Harvey v Dunbar Assets Plc: CA 13 Feb 2017

This appeal raises an issue of principle in the law of bankruptcy on which there is no previous authority directly in point. If:
(a) a debtor’s application to set aside a statutory demand (‘SD1’) is dismissed on the merits, by application of the familiar test that the debtor has no reasonable prospect of establishing a defence or cross claim which would either extinguish the debt or reduce it below the minimum bankruptcy level of andpound;750; but
(b) SD1 is subsequently set aside on appeal, on an unrelated ground;
(c) the unrelated ground is then disposed of in the creditor’s favour, in other proceedings to which the debtor is not a party; and
(d) the creditor then serves a second statutory demand (‘SD2’) on the debtor, relying on precisely the same debt as he did when he served SD1:
Is it open to the debtor to apply to set aside SD2 on the same grounds which he unsuccessfully raised in opposition to SD1, and which he never sought to uphold on the appeal from SD1?
Held: The debtor’s appeal failed. He could show no proper prospect of defending the claim under the guarantee he had signed.
The court set out the principles of promissory estoppel: ‘Where, by his words or conduct one party to a transaction, (A) freely makes to the other (B) a clear and unequivocal promise or assurance that he or she will not enforce his or her strict legal rights, and that promise or assurance is intended to affect the legal relations between them (whether contractual or otherwise) or was reasonably understood by B to have that effect, and, before it is withdrawn, B acts upon it, altering his or her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it. B must also show that the promise was intended to be binding in the sense that (judged on an objective basis) it was intended to affect the legal relationships between the parties and A either knew or could have reasonably foreseen that B would act on it. Yet B’s conduct need not derive its origins solely from A’s encouragement or representation. The principal issue is whether A’s representation had a sufficiently material influence on B’s conduct to make it inequitable for A to depart from it.’
Gross, Henderson LJJ, Sir Stephen Tomlinson
[2017] EWCA Civ 60
England and Wales
CitedBarnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Appeal fromHarvey v Dunbar Assets Plc ChD 26-Nov-2015
Renewed application by Mr Harvey for permission to appeal the dismissal of his application to set aside a statutory demand served on him by the respondent, Dunbar Assets plc . .

Cited by:
CitedJones 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.574296