Category: Estoppel

Hiscox v Outhwaite (No 1): HL 29 Jul 1991

An arbitration award is perfected in the place where the arbitrator signs it, irrespective of where the arbitration to place. If the award is signed in a country party to the 1958 convention, being and forcible as a conventional Ward under the operation act 1975, the English Court can nevertheless exercise it’s supervisory jurisdiction to hear an appeal from the award if it was made under English law. Lord Oliver said that: ‘A document is made when and where it is perfected. An award is perfected when it is signed.
The alternative submission is that an award is ‘made’ when the arbitrator becomes functus officio and it is urged in the instant case that Mr. MacCrindle did not become functus officio until the parties were invited by the clerk of his chambers in London to take up the award. Up to that point of time, it is submitted, the arbitrator could have altered or withdrawn his award. Authority is of little assistance, but in so far as it exists it seems to me to be against the respondent’s proposition.
An estoppel may not have permanent effect as it will cease once the common assumption is revealed to be erroneous. In this case the shared assumption had been communicated by an exchange of letters between the parties.
Lord Donaldson, Lord Oliver
[1992] 1 AC 562, Times, 29 July 1991, [1991] 3 All ER 124, [1991] 2 Lloyds Rep 1
England and Wales
Citing:
Appeal from – Hiscox v Outhwaite CA 1991
. .
Cited – Brooke v Mitchell 1840
Under a court order which provided for an arbitration, the award of the umpire was to be made and published, ‘in writing, ready to be delivered to the parties . . ‘ The award was executed by the umpire in the presence of two witnesses to whom its . .
At first instance – Hiscox v Outhwaite (No 3) ChD 1991
A Lloyd’s syndicate’s whole account stop loss reinsurance was on terms which were agreed to be the equivalent of a follow the settlements clause. The question was whether the reinsurer was liable where the insurers, acting in a proper and . .
Approved – Hamel-Smith v Pycroft and Jetsave Ltd 5-Feb-1987
Peter Gibson J sad: ‘Thus the court is not so rigid and inflexible as to insist on the parties being held to an assumed and incorrect state of fact or law when there is no injustice in allowing a party to resile therefrom (see, for example, Multon . .

Cited by:
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.667374

Spliethoff’s Bevrachtingskantoor Bv v Bank of China Ltd: ComC 17 Apr 2015

Claims under refund guarantees
Carr J DBE said: ‘The legal requirements of an estoppel by representation of fact are well known: (i) a representation which is in law deemed a representation of fact, (ii) that the precise representation was in fact made, (iii) that the later position taken contradicts in substance the original representation, (iv) that the original representation was of a nature to induce and was made with the intention and result of inducing the party raising the estoppel to alter his position on the faith of it and to his detriment, and (v) that the original representation was made by the party sought to be estopped and was made to the party setting up the estoppels (see for example Spencer Bower: The Law Relating to Estoppel by Representation (4th Ed 2004 at paragraph 1.2.3). The representation must be clear or unequivocal, or precise and unambiguous (see Chitty: Contracts (31st Ed) (‘Chitty’) at paragraph 3-090).’
Carr J DBE
[2015] EWHC 999 (Comm), [2016] 1 All ER (Comm) 1034
Bailii
England and Wales
Cited by:
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.545602

Hamel-Smith v Pycroft and Jetsave Ltd: 5 Feb 1987

Peter Gibson J sad: ‘Thus the court is not so rigid and inflexible as to insist on the parties being held to an assumed and incorrect state of fact or law when there is no injustice in allowing a party to resile therefrom (see, for example, Multon v. Cordell (1988) 277 Estates Gazette 198). Further, if the estoppel applies it will do so only ‘for the period of time and to the extent required by the equity which the estoppel has raised’ (per Ralph Gibson LJ in Troop v. Gibson at p.1144). Thus, once a common assumption is revealed to be erroneous the estoppel would not apply to future dealings between the parties (per Purchas LJ in the same case at p.1144).’
Peter Gibson J
Unreported Feb 5th 1987
England and Wales
Cited by:
Approved – Hiscox v Outhwaite (No 1) HL 29-Jul-1991
An arbitration award is perfected in the place where the arbitrator signs it, irrespective of where the arbitration to place. If the award is signed in a country party to the 1958 convention, being and forcible as a conventional Ward under the . .
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.667377

Mardorf Peach and Co Ltd v Attica Sea Carriers Corporation of Liberia (The Laconia): 1977

