Messenger (1874) 43 LJ Ch 449.
31 Bentsen v Taylor & Sons & Co [1893] 2 QB 274; Cobec Brazilian Trading and Warehousing
Corporation v Toepfer [1983] 2 Lloyd’s Rep 386. Champion v Short (1807) 1 Camp 53; 170 ER 874 at
54; 874 per Lord Ellenborough CJ and Tarling v O’Riordan (1878) 2 LR Ir 82 at 86 have been cited as
authority for this proposition; it is submitted, however, that these cases are cases where the Courts
assumed that there was a presumption that delivery would not be by instalments, said presumption
being rebutted by the parties’ conduct.
32 See Benjamin 8-068.
33 See paras 17.39 ff above.
34 See paras 21.30 ff below.
35 See paras 17.39 ff above.
36 Kwei Tek Chao v British Traders and Shippers [1954] 2 QB 459 at 480 per Devlin J; Procter &

Gamble Philippine Manufacturing Corpn v Kurt A Becher [1988] 2 Lloyd’s Rep 21 at 30 cols 1–2 per
Kerr LJ.
37 Shipton Anderson & Co v John Weston & Co (1922) 10 Ll L R 762 at 763 col 2 per Greer J;

Procter & Gamble Philippine Manufacturing Corp v Kurt A Becher [1988] 2 Lloyd’s Rep 21 at 30
cols 1–2 per Kerr LJ.
38 Kwei Tek Chao v British Traders and Shippers [1954] 2 QB 459 at 481 per Devlin J; Bremer

Handelsgesellschaft mbH v Deutsche Conti-Handelsgesellschaft mbH [1983] 2 Lloyd’s Rep 45;

Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67–8 per Robert Goff J.
39 WJ Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189 at 217 per Megaw LJ.
40 Suzuki & Co v Burgett and Newsam (1921) 8 Ll L R 495 at 496 col 2–497 col 1 per Shearman J;

(1922) 10 Ll L R 223 at 225 col 2 per Bankes LJ.

41 Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459 at 477 per Devlin J, where
the learned judge rejected a submission that the acceptance of the goods in such circumstances could
be a total waiver but did not appear to reject the idea that the acceptance could be a waiver by
election.
42 Avimex SA v Dewulf & Cie [1979] 2 Lloyd’s Rep 57 at 67–8 per Robert Goff J; Cook Industries v

Tradax Export SA [1985] 2 Lloyd’s Rep 454 at 462 cols 1–2 per Kerr LJ.
43 Bremer Handelsgesellschaft mbH v Deutsche Conti-Handelsgesellschaft mbH [1983] 2 Lloyd’s
Rep 45 at 49 col 2 per Goff LJ. Therefore, there will be no loss of rights if the innocent party fails to
take the point immediately—V Berg & Son v Vanden Avenne-Izegem PVBA [1977] 1 Lloyd’s Rep 499
at 504 col 2 per Roskill LJ.
44 Bremer Handelsgesellschaft mbH v Deutsche Conti-Handelsgesellschaft mbH [1983] 2 Lloyd’s

Rep 45 at 49 col 1 per Goff LJ. An ‘implied’ reservation of rights is unlikely to succeed particularly
where there are ongoing attempts between the parties to resolve the defects—Peregrine Systems Ltd v
Steria Ltd [2005] EWCA Civ 239 at [23] per Maurice Kay LJ.
45 See, in the shipping context, China Trade Corporation v Evlogia Co (The Mihalios Xilas) [1979]
1 WLR 1018.
46 Gyles v Hall (1726) 2 P Wms 378; 24 ER 774; Caine v Coulton (1863) 1 H & C 764; 154 ER

1092 at 767; 1093 per Pollock CB; 768; 1093 per Martin B.
47 Gordon v Strange (1847) 1 Exch 477; 154 ER 203 at 478; 204 per Pollock CB, Parke B.
48 The time for performance having passed.
49 Cohen v Roche [1927] 1 KB 169.
50 Benjamin 19-153.
51 Bremer Handelsgesellschaft mbH v Deutsche Conti-Handelsgesellschaft mbH [1983] 1 Lloyd’s
Rep 339.
52 Thus accepting an appropriation of goods to obtain an export licence will not waive defects in

the notice—Bremer Handelsgesellschaft mbH v Bunge Corp [1983] 1 Lloyd’s Rep 476 at 483 col 2
per Goff LJ. Bremer is an equitable forbearance case but it is submitted that the principle will apply
in cases where the motive is sufficiently obvious to render the representation equivocal.
53 See Bremer Handelsgesellschaft v Vanden Avenne-Izegem [1978] 2 Lloyd’s Rep 109 and paras

20.02 ff above.
54 See paras 4.11 ff above.
55 See Davenport v R (1877) 3 App Cas 115 at 132 per Sir Montague E Smith; Croft v Lumley

(1856) 5 E & B 648 at 652, 680–2; 119 ER 622 at 624, 635; Stone v Stringer (1880) 61 LT 470; R v
Paulson [1921] 1 AC 271 at 286 per Lord Atkinson; Haynes v Hirst (1927) 27 SR (NSW) 480 per
Long Innes J; Carter v Green [1950] 2 KB 76; Antaios Naviera SA v Salen Rederierna AB [1983] 1
WLR 1362 at 1370H–1371C per Lord Donaldson MR; 1377A–C per Fox LJ.
56 Nichimen Corp v Gatoil Overseas Inc [1987] 2 Lloyd’s Rep 46 at 51 per Kerr LJ; Vitol SA v Esso

Australia Ltd (‘The Wise’) [1989] 2 Lloyd’s Rep 451.

57 Bremer Handelsgesellschaft mbH v Deutsche Conti-Handelsgeselkchaft mbH [1983] 2 Lloyd’s

Rep 45 at 48 col 2 per GoffLJ; Peter Cremer v Granaria [1981] 2 Lloyd’s Rep 583 at 590 col 1 per
Robert Goff J.
58 Colley v Overseas Exporters [1921] 3 KB 302 at 311–12 per McCardie J.
59 Estoppel means estoppel by representation, estoppel by convention and equitable forbearance

unless otherwise stated, as, eg, in the last sentence of this paragraph.
60 As to the requirement of unequivocal representation, see Azov Shipping Ltd v Baltic Shipping

Ltd [1999] 2 Lloyd’s Rep 159 at 173 cols 1–2 per Colman J.
61 As to this distinction, see Shell Oil UK Ltd v Enterprise Oil Plc [1999] 2 Lloyd’s Rep 456 at

478–9 cols 149; 153.

