EQUITABLE REMEDIES

IDNUM: 400004541

COURSE CODE: LAW2810

COURSE DIRECTOR: NAILAH ROBINSON

DATE: 07/05/2021
1. Critically compare and contrast the decisions in Jennings v Rice and Thorner v

Major (attached) with respect to satisfaction of the equity and discuss their

relevance to the Commonwealth Caribbean.

Proprietary estoppel usually arises in cases where a representation is made that

consists of a promise of an interest in land. Where the owner of land knowingly allows

his rights to be infringed by another who has acted in respect of the land to his detriment

in the mistaken belief that it belonged to him, the owner could not afterwards be allowed

to assert his own title to the land. It was defined by Mason CJ in Waltons Stores v Maher

(1988) as, where “a person’s conduct creates or lends force to an assumption by another

that he will obtain an interest in the first person’s land and on that basis another person
 alters his position or acts to his detriment, may bring into existence an equity in favour of

that other person, the nature and extent of the equity depending on the circumstances.”

Fry J in Wilmott v Barber (1880) 15 Ch D 96 considered five criteria that had to be

established before proprietary estoppel could be established:

(i) the claimant must have made a mistake as to his legal rights;

(ii) the claimant must have done some act of reliance;

(iii) the defendant, the possessor of a legal right, must know of the existence of his

own right which is inconsistent with the right claimed by the claimant;

(iv)the defendant must know of the claimant’s mistaken belief; and

(v)the defendant must have encouraged the claimant in his act of reliance.

It was usually necessary to establish the five criteria above, in order to establish a claim

of proprietary estoppel. Subsequent cases have seen significant relaxing and re-formulating of

the criteria. One such case is that of Thorner v Major. In that case the claimant had worked

on the defendant estate’s farm for over a decade without pay, believing that he would inherit

the land when the defendant died. While the defendant once gave the Claimant a bonus,

stating that it was for his ‘death duties’, he never explicitly told the claimant he would inherit.

Under the original will, the property would have passed to the claimant, but the defendant

retracted this will and died intestate. The claimant argued he should inherit the property due

to proprietary estoppel. The House of Lords held that it is possible for a representation to be

made by conduct alone, so long as that conduct conveys sufficiently to a reasonable person

that the claimant was to have a proprietary interest in the land. This was to be determined by

all relevant circumstances, context of the conduct and the relationship between the parties and
their understanding of the context. Further, in cases where the message appears ambiguous,

the House of Lords will not act to defeat proprietary estoppel.

The court found based on this case that it was only necessary to establish:

(i) the defendant’s assurance (acquiescence);

(ii) the claimant’s reliance; (iii) and the claimant’s detriment.

The test developed is based on an agreement between A and B or on A’s encouragement

of B’s expectation. When this test is being applied the Court will enquire:

a) whether an equity in favour of B arises out of the conduct and relationship of the

parties;

b) what is the extent of the equity, if one is established; and

c) what is the relief appropriate to satisfy the equity.

As it pertains to satisfying the equity, once the court acknowledges that proprietary

estoppel has been established, the question then remains as to what is the “minimum equity”

to do justice in the circumstances. The Court will then determine in each case how the equity

may be satisfied. There are cases where the courts seek to ensure that the remedy is

proportional to the detriment suffered. In Henry v Henry, the court of appeal held Calixtus

had acted to his detriment and awarded him effectively “Mama’s” share of the property

which was his expectation interest. The Privy Council stated that the process of deciding

whether there had been sufficient detriment was to weigh up the advantages and

disadvantages suffered as a result of reliance on Mama’s promises. The Board found that

Calixtus remaining and working on the land unlike others and providing food for ‘Mama’ and

depriving himself of a better life elsewhere was sufficient to amount to detriment. The board
stated that “proportionality lies at the heart of the doctrine of proprietary estoppel and

permeates its every application”.

The case Jennings v Rice (2002), shows an increase level of judicial activism as the

court explored the scope of proportionality. The claimant (Jennings) worked as handyman for

Mrs. Rice. Over time, the claimant also looked after Rice, and for many years prior to Rice’s

death, did so unpaid as Rice promised Jennings that her house and furniture would be his

upon her death. Mrs. Rice died intestate leaving a house valued at £420,000. The judge in

exercising the enormous discretion under Proprietary estoppel, attempted a balancing of the

interest approach by taking into account; the fact that the deceased had no special obligations

to her family. At the same time, he said that to reward an employee on the scale of £420 000

pounds was excessive. Jennings was awarded £200 000 pounds and the Judge opined that he

would need £150, 000 to buy a house. While the Judge in Jennings case accounted for the

usual considerations, he added the matter of conscience and appropriate relief. The judge

ruled that “it is unconscionable conduct for a person who took the benefit of his services to

leave"Jennings nothing. The second issue the judge considered was that of appropriate relief.