A right of withdrawal had been granted to a shipowner under a time charterparty if the charterer failed to make a punctual monthly payment of hire.
Held: If the monthly hire had not been punctually paid, the right of withdrawal remained even after the hire had been paid. The right to withdraw only ceased to exist, if it had been in some way waived, though the shipowner must exercise his right to withdraw the ship ‘within a reasonable time after default. Here, although the bank was an agent of the alleged waiving party, it did not have sufficient authority to waive a right of the principal.
The delay necessary in order to amount to a waiver will depend upon the terms of the contract in question and all the circumstances of the case.
If the person said to have waived the breach lacked the actual or ostensible authority to waive the right or rights concerned there will be no waiver.
Lord Wilberforce said that: ‘Although the word ‘waiver’, like ‘estoppel’, covers a variety of situations different in their legal nature, and tends to be indiscriminately used by the courts as a means of relieving parties from bargains or the consequences of bargains which are thought to be harsh or deserving of relief, in the present context what is relied on is clear enough. The charterers had failed to make a punctual payment but it was open to the owners to accept a late payment as if it were punctual, with the consequence that they could not thereafter rely on the default as entitling them to withdraw. All that is needed to establish waiver, in this sense, of the committed breach of contract, is evidence, clear and unequivocal, that such acceptance has taken place.’
Lord Wilberforce
[1977] AC 850, [1977] 1 Lloyds Rep 315
England and Wales
Cited by:
Distinguished – McGahon v Crest Nicholson Regeneration Ltd CA 21-Jul-2010
The claimants contracted to purchase an apartment ‘off-plan’. The contract was conditional on the grant of a head lease. Notice to complete was served by the developers did not disclose that the head lease had not been granted until after the date . .
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.421000

Actionstrength Limited v International Glass Engineering In Gl En SpA and others: HL 3 Apr 2003

Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim was based on an alleged oral guarantee. When the defendant pleaded the Statute of Frauds, the claimant alleged an estoppel, saying the defendant had urged it to continue to supply workers.
Held: Some recognisable structural framework must be established before recourse could be had to the underlying idea of unconscionable conduct. It needed to be shown that Actionstrength assumed that St-Gobain would honour the guarantee; that that assumption was induced or encouraged by St-Gobain; and that Actionstrength relied on that assumption. They had not established all these elements. These factors could not all be found in the pleadings. The only assurance given to Actionstrength was the promise itself. In order to be estopped from invoking the statute there must be something more, such as some additional encouragement, inducement or assurance. In addition to the promise there must be some influence exerted by St-Gobain on Actionstrength to lead it to assume that the promise would be honoured. However there was no suggestion made that St-Gobain said or did anything to lead Actionstrength to assume that St-Gobain would not stand on its rights.
The purpose of the Statute was, said Lord Hoffmann: ‘precisely to avoid the need to decide which side was telling the truth about whether or not an oral promise had been made and exactly what had been promised.’ and ‘It is quite true . . that the system of civil procedure in 1677 was not very well adapted to discovering the truth. For one thing, the parties to the action were not competent witnesses. But the question of whether the Act should be preserved in its application to guarantees was considered in 1953 by the Law Reform Committee (First Report, Statute of Frauds and Section 4 of the Sale of Goods Act 1893 (Cmd 8809)) and the recommendation of a very strong committee was to keep it.’
Lord Bingham said that section 4 was enacted ‘to address a mischief facilitated, it seems, by the procedural deficiencies of the day . . the calling of perjured evidence to prove spurious agreements said to have been made orally. The solution applied to the five classes of contract specified in section 4 was to require, as a condition of enforceability, some written memorandum or note of the agreement signed by the party to be charged under the agreement or his authorised agent’
Lord Bingham of Cornhill, Lord Woolf, Lord Hoffmann, Lord Clyde, Lord Walker of Gestingthorpe
[2003] UKHL 17, Times 04-Apr-2003, [2003] 2 AC 541, [2003] 2 WLR 1060, [2003] 1 CLC 1003, [2003] 2 All ER (Comm) 331, [2003] 2 All ER 615, [2003] BLR 207, 88 Con LR 208
House of Lords, Bailii
Statute of Frauds 1677 4
England and Wales
Citing:
Appeal from – Actionstrength Limited v International Glass Engineering, In Gl En SPA, Saint-Gobain Glass UK Limited CA 10-Oct-2001
The claimant sought payment for works undertaken. They had been given a promise that in return for not withdrawing their workforce from the site, the second defendants would redirect payments due to the first defendant to the claimant. When it came . .
Cited – Steadman v Steadman HL 1976
A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. . .
Cited – Maddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
Cited – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Cited – Kok Hoong v Leong Cheong Kweng Mines Ltd PC 1964
A clear public policy underlying a statute (for instance, the need to protect vulnerable persons dealing with moneylenders or landlords) prevents an estoppel arising: ‘To ask whether the law that confronts the estoppel can be seen to represent a . .
Cited – Bank of Scotland v Wright ChD 1991
A director of two companies (one a subsidiary of the other) had given the bank a written guarantee of the liability of the holding company (only); but under an ‘interavailable’ facility backed by cross-guarantees (by the companies) the holding . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .

Cited by:
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2021; Ref: scu.180415

Kelsen v Imperial Tobacco Co (of Great Britain and Northern Ireland) Ltd: 1957

By an assignment in April 1946, the plaintiff acquired the lease of a shop and it tobacconist’s business. The premises were on a street with a ground floor room and a flat roof top. On the two front sides the shop was bounded by streets and on one side of the back was an adjoining building of three stories. During the lease, the defendants, wholesale tobacconists, displayed three advertising signs on the wall with the adjoining building about the shop. The signs made of sheet metal mounted on a frame which fixed against the wall but with the mounting, it extended by 4 inches into the air space above the flat roof of the shop. In April 1948 the landlords gave to the owners of the adjoining building consent to a large new sign in place of the existing signs. In December 1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1 of the lease, which contained the parcels, the premises devised to the plaintiff were expressed to be subject to ‘all that right so as wants to any of the adjacent property, and by clause 2 the plaintiff covenanted not to permit any sign or advertisement to be posted on or over any part of the exterior at the shop and premises. In January 1950, no new sign having yet been affixed on the adjoining building, its owners again obtained the permission of the landlord of the plaintiffs shop for the defendants to substitute a new large advertising sign for the existing the smaller ones. A new sign was elected by the defendants in 1950 with the plaintiff’s knowledge. Its total length was about 20 feet, and the maximum distance by which part of the sign projected from the wall and over the building was 8 inches. From time to time the defendants servants had access to the sign, from the plaintiff’s shop and with his knowledge, to carry out maintenance work and repairs. In December 1953 as a result of a business dispute between the plaintiff and the defendants, the plaintiffs asked the defendants to remove the sign. After the dispute was settled, the plaintiff on being asked by the descendants whether he still wanted the side removed, replied that it could remain. Further arose between the parties, and the plaintiff gave notice to the defendant to remove the sign, and the defendants having failed to do so now brought an action against them for trespass.
Held: McNair J granted a mandatory injunction ordering the defendants to remove a sign which projected only 8 inches over the plaintiff’s property.
1 The air space above the shop was part of the premises demised to the plaintiff on a true construction of the lease of December 1948 there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop;
2 when in January 1950, the landlords consented to the substitution of the new sign, they could not derogate from the demise of the airspace in December 1948 to the plaintiff;
3 the plaintiffs conduct in allowing the sign to remain on the wall of the adjoining building from 1950 onwards did not estop him from subsequently requiring it to be removed, because a be hard, as most, mary represented to the defendants but he would not object to the sign in future and representation of an intention did not give rise to an estoppel; and on the facts, the descendants had not been induced by the plantiff’s conduct to act to their prejudice to such an extent as to oblige them to continue to display the sign:
4 The invasion of the plaintiff’s air-space by the sign amounted to a trespass on the part of the defendants and not merely to a nuisance. On the facts of the case, although the injury to the plaintiffs legal rights was small, he was entitled to a mandatory injunction requiring the defendants to remove that sign.
McNair J
[1957] 2 QB 344, [1957] 2 All ER 343
England and Wales

Updated: 12 July 2021; Ref: scu.268225

Greer v Kettle: HL 1938

A corporate borrower agreed to repay andpound;250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had made the advance to the borrower ‘on the security of a charge dated March 1929 on the shares, particulars of which are set out in the schedule hereto’.
Held: Recitals may also give rise to an estoppel in respect of specific facts stated and adopted as the basis of a transaction, provided that the facts as stated are ‘certain, clear and unambiguous’. However, Parent Trust had never become liable under the guarantee because a charge had never in fact been given over the shares. Where a person guaranteed a loan which was expressed to be secured by a charge on certain shares, and the shares had not been validly issued, it was held that the surety was not liable.
Lord Killowen explained: ‘the legal rights and liabilities of these parties depend upon the true construction and effect of the agreement of guarantee . . Once it is realized that the debt which Parent Trust are undertaking to guarantee is a debt described as a debt the repayment of which by the principal debtor is secured by a charge on (amongst other shares) the 275,000 shares in Iron Industries, Ld, the case (apart from the question of estoppel, to which I will refer) becomes in my opinion a simple one . . It is not a case, as Bennett J seems to have treated it, of seeking to imply a condition, the implication of which is alleged to be inconsistent with other provisions in the document. In other words, as Romer LJ said, it is not a case of Parent Trust being released from a contractual engagement. It is a case of an attempt to impose upon them a liability which they have never undertaken. The only debt, the repayment of which by the principal debtor they undertook to guarantee, was a debt secured by a charge on the 275,000 shares in Iron Industries, Ld, and a debt so secured never in fact existed. The language of Knight Bruce LJ in Evans v Bremridge (i) may well be applied to the present litigants. In that case it was sought to make a surety liable who became a surety on the footing that a co-surety would join in the covenant with him. The co-surety had not done so, and the surety was held to be under no liability. As the Lord Justice truly said: ‘The defendants seek to charge the plaintiff with ‘a contract, into which he did not enter.’
Lord Maugham referred to the qualification imposed by equity on the doctrine of estoppel by deed: ‘The position in equity is and was always different in this respect, that where there are proper grounds for rectifying a deed, e.g., because it is based upon a common mistake of fact, then to the extent of the rectification there can plainly be no estoppel based on the original form of the instrument. It is at least equally clear that in equity a party to a deed could not set up an estoppel in reliance on a deed in relation to which there is an equitable right to rescission or in reliance on an untrue statement of an untrue recital induced by his own representation, whether innocent or otherwise, to the other party. Authority is scarcely needed for so clear a consequence of a rectification order or an admitted or proved right to such an order. The well known rule of the Chancery Courts in regard to a receipt clause in a deed not effecting an estoppel if the money has not in fact been paid is a good illustration of the equity view . . ‘
Lord Maugham, Lord Russell of Killowen
[1938] AC 156, 158 LT 433
England and Wales
Citing:
Approved – Brooke v Haynes CA 1868
Lord Romilly MR said: ‘A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or . .
Approved – Carpenter v Buller 29-Jul-1840
. .