62 In the context of bailment, see Cheesman v Exall (1851) 6 Exch 341; 155 ER 574 at 346; 575.
63 Both are discussed at paras 16.18 ff and 17.64 ff above.
64 In Re Goldcorp [1995] 1 AC 75 at 94G–H per Lord Mustill.
65 See Mercantile Bank of India Ltd v Central Bank of India Ltd [1938] AC 287; Henderson v

Williams [1895] 1 QB 521; Eastern Distributors Ltd v Goldring [1957] 2 QB 600; Benjamin 7-008
and cases there cited.
66 Commonwealth Trust v Akotey [1926] AC 72 at 76; Jerome v Bentley & Co [1952] 2 All ER 114

at 118A–B per Donovan J.

67 See paras 16.18 ff above.
68 See In re Goldcorp [1995] 1 AC 74 at 93E–F.
69 Colley v Overseas Exporters [1921] 3 KB 302 at 311–12 per McCardie J.
70 Mercantile Bank of India Ltd v Central Bank of India Ltd [1938] AC 287 at 303 per Lord
Wright.
71 Laurie & Morewood v Dudin & Sons [1926] 1 KB 223.
72 Coventry & Co v GE Rly (1883) 11 QBD 776; Alicia Hosiery Ltd v Brown Shipley & Co Ltd
[1970] 1 QB 195 at 206A–B per Donaldson J.
73 (1854) 5 HL Cas 185.
74 Unless the attornment is made by the bailee as between it and the bailor, when, as an incident of

the bailorbailee relationship, an estoppel as between those parties may arise—Maynegrain Pty Ltd v
Compafina Bank [1982] 2 NSWLR 141.
75 Knights v Wiffen (1870) LR 5 QB 660; Simm v Anglo American Telegraph Co (1879) 5 QBD 188
at 215; Capital and Counties Bank Ltd v Warriner (1896) 12 TLR 216. Contrast In re Goldcorp [1995]
1 AC 74 at 92F–95E per Lord Mustill, in which Knights v Wiffen was distinguished, their Lordships
holding that (i) title could not pass by an estoppel; (ii) that for title to pass there must be at least
sufficient goods to satisfy all claims by buyers to have title, ie the doctrine would not create title
where the goods were not extant.
76 In re Goldcorp [1995] 1 AC 74 at 92F–95E per Lord Mustill.
77 See Ross v Edwards & Co (1895) 73 LT 100.
78 See Cheesman v Exall (1851) 6 Exch 341; 155 ER 574; Biddle v Bond (1865) 6B & S 225; 122

ER 1179; Roger Sons & Co v Lambert & Co [1891] 1 QB 318; The Albazero [1977] AC 774; The
Winson [1982] AC 939.
79 The bailee can do so by an interpleader under CPR sc 17.1 by way of claim form or Part 23.
80 See Biddle v Bond (1865) 6 B & S 225; 122 ER 1179.
81 See Cheesman v Exall (1851) 6 Exch 341; 155 ER 574 at 346; 575.
82 Mercantile Credit v Hamblin [1965] 2 QB 242 at 271 per Pearson LJ; Moorgate Mercantile Co

Ltd v Twitchings [1977] AC 890; Gator Shipping Corp v Trans-Asiatic Oil Ltd [1978] 2 Lloyd’s Rep
357 at 377 col 1–378 col 2 per Kerr J.
83 See Benjamin 7-016 n 114 and cases cited.
84 See Benjamin 7-017.
85 Farquharson Bros & Co v King & Co [1902] AC 325 at 335 per Lord McNaghten; Jerome v

Bentley & Co [1952] 2 All ER 114 at 118 G per Donovan J.

86 Farquharson Bros & Co v King & Co [1902] AC 325 at 335–6 per Lord McNaghten.
87 Debs v Sibec Developments Ltd [1990] RTR 91.
88 See paras 17.56–59 above.
89 Discussed at para 21.22 above.
90 See Chapter 15.
91 Apart from the creation of variation by necessity (see paras 2.43 ff above), shipping law has had

little impact on the law of variation, the cases being decided on established principles.
92 The various doctrines may operate to the same practical effect—see Flacker Shipping Ltd v

Glencore Grain Ltd [2002] EWCA Civ 1068; [2002] 2 Lloyd’s Rep 487.
93 Tamvaco v Simpson (1866) LR 1 CP 363 at 371–2 per Pollock CB; Blackburn J.
94 Foster v Colby (1858) 3 H & N 705; 157 ER 651 at 718; 657 per Watson B.
95 As opposed to the charterer’s loss of the right to call for the freight.
96 [2005] EWHC 244; 2 Lloyd’s Rep 1 at [30]–[32].
97 Compare Bottiglieri di Navigazione with Alphapoint Shipping Ltd v Rotem Amfert Negev Ltd

[2004] EWHC 2232 at [18]–[22] where a waiver of a defective Notice of Readiness did not amount to
a total waiver of the right to claim damages arising from the lack of cleanliness of the holds.
 98 The Aegean Dolphin [1992] 2 Lloyd’s Rep 178 at 186 col 1 per Hobhouse J.
99 Deviation is ‘repudiation in an extreme form’ (Woolf v Collis Removal Service [1948] KB 11 at

16–17 per Asquith LJ; Astro Vendecor v Mabanaft [1971] 2 QB 588).

100 Chandris v Isbrandtsen-Moller [1951] 1 KB 240.
101 eg under Clause 5 of the New York Produce Form.
102 See Tidebrook Maritime Corpn v Vitol SA of Geneva (‘Front Commander’) [2006] EWCA Civ

944 at [53]; Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Co [2007] EWHC 2796 at [111].
103 It was once debatable whether defects in Notices of Readiness could be waived. On the current
law this is no longer the case, see para 21.41 below; Tidebrook Maritime Corporation v Vitol SA of
Geneva (‘Front Commander’) [2006] EWCA Civ 944 at [53]; Ocean Pride Maritime Ltd v Qingdao
Ocean Shipping Co [2007] EWHC 2796 at [111].
104 Compagnie Primera de Navagaziona v Compania Arrendataria de Monopolio de Petroleos SA

[1940] 1 KB 362 at 375 per McKinnon LJ.