The Judge condescended into an enquiry of Jennings lack of knowledge of the extent of Mrs.

Rice’s wealth and secondly the value of her actual estate and whether it would be equitable

for Mr. Jennings to take the house and furniture which were the minimum he expected. This

he termed ‘the problem of proportionality’. The Court of Appeal found that reliance and

detriment are two of the requirements of proprietary estoppel and that the basis of the

estoppel is the interposition of equity: thus, the requirement of unconscionability. If the

conscience of the court is involved, it would be odd that the amount of the award should be

set rigidly at the sum expected by the claimant. Walker LJ stated : “In addition to pursuing

proportionality between reliance and expectation, the court will consider tax repercussions,
parties’ conduct, need for a clean break, change in the claimant’s situation, other claims to

the defendant’s estate, and ‘other possible factors’ 

While Lloyd LJ stated at paragraph 54, “Accordingly, while there is no special rule as

to the form or nature of the promise, representation or assurance which is capable of providing

the basis of a proprietary estoppel case as regards a claim against a deceased’s estate, it seems to

me that the general requirements that there must be a clear and unequivocal representation,

and that it must be intended to be relied on, or at the very least that it must be reasonably taken

as intended to be relied on, are of no less importance in this type of case than in others, and they

must be,

The judgment in the Jennings v Rice case illustrated how the courts will exercise their

discretion in effecting equity. It can be argued that this approach ensured that where one party

relied on a statement or promise of another party to the first party’s detriment, there would be

proportionality of equity between the parties so one party would not infringe on the rights or

entitlements of the other. The judgement of this case also took into account the ‘conscience of the

courts’ and stipulated that where this element is involved there should be no amount of award

rigidly set at the expectation of the claimant but rather permitting the courts to effect a remedy

proportionate to the loss by examining all the factors to avoid an unconscionable result.

While that is commendable one cannot help but lament the lack of clarity and

cohesiveness to the approach of the court in subsequent cases, as each court places emphasis on

some parts of the formulation to either grant relief or limit the scope of the relief.

In Davies v Davies Lewison L.J. summarized relevant legal principles relating to

proprietary estoppel referring to Jennings v Rice where it was stated that ‘there must be a

proportionality between the remedy and the detriment which is its purpose to avoid”. He

stated, “This does not mean that the court should abandon expectations and seek only to
compensate detrimental reliance, but if the expectation is disproportionate to the detriment,

the court should satisfy the equity in a more limited way.”

On the other hand, the judgment in Thorner v Major was more concerned with

whether the claimant could rely on the doctrine of proprietary estoppel against the estate of

the deceased based on the assurance given to him when the deceased was still alive. In this

case, assurance referred not to words solely but also to conduct. The court took the view that

it was possible for conduct alone to be a representation of assurance as long as a reasonable

person could deduce that the claimant was to have a proprietary interest in the land. This

particular case factored in the context of the conduct along with the relationship of the parties

and their comprehension of the context.

However, in the case of Dobson v Griffey [2018] (where the claimant, Jacqueline

Dobson, asserted an interest in her former partner's farm, after leaving her job to work there

full-time and carrying out significant renovation work), the court found that there was no

estoppel in circumstances where the "expectation did not spring from any assurance or other

conduct of the defendant", even where the defendant, was aware of Jacqueline's expectation.

In that case, the judge also found that there had been no true reliance as Jacqueline had not

undertaken work for the purpose of receiving financial gain but instead to make a home with

Matthew. It is difficult to reconcile this decision with the Courts position in Jennings case

against the back drop of Griffey’s acquiescence; where the court held in the former that

“assurance referred not to words solely but also to conduct and it was possible for conduct

alone to be a representation of assurance as long as a reasonable person could deduce that

the claimant was to have a proprietary interest in the land.” What other basis could there be

for her giving up her job, moving to a farm to live with Griffley, using her own resources to

repair the farm and work on the same? Unfortunately, the “conscience of the court” could not

cover her situation.

