The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue in the same pleadings. However, the doctrine did not prevent a party from receiving benefits under an award and seeking to appeal the award to obtain greater benefits.
Lord Atkin said: ‘In this country, I do not think it expresses any formal legal concept. I regard it as a descriptive phrase equivalent to, ‘Blowing hot and cold’. I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election, whether at common law or in equity. In cases where the doctrine does apply, the person concerned has the choice of two rights, either of which he is at liberty to adopt but not both. Where the doctrine does apply, if the person to whom the choice belongs irrecoverably and with knowledge adopts the one, he cannot afterwards assert the other. Election between the liability of principal and agent is perhaps the most usual instance in common law.’
He discussed legal maxims: ‘Indeed these general formulae are found in experience often to distract the Court’s mind from the actual exigencies of the case, and to induce the Court to quote them as offering a ready made solution. But it is not safe to act upon them unless and to the extent that they have received definition and limitation from judicial determination.’
Viscount Maugham explained the term ‘approbation and reprobation’ as a Scottish equivalent of the English equitable doctrine of election, though it had nothing to do with the common law principle of election as it applies for example to the pursuit of alternative remedies in a court of justice.
Lord Wright approved the dictum of Lord Escher MR and continued: ‘Indeed these general formulae are found in experience often to distract the Court’s mind from the actual exigencies of the case, and to induce the Court to quote them as offering a ready made solution. But it is not safe to act upon them unless and to the extent that they have received definition and limitation from judicial determination.’
Viscount Maugham, Lord Atkin, Lord Wright
[1940] AC 412, [1940] 1 All ER 405
England and Wales
Citing:
Cited – Yarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .
Cited by:
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – McLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.
Estoppel, Scotland, Equity
Leading Case
Updated: 01 November 2021; Ref: scu.188158