105 See eg China Trade Corporation v Evlogia Co (The Mihalios Xilas) [1979] 1 WLR 1018 at
1024C–G.
106 McCormick v National Motor Insurance (1934) 40 Comm Cas 76 at 93 per Slesser LJ.
107 See Tenax Steamship Co Ltd v Owners of the Brimnes (‘The Brimnes’) [1975] QB 929; Mardorf
Peach & Co v Attica Sea Carriers Corporation of Liberia (‘The Laconia’) [1977] AC 850 at 872D–E
per Lord Wilberforce. However, the late tender must be in complete not part payment of the hire—see
The Mihalios Xilas supra.
108 Dimech v Corlett (1858) 12 Moo PC 199; 14 ER 887 at 227; 897 per Lord Coleridge, explained
Behn v Burness (1863) 32 LJQB 204 at 208 per Williams J.
109 See Tidebrook Maritime Corpn v Vitol SA of Geneva (‘Front Commander’) [2006] EWCA Civ
944 at [53]; Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Co [2007] EWHC 2796 at [111].
110 US Shipping Board v Bungey Born (1924) 41 TLR 73 at 74 col 2 per Bankes LJ.
111 eg, where the reference to arbitration is consistent only with the continued existence of the
contract—in the same way that a party to an insurance contract may waive a breach or affirm the
contract by calling for a notice in a particular form—see eg Wise (Underwriting Agency) Ltd & Ors v
Grupo Nacional Provincial SA [2004] EWCA Civ 962 at [83] per Rix LJ.
112 China Trade Corporation v Evlogia Co (‘The Mihalios Xilas’) [1979] 1 WLR 1018 at 1036B

per Lord Scarman.

113 Mardorf Peach & Co v Attica Sea Carriers Corporation of Liberia (‘The Laconia’) [1977] AC

850 at 872E; China Trade Corporation v Evlogia Co (‘The Mihalios Xilas’) [1979] 1 WLR 1018 at
1030H per Lord Salmon.
114 The rights will only be waived if the party has acted unreasonably. Thus, if a party has acted

slowly but within a reasonable time, there will be no waiver of its rights (see The Balder London
[1980] 2 Lloyd’s Rep 489 at 494 col 2 per Mocatta J).
115 [1969] 1 WLR 1193. For the proper categorisation of the reasoning as equitable forbearance see

para 4.10 above.

116 See United States Shipping Board v JJ Masters & Co (1922) 10 Ll L R 573 at 578 col 2 per

Atkin LJ—indorsement of the bill of lading is not a sufficiently unequivocal act to waive any defects
in the bill.
117 Compare Tyrer v Hessler (1902) 7 Comm Cas 166 (there was a seven-day delay in which the

owners did nothing and the master telegraphed for new cargo on the charterers’ instructions; held—no
waiver at 170 per Vaughan Williams LJ; approved in Vsesojuznoje Objediheni Sovfracht of Moscow v
Temple Steamship Co Ltd (1945) 62 TLR 43 at 46 col 1 per Lord Porter) with Nova Scotia v
Sutherland (1899) 5 Comm Cas 106 (there was a two-day delay in which the master acting as the
owners’ agent loaded cargo and therefore waived their rights, at 109–10 per Bingham J).
118 Vsesojuznoje Objediheni Sovfracht of Moscow v Temple Steamship Co Ltd (1945) 62 TLR 43 at

46 col 1 per Lord Porter (in that case, however, there was a subsequent breach on which owners could
rely).
119 SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 KB 55 at 60 per Lord Goddard
CJ.
120 This is a considerable oversimplification. For discussion of the theoretical difficulties and
inadequacies, see Chapter 16 passim.
121 Mardorf Peach & Co v Attica Sea Carriers Corporation of Liberia (‘The Laconia’) [1977] AC
850 at 871G per Lord Wilberforce.
122 Chandris v Isbrandtsen-Moller [1951] 1 KB 240 at 242; also Steven v Bromley & Son [1919] 2
KB 722 at 725 per Bankes LJ.
123 Ocean Price Maritime Ltd v Qingdao Ocean Shipping Company [2007] EWHC 2796 at [108].
124 See paras 21.01 ff above.
125 See paras 4.39 ff above and cases there cited.
126 Balian v Joly, Victoria (1890) 6 TLR 345 col 2 per Lord Esher MR; The Dunbeth [1897] P 133;

Joseph Thorley v Orchis [1907] 1 KB 660 at 667–8 per Lord Collins MR; Paterson Steamships v
Robin Hood Mills (1937) 58 Ll L R 33 at 39. For the similar view of the US Courts, see The Tregenna
(Farr v Hain SS Co) 121 Fed Rep (2d) 940 (1941).
127 Hain SS Co v Tate & Lyle supra at 354–5 per Lord Atkin; 363 per Lord Wright; 371–2 per Lord

Maugham.
128 The party claiming for general average or freight will, of course, be unable to rely on estoppel

as that would be using estoppel as a sword and not as a shield.

129 Hain SS Co v Tate & Lyle (1936) 41 Coram Cas 350 at 355 per Lord Atkin; Hirju Mulji v

Cheong Yue SS Co [1926] AC 497 at 509–10 per Lord Sumner.

130 See paras 17.28 ff above.
131 Leduc v Ward (1888) 20 QBD 475 at 485 per Fry LJ.
132 This is the right to terminate not the automatic termination of the charter party.
133 Thus, eg, if there is no provision in the charter party as to notification of the party in breach

that the other has exercised its right of election, normal common law rules will apply (see Tyrer v
Hessler (1902) 7 Comm Cas 166 at 171 per Romer LJ).
134 See eg Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195 at 198A–B.
135 eg, where payment is required by close of business on Friday, receipt of funds on Monday will

not constitute breach.

136 [2006] EWHC 63; [2006] 1 LLR 599; [2006] 1 Lloyd’s Rep 599; [2006] 2 P & CR 9.
137 Discussed in more detail at paras 6.09–14 above.
138 See the discussion in Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75;

2009] CILL 2708; [2009] BLR 196; [2009] 1 Lloyd’s Rep 461; [2009] 1 CLC 134; [2010] QB 27 at
[44].
139 For examples of the care with which the Courts will scrutinise the communications between the

parties to ascertain whether there has been an election and if so, what the results of that would be, see
Drake Insurance Plc v Provident Insurance Plc [2003] EWCA Civ 1834; [2004] QB 601 at [102] ff
per Rix LJ; Leofelis SA v Lonsdale Sports Ltd [2008] EWCA Civ 640; [2008] ETMR 63 at [66 ff] per
Lloyd LJ; Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465 at [33] ff.
140 See, on its facts, Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465 at

[33] ff.
141 Surrey Shipping Co Ltd v Compagnie Continentale (France) SA (The Shackleford) [1978] 1
Lloyd’s Rep 191.
142 Sofial SA v Ove Skou Rederi (‘The Helle Skou’) [1976] 2 Lloyd’s Rep 205 at 214 per Donaldson
J. The learned judge referred to the doctrine applied as ‘waiver’. However, as the charterers had no
knowledge of the facts, the doctrine being applied must have been equitable forbearance.
143 [1990] 1 Lloyd’s Rep 507. See also Galaxy Energy International v Novorossiys Shipping Co
(‘The Petr Schmidt’) Longmore J, Comm Ct, 11 November 1996.
144 At 514.
145 On the facts of the case there was no estoppel.
146 [2002] EWCA Civ 1068; [2002] 2 All ER (Comm) 896; [2002] 2 LLR 487; [2002] 2 Lloyd’s
Rep 487.
147 At [64] ff and in parallel terms to that set out in the Second Edition and reiterated here.
148 At [77]–[78].
149 See Tidebrook Maritime Corpn v Vitol SA of Geneva (‘Front Commander’) [2006] EWCA Civ

944 at [53]; Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Co [2007] EWHC 2796 at [111].
150 Used in the sense of equitable forbearance, estoppel by representation and estoppel by

convention—see Chapter 15.

