Legal Studies, Vol. 30 No. 3, September 2010, pp.

408420
DOI: 10.1111/j.1748-121X.2010.00162.x

Confining and defining proprietary

estoppel: the role of unconscionability

lest_162

408..420

Martin Dixon*
Reader in the Law of Real Property; University of Cambridge

The use of proprietary estoppel to make or support claims to property is now common.
Case-law tells us that the concept of unconscionability is central to a successful claim, but
little guidance is provided as to what unconscionability means or how it is to be
established. It is often assumed rather than explained. This paper argues that unconscionability in fact has a reasonably clear meaning within the law of proprietary estoppel and
that it can be used to define and confine proprietary estoppel within reasonably clear
boundaries. It seeks to explain that proprietary estoppel is at heart an antidote to a lack
of required formality in the creation or transfer of property rights and, consequently, that
the proper meaning of unconscionability is linked to these formality requirements. Unconscionability is therefore not a cover for unregulated judicial discretion, nor a loose term to
describe a general sense of unfairness, but a concept which can be used to discriminate
objectively between valid and invalid estoppel claims.

INTRODUCTION
This paper discusses the role of unconscionability in defining and confining proprietary estoppel and represents a fuller and more detailed analysis of a theme explored
briefly in 2002 before the House of Lords examined the doctrine in any great detail.1
The argument advanced then was that it was possible, even desirable, to develop a
rationale for estoppel around a relatively precise concept of unconscionability, rather
than using (and arguing about) the more factual elements of the doctrine, namely the
classic assurance, reliance and detriment. Since then, the stream of estoppel cases has
flowed unabated and at times has resembled a river in flood. Arguments about the
proper reaches of the doctrine have continued, but very little has been said judicially
about the fourth wheel on the carriage unconscionability. Not only have there
been two visits to the House of Lords, but estoppel has been pleaded successfully in
county courts, the former Lands Tribunal,2 before HM Adjudicator to the Land

*
This paper was presented at a Chancery Bar Association seminar entitled Proprietary
Estoppel: Property Rights by the Back Door? I am grateful to the many helpful comments from
participants which have helped shape this paper and to the suggestions and criticisms of the
anonymous reviewers.
1. M Dixon Proprietary estoppel and formalities in land law and the Land Registration Act
2002: a theory of unconscionability in E Cooke (ed) Modern Studies in Property Law vol 2
(Oxford: Hart Publishing, 2003). See now Yeomans Row Management Ltd v Cobbe [2008]
UKHL 55, [2008] 1 WLR 1752 and Thorner v Majors [2009] UKHL 18, [2009] 1 WLR 776.
2. Oakglade Investments Ltd v Greater Manchester Passenger Transport Executive [2009]
RVR 39. The Lands Tribunal has now become the Lands Chamber of the Upper Tribunal under
the Tribunals, Courts and Enforcement Act 2007.
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9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