Cited by:
Cited – Prime Sight Ltd v Lavarello PC 9-Jul-2013
(Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Updated: 20 June 2021; Ref: scu.519652

Regina v Inland Revenue Commissioners ex parte Matrix-Securities Ltd: HL 1994

The House acknowledged the validity of pre-transaction rulings. Such rulings were of assistance both to the respondents and to the taxpayer. Lord Templeman referred to ‘[t]he trick of circular, self-cancelling payments with matching receipts and payments’.
Lord Browne-Wilkinson, Lord Mustill, Lord Templeman
[1994] 1 WLR 334
England and Wales
Cited by:
Cited – Stockler v HM Revenue and Customs ChD 22-Sep-2009
The taxpayer appealed against a decision confirming the Commissioners’ power to impose a penalty on him. It was said that his solicitors’ firm had negligently understated its profits. A settlement was proposed allowing a withdrawal of the return, . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.375141

Society of Medical Officers of Health v Hope: HL 1960

A local valuation court had decided in 1951 that the Society’s land was exempt from rates under section 1 of the 1843 Act. The exemption was conditional on certain facts relating to the Society and its purpose in occupying the building. In 1956 the land was shown as a rateable in the new valuation list. The Lands Tribunal rejected a submission that a res judicata estoppel arose from the 1951 decision even though it was admitted that there had been no change of circumstances.
Held: The limited jurisdiction of the local valuation court, which might have to form opinions on questions of general law, but only incidentally to its direct function of fixing the assessment and the special position of the valuation officer or equivalent official did not create an assessment binding for future years.
Lord Radcliffe said there was: ‘high and frequent authority for the proposition that it is not in the nature of a decision on one rate or tax that it should settle anything more than the bare issue of that one liability, and that, consequently, it cannot constitute an estoppel when a new issue of liability to a succeeding year’ s rate or tax comes up for adjudication. The question of this liability is a ‘new question.’
Lord Keith said: ‘The valuation officer has a public duty to perform by making periodically every five years a valuation list of all hereditaments, with certain exceptions, in his rating area. He must necessarily reconsider and revise the previous valuation list. He has no personal interest in any appeals taken against his valuations, and has a duty to hold the scales as fairly as he can among the ratepayers affected, the occupiers of the various hereditaments. The general body of ratepayers is constantly changing. With each quinquennium the revaluation will affect a new body of ratepayers. I doubt if the valuation officer owing such a duty to an ever-changing body of ratepayers can be regarded as always the same party in the sense in which that expression is used for the application of the rule of res judicata. What if the appellant society changes its habitat, and moves into another rating area with a different valuation officer?
I emphasise these aspects of the functions of a valuation officer under the statute, for they lead to what I regard as the true answer to the submission for the appellants, which is that a public officer in the position of the respondent cannot be estopped from carrying out his duties under the statute.’
Radcliffe, Cohen, Jenkins LL, Viscount Simons, Keith L
[1960] AC 553
Scientific Societies Act 1843 1
England and Wales
Cited by:
Cited – Matalan Retail Ltd v Revenue and Customs ChD 5-Aug-2009
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.372323

Brooks and Burton Ltd v The Secretary of State for the Environment: 1977

Lord Widgery, Lord Chief Justice, discussed extending the concept of estoppel saying: ‘There has been some advance in recent years of this doctrine of estoppel as applied to local authorities through their officers, and the most advanced case is the one referred to by the inspector, namely Lever Finance Ltd. v. Westminster (City) London Borough Council . I do not propose to read it. It no doubt is correct on its facts, but I would deprecate any attempt to expand this doctrine because it seems to me, as I said a few minutes ago, extremely important that local government officers should feel free to help applicants who come and ask them quest ions without all the time having the shadow of estoppel hanging over them and without the possibility of their immobilising their authorities by some careless remark which produces such an estoppel’ .
Lord Widgery, Lord Chief Justice
(1977) KLGR 285
England and Wales
Cited by:
Approved – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.652457