151 As to the absolute nature of those representations, see Trade Star Lines Corpn v Mitsui Ltd

(CA, 4 July 1996).

152 Reliance can be relatively easily proved by a transferee of the bill by the mere act of taking up

the bill—ie buying it or utilising it as security—see Silver v Ocean SS Co [1930] 1 KB 416.

153 Compania Vascongada v Churchill [1906] 1 KB 237; The Skarp [1935] P 134; The Tromp

[1912] P 337.
154 Brandt v Liverpool [1924] 1 KB 575.
155 Parsons v New Zealand Shipping Co [1901] 1 KB 548.
156 Crawford & Law v Allan Line SS Co [1912] AC 130.
157 The position has now altered by the Carriage of Goods by Sea Act 1992—see para 21.47 below.
158 Grant v Norway (1851) 10 CB 665. Grant, however, is probably not good law even without the

statutory overlay.
159 Cox, Patterson & Co v Bruce & Co (1886) 18 QBD 147.
160 Grant was confined and not followed in The Nea Tyhi [1982] 1 Lloyd’s Rep 606; The Saudi

Crown [1986] 1 Lloyd’s Rep 261. Further, notwithstanding Grant, representations as to the good order
and condition of goods were binding—Compania Naviera Vasconzada v Churchill & Sim [1906] 1 KB
237.
161 eg, ‘quantity unknown’ or ‘quantity believed to be’.
162 Noble Resources Ltd v Cavalier Shipping Corporation (‘The Atlas’) [1996] 1 Lloyd’s Rep 642

at 646 col 2 per Longmore J.

163 Cremer v General Carriers SA [1974] 1 WLR 341 at 352F–H per Kerr J.
164 Brown Jackson v Percy Dalton [1957] 2 QB 621; Silver v Ocean SS Co [1930] 1 KB 416; V/O

Rasnoimport v Guthrie [1966] 1 Lloyd’s Rep 1 at 14; Evans v Webster (1928) 34 Comm Cas 172.
165 See Underwood Ltd v Bank of Liverpool and Martins [1924] 1 KB 775 at 778; Boliden Ore and

Metals Co v Dawn Maritime Corporation [2000] 1 Lloyd’s Rep 237 at 241 col 2 per Timothy Walker
J.
166
See art III, r 4 of the Hague-Visby rules in the Schedule to the Carriage of Goods by Sea Act
1971; Benjamin 8-012. See also r 7(b) of the Comité Maritime International Uniform Rules for Sea
Waybills.
167 The Prinz Heinrich (1888) 13 PD 31 at 34.
168 See Tiberg, Law of Demurrage, 4th edn (Sweet & Maxwell, London, 1995) at 655.
169 Love & Stewart v Rowtor [1916] 2 AC 527 at 539–40 per Lord Sumner.
170 Tiberg, Law of Demurrage, 4th edn (Sweet & Maxwell, London, 1995) at 657.
171 [2001] EWCA Civ 274; [2001] CLC 999; [2002] 1 All ER (Comm) 737.
172 See the discussion in Estoppel by Convention at paras 10.13 ff as it is in relation to estoppel by

convention that the issues have been most thoroughly debated at present.
 1 Pure, unilateral and total waiver appear to have little part to play in landlord and tenant law.
2 eg bankruptcy of the tenant.
3 Civil Service Co-operative Society v McGrigor’s [1923] 2 Ch 347 at 358.
4 Matthews v Smallwood [1910] 1 Ch 777, ChD; Central Estates (Belgravia) v Woolgar (No 2)

[1972] 1WLR 1048, CA.

5 Doe d Sheppard v Allen [1810] 3 Taunt 78.
6 Kelsey v Dodd [1881] 52 LJ Ch 34.
7 Creery v Summersell [1949] Ch 751.
8 Windmill Investments (London) v Milano Restaurants [1962] 2 QB 373; Central Estates

(Belgravia) v Woolgar (No 2) [1972] 1 WLR 1048.

9 Central Estates (Belgravia) v Woolgar (No 2) [1972] 1 WLR 1048, CA. That a qualified

representation (ie on a without prejudice basis) or one made outwith an agent’s authority can generate
a waiver is heterodox when compared to the general law of waiver. This is because the
acceptance/demand for rent is viewed as a special category within landlord and tenant (see para 22.07
below).
10 Segal Securities Ltd v Thoseby [1963] 1 QB 887 at 889; David Blackstone Ltd v Burnetts (West

End) Ltd [1973] 1 WLR 1487 at 1498E–F; Welch v Birrane [1975] 29 P & CR 102 at 112; Expert
Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340 at 359C–F; Greenwood
Reversions Ltd v World Environment Foundation Ltd [2008] EWCA Civ 47 per Thomas LJ at paras
26–7.
11 The exception being where the landlord brings ‘proceedings in ejectment for non-payment of

rent’ under s 210 Common Law Procedure Act 1852. In such cases the right to forfeit is not waived by
distress.
12 Shepherd v Berger [1891] 1 QB 597.
13 Yorkshire Metropolitan v Co-operative Retail [2001] 2 L & TR 298.
14 See para 5.07 above.
15 Oak Property Co v Chapman [1947] KB 886; Central Estates (Belgravia) v Woolgar (No 2)

[1972] 1 WLR 1048.

16 Price v Worwood [1859] 4 H & N 512. But see Osibanjo v Seahive Investments Ltd [2009] 9 EG

194; [2009] 1 EGLR 32; [2008] EWCA Civ 1282 per Rix LJ at [31]: ‘I am not sure that a landlord
cannot waive the right to forfeit by accepting rent with knowledge of the breach where that rent had
accrued due before knowledge of the breach.’ This obiter dictum is surprising—in such circumstances
there may be an equitable forbearance but waiver is not possible.
17 Penton v Barnett [1898] 1 QB 276; Segal Securities v Thoseby [1963] 1 QB 887; Greenwich LBC

v Discreet Selling Estates [1990] 2 EGLR 65.