Confining and defining proprietary estoppel

409

Registry,3 in the Consistory Court,4 as well as on countless occasions in the High Court
and Court of Appeal.5 It has prevented the owner of a burial plot exhuming the ashes
of a relative who had been interred against the owners express instructions;6 protected
occupiers rights in relation to a caravan park;7 saved an institutional lender from the
full effect of a borrowers fraud;8 reversed the rules of land registration as to the
priority of registered charges;9 prevented a 12-year, pre-2002 Land Registration Act
adverse possessor from establishing title;10 and generated ownership of an extension in
a dispute over the family home.11 This is, of course, the small tip of a large iceberg and
while some of these cases are examples of the defensive shield of estoppel and some
operate procedurally to deny a landowner a right or priority they might otherwise have
enjoyed, it is clear that many appear to result in the creation of property rights through
entirely informal dealings.
The varied circumstances in which estoppel might be pleaded, and the undoubted
flexibility which exits in relation to satisfaction of the equity, often disguises a
complex and unresolved issue that reappears periodically in the case-law, so far
without definitive resolution. When estoppel does result in the claimant being awarded
a property right in satisfaction of the equity, how can this be squared with the
statutorily imposed formality requirements normally required for the creation or
disposition of such rights? These formality requirements will vary according to the
circumstances. It might be the Wills Act 1837 (Thorner v Majors)12 or s 53 of the Law
of Property Act 1925 (Van Laethem v Brooker),13 or s 48 of the Land Registration Act
2002 (Scottish and Newcastle plc v Lancashire Mortgage Corporation),14 or it might
be s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (Anderson
Antiques v Anderson Wharf15). However, whatever formality rule is in play, the
problem is the same. If statute requires the claimants alleged property right to have
been created with a certain type of formality, why, in the absence of such formality,
can the claimant run to the back door, break in using estoppel as a jemmy, and run off
with some or all of the landowners proprietary valuables?16 It is argued in this paper
3. Waghorn v Waghorn Decision REF/2006/0271 (unreported) 2 November 2006.
4. Re West Norwood Cemetery [2005] 1 WLR 2176.
5. Manton Securities v Nazam [2008] EWCA Civ 805 provides a recent example in the law
of landlord and tenant and Clarke v Coreless [2009] EWHC 1636 (Ch) illustrates estoppel in a
neighbour dispute.
6. Re West Norwood, above n 4.
7. Brightlingsea Haven Ltd v Morris [2008] EWHC 1928 (QB).
8. Halifax plc v Popeck [2008] EWHC 1692 (Ch), [2009] 1 P&CR DG3, to the detriment of
a second lender.
9. Scottish & Newcastle plc v Lancashire Mortgage Corporation [2007] EWCA Civ 684,
(2007) NPC 84.
10. St Pancras & Humanist Housing Association Ltd v Leonard [2008] EWCA Civ 1442.
11. Thompson v Foy [2009] EWHC 1076 (Ch), (2009) 22 EG 119 (CS).
12. Above n 1.
13. [2005] EWHC 1478 (Ch), [2006] 2 FLR 495.
14. Above n 9. The case turned on the equivalent provision as to priority of registered charges
under the Land Registration Act 1925.
15. [2007] EWHC 2086 (Ch).
16. Although the particular formality requirements may vary in detail eg a written contract
for a disposition of an interest in land, or a valid will for a testamentary disposition the real
issue is not how estoppel relates to the detail of these formality rules, but rather how the
claimants proprietary interest can arise when the required formality for the impugned
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that the answer to this conundrum is to be found in recognition that the justification for
estoppel is the prevention of unconscionable conduct of itself neither novel nor
contentious but further that unconscionability when taken to be a defining feature
of estoppel has a relatively narrow meaning that can both confine the doctrine to
predicable and coherent limits and which explains why the doctrine does not contradict the statutorily imposed formality rules. Indeed, the contention is that a reasonably
tight and limited understanding of unconscionability provides a rationale for proprietary estoppel in all types of case. It is further suggested that the concept of unconscionability has been used for different purposes in the law of estoppel and that
recognition of the different roles of unconscionability as well as trying to pin down
the most important meaning of unconscionability can lead to a better understanding of how estoppel works in practice.17

THREE CONUNDRUMS IN THE CASE-LAW

(a) The penicillin problem
There is a concern running through Yeomans Row Management Ltd v Cobbe that
reflects the subject matter of this paper.18 To what extent should we allow estoppel to
