Thorner v Major and others [2009] UKHL 18, [2009] All ER (D) 257 (Mar)
House of Lords Lord Hoffmann, Lord Scott, Lord Rodger, Lord Walker and Lord Neuberger, 25 March 2009
The House of Lords has reviewed the necessary elements of proprietary estoppel; a statement has to be clear and unequivocal, but what amounts to sufficient clarity is hugely dependent on context.
John McDonnell QC and Michael Jefferis (instructed by Stephen Gisby & Co) for the claimant. Andrew Simmonds QC and Penelope Reed (instructed by Gould & Swayne) for the defendants.
The claimant was a farmer who, for nearly 30 years from 1976, did substantial work without pay on the farm of his father’s cousin, the deceased.
During the 1980s, according to the evidence, the claimant came to hope that he might inherit the farm. In 1990, when the deceased was in his early sixties, he handed the claimant a bonus notice, relating to two policies on his life, which had a value of approximately £20,000 between them, and said “that’s for my death duties”. The claimant duly retained the document.
In 1997, the deceased made a will under which the claimant was to inherit the residue of the deceased’s estate subject to some legacies. The deceased later revoked his will because of a desire to exclude from benefit one of the legatees. The deceased did not make another will and died intestate. The deceased’s next-of-kin were his sibling, the defendants, and their issue by substitution.
The claimant brought proceedings against the defendants alleging that the deceased’s estate was bound by conscience, as the deceased was during his life, to give him the farm. He relied on the doctrine of proprietary estoppel. The judge upheld the claimant’s claim. He regarded as significant what had been said by the deceased in 1990. The judge also relied on later remarks made by the deceased which carried with them the implication that the claimant was to have continuing long-term involvement with the farm. The Court of Appeal allowed the defendants’ appeal, holding that in order to work as an estoppel, a representation had to be clear and unequivocal, had to be intended to be acted on, and had to have been acted on. The claimant appealed to the House of Lords.
Lord Walker:
The claimant’s appeal was based primarily on the deputy judge’s findings as to the adequacy of the assurances given to the claimant. He submitted that the Court of Appeal had erred because the “clear and unequivocal” test did not apply in proprietary estoppels; and that in any case the test was, if necessary, satisfied. He relied on the decision of the Court of Appeal in Walton v Walton (14 April 1994, unreported).
There was some authority for the view that the “clear and unequivocal” test did not apply to proprietary estoppel. That view was expressed by Slade LJ in Jones v Watkins (26 November 1987, unreported).
His lordship would prefer to say (while conscious that it was a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance had to be clear enough. What amounted to sufficient clarity, in a case of the instant sort, was hugely dependent on context. His lordship endorsed what Lord Justice Hoffmann stated in Walton:
“The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made.”
On the facts of the instant case, there was not sufficient reason for the Court of Appeal to reverse the trial judge’s findings. His lordship would therefore allow the appeal.
Lord Neuberger:
His lordship agreed with Lord Walker’s opinion, but wished to give his views in his own words.
His lordship emphasised that he would not seek to cast doubt on the proposition, heavily relied on by the Court of Appeal, that there had to be some sort of an assurance which was “clear and unequivocal” before it could be relied on to found an estoppel. However, that proposition had to be read as subject to three qualifications.
First, it did not detract from the normal principle, as articulated by Lord Walker, that the effect of words or actions had to be assessed in their context. Just as a sentence could have one meaning in one context and a very different meaning in another context, so could a sentence, which would be ambiguous or unclear in one context, be a clear and unambiguous assurance in another context.
Indeed, the point was underlined by the fact that perhaps the classic example of proprietary estoppel was based on silence and inaction, rather than any statement or action—see per Lord Eldon LC (“knowingly, though but passively”) in Dann v Spurrier [1775-1802] All ER Rep 115.
Second, it would be quite wrong to be unrealistically rigorous when applying the “clear and unambiguous” test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually.
At least normally, it would be sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.
Third, there might be cases where the statement relied on to found an estoppel could amount to an assurance which could reasonably be understood as having more than one possible meaning.
In such a case, if the facts otherwise satisfied all the requirements of an estoppel, at least normally the ambiguity should not deprive a person who reasonably relied on the assurance of all relief: it might well be right, however, that he should be accorded relief on the basis of the interpretation least beneficial to him.
Lord Hoffmann, Lord Scott and Lord Rodger delivered concurring opinions.