18 Doe d Rankin v Brindley [1832] 4 B & Ad 84.
19 Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] Ch 340 at 360D–E per Slade

LJ.
20 ibid at 360E–F.
21 Marche v Christodoulakis [1948] 64 TLR 466.
22 Church Commissioners for England v Nodjoumi [1986] 51 P & CR 155.
23 Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] Ch 340, CA.
24 Bader Properties v Linley Property Investments [1968] 19 P & CR 620.
25 Re National Jazz Centre [1988] 2 EGLR 57 per Gibson J at 58H.
26 Wheeler v Keeble (1914) Ltd [1920] 1 Ch 57, approved in Associated Deliveries v Harrison
[1985] 50 P & CR 91.
27 Calabar Properties v Seagull Autos [1969] 1 Ch 451.
28 Billson v Residential Apartments [1990] 60 P & CR 392, CA (aff’d on this point by the House of
Lords [1992] 1 AC 494).
29 Cardigan Properties v Consolidated Property Investments [1991] 1 EGLR 64.
30 Greenwich London Borough Council v Discreet Selling Estates [1990] 2 EGLR 65.
31 Cooper v Henderson [1982] 2 EGLR 42, CA.
32 David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487 at 1501E.
33 See Official Custodian for Charities v Parkway Estates Developments Ltd [1985] Ch 151, where

the tenant’s bankruptcy was advertised in the London Gazette. Cf Van Haarlam v Kasner Charitable
Trust [1992] 64 P & CR 214, in which it was held that the landlord had waived the covenant against
unlawful use of the property. The tenant’s unlawful activities (spying) had come to the landlord’s
attention through their wide publicity in the press.
34 Chrisdell v Johnson and Tickner [1987] 54 P & CR 257, CA.
35 Cornillie v Saha [1996] 72 P & CR 147, CA.
36 David Blackstone v Burnetts (West End) [1973] 1 WLR 1487.
37 Metropolitan Properties Co v Cordery [1979] 39 P & CR 10, where a porter of a block of flats

knew that one of the flats had been unlawfully sublet.

38 Doe d Nash v Birch [1836] 1 M & W 402.
39 Thomas v Ken Thomas [2007] Bus LR 429; [2006] EWCA Civ 1504.
40 Central Estates (Belgravia) v Woolgar (No 2) [1972] 1 WLR 1048.
41 Matthews v Smallwood [1910] 1 Ch 777; Oak Property Co v Chapman [1947] KB 886.
42 David Blackstone v Burnetts (West End) [1972] 1 WLR 1487.
43 [1971] Ch 764, CA.
44 Elsden v Pick [1980] 1 WLR 899, CA; Laine v Cadwallader [2001] 33 HLR 36, CA; Hackney

LBC v Snowden [2001] 33 HLR 49, CA.

45 Hounslow LBC v Pilling [1993] 1 WLR 1242, CA.
46 Gray v Owen [1910] 1 KB 622.
47 Davies v Bristow [1920] 3 KB 428 per Lush J at 437–8.
48 Newlon Housing Trust v Alsulamein [1999] 1 AC 313, HL.
49 Davies v Bristow [1920] 3 KB 428; Maconochie Bros Ltd v Brand [1946] 2 All ER 778; Lower v

Sorrell [1962] 3 All ER 1074.

50 Clark v Grant [1950] 1 KB 104, CA, where it was held that no tenancy had been created where

the landlord accepted rent but at the same time was commencing possession proceedings against the
tenant. See also Marcroft Wagons Ltd v Smith [1951] 2 KB 496, CA.
51 Longrigg, Burrough & Trounson v Smith [1972] 2 EGLR 42, CA.
52 Burrows v Brent LBC [1996] 1 WLR 1448, HL.
53 Landlord and Tenant Act 1954, s 25.
54 ibid s 26.
55 ibid s 29A.
56 Landlord and Tenant Act 1954, ss 25(1) and 26(3).
57 [1979] 38 P & CR 411, CA.
58 ibid at 422 per Templeman and Bridge LJJ.
59 Usually the knowledge requirement.
 60 [1979] 38 P & CR 411, CA at 421.
61 Law of Property Act 1925, s 148. See, however, City & Westminster Properties (1934) Ltd v
Mudd [1959] Ch 129, in which the tenant was induced to sign a lease, which contained a covenant to
use the premises for business purposes only, by an oral assurance that the landlord would not object to
his continuing residence in the premises. It was held that the assurance constituted a collateral
contract.
62 Doe d Baker v Jones [1850] 5 Exch 498.
63 Doe d Muston v Gladwin [1845] 6 QB 953 at 956.
64 Segal Securities v Thoseby [1963] 1 QB 887; Cooper v Henderson [1982] 2 EGLR 42, CA.
65 Church Commissioners for England v Nodjoumi [1985] 51 P & CR 155. This is so even if the
proviso for re-entry entitles the landlord to forfeit ‘if and whenever’ the rent is in arrear: London &
County v Wilfred Sportsman [1971] Ch 764.
66 Scala House and District Property Co v Forbes [1974] QB 575. A covenant against sub-letting
as a whole is breached by sub-letting in two parts: Chatterton v Terrell [1923] AC 578.
67 Savva v Hussein [1996] 2 EGLR 65.
68 Iperion Investments Corporation v Broadwalk House Residents [1992] 2 EGLR 235.
69 Stephens v Junior Army and Navy Stores Ltd [1914] 2 Ch 516.
70 Farimani v Gates [1984] 2 EGLR 66.
71 [1951] 2KB 112.
72 [1947] KB 130. Discussed at greater length in Chapter 8.
73 [1998] 75 P & CR 466, CA.
74 [2001] EWCA Civ 1883; [2002] 1 EGLR 45, CA.
75 Landlord and Tenant Act 1954, s 30(1)(b).
76 Hurstfell v Leicester Square Property Co Ltd [1988] 2 EGLR 105.
77 [1877] 2 App Cas 439.
78 [1956] 2 All ER 603.
79 Per Evershed MR at 610A.
80 [1994] 4 All ER 803.
81 Per Lindsay J at 831J–832A.
82 Bruton v London and Quadrant Housing Trust [2000] 1 AC 406, HL; First National Bank Plc v

Thompson [1996] Ch 231 per Millett LJ at 237B.

83 If a tenancy is for a fixed term of more than three years it must be created by deed: s 52(1) Law

of Property Act 1925.