 In Finnegan v Hand White LJ relied on the judgement in Thorner’s case and the

court found that a constructive remedial trust arose, notwithstanding that “representations

were never made expressly but were a matter of implication and inference from indirect

statement and conduct”. This I submit is a much broader formulation than Thorner’s case.

I submit that the court is given too wide a discretion in the Jennings v. Rice as it relates

to what is proportionality in each case. Further, I contend that by finding that that proprietary

estoppel can arise in the absence of an explicit representation of proprietary interest, the

court, in essence, based on the Thorner decision, has thrown open the flood gate, as this makes

it easier to establish that assurances that have been made in a family context, where perhaps

precise words are not used, instances where the owner has merely acquiesced may very well lead

to increased claims of proprietary interests. This is a useful tool in our Caribbean context where

the price for purchasing land can be prohibitive for most families in recessionary times, the

invitation to take care of elderly family members, to repair their homes in the expectation that one

would inherit it after their death is an attractive path to home ownership. It cannot be denied

however, that there are many cases where that assurance is dashed on the rocks of reality of a

Will, at the death of the person which bears no resemblance to the manner in which the parties

have conducted themselves for years. Proprietary estoppel may be the only available recourse in

those circumstances.

2. With references to Graham v Pitkin and Mahabir v Mohammed (attached) and

any other relevant authorities, answer the following question based on the law of

Equitable Remedies. Discuss Contract Law issues only if relevant to Equitable

Remedies.
 The general issues of the cases for consideration concern the doctrines of specific

performance and laches, and these cases share some similarity with the scenario at hand.

The sub-issues of the scenario consists of: whether the agreement between the parties

was enough to constitute a binding agreement/contract between the two parties and therefore;

whether the delay was sufficient to constitute repudiation of the contract by the purchaser;

and Whether the delay of the purchaser ought to have been a bar to the equitable remedy of

specific performance.

The remedy of specific performance consists of an order of the court directing a party to a

contract to perform their obligations under that contract according to its terms. Lord

Selbourne LC in Wolverhampton and Walsall Rly v London and North Western Rly Co said

that, “the remedy of specific performance presupposes an executory contract as distinct from

an executed agreement, something remaining to be done, such as the execution of a deed or a

conveyance, in order to put the parties in the position relative to each other in which by the

preliminary agreement they were intended to be place.” Under the Common Law, specific

performance was not a remedy, with the rights of the litigant being limited to the collection of

damages. However, the court of equity developed the remedy of specific performance as

damages often could not adequately compensate someone for the inability to own a particular

piece of real property, land being regarded as unique. This remedy is only available when

legal damages are not adequate to compensate the claimant.

According to Walsh v Lonsdale both a vendor and a lessor can utilize the doctrine of

specific performance. To succeed in a claim for specific performance the law stipulates that:

a) The claim must be valid;

b) Circumstances must have occurred within the right type of contract; and

c) Mutuality.
 Validity entails that the contract must be valid and binding and there must be valuable

consideration. A valid contract is one in which there is offer and acceptance, agreement as to

the terms, and consideration. A valid contract may be in writing or it may be oral. Contract

for the sale of land will generally be enforced by the courts. The rule of mutuality entails that

the contract must be enforceable by both parties and if it can only be enforced by one party

the other will automatically be barred from enforcing it.

In Mahabir v Mohammed it was considered where the doctrine of Laches was concerned

that “It is well settled that a litigant who seeks equitable relief is under a duty to prosecute his

claim without undue delay. A claimant who sleeps on his rights may be barred from an

equitable remedy where his delay in seeking relief is found to be unconscionable. The

defence of laches, however arises only where there is no statutory bar. The litigant is entitled

to his full statutory period before his claim becomes unenforceable.”

In Betterment Properties (Weymouth) Ltd v. Dorset County Council (No 2), it was noted

that delay on its own is not enough to constitute laches. This doctrine usually applies where it

would be unjust or inequitable to grant relief where:

- The delay is accompanied by some change of circumstances.

- Where there has been acquiescence on the part of the claimant and the defendant has

changed his position in reliance on it.

- Where the claimant’s conduct could fairly be regarded as a waiver.

- Where the claimant’s delay causes prejudice to the defendant.