Evenden v Guildford Football Club: CA 1975

Lord Denning rejected an argument that, for promissory estoppels to apply, parties must be contractually bound to one another saying: ‘Promissory estoppel . . applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act upon it and he does act upon it.”
Lord Denning MR
[1975] QB 917
England and Wales
Cited by:
Cited – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.652455

Moorgate Mercantile Company Ltd v Twitchings: CA 1975

Lord Denning MR held: ‘Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so. Dixon J [in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674] put it in these words: ‘The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations.’
In 1947, after the High Trees case [Central London Property Trust Ltd v High Trees House Ltd (1946) [1956] 1 All ER 256, [1947] KB 130], I had some correspondence with Dixon J about it, and I think I may say that he would not limit the principle to an assumption of fact, but would extend it, as I would, to include an assumption of fact or law, present or future. At any rate, it applies to an assumption of ownership or absence of ownership. This gives rise to what may be called proprietary estoppel. There are many cases where the true owner of goods or of land had led another to believe that he is not the owner, or, at any rate, is not claiming an interest therein, or that there is no objection to what the other is doing. In such cases it has been held repeatedly that the owner is not to be allowed to go back on what he has led the other to believe. So much so that his own title to the property, be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct – what he had led the other to believe – even though he never intended it.’
Lord Denning MR
[1976] QB 225, [1975] RTR 528, [1975] 3 WLR 286, [1975] 3 All ER 314
England and Wales
Cited by:
Cited – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.652456

Maritime Electric Company Limited v General Dairies Limited: PC 8 Feb 1937

(Canada)
[1937] UKPC 16, [1937] AC 610
Bailii
Canada
Cited by:
Cited – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.426091

Willis v Hoare: 1999

Auld LJ said of Crabb: there ‘could be no doubt as to the nature and extent of the remedy required to give effect to [the] equity’. Of JT Developments ‘the nature and terms of the equity were readily identifiable’. Auld LJ said: ‘There may be uncertainties in transactions which go to the question whether unconscionable behaviour has given rise to any detriment to the party seeking to rely on such an equity. There may be uncertainties in transactions in which unconscionable behaviour may have produced such detriment but its nature and extent are so uncertain that even equity may not be able to devise an appropriate remedy for it. There are parts that sometimes even equity cannot reach; and sometimes, as here, the two aspects of uncertainty may overlap.’
Chadwick LJ: ‘I am unable to recognise an equitable estoppel based on a representation which is so uncertain. It seems to me essential, if the respondent is to be prevented from exercising a clear legal right unless he first satisfies some condition which is to be imposed on him to meet by what is described as ‘the equity of the case’, that it should be possible to tell him what it is that he has to do. To fetter the respondent’s legal right by reference to some obligation which cannot be spelt out seems to me to be thoroughly inequitable.’
References: (1999) 77 P and CR D42
Judges: Auld LJ
This case cites:

  • Cited – Crabb v Arun District Council CA 23-Jul-1975
    The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
    Held: His claim to have raised an equity was upheld. The plaintiff . .
    ([1976] Ch 179, , [1975] 3 All ER 865, [1975] EWCA Civ 7)
  • Cited – JT Developments v Quinn and Another CA 1990
    The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out . .
    ([1991] 2 EGLR 257, (1990) 62 P and CR 33)

This case is cited by:

  • Cited – Parker v Parker ChD 24-Jul-2003
    Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
    Held: The applicant was entitled to reasonable . .
    (, [2003] EWHC 1846 (Ch))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192085

In re Estate of Park (deceased), Park v Park: ChD 1953

The deceased had executed his will in which he was described as a widow, whereas in fact he had recently re-married. He was elderly and physically and mentally infirm. A relative alleged that the most recent marriage had been invalid for his lack of capacity.
Held: Pleadings in the ealier proceedings had not raised the issue of capacity, and the claimant was therefore now not estopped from asserting incapacity.
References: [1954] P 89, [1953] 2 All ER 408, [1953] 97 Sol Jo 491
Jurisdiction: England and Wales
This case is cited by:

  • Appeal from – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953 ([1953] 2 All ER 1411, [1954] P 112, [1954] 97 Sol Jo 830)
    The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
    Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.223062

Scarf v Jardine: HL 13 Jun 1882

If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: ‘I put rather an emphasis on those last words ‘against those who acted upon the faith that the authority continued.”
An election to avoid a contract is not completed until the decision has been communicated to the other side ‘in such a way as to lead the opposite party to believe that he has made that choice’.
‘Novation’ is a term derived from the civil law and therefore from Roman law. A novation operates where: ‘there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.’
Lord Blackburn said: ‘The principle, I take it, running through all the cases as to what is an election is this, 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 on 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 the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.’
References: [1882] 7 AC 345, [1882] UKLawRpAC 17
Links: Commonlii
Judges: Lord Blackburn, Lord Selborne LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another PC 23-Mar-2005 (, [2005] UKPC 16, )
    (Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. . .
  • Cited – Peyman v Lanjani CA 1985 ([1985] 1 Ch 457, [1985] CL 457)
    Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
  • Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963 (, [1963] EWCA Civ 4, [1964] 1 All ER 290, [1965] 1 QB 525, [1964] 2 WLR 600)
    The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
    Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223952