84 See Chapter 12.
85 EH Lewis & Son Ltd v Morelli [1948] 2 All ER 1021, CA per Harman J at 1024H–1025A.
86 In Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580,

the landlord granted a lease of a factory, although it had no title to do so. At the expiry of the term,
the tenant yielded the factory in substantial disrepair. The landlord made a claim for dilapidations and
the tenant alleged that the landlord had no title to sue. The tenant was held to be estopped from
disputing the landlord’s title and its right to sue because it had been let into possession and had
without interruption enjoyed possession throughout the term.
87 Bell v General Accident, Fire & Life Assurance Corpn Ltd [1998] 1 EGLR 69, CA.
88 Bruton v London and Quadrant Housing Trust [2000] 1 AC 406, HL.
89 ibid. A local authority granted a licence to a housing association of a block of flats. The
authority did not have the statutory power to grant a tenancy of the block. The association purported
to grant sub-licences to the occupiers of the flats. As the occupiers had exclusive possession for a
term at a rent, it was held that they had tenancies.
90 Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148, approved in Bruton v

London and Quadrant Housing Trust [2000] 1 AC 406, HL per Lord Hobhouse of Woodborough at
417H.
91 In such circumstances, the tenant is unlikely to be able to sue for breach of quiet enjoyment
because the covenant implied into every tenancy (and most express covenants) only applies to acts
done by the landlord and those acting under him: Jones v Lavington [1903] 1 KB 253.
92 First National Bank Plc v Thompson [1996] Ch 231 per Millett LJ at 239B–C; Universal
Permanent Building Society v Cooke [1952] Ch 95.
93 The presumption is that time is not of the essence in a rent review clause: United Scientific
Holdings Ltd v Burnley BC [1978] AC 904, HL. For application of the decision, see Mammoth
Greetings Cards Ltd v Agra Ltd [1990] 2 EGLR 124, CA; Trustees of Henry Smith’s Charity v
AWADA Trading & Promotion Services Ltd [1984] 47 P & CR 607, CA; Chelsea Building Society v R
& A Millet (Shops) Ltd [1993] 1 EGLR 148; North Hertfordshire DC v Hitchin Industrial Estate
[1992] 2 EGLR 121; Bello v Ideal View [2009] EWHC 2808 (QB), [2010] 4 EG 118.
94 See eg Telegraph Properties (Securities) v Courtaulds [1981] 1 EGLR 104.
95 [1983] Ch 305, CA. See also Bello v Ideal View [2009] EWHC 2808 (QB); [2010] 4 EG 118.
96 Per Oliver LJ at 316C.
97 ibid and per Lawton LJ at 320A.
98 [1980] 41 P & CR 269, CA.
99 United Scientific Holdings Ltd v Burnley BC [1978] AC 904, HL.
100 Per Buckley LJ at 277.
101 ibid at 278.
102 [1979] 1 QB 467, CA.
103 See Chapter 2 passim.
104 [1979] 1 QB 467, CA at 484F–485C.
105 Per Cumming-Bruce LJ at 485F–486G. See also Business Environment Bow Lane Ltd v

Deanwater Estates Ltd [2007] EWCA Civ 622.

106 Law of Property Act 1925, s 52(1). If made in writing it can be effective only in equity as a

specifically enforceable contract to surrender: see Tarjomani v Panther Securities Ltd [1983] 46 P &
CR 32 at 39 per Peter Gibson J.
107 Law of Property Act 1925, s 52(2)(c).
108 Foster v Robinson [1951] 1 KB 149 at 155 per Evershed MR; Tarjomani v Panther Securities

Ltd [1983] 46 P & CR 32 at 41; Bellcourt Estates v Adesina [2005] EWCA Civ 208; [2005] 2 EGLR
33; Artworld Financial Corporation v Safaryan [2009] 23 EG 94; [2009] EWCA Civ 303 at [12]; QFS
Scaffolding Ltd v Sable [2010] NPC 70; [2010] EWCA Civ 682 at [14].
109 QFS Scaffolding Ltd v Sable [2010] NPC 70; [2010] EWCA Civ 682 at [14].
110 Hoggett v Hoggett [1980] 39 P & CR 121 at 126.
111 Lyon v Reed [1844] 13 M & W 285 per Parke B at 306; approved in Allen v Rochdale BC

[2000] Ch 221, CA per Morritt LJ at 229B–C; see also R v Croydon LBC, ex p Toth [1988] 20 HLR
576, CA.
112 Brent LBC v Sharma [1992] 25 HLR 257 at 260 per Scott LJ; QFS Scaffolding Ltd v Sable

[2010] NPC 70; [2010] EWCA Civ 682 at [12]–[13], [70] and [73].
 113 Reeve v Bird [1834] 1 CM & R 31.
114 Love v Herrity [1990] 23 HLR 217, CA.
115 Oastler v Henderson [1877] 2 QBD 575 at 579.
116 Preston BC v Fairclough [1982] 8 HLR 70, CA.
117 R v Croydon LBC, ex p Toth [1986] 18 HLR 493 CA.
118 See Zionmoor v Islington LBC [1997] 30 HLR 822, CA.
119 Furnivall v Grove [1860] 8 CBNS 496.
120 Bird v Defonville [1846] 2 Car & Kir 415.
121 Brent LBC v Sharma [1993] 25 HLR 257, CA.
122 McDougalls v BSE Trading [1997] 2 EGLR 65.
123 Relvok Properties v Dixon [1973] 25 P & CR 1.
124 Bird v Defonvielle [1846] 2 Car & Kir 415.
125 Boynton-Wood v Trueman [1961] 177 EG 191.
126 Relvok Properties v Dixon [1973] 25 P & CR 1.
127 Oastler v Henderson [1877] 2 QBD 575; cf Phene v Popplewell [1862] 12 CBNS 334, in which

it was held that there was a surrender where the tenant left the keys at the landlord’s office, and the
landlord at first refused to accept them, but then subsequently put up a letting board, used the keys to
show the property to prospective tenants and painted out the tenant’s name from the front of the
property.
128 Cannan v Hartley [1850] 9 CB 634.
129 Lyon v Reed [1844] 13 M & W 285.
130 Variation of rent or the introduction of covenants regarding alterations will not effect a
surrender: Friends Provident Life Office v British Railways Board [1996] 1 All ER 336.
131 Well Barn Farming Ltd v Backhouse [2005] EWHC 1520 at [60].
132 Re Savile Settled Estate [1931] 2 Ch 210.
133 Foster v Robinson [1951] 1 KB 149 per Evershed MR at 155.
134 Lyon v Reed [1844] 13 M & W 285; Mattey Securities v Ervin [1998] 2 EGLR 66; QFS
Scaffolding Ltd v Sable [2010] NPC 70, [2010] EWCA Civ 682 at [10] and [72]–[73].
135 Metcalfe v Boyce [1927] 1 KB 758.
136 See para 22.20 above.
137 Similar principles apply in the equally technical area of charter parties (with and without anti-

technicality clauses)—see Chapter 21 passim.

