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The remedial discretion in proprietary estoppel remains one of the most disputable issues in the legal system of the United Kingdom. According to Lord Justice Lewison LJ’s analysis provided within a framework of the decision of the Court of Appeal in Davies v Davies:
“Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application. In particular there must be a proportionality between the remedy and the detriment.”1
This statement means that while the remedy should be comparatively equal to the detriment, the court should take into consideration the claimant’s reasonable expectations. At the same time, “it is important not to shy away from a consideration of this matter, since the law of proprietary estoppel, as developed by the courts, is favourable to claimants on a number of points of principle and is difficult to justify in theoretical terms and it is possible that the courts tend to
be equally generous to claimants in terms of applying the law to the facts.”2 It means that in the case of a proprietary estoppel claim, the court is frequently guided by the claimant’s interests, and the remedial discretion becomes ambiguous, making proprietary estoppel jurisdiction highly confusing and inefficient.
The proportionality raises multiple concerns in a considerable number of cases. In Jennings v Rice and Ors, the claimant was awarded the house and its contents, the value of which substantially exceeded the sum of Mr Jennings’s salaries for more than 15 years due to the fact that the claimant was bound by the owner’s promise to receive the house.3 In this case, according to the judgement of Robert Walker LJ:
“Sometimes the assurances, and the claimant’s reliance on them, have a consensual character falling not far short of an enforceable contract … In such a case the court’s natural response is to fulfil the claimant’s expectations.”4
However, the claimant’s expectation may be exaggerated or unclear to ve satisfied by the court. Moreover, in a considerable number of cases, it is highly challenging for a court to determine the detriment, especially when it is presented in unquantified terms. In other words, while improvements and expenditures related to a person’s property may be measured in financial equivalents, the detriment of lost opportunities or an increasing burden imposed by the necessity to take care of a sick or old person should be taken into consideration and awarded as well.5 Thus, a court should exercise a wide remedial discretion, especially when the claimant received countervailing benefits that aimed to decrease his detriment.
In addition, the claimant’s character and motives of actions should be considered in the remedial discretion. In Suggitt v Suggitt, the claimant was awarded a property valued at £3.3 million, and this remedy substantially exceeded his contribution to its improvement and work.6 However, the court was guided by the claimant’s expectations on the basis of his father’s promise, even if his actions could be different without this promise, and the claimant addressed the court after his money had finished.7 The oddity of a court’s decision reveals the necessity to strengthen the control over proprietary estoppel jurisdiction.8 It goes without saying that it allows people to claim justice and the remuneration of their efforts and expenditures, however, the system of the remedial discretion should be improved to provide equity in the most reasonable and just way.
Footnotes
- Henry v Henry [2010] UKPC 3; [2010] 1 All E.R 988; [2010] W.T.L.R. 1011 at [65].
- J. Mee, ‘Proprietary Estoppel and Inheritance: Enough is Enough?’ [2013] Conv 280 at 297.
- [2002] EWCA Civ 159
- [2002] EWCA Civ 159 at [16]
- [2002] EWCA Civ 159 at [51]
- [2012] EWCA Civ 1140, [50]
- J. Mee, ‘Proprietary Estoppel and Inheritance: Enough is Enough?’ [2013] Conv 280 at 297.
- J. Mee, ‘Proprietary Estoppel and Inheritance: Enough is Enough?’ [2013] Conv 280 at 297.
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