create property rights through the back door when there is a clear public policy,
expressed in statute, that generally property rights should be created with a certain
degree of formality? The particular issues this raises are considered briefly below, but
it is important to recognise that this is, in essence, a concern about the extent to which
estoppel is now used as penicillin for all types of ailments. The sheer volume of
case-law suggests that estoppel is fast becoming the last plea of the desperate and the
treatment of choice for a court looking for a remedy for a deserving litigant. Indeed,
the recognition that proprietary estoppel has grown from a relatively marginal doctrine
to an equitable doctrine of considerable vigour may well have motivated Lord Scott of
Foscotes conservative analysis in Cobbe. Moreover, while not everyone agrees with
the precise strictures that Lord Scott would place on the doctrine and this includes
at least Lord Walker of Gestingthorpe in Thorner v Majors there are few dissenters
from the proposition that it is not a remedy for generally unconscionable conduct per
se. Further, it is perfectly reasonable to insist as does Lord Scott that we need to
develop clear parameters for the operation of the doctrine, else it really will be a
discretionary panacea for all ills whose application is unpredictable and uncertain.19
transaction is not complied with. Thus, in the absence of formality rules, estoppel would not be
needed to explain the claimant acquiring an interest in property because the law would recognise oral grants, oral contracts and oral testamentary dispositions.
17. The general role of unconscionability in estoppel has been analysed, but not its particular
relationship to formality rules per se. See, eg, KR Handley Unconscionability in estoppel by
conduct: triable issue or underlying principle? [2008] Conv 382; N Hopkins Understanding
unconscionability in proprietary estoppel (2004) 20 JCL 210 and Conscience, discretion and
the creation of property rights [2006] Legal Studies 475; H Delany and D Ryan Unconscionability: a unifying theme in equity [2008] Conv 401.
18. Above n 1 at [28].
19. He notes that proprietary estoppel could lose contact with its roots and risk becoming
unprincipled and therefore unpredictable, if it has not already become so: at [28]. It might be
thought that some of the criticism of Lord Scotts judgment in Cobbe gives insufficient weight
to this policy.
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The key problem addressed in this paper is how to confine estoppel to acceptable and
principled limits, not whether it should be confined.
In Cobbe, Lord Scott sought to rein in estoppel, and confine it, by reminding us that
the landowner needed to be estopped from doing something as a result of his
conduct. He did this by concentrating on the nature of the assurance which the
landowner had to make in order to trigger the possibility of estoppel. This was the
cause of the difficulties in Thorner, where the tight definition of a qualifying assurance
in a commercial context in Cobbe did not sit well in the domestic context. Of course,
it is readily understandable why efforts should be concentrated on the necessary but
not sufficient factual elements of estoppel. Whether there was an assurance, with
reliance and detriment, is a relatively solid question, susceptible to proof and challenge. It is clearly possible to define these three conditions with some certainty, or,
importantly, with more certainty than the concept of unconscionability. Thus, while
Thorner concentrates largely on the nature of the requisite assurance,20other cases
focus on detriment21 or reliance22 and despite the injunction in Gillett v Holt23 to take
matters in the round (fully endorsed by Thorner24), it is tempting to manage the reach
of estoppel through a forensic analysis of these factual components.
However, despite the temptation, and while recognising that we must have some
understanding of what we mean by assurance, reliance and detriment, it is submitted
that these elements of estoppel do not produce a principled boundary within which the
concept can operate. It is axiomatic that estoppel claims arise in a huge variety of
circumstances and an attempt to control the operation of the doctrine through a clear
statement of what amounts to an assurance, or what counts as detriment or what is
meant by reliance is likely to destroy its flexibility (hence we must be holistic) and can
lead to exactly the problems illustrated by the different approaches in Cobbe and
Thorner. Rather, if we can develop a clear understanding of what we mean by
unconscionability which we are told is at the heart of estoppel we may be able both
to justify the doctrine in terms of its relationship with formality rules (and in other
cases) and thereby delimit its proper reach without turning it into a judicial free for all.