138 [1971] AC 850.
139 Hodgson v Armstrong [1967] 2 QB 299, CA.
140 883C–F per Lord Diplock.
141 Per Lord Diplock at 884A–B and per Lord Morris of Borth y Gest at 864E–F.
142 [1990] 1 EGLR 95, CA.
143 Stuart-Smith LJ at 97C–D held that there could have been no waiver because the landlord did

not know of his right to rely on defect in the notice (applying Peyman v Lanjani [1985] 1 Ch 457).
Farquharson LJ at 98L held that, following Kammins, the landlord was not put on election at all.
144 [1993] 1 EGLR 101, CA.
145 The Landlord and Tenant Act 1954 now permits the parties to extend the statutory period for
making an application—see s 29B—inserted by the Regulatory Reform (Business Tenancies)
(England and Wales) Order 2003, SI 2003/3096, art 10. This change should reduce the scope for error
and the need for estoppel arguments.
146 Tennant v London CC [1957] LGR 421, CA. In Morrow v Nadeem [1986] 1 WLR 1381, CA,

Nicholls LJ at 1390H, observed that there was no form of defect in a notice which could not in
principle be waived.
147 [1997] 1 EGLR 88, CA.
148 The correctness of the decision is doubted in Woodfall, Landlord and Tenant at para 22.069 on
the basis that the service of the counter-notice is not necessarily an unequivocal act given that the
tenant may be unwilling to give up possession precisely because the notice is invalid.
 1 See Chapter 4 passim.
2 See eg Bank of New Zealand v Logan (1899) 18 NZLR 117 at 641.
3 See eg Re Angina Iron Mining Co (1853) 1 Eq Rep 269.
4 eg, potential shareholders in relation to statements made in the company’s prospectus—see

Greenwood v Leather Shod Wheels Co [1900] Ch 421; Cackett v Keswick [1902] 2 Ch 456; Watts v
Bucknell [1903] 1 Ch 766.
5 As, eg, a waiver of the right to claim or to dispute a claim for security for costs—Re North of
England Banking Co, Hutchinson’s Case (1849) 1 De G & Sm 563; 63 ER 1196; Re Home Assurance
Association (No 2) (1871) LR 12 Eq 112; Re Oro Fino Mines (1900) 7 BCR 388—or the waiver of
improper service on the company—Pearks, Gunston & Tee Ltd v Richardson [1902] 1 KB 91.
6 See eg Northern Crown Bank v Great West Lumber Co (1914) 6 WWR 528.
7 New Zealand Netherlands Society ‘Oranje’ Inc v Kuys [1973] 1 WLR 1126.
8 See eg Re Joint Stock Discount Co, Shipman’s Case (1868) LR 5 Eq 219 (delay not sufficient);

Glass v Pioneer Rubber Works of Australia [1906] VLR 754 (mere concurrence not sufficient).
9 See eg Southland Frozen Meat & Produce Export v Nelson Bros (1895) 13 NZLR 704; Pegge v

Neath & District Tramways Co Ltd [1898] 1 Ch 183; Re Melbourne Brewery & Distillery [1901] 1 Ch
453.
10 Westfall v Schmalz Agencies Ltd (1958) 12 DLR (2d) 86.
11 See eg In re The Vale of Neath and South Wales Brewery Co (1853) 3 De GM & G 272; 43 ER

107 at 280; 110 per Knight Bruce LJ.

12 See Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500;

Lebon v Aqua Salt Co Ltd [2009] UKPC 2; [2009] BCC 425. For a recent discussion see Eilis Ferran,
‘Corporate Attribution and the Directing Mind and Will’ [2011] 127 LQR 239.
13 As to which see paras 5.13 and 17.16 above; 20.39 below; and Chapter 16 passim. There are, in

fact, three areas of factual inquiry to be considered—the facts relevant to the general rules of
attribution; the primary rules of attribution for the company at issue (the constitutional allocation of
power) and any special rules of attribution applicable in the case—see Meridian Global Funds
Management Asia Ltd v Securities Commission [1995] 2 AC 500; Lebon v Aqua Salt Co Ltd [2009]
UKPC 2; [2009] BCC 425. For a recent discussion see Eilis Ferran, ‘Corporate Attribution and the
Directing Mind and Will’ [2011] 127 LQR 239.
14 For the position at common law, see Browne v La Trinidad (1887) 37 ChD 1; Southern Counties

Deposit Bank Ltd v Rider & Kirkwood (1895) 73 LT 374; Henderson v Bank of Australasia (1890) 45
ChD 330; Excel Footwear Co, ex p Nova Scotia Trust Co (1923) 3 DLR 212.
15 Companies Act 2006, s 281(1).
16 ibid s 307(2).
17 ibid s 307(1).
18 See Re Oxted Motor Co [1921] 3 KB 23; Companies Act 2006, s 307(4)–(6).
19 Companies Act 2006, s 307(6).
20 As stressed in Chapter 15, the term ‘estoppel’ is used to include equitable forbearance, estoppel

by convention and estoppel by representation unless stated otherwise.

21 Simm v Anglo American Telegraph (1879) 5 QBD 188 at 206–7 per Brett LJ; In re Goldcorp

Exchange Ltd [1995] 1 AC 74 at 93F–94G per Lord Mustill.

22 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 506.
23 See paras 9.131 ff—though care must be taken as to whether the estoppel contended for in fact

undermines the statute—see Shah v Shah [2001] 4 All ER 138; [2001] EWCA Civ 572 per Pill LJ at
para 21. See also Yaxley v Gotts [2000] Ch 162 per Beldam LJ at 191: ‘The general principle that a
party cannot rely on an estoppel in the face of a statute depends on the nature of the enactment, the
purpose of the provision and the social policy behind it.’
24 And therefore void.
25 See Ruben v Great Fingall Consolidated [1906] AC 439 at 443 per Lord Loreburn. The company
may be estopped from denying validity (see Boyle & Sykes (eds), Gore-Brown on Companies, 44th
edn (Jordans, London), looseleaf at 5.7) or, more usually, the director’s authority to sign the
document—it being difficult for someone to forge his own signature.
26 See Rover International v Cannon Film Sales Ltd [1987] BCLC 540.
27 See Re Exchange Securities & Commodities Ltd [1987] 2 All ER 272 at 280g–h per Harman J.
To do so would be to give an estoppel force against parties other than the representor. It would also
conflict with the liquidator’s function to pay the company’s true debts. The position may be different
where representations are made as to the title of shares where, because the representation is made in
and by the share certificate, the liquidator arguably adopts that representation and is bound (see Re
Victoria Silicate Brick Co, ex p Martin [1912] VLR 442 at 445 per Hood J; Re British Farmers Pure
Linseed Cake Co (1878) 7 ChD 533; Bloomenthal v Ford [1897] AC 156; Re London Celluloid Co
(1888) 39 ChD 190 and para 18.09 below).
28 As the Companies Act 2006 repealed and did not re-enact s 349(1) Companies Act 1985,

directors are no longer personally liable on cheques which do not disclose the company name. As
such, those cases which considered whether the company could itself be estopped from suing the
director, no longer apply.
29 See paras 16.11 ff above.
30 Mercantile Bank of India v Chartered Bank of India [1937] 1 All ER 231 at 238D–G per Porter