The modern approach to the application of laches is broader in scope, and directed to the

inquiry as to whether on the particular facts of the case it would be unconscionable for a

claimant to be permitted to assert his right to an equitable remedy. Aldous LJ enunciated this

approach in Frawley v Neil 1999 where he stated “In my view the more modern approach
should not require an inquiry as to whether the circumstances can be fitted within the

confines of a preconceived formula derived from earlier cases. ThePage 9 of 17 inquiry

should require a broad approach, directed to ascertaining whether it would in all the

circumstances be unconscionable for a party to be permitted to assert his beneficial right. No

doubt the circumstances which gave rise to a particular result in the decided cases are

relevant to the question whether or not it would be conscionable or unconscionable for the

relief to be asserted, but each case has to be decided on its facts applying the broad

approach.”

Whether the agreement between the parties was enough to constitute a binding

agreement/contract between the two parties and therefore

From the facts of the case, the parties entered into an agreement for sale for a parcel of

land in Barbados. To effectively assess any other issue it must first be considered whether the

agreement was binding and therefore enforceable at law. To establish whether the agreement

was in fact binding, reference to contractual agreements under common law must be briefly

examined. Offer and acceptance entails that one party makes an offer which, once accepted

by another party creates a binding contract.

I submit that in order to amount to an offer it must be shown that the vendor had the

intention to be bound. In the case at hand there was already a mutual understanding between

both parties. A price was given for the land which could indicate that the vendor had the

intention to sell and thus to create legal relations, and consideration in the form of a deposit

was made by the purchaser and it is also important to note that the consideration of the

purchaser was above the usual consideration in the Barbados’ jurisdiction which ten percent

of the price of the land. In addition to this the agreement stipulated that the remaining balance

would be paid by monthly instalments all the above factors are indications that the parties had
entered into a binding agreement. According to Walsh v Lonsdale the existence of a binding

agreement would satisfy criteria in that case for the argument of validity.

Whether the delay was sufficient to constitute repudiation of the contract by the

purchaser;

According to the facts, the purchaser sent the first few instalments but later discovered

that the money was never paid to A. While it is notable that no money was paid since 1997

the purchaser was still querying through the mutual attorney when the transaction would have

been completed. There is no evidence from the facts to suggest that she received a response.

She retained another lawyer who then wrote to ask about the completion of the sale.

In the proceedings of the Graham v Pitkin case, Mr. Engleman in his argument relied

on the words of Sargant J. in Farrant v Olver (1922) where he stated that, “it is not

necessary that time should be made of the essence of the contract when the defendant has so

persistently and for so long refused to perform the contract.” However, in addressing this

argument the Court stated that “delay may be an ingredient in deciding whether a party in

default does not intend to proceed and has repudiated the contract. But in the present case the

original delay was the fault of the solicitor and thus there was no evidence of repudiation by

the purchaser in the absence of a notice to complete.”

Similarly, according to the facts of the scenario the purchaser repeatedly queried

when the transaction would have been complete and no notice of completion was given and

thus it can be argued that the delay likewise to that in Graham v Pitkin was the fault of the

solicitor. I submit that in the absence of a notice to complete, the queries of the purchaser

would be sufficient to signal that the purchaser was still interested in proceeding with the

transaction.
 Whether the delay of the purchaser ought to have been a bar to the equitable remedy

of specific performance.

In Mahabir v Mohammed the Court held that “while it is settled that a claimant who

seeks discretionary relief must act promptly, delay on its own, is not a bar to the grant of

specific performance”. In Lazard Brothers and Co. Ltd. V Fairfield Properties Co. (Mayfair)

ltd (1977) Mergarry VC stated, “…If specific performance was to be regarded as a prize, to

be awarded by equity to the zealous and denied to the indolent, then the plaintiffs should fail.

But whatever might have been the position over a century ago that was the wrong approach

today. If between the plaintiff and defendant it was just that the plaintiff should obtain the

remedy, the court ought not to withhold it merely because the plaintiff had been guilty of

delay…” on this basis the Court in that case dismissed the argument

According to the facts of the case, the High Court judge ruled in favour of the

purchaser and now the vendor wishes to appeal. While it is true that delay is usually a bar to

equity there are exceptions as seen in Mahabir v Mohammed. It has already been established

that the delay in the transaction was the fault of the solicitor and applying the judgement on

this argument in the Mahabir v Mohammed case to the facts of the scenario would illustrate

that the purchaser was well within her rights to begin proceedings for specific performance.

I submit that the vendor could have brought proceedings for rescission and forfeiture

against the purchaser on account of the default at any time before purchaser brought

proceedings for specific performance, and had he done so he would be more successful in

these claims than to appeal against ruling of the High Court judge for specific performance.