(b) The missing link heard about but rarely seen

One of the first things that a student discovers when he or she comes to proprietary
estoppel for the first time is that unconscionability is at the heart of the doctrine.25

20. With, of course, some discussion about how reliance is established must it be intended
or is it enough if the fact of reliance was reasonable even if unintended? See also Herbert v
Doyle [2008] EWHC 1950 (Ch).
21. Hunt v Soady [2007] EWCA Civ 366; Century (UK) Ltd v Clibbery [2004] EWHC 1870
(Ch).
22. Greasley v Cooke [1980] 1 WLR 1306; Chun v Ho [2003] 1 FLR 23; and see recently
Clarke v Coreless, above n 5.
23. [2001] Ch 210.
24. Above n 1 at [100] per Lord Neuberger.
25. See Oliver Js dictum in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982]
QB 133 at 151 that what is required is a broader approach which is directed rather at
ascertaining whether, in particular individual circumstances, it would be unconscionable for a
party to be permitted to deny that which, knowingly or unknowingly, he has allowed or
encouraged another to assume to his detriment than to enquiring whether the circumstances
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They then discover that there is little guidance as to what it means, little explanation
of why it is at the centre and thus virtually no consideration of the role it might play
in providing both a justification for, and a limitation on, successful estoppels, both in
circumstances where there is an obvious conflict with formality rules and in those
cases where there is not. It is almost as if unconscionability is a flag to wave
because we must but we are not sure why we are doing it, when to do it and why it
might be important.
Of course, that is not to say that the word unconscionability never appears in
estoppel judgments, although there are many cases of both successful and unsuccessful claims where it never features.26 Both Cobbe and Thorner are remarkable for the
fact that they say so little about the concept, save for the unchallengeable point made
by Lord Scott in Cobbe that, whatever it is, it does not of itself warrant a successful
claim against the landowner. Often the reference to unconscionability takes the form
of little more than a bald assertion that it would be unconscionable if the defendant
were now permitted to deny the claimants equity;27 or it is used, with little or no
analysis, as a general justification for the denial or grant of the estoppel; or it is simply
a nod in the direction of precedent. For example, in Knowles v Knowles,28 the claim
failed because it would have been unconscionable to deny the landowner (not the
claimant) full exercise of his rights, although it is not entirely clear why.29 In Hopper
v Hopper,30 Briggs J relies on the reference to unconscionability in Jennings v Rice31
in order to fashion a suitable remedy, but it is not clear how the solution reached is
related to the undefined unconscionability; and in Clarke v Clarke,32 it would be quite
unconscionable to allow the landowner to resile from their assurance, but it is not
clear why, other than that the claimant had acted on the assurance. And so the cases go
on, with unconscionability a central but undefined ingredient in estoppel.33
There may be no single explanation of why the concept of unconscionability
receives so little judicial attention when compared to that given to the other elements
of estoppel, but the omission of any compelling analysis is intriguing. It might be that,
in a complex case, the focus will be on the solid elements of estoppel because
their existence is easier to attack or defend. It is understandable that counsel for
the parties will direct their efforts here, rather than towards the elusive concept of
can be fitted within the confines of some preconceived formula serving as a universal yardstick
of unconscionable behaviour. Or, in the words of Robert Walker LJ in Gillett v Holt [2001]
Ch 210, the fundamental principle that equity is concerned to prevent unconscionable conduct
permeates all the elements of the doctrine. See also Hoffmann J in Walton v Walton in the
context of informal promises, quoted with approval in Thorner at [101] per Lord Neuberger.
26. Eg, in Thompson v Foy [2009] EWHC 1076 (Ch), [2010] 1 P&CR 16, Lewison J notes
that, following Thorner, as Lord Walker of Gestingthorpe explained ( 29) the doctrine is based
on three elements: a representation or assurance made to the claimant; reliance on it by the
claimant; and detriment to the claimant in consequence of his (reasonable) reliance.
27. Barsanti v Royle Claim No 5BS50359, Bristol District Registry, Chancery Division,
3 April 2006. See also Manton Securities v Nazam [2008] EWCA Civ 805, (2008) NPC 85.
28. Before the Judicial Committee of the Privy Council, [2008] UKPC 30.
29. See also Powell v Benney [2007] EWCA Civ 1283, 151 Sol Jo 1598.
30. [2008] EWHC 228 (Ch), [2008] 1 FCR 557.
31. [2002] EWCA Civ 159, [2003] 1 FCR 501.
32. [2006] EWHC 275 (Ch), [2006] 1 FCR 421.
33. See Turner v Jacob [2006] EWHC 1317 (Ch) where unconscionability is to be determined
by looking at all the relevant circumstances and not at individual factors in isolation. It is
uncertain what these relevant circumstances were.
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unconscionability, which often seems to consist of no more that the trial judges sense
of where the justice of the case lies. Or it might be that we do not want to define
unconscionability and thereby limit the application of the doctrine, especially given the
flexible role that estoppel plays and is meant to play within the lexicon of property law.
Uncertainty can be a benefit as well as a burden, and while unconscionability of itself
cannot generate an estoppel, the claim can be denied despite the presence of an
assurance, reliance and detriment by judicious deployment of the unconscionability
card.34 Or it might be that the difficulty inherent in articulating a framework understanding of unconscionability per se has been sidestepped by weaving its presence
through our analysis of the three factual criteria. Hunt v Soady35 is of this type, where
the trial judge held that there was no detrimental reliance, and hence no unconscionability, because the claimant already was obliged to pay mortgage moneys. Indeed, this
has echoes of Walker LJs analysis (as he then was) in Gillett v Holt being one of the
few occasions where the meaning of unconscionability has been addressed explicitly
where it is suggested that it is the withdrawal of a promise after detriment that generates
unconscionability.36
Whatever the reasons for this reluctance to explore the role and meaning of
unconscionability in proprietary estoppel be it a coincidental lack of opportunity,
deliberate preservation of flexibility or simply a reluctance to be drawn into deep
waters when judging practical issues for real people the absence of a structured
framework for understanding unconscionability gives the impression that proprietary
estoppel really is no more than a cloak for judicial discretion.37 It can also lead to the
criticism that proprietary estoppel is nothing but a security blanket to which we cling
to avoid facing the reality that our apparent proprietary concept, based around an
undefined and indefinable concept of unconscionability, is really nothing more than a
bundle of personal restitutionary actions. After all, if we cannot define with some
clarity the concept of unconscionability that is so central to the operation of proprietary estoppel, how can we predict and advise when a claim might be successful and
how can we justify decisions to award property rights to claimants when they have not
complied with any number of formality rules which the legislature binds us to
observe? The present author subscribes to none of these criticisms, believing that it is
possible to anchor proprietary estoppel within a discretionary framework in a way that
is principled and which explains why it can operate to create proprietary rights, both
in cases where formality rules are in play and in cases where they are not.