J.
31 The third party dealing with the company in such circumstances cannot rely on s 35A

Companies Act 1985, which is limited to the powers of the board of directors to bind the company.
32 Houghton & Co v Nothard, Lowe & Wills [1927] 1 KB 246 at 266 per Sargeant LJ.
33 Companies Act 2006, s 39(1).
34 Therefore Houghton & Co v Nothard, Lowe & Wills [1927] 1 KB 246 would be confined to its
particular facts.
35 See paras 16.15 ff above.
36 Ebeed v Soplex Wholesale Supplies Ltd and PS Refion & Co Ltd [1985] BCLC 404 at 414a–g per

Browne-Wilkinson LJ.
37 See Freeman & Lockyer v Buckhurst Park Properties [1964] 2 QB 480; IRC v Ufitec Group Ltd
[1977] 3 All ER 924 at 937c–938c per May J; British Bank of the Middle East v Sun Life Assurance of
Canada [1983] 2 Lloyd’s Rep 9 at 17 col 2 per Lord Brandon; Rhodian River Shipping v Halla
Maritime [1984] 1 Lloyd’s Rep 373 at 379 col 2 per Bingham J.
38 IGN Re (UK) Lyd v R & V Versichung [2007] 1 BCLC 108 at [100].
39 The principles discussed do not necessarily apply to uncertificated shares where, manifestly,

there is no share certificate. In such cases, it is possible but unlikely that the register held by the
issuer may constitute a sufficient representation to generate an estoppel as the company will be able
to rely on the exemption of liability in reg 35(8) of the Uncertificated Securities Regulations 2001.
40 Re Bahia and San Francisco Rly Co (1868) LR 3 QB 584; In re Ottos Kopje Diamond Mines Ltd
[1893] 1 Ch 618 at 625–6 per Lindley LJ; 628–9 per Bowen LJ; Daily Telegraph Newspaper Co v
Cohen (1905) 5 SR (NSW) 520.
 41 Burkinshaw v Nicholls (1878) 3 App Cas 1004; Bloomenthal v Ford [1897] AC 156; Re Phillip-
Stephan Photo, Litho and Typographic Process Co Ltd (1891) 12 LR (NSW) Eq 4; Re Bonang Gold
Mining Co Ltd (1897) 18 LR (NSW) Eq 141.
42 See Re Victoria Silicate Brick Co, ex p Martin [1912] VLR 442 at 445 per Hood J; Re British
Farmers Pure Linseed Cake Co (1878) 7 ChD 533; Bloomenthal v Ford [1897] AC 156; Re London
Celluloid Co (1888) 39 ChD 190; contrast Re Exchange Securities & Commodities Ltd [1987] 2 All
ER 272 at 280g–h per Harman J.
43 Dixon v Kennaway & Co [1900] 1 Ch 833 at 839, 842 per Farwell J.
44 Re Eddystone Marine Insurance Co (No 2) [1894] WN 30 at 30 col 2 per Stirling J.
45 Balkis Consolidated Co Ltd v Tomkinson [1893] AC 396 at 411–12 per Lord Field; contra
Bloomenthal v Ford [1897] AC 156 at 161 per Lord Halsbury LC; 168 per Lord Herschell.
46 The Court will therefore carefully consider X’s knowledge—Re African Gold Concessions and
Market Development Co, Markham and Darter’s Case [1899] 1 Ch 414 at 430 per Wright J.
47 Sheffield Corpn v Barclay [1905] AC 392 at 397 per Lord Halsbury LC; Yeung v Hong Kong and

Shanghai Bank [1981] AC 787 at 796F–798G per Lord Scarman.

48 There being no shares to which X is entitled.
49 Re Bahia and San Francisco Rly Co (1868) LR 3 QB 584 at 595 per Cockburn CJ; at 596–7 per

Blackburn J.
50 Balkis Consolidated Co Ltd v Tomlinson [1893] AC 396 at 403–5; 408 per Lord Herschell LC.
51 Burkinshaw v Nicholls (1878) 3 App Cas 1004 at 1017 per Lord Cairns LC (policy behind the

rule); 1026–7 per Lord Blackburn; Re British Farmers’ Pure Linseed Cake Co (1878) 7 ChD 533 at
538 per Lord Jessel MR; 538–9 per James LJ.
52 Re Vulcan Ironworks Co [1885] WN 120 col 2 per Pearson J.
53 Some care must therefore be taken in ascertaining the precise representation that was made—

compare Re Celluloid Co (1888) 39 ChD 190 at 202 per Cotton LJ; Re Building Estates Brickfield Co,
Parbury’s Case [1896] 1 Ch 100 at 106 per Vaughan-Williams J.
54 Re Stapleford Colliery Co, Barrow’s Case (1880) 14 ChD 432.
55 This appears to be the analysis in Re Stapleford Colliery Co, Barrow’s Case (1880) 14 ChD 432

at 445 per Lord Jessel MR; see also Re MacDonald Sons & Co [1894] 1 Ch 89 at 104–5 per Lindley
LJ.
56 See paras 16.18 ff and 17.64 above.
57 See In re Goldcorp Exchange Ltd [1995] 1 AC 74 at 95G–H per Lord Mustill.
58 It may also be arguable that the case was not good law at the time the decision was given—see

Re Celluloid Co (1888) 39 ChD 190; Re Railway Time Tables Publishing Co (1889) 42 ChD 98 at 110
per Stirling J.
59 (1880) 14 ChD 432.
60 See para 17.64 above.
61 Colonial Bank v Cady (1890) 15 App Cas 267 at 285 per Lord Herschell.
62 See eg Fuller v Glyn Mills & Co [1914] 2 KB 168 at 176–7 per Pickford J.
63 Webb v Herne Bay Cmrs (1870) LR 5 QB 642 at 650–1 per Cockburn CJ.
64 York Corpn v Henry Leetham & Sons [1924] 1 Ch 557 at 573 per Russell J; Rolled Steel

Products (Holdings) Ltd v British Steel Corpn [1985] 3 All ER 52 at 86g–h per Slade LJ; Re Exchange
Securities and Commodities Ltd [1987] 2 All ER 272 at 276j per Harman J. Nor can it override or
contradict a statute—see paras 9.131 ff above.
65 See the ‘doctrine of negotiability by estoppel’—Paget’s Law of Banking, 13th edn (2007) at
777–81.