What is and what is not a proprietary estoppel claim? Earl of Plymouth v Rees and the limits of a claim in proprietary estoppel

The decision in the Earl of Plymouth v Rees proprietary estoppel claim summarises the applicable principles and shows the limits of proprietary estoppel as a cause of action

16 December 2021

Earl of Plymouth v Rees [2021] EWHC 3180 (Ch) was in many respects a classic proprietary estoppel claim. It arose from a farm, and was asserted as a Defence and Counterclaim by a tenant’s family against a possession claim made by the owners of the farm. Underlying it all was not just the value of the land itself, but unlocking a very large residential development on the outskirts of Cardiff.

Proprietary estoppel has a reputation for being asserted when there is no other claim that can be made. That can be unfair, but in this situation the underlying dispute had already been the subject of two arbitrations, a High Court appeal and a Court of Appeal case and it was only after the conclusion of those, when possession was sought, that the proprietary estoppel claim emerged.

The High Court’s judgment handed down on 30 November 2021 dismissed the proprietary estoppel claim. It failed at the first hurdle, because it became clear that representations relied upon to found the claim could not support a proprietary estoppel claim. This is often an issue found in practice, where general allegations centred around unconscionability are rolled into a proprietary estoppel claim.

Here, the tenants’ case turned out at trial to be that they had been told by the landowners’ agent that they would be treated fairly if they were required to leave the farm for it to be developed. They expected that they would either be relocated to a new farm, as tenants, or if they could not be relocated then there would be fair compensation and 'everything' would be a matter of negotiation. No boundaries to those negotiations were discussed.

This led in the judgment to a discussion of the treatment of representations of some form of financial benefit in Leighton v Martin [1986] 2 FLR 227 where it was held that 'a representation that “financial security” would be provided by the deceased to the plaintive, and on which I will assume she acted, is not a representation that she is to have some equitable or legal interest in any particular asset or assets.'

The judge referred to Yeomans Row Management Limited v Cobbe [2008] UKHL 55: 'an expectation dependent upon the conclusion of a successful negotiation is not an expectation of interest.'

And the other leading case of Thorner v Major [2009] UKHL 18: 'In my opinion it is a necessary element of proprietary estoppel that the assurances given to the Claimant (expressly or impliedly, or, in standing-by cases, tacitly) should relate to identified property owned (or, perhaps, about to be owned) by the Defendant… it must relate to identified property (usually land) owned (or, perhaps, about to be owned) by the Defendant. It is the relation to identified land of the Defendant that has enabled proprietary estoppel to develop as a sword, and not merely a shield…'

On the basis of the factual evidence put forward in support of the proprietary estoppel claim, the judge rejected the claim: 'The necessary element of promises relating to identified land owned or to be owned by the Claimants is absent.' (paragraph 30).

The judge then proceeded to deal in any event with the allegations of certainty of promises: 'In my judgment, there was uncertainty as to what was to happen in terms of property, interest, contractual rights or money', detrimental reliance: 'such acts are not sufficiently substantial to amount to detrimental reliance for the purposes of proprietary estoppel' and unconscionability: '[the landowners] did make an offer in 2016 of 10 times the statutory compensation before any significant costs were incurred in litigation or arbitration'.

New ground was not broken with this case, but Earl of Plymouth v Rees stands as a very useful case both for summarising the applicable principles of proprietary estoppel and, in particular, showing its limits as a cause of action.

Kevin Kennedy, Maddie Dunn and Genna Hancock acted for the successful landowners in Earl of Plymouth v Rees, instructing Penelope Reed QC and Christopher McNall.

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Agricultural Disputes
  • Trust and Probate Disputes
  • Estates and Land

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