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd; 7 Sep 2010

References: [2010] FCA 984
Links: Austlii
Coram: Bennett J
Ratio: Austlii (Federal Court of Australia)
COPYRIGHT – respondent reproduces headlines and creates abstracts of articles in the applicant’s newspaper – whether reproduction of headlines constitutes copyright infringement – whether copyright subsists in individual newspaper headlines, in an article with its headline, in the compilation of all the articles and headlines in a newspaper edition and in the compilation of the edition as a whole – literary work – copyright protection for titles – use of headline as citation to article – policy considerations – originality – authorship – whether presumption of originality for anonymous works available – whether work of joint authorship – whether the headlines constitute a substantial part of each compilation – whether the work of writing headlines is part of the work of compilation – whether fair dealing for the purpose of or associated with reporting news
ESTOPPEL – whether applicant estopped from asserting copyright infringement by respondent – applicant has known for many years that headlines of the applicant’s newspaper are reproduced in the abstracting service – applicant had subscribed to and resupplied the abstracting service – whether respondent relied on an assumption that the applicant will not assert copyright infringement by reproduction by headlines – whether applicant created or encouraged the assumption – detriment – whether unconscionable to depart from assumption
Bennett J said: ‘In my view, the headline of each article functions as the title of the article . . It may be a clever title. That is not sufficient. Headlines are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work . . It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection . . but that is not the case here . . Fairfax claims copyright in the headlines as a class of work, based on the evidence of a general practice that headlines are determined by staff and settled at meetings of staff to provide a title to a story which also fits into the format of the page . . That is insufficient to overcome the reasoning for the established practice of denying copyright protection to titles which is the apt characterisation for headlines as a class . . The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline . . If titles were subject to copyright protection, conventional bibliographic references to an article would infringe. Such considerations may well be a reason for the fact that headlines and ‘short phrases’ are excluded from copyright in the United States . . In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines.’
This case is cited by:

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470926

Meyers v Casey; 13 Oct 1913

References: [1913] HCA 50, (1913) 17 CLR 90
Links: Austlii
Coram: Barton ACJ, Isaacs, Powers and Rich JJ
Ratio (High Court of Australia) The Court considered a decision of the committee of the Victoria Racing Club. Isaac J said of objections considered by the committee: ‘They are, by reason of the committee’s decision, res judicatae, as much as if instead of the committee it had been the Supreme Court unappealed from, that has so held. That rests on the well known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere.’
This case is cited by:

(This list may be incomplete)

Last Update: 16-May-16
Ref: 428358

Cuthbertson v Irving; 24 Jun 1859

References: [1859] EngR 767, (1859) 4 H & N 742, (1859) 157 ER 1034, (1859) 4 Hurl & N 742
Links: Commonlii
Coram: Martin B
Martin B said: ‘There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; in other words a tenant cannot deny his landlord’s title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then take effect in interest and not by estoppel . . .’
This case is cited by:

  • Cited – Scott -v- Southern Pacific Mortgages Ltd and Others SC (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
  • Appeal from – Cuthbertson -v- Irving ([1860] EngR 980, Commonlii, (1860) 6 H & N 135, (1860) 158 ER 56)
    Held: Decision affirmed. Neither the lessee nor the lessor can dispute one another’s title and if the lessor without a legal estate later acquires one, the estoppel is ‘fed’ . .

(This list may be incomplete)
Last Update: 26-Oct-15 Ref: 288119

Stroughill v Buck; 13 Feb 1850

References: [1850] EngR 295, (1850) 14 QB 781, (1850) 117 ER 301
Links: Commonlii
Coram: Patteson J
Patteson J said: ‘When a recital is intended to be a statement which all parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument.’
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Horton v The Westminster Improvement Commissioners; 2 Jun 1852

References: [1852] EngR 658, (1853) 7 Exch 780, (1852) 155 ER 1165
Links: Commonlii
Coram: Baron Martin
The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants pleaded that they had not borrowed any money from A. The underlying facts, according to the defendants, were that the defendants owed money to B and C, who were induced by A into agreeing that the defendants should issue the bond to A in lieu of payment to themselves. B and C then discovered that they were the victim of a scam and requested the defendants not to pay the bond. In short, the parties to the bond, A and the defendants, both knew when it was issued that the recital about A having lent money to the defendants was false.
Held: The defendants were estopped from denying the truth of the facts stated.
Martin B said: ‘The meaning of estoppel is this – that the parties agreed, for the purpose of a particular transaction, to state certain facts as true; and that, so far as regards that transaction, there shall be no question about them.’
The position would be different if the statement had been made for the purpose of concealing an illegal contract, but that was not the case. Nor was it alleged that A had practised a fraud on the defendants. He was alleged to have deceived B and C, when they directed the defendants to give the bond to A, but that did not affect the validity of the bond.
This case cites:

  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
    The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants . .

This case is cited by:

  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 729, Commonlii, (1853) 7 Exch 911, (1852) 155 ER 1220)
    . .
  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
    The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants . .
  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

M’Cance v The London And North Western Railway Company; 20 Jun 1864

References: [1864] EngR 595, (1864) 3 H & C 343, (1864) 159 ER 563
Links: Commonlii
Coram: Williams J
The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
Held: Williams J cited with approval Blackburn’s statement in his Treaty on the Contract of Sale that ‘when parties have agreed to act upon an assumed state of facts their rights between themselves are justly made to depend on the conventional state of facts, and not on the truth.’
This case cites:

  • Appeal from – M’Cance -v- The London And North Western Railway Company ([1861] EngR 967, Commonlii, (1861) 7 H & N 477, (1861) 158 ER 559)
    In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration . .

This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

M’Cance v The London And North Western Railway Company; 19 Nov 1861

References: [1861] EngR 967, (1861) 7 H & N 477, (1861) 158 ER 559
Links: Commonlii
In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration whereof the defendants promised the plaintiff that the trucks should he reasonably fit and proper for the carriage of such horses Breach: that the defendants did not provide fit and proper trucks, whereby the plaritiff’s horses were injured. Second count that the defendants having received certain horses of the plaintiff to be carried by railway, in consequence of the defective state of the truck and the negligerice and want of care of the defendants, the plaintiffs horses weie injured. Plea: payment of 25l. into Court Replication damages ultra. At the trial, it appeared that when the plaintiff delivered the horses to the defendants, he signed at their request a declaration that the value of the horses (did not exceed 10l. per horse, and that, on consideration of the rate charged for their conveyance, he thereby agreed that the same were to be carried entirely at the ownet’s risk. In the course of the journey the horses were injured in consequence of the defective state of the truck in which they were carried. The horses were worth more than 10l each, and if taken at, their real value the damage sustained by the plaintiff was 65l, but if valued at 10l each the 25l. paid into Court covered the plaintiff’s claim. A verdict having been entered for the plantiff for 40l. on motion to enter the verdict for the defendants, the Court being at liberty to draw inferences of fact Held that the plaintiff having made a wilfully false statement as to the value of the horses for the purpose of inducing, and having thereby induced, the defendants to enter into the contract, was not at liberty to shew their real value, in order to obtain compensation above the amount paid into Court — Semble, that thedeclaration of the value of the horses formed no part of the contract, and that even if it were it did not render the contract a conditional contract –Also, that, the stipulation that the horses should he carried entirely at the owner’s risk was not unreasonable and void within the meaning of the 17 & 18 Vict. C 31.
This case is cited by:

  • Appeal from – M’Cance -v- The London And North Western Railway Company ([1864] EngR 595, Commonlii, (1864) 3 H & C 343, (1864) 159 ER 563)
    The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
    Held: Williams J . .

Carpenter v Buller; 28 Apr 1841

References: , [1841] EngR 552, (1841) 8 M & W 209, (1841) 151 ER 1013
Links: Commonlii
Coram: Parke B
The defence to an action of trespass was that the defendant was seised of the land in question. He produced a deed, made between himself, the plaintiff and a third party, in which this was stated to be the case
Held: The plaintiff was not estopped from denying the defendant’s seisin because the action was not brought on the deed which did not directly concern the land. The doctrine of estoppel as it applies to recitals extends also to instruments not by deed.
Parke B said: ‘If a distinct statement of a particular fact is made in the recital of a bond, or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352; and a recital in instruments not under seal may be such as to be conclusive to the same extent . . By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be estopped, in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence.’
This case cites:

This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Horton v The Westminster Improvement Commissioners; 12 Jun 1852

References: [1852] EngR 729, (1853) 7 Exch 911, (1852) 155 ER 1220
Links: Commonlii
This case cites:

  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
    The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants . .

Carpenter v Buller; 29 Jul 1840

References: , [1840] EngR 840, (1840) 2 M & Rob 298, (1840) 174 ER 295 (A)
Links: Commonlii
This case is cited by:

  • Approved – Greer -v- Kettle HL ([1938] AC 156, 158 LT 433)
    A corporate borrower agreed to repay £250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had . .
  • Appeal from – Carpenter -v- Buller (, Commonlii, [1841] EngR 552, (1841) 8 M & W 209, (1841) 151 ER 1013)
    The defence to an action of trespass was that the defendant was seised of the land in question. He produced a deed, made between himself, the plaintiff and a third party, in which this was stated to be the case
    Held: The plaintiff was not . .

