Discusses the Chancery Division judgment in Thorner v Curtis on a claim by an unpaid farm worker, who was led to expect that he would inherit the farm. Examines whether proprietary estoppel could be proved even if the deceased landowner made no express promise. Reviews case law on proprietary estoppel

Pawlowski, Mark

English

Greenwich Academic Literature Archive

Greenwich Academic Literature Archive (GALA)– the University of Greenwich open access repositoryhttp://gala.gre.ac.uk__________________________________________________________________________________________Citation for published version:Pawlowski, Mark (2008) Expectations and promises. Trusts and Estates Law & Tax Journal, 93 (Januar). pp. 4-6. ISSN 1743-5501Publisher’s version available at:__________________________________________________________________________________________Please note  that  where  the  full  text  version provided on GALA is  not  the  final  published version, the version made available will be the most up-to-date full-text (post-print) version as provided by the author(s).  Where possible, or if citing, it is recommended that the publisher’s  (definitive) version be consulted to ensure any subsequent changes to the text are noted.Citation for this version held on GALA:Pawlowski, Mark (2008) Expectations and promises . London: Greenwich Academic Literature Archive.Available at: http://gala.gre.ac.uk/1419/__________________________________________________________________________________________Contact: gala@gre.ac.uk4 Trusts and Estates Law & Tax Journal January/February 2008Expectations and promises…Mark Pawlowski considers the recent case of  Thorner v Curtis,which examines whether there has to be an express promise toraise a proprietary estoppel claimMark Pawlowski is a barrister and professor ofproperty law at theUniversity of GreenwichPROPRIETARY ESTOPPELAlthough the modern approach isto explain the doctrine of propri-etary estoppel in terms of thegeneral concept of ‘unconscionability’, itis evident that a claim of this nature willfail unless the court is satisfied that theclaimant has proven the three essentialelements of an assurance, reliance anddetriment. In Attorney-General of HongKong v Humphreys Estate (Queen’sGardens) Ltd [1987], the Privy Council,whilst recognising the trend away fromany strict application of rigid criteria inthis context towards a more flexible testof unconscionability, nevertheless heldthat all three elements of the estoppel hadto be satisfied. More recently, in Gillett vHolt & anr [2000] Robert Walker LJ alsomade clear that the doctrine should notbe subdivided into watertight compart-ments (as the various elements ofassurance, reliance and detriment wereoften intertwined) but that, for the sake ofclarity and convenience, it was stillappropriate for the court to conduct itsanalysis by reference to the various com-ponent parts of the claim. This approach is echoed in the mostrecent ruling on the subject in Thorner vCurtis & ors [2007], where Mr JohnRandall QC (sitting as a deputy judge ofthe High Court) emphasised that, despitelooking at each component separately, thecourt must also stand back and look at theclaim in the round in order to decidewhether the conduct of the defendant hadgiven rise to an estoppel and, if so, whatshould be the minimum equity necessaryto do justice to the claimant to avoid a dis-proportionate result (see also Uglow vUglow & ors [2004]. The key issue inThorner, however, was whether, in a casewhere an estoppel is raised so as to restricttestamentary freedom of action, it wasnecessary for the claimant to establish anexpress promise (as opposed to merely anexpectation or belief) that they willbecome entitled to some right or interestin the land in question. It is this aspect ofthe claim, therefore, which forms the basisof this article.Types of assuranceThere is no doubt that an assurance maytake a variety of different forms. As wasindicated by Oliver J in Taylor FashionsLtd v Liverpool Victoria Trustees Co Ltd[1982], it may involve simply standingby in silence whilst one party unwit-tingly infringes the other’s legal rights:see Salvation Army Trustee Co Ltd v WestYorkshire Metropolitan County Council[1981], which concerned conscioussilence. Alternatively, it may take theform of active encouragement upon thefooting of some unilateral or sharedlegal or factual supposition: see JTDevelopments Ltd v Quinn [1991], whichconcerned the encouraging of an expec-tation of a new lease. As these casesdemonstrate, the range of conductwhich may qualify as a relevant assur-ance is both wide and far-reaching.It is now clear that an assurance maybe spelt out of an agreement which islegally unenforceable for uncertainty ofterms. So, in Lim Teng Huan v Ang SweeChuan [1992] the agreement (which wasvoid for uncertainty) was neverthelessheld to constitute evidence of the parties’intentions and it was to be inferred thatthe claimant had completed the construc-tion of the subject house in reliance onthat agreement (see also, more recently,Cobbe v Yeomans Row Management Ltd[2005] and Kinane v Mackie-Conteh [2005]).It is also now well established that aclaim will not fail simply because theright or interest to be secured has not beenprecisely or expressly identified at thetime of the assurance. It is not, therefore, arequirement that there be an expectation‘Where the assurancesrelied on fell significantlyshort of express promises,it is all the moreimportant for a claimantto support their case withclear and substantialdetrimental reliance andcorroborating evidence as to the meaning andintention of the deceased’swords or conduct.T&ELTJ93 p04-06 Pawlowski  14/1/08  18:07  Page 4January/February 2008 Trusts and Estates Law & Tax Journal 5PROPRIETARY ESTOPPELof some precise legal term. In Inwards vBaker [1965], for example, the son hadspent money on building a bungalow onhis father’s land in the expectation,induced by his father, that he would beallowed to stay there as his home. Thefather had said to his son: ‘Why don’tyou build the bungalow on my land andmake it a bit bigger?’ Interestingly, theequity arising from the son’s expendituredid not fail simply because the interest tobe secured had not been expressly indi-cated by the father.Vague assurancesIn several cases the assurance relied uponhas been characterised as too vague oruncertain to give rise to the claimant’sexpectation. A good example is Coombes vSmith [1986], where an assurance givenby the defendant to his female cohabiteethat he would always ‘provide her with aroof over her head’ was held insufficientto constitute a representation that shewas legally entitled to security of tenureagainst his wishes. Similarly, in Negus vBahouse [2008], HHJ Kaye QC (sitting as ajudge of the High Court) held that anassurance by the deceased to the claimantthat if anything happened she would‘have a roof over her head’ was insuffi-cient to spell out a specific commonintention in respect of the deceased’s flatso as to give rise to a constructive trust inher favour. In Bennett v Bennett [1990] the Courtof Appeal held that a mere verbal state-ment by the legal owner that he ‘didn’twant [the claimant] out’ could not havebeen reasonably understood by her asan assurance that she could remain forthe rest of her life. The statement simplysuggested that the legal owner was pre-pared to let her stay in the property forthe time being and that he would, there-fore, have the right to ask her to leaveon reasonable notice. A similar conclu-sion was reached in Bostock v Bryant[1990], where the claimant was told byher uncle: ‘Don’t worry about thefuture, you’ll be alright.’ This was heldby the Court of Appeal to be too vagueto amount to an assurance that shecould live in the house as long as shewished.In Layton v Martin [1986] thedeceased, a married man, asked theclaimant to live with him, offering ‘whatemotional security I can give, plus finan-cial security during my life and… aftermy death’. In reliance on this statement,the claimant provided various domesticservices until the deceased’s death. Herclaim for financial provision based onproprietary estoppel was dismissed onthe ground that the deceased’s represen-tations did not relate to any specificassets. Scott J said:A representation that ‘financial security’would be provided… is not a representa-tion that she is to have some equitable orlegal interest in any particular asset orassets… What assets? His assets for thetime being, answered counsel for the[claimant]. The proposition has only, inmy view, to be put to be seen to beuntenable.As a general rule, therefore, althoughabsolute legal precision is not necessary,the assurance made by the legal ownermust relate to some specific property orto some part of the owner’s property.This has been re-iterated in the morerecent case law, in particular Lissimore vDowning [2003], where the court heldthat unspecific statements made by thedefendant that ‘she [the claimant]would never want for anything’, that‘he would take care of her’, or ‘he hadlooked after his other girlfriends andshe would not be different’ did notfound a proprietary estoppel. Suchstatements were insufficient becausethey were not expressed in terms whichenabled any objective assessment to bemade of what was being promised – seealso, most recently, James v Thomas[2007], where the phrase ‘this will bene-fit us both’ was held not to constitute apromise of some property interest.It is apparent, however, that propri-etary estoppel is not limited to acts donein reliance on a belief relating to anexisting right, but may extend to actsdone in reliance on a belief that futurerights will be granted: see Re Basham(dec’d) [1986]. Accordingly, an estoppelcan be raised in relation to the grant ofrights over a residuary estate. This hasnow, of course, been fully endorsed bythe Court of Appeal in Gillett v Holt. Curtis decisionThe deceased owned a farm of substan-tial value and also had considerablesavings. He made a will in 1997 leavingthe residue of his estate (including hisfarm) to the claimant, but later revokedthe will and died intestate. From 1976onwards, the claimant had workedincreasingly at the deceased’s farm forno remuneration and by the 1980s hadcome to hope that he might inherit thefarm. His claim, based on proprietaryestoppel, centred on various hints andremarks which the deceased had madeover the years, which he argued led himto believe that he was to inherit theproperty. In 1990 the deceased hadhanded the claimant a bonus noticerelating to two policies on thedeceased’s life saying that ‘that’s for mydeath duties’. The claimant’s case wasthat, at this point, his hope had maturedinto an expectation of inheritance andthat, in reliance on that expectation, hehad acted to his detriment by workingon the farm. The main issue, therefore,was whether there had to be an expresspromise to found an action in estoppel.The deputy judge reviewed a numberof authorities clearly pointing to the con-clusion that an actual promise was not anessential prerequisite to the benefit of aproprietary estoppel. So, in Ramsden vDyson [1866] Lord Kingsdown made ref-erence to a verbal agreement ‘or whatamounts to the same thing, an expecta-tion, created or encouraged.’ In TaylorFashions Oliver J stated that proprietaryestoppel is aimed at:… ascertaining whether, in particular indi-vidual circumstances, it would beunconscionable for a party to be permittedto deny that which, knowingly, or unknow-ingly, he has allowed or encouragedanother to assume to his detriment… In Gillett Robert Walker LJ referred tocases where ‘the assurance is more thana mere statement of present (revocable)Proprietary estoppel is not limited to acts done inreliance on a belief relating to an existing right, butmay extend to acts done in reliance on a belief thatfuture rights will be granted.T&ELTJ93 p04-06 Pawlowski  14/1/08  18:07  Page 5January/February 20086 Trusts and Estates Law & Tax JournalPROPRIETARY ESTOPPEL[testamentary] intention, and is tanta-mount to a promise’. Again, in Jenningsv Rice [2002] Robert Walker LJ (at para44) added further that the casesshowed:… a wide range of variation in both ofthe main elements, that is the quality ofthe assurances which give rise to theclaimant’s expectations and the extent ofthe claimant’s detrimental reliance…All these passages indicated thatthere was no absolute requirement thatthe assurance should necessarilyamount to an actual promise made interms as such. On the contrary, it wasapparent that the relevant representa-tion could take the form of simpleencouragement in a belief (either, asmentioned earlier, by words or conduct,or passively – by remaining silent). Inthe words of the deputy judge (at para 19):The court must not allow itself to be tieddown with semantics – an assurance is anassurance whether made expressly bywords spoken or written, or made by impli-cation from words spoken or written orfrom conduct. The ‘broad inquiry’ (as to theultimate question of unconscionability)which the court must make in any suchcase will include consideration of whetherassurances (or expectations encouraged)by whatever means were indeed ‘tanta-mount to’ promises.The deputy judge, however, was alsokeen to emphasise that, where theassurances relied on fell significantlyshort of express promises, it was all the more important for a claimant tosupport their case with clear and substantial detrimental reliance andcorroborating evidence as to the mean-ing and intention which the claimantimputes to the deceased’s words or conduct.In the instant case, the claimant’sexpectation that he would inherit thefarm was incremental and took placeover many years. At first, the claimanthad only a mere hope of inheritance,which only later developed into anexpectation that he would inherit. Thiswas marked in 1990 by the handingover of the bonus notice to the claimant,indicating for the first time that thedeceased was intending that theclaimant should succeed to the farm.Later, this expectation matured furtherinto what the deputy judge describedas, an ‘unspoken mutual understand-ing’ between the parties. Looking at thematter in the round, the deputy judgehad no hesitation in concluding that thedeceased’s words and conduct gave riseto an estoppel in the claimant’s favour.Moreover, the minimum equity to dojustice to the claimant (and avoid anunconscionable result) was to award theclaimant the land and buildings, liveand dead stock and other chattels repre-senting the deceased’s farm.Conclusion for practitioners In Thorner there was strong corrobora-tive evidence from various remarks and acknowledgements made by thedeceased himself that he intended to act in accordance with the claimant’sexpectations regarding inheritance ofthe farm. In addition, it was abundantlyapparent that the claimant had engagedin a huge amount of unpaid work at thefarm over many years in reliance on thisexpectation. The handing over of thebonus notice (with the deceased’saccompanying remarks) was particu-larly significant, as this stronglyencouraged the claimant to stay on atthe farm and continue his unpaid workrather than pursue other opportunitieselsewhere. The case is therefore signifi-cant because it highlights the need toexamine the various component ele-ments of proprietary estoppel as anentire package and not in isolation fromone another. As Robert Walker LJ observed inJennings, the doctrine ‘applies only ifthese elements, in combination, make itunconscionable for the person giving theassurances… to go back on them’. ■Attorney-General of Hong Kong vHumphreys Estate (Queen’s Gardens) Ltd [1987] AC 114Re Basham (dec’d)[1986] 1 WLR 1498Bennett v Bennett(Unreported, 18 May 1990)Bostock v Bryant (1990) 61 P&CR 23Cobbe v Yeomans Row Management Ltd & ors[2005] WTLR 625Coombes v Smith[1986] 1 WLR 808Gillett v Holt & anr[2000] WTLR 195Inwards v Baker[1965] 2 QB 29James v Thomas [2007] EWCA Civ 1212Jennings v Rice[2002] WTLR 367 JT Developments Ltd v Quinn(1991) 62 P&CR 33Kinane v Mackie-Conteh[2005] WTLR 345Layton v Martin[1986] 2 FLR 277Lim Teng Huan v Ang Swee Chuan[1992] 1 WLR 113Lissimore v Downing[2003] 2 FLR 308Negus v Bahouse[2008] WTLR 97Ramsden v Dyson(1866) LR 1 HL 129Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council (1981) 41 P&CR 179Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133Thorner v Curtis & ors [2008] WTLR 155Uglow v Uglow & ors[2004] WTLR 1183Thorner is significant because it highlights the needto examine the various component elements ofproprietary estoppel as an entire package and not inisolation from one another.T&ELTJ93 p04-06 Pawlowski  14/1/08  18:07  Page 6

Expectations and promises

http://gala.gre.ac.uk/1419/1/Pawlowski_TELTJ93_p04%2D06_(2).pdf

Expectations and promises

Abstract

Similar works

Full text

Available Versions

Greenwich Academic Literature Archive