34. See, eg, Yeo v Wilson LTL 27 July 1998, Case Ref CH 1997 Y 4026.
35. [2007] EWCA Civ 366.
36. The present author has ventured criticism of this analysis elsewhere see above n 1.The
thrust of the criticism is that it sees unconscionability as merely a function of assurance, reliance
and detriment and therefore permits the back door creation of property rights without reference
to normal requirements. Neither does it explain those cases where estoppel has been denied
despite a promise withdrawn after detrimental reliance see, eg, the subject to contract cases
typified by Attorney-General of Hong Kong v Humphreys Estate (Queens Gardens) Ltd
[1987] 1 AC 114 of which there is more than an echo in Cobbe.
37. This worried Judge Weeks in Taylor v Dickens [1998] 1 FLR 807, for he noted that there
is no equitable jurisdiction to hold a person to a promise simply because the court thinks it
unfair, unconscionable or morally objectionable for him to go back on it. If there were such a
jurisdiction, one might as well forget the law of contract and issue every civil judge with a
portable palm tree. The days of justice varying with the size of the Lord Chancellors foot would
have returned: at 821.
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(c) Worrying about formality

When it comes to the creation or disposition of interests in land, modern land law
places great reliance on compliance with statutory formality requirements. Formality
brings certainty and certainty brings stability to our social and economic dealings with
land.38 There are many examples of formality obligations in connection with the use
and disposition of land, but none appear to trouble the chancery lawyer as much as s
2 of the Law of Property (Miscellaneous Provisions) Act 1989 (the 1989 Act).39
On the one hand, cases such as Anderson Antiques v Anderson Wharf40 (decided
after Cobbe in the Court of Appeal but before judgment in the House of Lords) raise
a serious challenge to the possibility of proprietary estoppel operating at all in failed
contract cases. In Anderson, Briggs J encapsulated the issue neatly, observing sceptically (and accurately in the absence of a principled justification) that:41
it is hard to see how any oral contract for the sale of land cannot be enforced
by way of proprietary estoppel once the promisee spends some time or money in
reliance on the oral agreement, such as, for example, instructing solicitors to
investigate title or surveyors to carry out a survey. As a consequence, I have grave
reservations whether this case, even if credible . . . really avoids the difficulties
created by section 2 as a matter of law.
Such doubts are, of course, made clear in the speech of Lord Scott in Cobbe42 as well
as having a long pedigree from earlier cases.43 They are not without substance. On the
other hand, cases such as McGuane v Welch,44decided just before their Lordships
decision in Cobbe, are equally robust, with Mummery LJ in that case being clear:45

38. As a starting point, see Hernando de Soto The Mystery of Capital (London: Black Swan,
2001).
39. See, eg, Lord Neuberger The stuffing of Minervas owl? Taxonomy and taxidermy in
equity [2009] CLJ 537; S Panesar Enforcing oral agreements to develop land in English law
[2009] ICCLR 165; G Fetherstonhaugh Proprietary estoppel and section 2 where are we
now? [2009] EG 0916, 136. See also [2009] Conv 85.
40. [2007] EWHC 2086 (Ch).
41. See also DS v SS [2006] EWHC 2892 (Fam), [2007] 1 FLR 1123: But a party may not
rely on an estoppel to avoid a statutory obligation: at [56].
42. It is not necessary in the present case to answer this question, for the second agreement
was not a complete agreement and, for that reason, would not have been specifically enforceable
so long as it remained incomplete. My present view, however, is that proprietary estoppel cannot
be prayed in aid in order to render enforceable an agreement that statute has declared to be void.
The proposition that an owner of land can be estopped from asserting that an agreement is void
for want of compliance with the requirements of section 2 is, in my opinion, unacceptable. The
assertion is no more than the statute provides. Equity can surely not contradict the statute:
per Lord Scott at [29].
43. For example, Yeo v Wilson, above n 34; Taylor v Dickens, above n 37. See Newport City
Council v Charles [2008] EWCA Civ 1541, [2009] 1 WLR 1884 on the question whether
estoppel can be used to frustrate the purpose of a statute, or even be used to uphold that purpose.
44. [2008] EWCA Civ 785, (2008) 40 EG 178.
45. See Law Commission Working Paper No 92, on the proposal to enact what is now s 2, that
it appears to us obviously out of the question to exclude the application of these general judicial
doctrines (restitution as well as equitable estoppel) in this particular area of sales etc. of land
at para 35 and see Law Commission Report No 164 The Transfer of Land: Formalities for
Contracts of Sale etc. of Land at paras 1920.
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that the absence of a written agreement for sale is not a problem. The fact
that the agreement found by the judge was itself unenforceable by reason of section
2 of the Law of Property (Miscellaneous Provisions) Act 1989 would not, as a
matter of public policy, preclude reliance on the doctrine of proprietary estoppel
(or constructive trust).
In addition to these statements of principle, there is of course the now much-used
device, pioneered in Yaxley v Gotts,46 of combining the estoppel with a constructive
trust in order to escape the strictures of s 2.
The perceived conflict between formality rules (for present purposes represented
by s 2 of the 1989 Act) has been dealt with in two ways. The first response is to
sidestep the problem by finding, on the facts, that the parties had not intended, or
actually come close to, concluding a contract and thus that s 2 was not actually in play.
There is more than a trace of this in Thorner itself47 and it has been relied in other
cases.48 However, to the present author this seems, with respect, to be an argument of
a purely technical nature that does not help resolve the central problem.49 The finding
that the case does not involve a failed contract may well explain, on a technicality,
why s 2 is not in play, but it does nothing to explain why estoppel can exist in such
non-contract cases save only that it does not fall factually within the s 2 prohibition.
That is no argument at all and is more of a straw to clutch at than a foundation to build
on. Crucially, it does not explain why property rights can be generated by estoppel in
ignorance of the provisions of the Wills Act 1837, the Land Registration Acts 1925
and 2002 or the Law of Property Act 1925, all of which contain formality provisions.50
The cases where estoppel has been found despite these formality rules also need a
justification.51 To put the matter differently, it is not readily apparent why the law
should be happy to give some validity to entirely non-contractual promises by reason
of proprietary estoppel without any explanation of the basis of the doctrine but at
the same time refuse to act in relation to more formal (but failing) agreements because
they might amount to a contract regulated by s 2. Is it really the case that we need not
worry about the justification for the informal creation of property rights when a
contract does not exist because s 2 is not in play but we cannot use estoppel when
s 2 is in play because the parties have tried but failed to conclude a contract? Granted,
the fact that a contract has been attempted may be very relevant in determining
whether the estoppel claim can succeed, but not because of s 2. Rather, as submitted
below, it is because the contractual context affects whether there has been unconscionability. As will be seen, the contention is that the debate about s 2 has obscured the
search for a rationale for estoppel claims in all circumstances (whether there is the
possibility of a contract or not) and, more importantly, that s 2 is entirely irrelevant to
the question of whether there is a valid estoppel, save and only insofar as it impacts on
the question of unconscionability.