Ferrier v Stewart; 24 Jun 1912

References: [1912] 15 CLR 32, [1912] HCA 47
Links: Austlii
Coram: Isaacs J
High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the defendant also so as to make her liable on the notes. This she agreed to do. In order to effect a contract between herself and the firm, the notes had formally to be indorsed by the firm to her before she put her indorsement on them. In fact, the notes were given to her, for her indorsement, before the firm’s indorsement appeared on them and she placed her indorsement on them as if they had already been indorsed to her. The notes were thereafter indorsed by the firm, so that on their face they appeared to have been indorsed in the correct chronological sequence, contrary to the facts as both parties knew them to be. The defendant subsequently refused to pay the bills on the ground that they had not been indorsed to her at the time of her signature.
Held: This defence failed. The parties had adopted a conventional basis for the transaction. They impliedly agreed that, when the promissory note should be completed by other indorsements, it should be assumed to have been issued and indorsed by the parties in due order. From this assumption the indorsee was not permitted to depart, although all parties had been aware of the actual state of affairs.
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Grundt v Great Boulder Proprietary Gold Mines Limited; 8 Oct 1937

References: (1937) 59 CLR 641, [1937] HCA 58
Links: Austlii
Coram: Dixon J
(High Court of Australia) Parties to a transaction may choose to enter into it on the basis that certain facts are to be treated as correct as between themselves for the purpose of the transaction, although both know that they are contrary to the true state of affairs, in which case the necessary convention for an estoppel will be established.
Dixon J said: ‘The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it. But the law does not leave such a question of fairness or justice at large. It defines with more or less completeness the kinds of participation in the making or acceptance of the assumption that will suffice to preclude the party if the other requirements for an estoppel are satisfied.’
and ‘It is important to notice that belief in the correctness of the facts or state of affairs assumed is not always necessary. Parties may adopt as the conventional basis of a transaction between them an assumption which they know to be contrary to the actual state of affairs. . . Parties to a deed sometimes deliberately set out an hypothetical state of affairs as the basis of their covenance in order to create a mutual estoppel.’
Latham CJ said: ‘The line between estoppel, which precludes a person from proving and relying upon a particular fact, and waiver which involves an abandonment of a right by acting in a manner inconsistent with the continued existence of the right, is not always clearly drawn.’
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
  • Cited – Central Newbury Car Auctions Limited -v- Unity Finance Limited CA ([1957] 1 QB 371)
    The defendant finance company alleged that the plaintiff car dealer, by its conduct, was estopped from denying the authority of their (rogue) customer to sell the car at issue, because they had permitted the customer, unkown to them, to take . .

Freeman And Another, Assignees of William Broadbent v Cooke; 1 Jul 1848

References: (1848) 2 Exch 554, 6 Dow & L 187, [1843-60] All ER Rep 185, [1848] EngR 687, (1848) 154 ER 652
Links: Commonlii
Where a party creates a belief in another’s mind, and causes the other to act upon that belief, he will not in subsequent court proceedings be heard to deny that belief: ‘a party who negigently of culpably stands by and allows another to contract on the faith of a fact which he can contradict, cannot afterwards dispoute that fact in an action against the party who he has himself assisted in deceiving.’
This case is cited by:

  • Applied – Smith -v- Hughes QBD ((1871) LR 6 QB 597, Hamlyn)
    If a party so conducts himself as to allow another to to believe that he was assenting to the terms proposed by the other, and acting upon that belief, and the other enters into the contract, the man so conducting himself is as bound as if he had . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188458

Laird v Birkenhead Railway Co; 22 Nov 1859

References: (1859) Johns 500, [1859] EngR 1021, (1859) 70 ER 519
Links: Commonlii
Coram: Page Wood V-C
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be afterwards settled.’ The plaintiff, acting on this agreement, constructed and used the branch line and for some two and a half years paid tolls at an agreed rate to the railway company. Agreement in principle was reached on the details of the plaintiff’s user of the branch line but a formal agreement was never signed. The railway company gave notice to the plaintiff to cease his user of the branch line.
Held: The railway company had allowed the plaintiff ‘to expend his money on the faith that he would be permitted to join their line on reasonable terms’ and that the tolls agreed upon and paid by the plaintiff for his past user must be assumed to represent reasonable terms. ‘It must’, said the Vice-Chancellor, ‘be inferred, from the nature of the transaction, that the privilege of using the line was not to be determinable.’
This case is cited by:

  • Cited – Yeoman’s Row Management Ltd and Another -v- Cobbe HL (Bailii, [2008] UKHL 55, Times, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752, HL)
    The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
    Held: The appeal succeeded in part. The finding . .
  • Cited – Hooper and Another -v- Oates CA (Bailii, [2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P &CR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287, WLRD)
    The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. . .

Hoysted v Federal Commissioner of Taxation; 16 Dec 1921

References: (1921) 29 CLR 537, [1921] HCA 56
Links: Austlii
Coram: Knox CJ, Higgins and Starke JJ
High Court of Australia – Higgins J coined the term ‘issue estoppel’.
This case is cited by:

  • Appeal from – Hoystead -v- Commissioner of Taxation PC ([1926] AC 155, [1925] All ER 56, (1926) 42 TLR 207, 67 ER 313)
    Lord Shaw: ‘In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different . .
  • Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
    Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .