Lothian v Dixon (Chancery Division, 28 November 2014) – detriment and countervailing benefit in proprietary estoppel

In a recent decision of the Chancery Division, HHJ Roger Kaye QC sitting as a judge of the High Court considered detriment and countervailing benefit in proprietary estoppel. In essence, the basis of the estoppel claim lay in a promise in return for care and assistance in running a hotel whilst the majority shareholder of that hotel was terminally ill. Counsel for the beneficiary of the will argued however that the Mr and Mrs Lothian, the claimants, had received a countervailing benefit of free lodge and board in the hotel during the relevant period of time. The judge was therefore required to assess whether, looking at the issue in the round, that the claimants had indeed suffered a detriment.

This is what he had to say of detriment:

Detriment is not a narrow or technical concept but must be judged in the round. The real detriment or harm from which the law seeks to give protection is that which would flow from the change in position if the assumption were deserted that led to it. It need not be expenditure of money or other quantifiable financial detriment but it must be substantial: see Gillett v Holt [2001] Ch 210 CA. As was emphasised in Thorner [v Major, [2009] UKHL 18] and other cases, ultimately the matter is to be viewed at the moment of crystallisation, namely whether, looked at in the round, in the circumstances that have happened, it would be unconscionable for the promise or assurance not to be kept even if there was not initially a legally binding concept.
— Lothian v Dixon, [19]

Such comments are entirely in-keeping with the recent trend of the case law which is to consider the different elements of estoppel in a broad-brush, holistic fashion. The judge went on to comment that:

No doubt, but I do not regard these benefits for one moment as any kind of meaningful compensation or countervailing benefit for the open-ended commitment they gave at the outset and to which they both adhered. True, they also knew the deceased’s illness was terminal, but they had no idea how long they might be called on to continue their support and at no time was there any suggestion that they flagged or failed in supplying such support apart from the home visits of Mrs Lothian mentioned previously and which were in the main to attend to her own medical needs. To deprive them of some remedy or relief on this account would, in my judgment, indeed be unconscionable.
— Lothian v Dixon, [29]

He therefore considered that the countervailing benefits did not outweigh the detriment so as to make the granting of an estoppel justified. This approach is interesting in itself, and to an extent can be said to depart from the approach in Henry v Henry (St Lucia) [2010] UKPC 3 where the Privy Council does not appear to consider countervailing benefit to be related to the question of the existence of a detriment (although it may be relevant to both unconscionability and to the question of remedy, [51]-[53]). It is suggested that there are good reasons to consider countervailing benefits as being part and parcel of the question of unconscionability and/or remedy, rather than being relevant to the determination of the existence of a detriment, not least the fact that in establishing an estoppel a causal link between promise and detriment must be ascertained. Such a causal link is difficult to establish in relation to a promise and an additional benefit, and so in terms of the “formal” requirements of estoppel, it makes more sense to establish a detriment, and then to consider benefit to see if the equity has been satisfied, as in Sledmore v Dalby ((1996) 72 P. & C.R. 196).

Of note also is the fact that the judge relies on the obligations undertaken by the claimants in relation to this hotel were, at the time that they agreed to undertake tem, open-ended. Although they knew that the deceased was terminally ill, they were unaware as to the potential longevity of their commitment. This potentially open-ended commitment was itself seen as being of significance, as well as the work actually carried out for the two-year period. Thus, to do the minimum to satisfy this equity, the judge awarded the claimants their expectation interest, that is, the entire residual estate.

An interesting case when thinking about (a) the structure of detriment and its relationship with countervailing benefit in proprietary estoppel; and (b) in relation to what constitutes the scope of the detriment for the purposes of calculating the relevant remedy. 

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