46. [2000] Ch 162.

47. At [92] et seq.
48. Eg Scottish & Newcastle plc v Lancashire Mortgage Corporation, above n 9.
49. Of course, it does help judges in real cases without them having to resort to wider
arguments of principle.
50. See also estoppel used as an antidote to s 1 of the 1989 Act (attestation of deeds): Shah v
Shah [2001] EWCA Civ 527, [2001] 3 WLR 31.
51. Eg Gillett v Holt, above n 25 (Wills Act 1837); Halifax v Popeck, above n 8 (Land
Registration Act 2002); Thompson v Foy, above n 11 (Law of Property Act 1925).
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The second method of squaring the existence of estoppel in failed contract cases is
that put forward by Walker LJ in Yaxley v Gotts and now taken up with vigour in a
number of cases, the latest of which is Brightlingsea Haven Ltd v Morris.52 The
argument runs that once an estoppel is established, it does not fall foul of s 2(1) of
the 1989 Act because the landowner is subject to a constructive trust protecting the
claimants proprietary equity. Such trusts are, of course, exempt from formality by
reason of s 2(5). Importantly, the point is not that a constructive trust is an alternate
and independent ground for finding in favour of the claimant (although there are such
cases),53 it is rather that the estoppel is shielded from the operation of the formality
rule by a constructive trust which, happily and conveniently, is exempt from s 2. The
attraction of this argument is obvious. It provides a ready, direct and statutorily
authorised justification for estoppel in failed contract cases. It negates the need to
explore and explain the basis for estoppel, and especially avoids difficult questions
about the relationship between formality, estoppel and unconscionability. It is a
ready-made solution to a difficult problem.
However, although the use of the constructive trust is readily understandable
(especially as there is great attraction in having a statutory justification), it is respectfully submitted that it does not stand up to close scrutiny. Few cases explain why a
constructive trust is imposed, save that the existence of the estoppel means that
someone has been unconscionable and constructive trusts can protect against unconscionability. This seems to be entirely circular and implies that whenever there is an
estoppel, there is also a constructive trust. In reality, it amounts to the imposition of a
remedial and artificial constructive trust simply because we want to avoid a conflict
with s 2. It is not a justification or an explanation of why s 2 is not engaged, it is an
assertion that avoids us having to dive deeper into the dark waters of estoppel to look
for such a justification. Further, once again it seems to draw a distinction between
successful estoppels in failed contract cases (landowner subject to a constructive
trust), and successful estoppels in other types of cases, for example the standing by
cases or the unilateral promise cases (landowner not subject to a constructive trust). If
the answer is that the non-contract cases are not subject to s 2 so that a constructive
trust is not needed, that simply illustrates that the use of a constructive trust is no more
than a remedial device to deal with a difficult problem.
It is suggested below that it is not necessary to resort to the constructive trust to
explain the relationship between formality requirements in land law, be they found in
s 2 or elsewhere. The contention is that all cases of proprietary estoppel share the same
rationale a rationale built around a relatively clear meaning of unconscionability.
This rationale applies whether or not the estoppel claim appears to contradict formality rules, although it needs to be articulated with greater force in those cases of
apparent conflict. It is also suggested that the dismissal of estoppel claims in cases
such as Cobbe is explicable by reference to this clear concept of unconscionability and
that the true distinction between Cobbe and Thorner is not the commercial/domestic
context per se, nor even whether one is a failed contract case or not, but rather how this
context relates to unconscionability. Furthermore, the use of a clear concept of unconscionability might also allay the fear running through Cobbe the perfectly proper
fear that estoppel has become a wild horse cantering through modern property law.
52. [2008] EWHC 1928 (QB). See also Scottish & Newcastle plc v Lancashire Mortgage
Corporation, above n 9; Turner v Jacob, above n 33; Kinane v Mackie-Conteh [2005] EWCA
Civ 45, (2005) 6 EG 140 (CS).
53. Eg Oates v Stimson [2006] EWCA Civ 548.
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The argument is that estoppel can be explained and confined on a principled basis
through the use of unconscionability.

