Chapter 8 Flowcharts with audio: How courts determine remedy in estoppel claims

In this audio I'm going to talk to you about how courts determine the remedy in estopple claims. Now, this audio is not concerned with whether the elements of an estoppel claim are made out--assurance, detriment, unconscionability--but rather the next stage of the court's analysis, when the court moves to select an appropriate remedy to satisfy the equity.

You'll find a flow chart in the book to set up how the court chooses remedy. The approach is that set down by Robert Walker LJ in Jennings v Rice. The approach is one based on proportionality--that is, the remedy the court chooses must be proportionate to the expectations raised and the detriment suffered by the claimant.

So, how are you going to approach this?

Well, first things first, Robert Walker tells us we should divide or split or distinguish bargain cases from non-bargain cases. A bargain case is where there is a clear bargain between the parties, just short of a contract and where the expectations raised in the mind of the claimant by the landowner’s assurances are very clear with little uncertainty.

In these clear bargain cases the starting point is that the court should award a remedy to meet those expectations. Usually, it will be a remedy that fulfills, in their entirety, the nature of those expectations. But if such a remedy would be disproportionate, then the court must move to find a more appropriate and proportionate remedy.

In non-bargain cases--these are cases where the claimant’s expectations are far less fixed or assurances were less clear or more vague--the court must consider a range of factors. They’ll look at the misconduct of the parties, or any misconduct of the parties, any oppressive behavior by the defendant; they’ll focus on the need for a clean break for the parties.

The effective taxation will also be considered and any other claims on the landowner’s assets or estate. But again, the court will only then award a remedy which is proportionate to the expectation raised in the claimant’s mind and the detriment suffered by the claimant. Now, this approach from Jennings v Rice has been recently confirmed in the case of Haberfield v Haberfield.

This was a family farm--a family business--and Lucy's claim, the claimant in this case, succeeded, and she was awarded a lump sum payment. In the Court of Appeal, Lewison LJ upheld this remedy and said that the remedy of a lump sum payment was entirely proportionate in the circumstances because Lucy, at 51, needed the money to start her own farming business.

The court also underlined the benefit of this clean break and the clean break that this lump sum would allow, particularly in a case were the relationship within the family had significantly broken down. Look at Jennings, look at Haberfield, and note how the proportionality approach to remedy works.