THE CORE MEANING OF UNCONSCIONABILITY DOUBLE ASSURANCE

The essence of the argument here is that estoppel can be the antidote to the imperfect and otherwise flawed creation of property rights if, but only if, there is clear
justification for ignoring the formality rules that otherwise normally apply.54 If the
formality rules apply (ie their inapplicability cannot be justified), then there can be
no estoppel. Unconscionability provides this justification and the legislatures insistence that property rights must be created in certain ways, means that our understanding of unconscionability should be tied inexorably to the concept of formality,
rather than being simply a function of assurance, reliance and detriment.55 Thus,
unconscionability will exist if (but only if) the landowners assurance amounts both
to an assurance of a certain enough56 right in relation to land and this carries with
it a further assurance that the right will be granted despite the absence of the formality that is normally required to create, transfer or enforce that right. Assuming
detrimental reliance, an estoppel is made out when a landowner makes a double
assurance an assurance that the claimant will have some right over the representors land (the rights assurance) combined with an assurance that the right will
ensue even if the formalities necessary to convey that right are not complied with
(the formality assurance). This second assurance may be express or implied, but it
is submitted that it exists in all successful cases of estoppel. Unconscionability is a
function of formality, not of assurance reliance and detriment. Unconscionability
exists when a formality assurance is withdrawn after detrimental reliance. In the
absence of such an assurance and its withdrawal, there is no unconscionability and
no estoppel:
1. In failed contract cases, such as Cobbe, Kinane v Mackie-Conteh and Yaxley v Gotts, the
fact that the parties attempted to enter into a formality compliant transaction means that
it is much more difficult to establish estoppel. This is not because the formality rules
triumph over estoppel as a matter of public policy (the s 2 et al argument), but because
the landowner cannot easily be said to have promised that formality would not apply
when the parties intended but failed to comply with the required formality. It is more
difficult to establish unconscionability because the attempted use of formality usually
will mean that no assurance was given that formality would not apply no formality
assurance. In both Yaxley and Kinane, the estoppel was successful because in both
cases the landowner in essence assured the claimant that the required formality was not
needed in Yaxley when the defendant encouraged the claimant to assume that the
gentlemans agreement was binding and in Kinane when the defendant encouraged the
claimant to believe that the oral agreement was binding.57 In Cobbe, not only did
Mr Cobbe know and understand that formality was needed, more crucially the defendant did not assure Mr Cobbe that he would acquire property rights without that
54. Thus, where there are no formality requirements eg short leases estoppel has no role.
55. Thus, it is no mere coincidence that estoppel claims rise in proportion to the degree of
formality required for the creation and disposition of property rights.
56. Thorner v Majors, above n 1, per Lord Walker.
57. At [28] per Arden JJ.
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formality there was no formality assurance.58 Thus, it is not the fact that Cobbe was
a commercial case that is critical, nor that the rights assurance was not certain
enough on the facts, but rather that there was no unconscionability in the sense here
explained. Had the defendant made a formality assurance, the estoppel could have
existed. It is simply that in commercial contexts, the formality assurance is more
difficult to establish and so unconscionability is less likely to exist.
2. In inheritance cases like Gillett, Ottey v Grundy,59 Campbell v Griffin60 and Thorner, the
unconscionability consists of an assurance of a certain enough right (the rights
assurance), plus an assurance that the normal formality rules of testamentary dispositions will not apply or can be dispensed with. Although in such cases the formality
assurance is rarely express, the facts may yield such an assurance through implication.61 In Gillett for example, the oft-repeated assurances as to the destination of the
farm et al on Holts death amounted to a formality assurance because the defendant
was, in essence, asserting that he would not rely on formality (that is, the ability to make
a different Will) to dispose of his property elsewhere. It is not that the assurances were
irrevocable, but rather that the defendant by implication assured the claimant that they
would not be revoked. In Thorner, the formality assurance is more difficulty to
establish, not least because the rights assurance also is not made expressly. Thus, both
the rights assurance and the formality assurance arose by implication from the
conduct of the parties over many years and this complication goes some way to explain
the differences between the decisions in the Court of Appeal and the House of Lords.
3. In subject to contract cases, such Attorney-General of Hong Kong v Humphreys
Estate (Queens Gardens) Ltd,62 Evans v James,63 Edwin Shirely Productions Ltd v
Workspace Management Ltd64 and Taylor v Inntrepreneur Estates,65 there is only a
remote chance of estoppel, even if the claimant has detrimentally relied on a rights
assurance because there is little prospect of unconscionability. The subject to contract
clause indicates that no formality assurance has been made and so there is little
prospect of unconscionability being established.66 Indeed, the landowner/representor
has been explicit that formality is required and so it is not unconscionable to withdraw
the rights assurance even if detriment has occurred. It is not that an estoppel can never
exist in such cases rather it is that there would have to be very clear evidence that a
formality assurance had been made. For example, if the parties agreement was
58. Note, however, that when Etherton J found for Mr Cobbe at first instance, he concluded
that the defendant regarded herself as bound in honour to enter into a formal agreement: [2005]
EWHC 66 (Ch) at [68] and [86]. Could this equate to a formality assurance (ie that formality
did not really matter) so as to make withdrawal of the assurance unconscionable?
59. LTL 31 July 2003, Case Ref: Case No A3/02/2510.
60. [2001] EWCA Civ 990.
61. Of course, to some extent, this represents an ex post facto analysis of the facts of these
cases as it must be admitted that the decisions did not proceed on this basis. Likewise, the fact
that a formality assurance may be implied necessarily poses the risk that the concept could be
manipulated to justify an estoppel at the discretion of the court. The point is, however, that the
analysis presented here provides a framework for decisions in such cases and a rationale for
differentiating between mere unenforceable informal promises and those informal promises
deserving of the intervention of equity.
62. [1987] 1 AC 114.
63. Unreported, 20 July 2000.
64. [2001] 23 EG 158.
65. Transcript, No 1997 T No 76.
66. In Cobbe, Lord Scott gives a different explanation of why there can be no estoppel, at [25].
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subject to contract but the landowner had assured the claimant that whatever
happens the right was his, that could amount to a formality assurance and so constitute
unconscionability and an estoppel.67
4. In cases where the need for formality is notorious, it is also difficult to establish
estoppel because the well-understood need for formality makes the implication of a
formality assurance very difficult. Thus, no unconscionability. So in those cases where
the parties are negotiating a sale of land, or have reached an oral agreement as to the
essential details, there can be no estoppel merely because one party relies detrimentally
on the assurance of the other by, for example, spending money on a survey, mortgage
or solicitors fees.68 The need for formality is notorious in such cases and unless one
party has made an explicit formality assurance (eg no need to worry about the
technicalities, the land is yours), there can be no unconscionability and no estoppel.
So, in Anderson Antiques v Anderson Wharf, Briggs J was right to raise and reject the
spectre of every oral agreement being enforced by estoppel,69 but not because s 2
invalidates such contracts per se, but because there is no unconscionability sufficient to
take the matter outside of s 2.

CONCLUSIONS
The above analysis has sought to explain the ability of estoppel to generate property
rights by seeking to analyse and define the concept of unconscionability. In so doing,
the reach of estoppel can be determined on a principled basis and it cannot operate
unfettered on the property stage. It can be justified and confined. Unconscionability
means going back on an assurance about formality, in conjunction with a rights
assurance that is certain enough and detrimental reliance. Where the landowner has
not made a formality assurance (expressly or impliedly), it is not unconscionable to
deny the rights assurance. Subject to contract cases, regular sale/purchase situations and even regular inheritance discussions may be of this type because it is
difficult, but not impossible, to prove a formality assurance in such cases. Where there
is no formality assurance, the claimant cannot succeed in estoppel because the formality rules deny the existence of the alleged property right or specify that it must be
granted in certain ways. In this sense, proprietary estoppel is not in conflict with s 2
of the 1989 Act or indeed any other statute imposing formality because unconscionability (and hence estoppel) is inexorably bound up with the need for formality.
Estoppel has its own justification which supports the need for formality. Consequently, proprietary estoppel does not need a constructive trust to protect it and failed
contract cases are no different from any other type of case. Failed contract cases and
commercial cases look different from non-bargain cases or domestic cases and they
are. Not, however, because they are failed bargains to which s 2 applies and does not
apply elsewhere, nor because they are commercial and the parties should have
known better, but rather because in both these contexts it is more difficult to prove that
67. In Humphreys, Lord Templeman said that it is possible but unlikely that in circumstances
at present unforeseeable, a party to negotiations set out in a document subject to contract
would be able to satisfy the court that . . . some form of estoppel had arisen to prevent both
parties from refusing to proceed with the transaction envisaged by the document. This might
be the relevant circumstance.
68. Or through the detriment of lost opportunity looking elsewhere.
69. Above n 15.
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there has been a formality assurance that is subsequently withdrawn. An estoppel can
exist and is not in conflict with any formality rule if, but only if, it is unconscionable
to deny the rights assurance. It is unconscionable to deny the rights assurance only
when it has been accompanied with an express or implied formality assurance.
The purpose of this analysis is not to require a mechanical search for a double
assurance in the same way that it is tempting to search mechanically for a rights
assurance, plus detriment and reliance. It is instead an attempt to explain that estoppel
does not undermine the structure of property law as manifested by formality rules, and
that it is not the expression of a thinly disguised unfettered judicial discretion. Rather,
it seeks to explain estoppel as a principled and limited equitable doctrine that allows
the creation of property rights through the front door. The front door is guarded by
unconscionability, and it is not always open. Moreover, this analysis does not seek to
deny that there is a role for judicial discretion in estoppel cases. Once an estoppel has
been established on the basis of a double assurance and detrimental reliance, the court
may respond to the equity in many ways. In so doing, the court may well take a broad
view of the parties conduct,70 or it may seek to be even handed between those parties
claiming use of the land,71 or it may try to fashion the remedy to best suit the
circumstances of the parties as they now find themselves.72 In doing all of these things,
the court may well use the language of unconscionability. This is unconscionability as
a descriptive tool and it is very different from the defining concept explained above.

70. Yeo v Wilson, above n 34.

71. Campbell v Griffin, above n 60.
72. McGuane v Welch (2008) 40 EG 178.
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