Davies v Davies [2016] EWCA Civ 463 – Satisfying the equity: Appropriate remedies in cases of proprietary estoppel

Davies v Davies, a 2016 decision of the Court of Appeal, forms part of a saga widely reported in the press: the so-called “Cowshed Cinderella” (http://www.telegraph.co.uk/news/uknews/law-and-order/11434842/Cowshed-Cinderella-wins-1.3m-from-her-parents-after-being-made-to-milk-cows-while-her-sisters-partied.html) case.

The appeal concerned the remedy granted to Ms Davies by the High Court in [2015] EWHC 15 (Ch). The facts of the case are complex, and the history of the relationship between the claimant and her parents is a long and convoluted one. It suffices here to say perhaps that Ms Davies, at various times, worked on the family farm for no or less money than she might receive working elsewhere, and for longer hours than other jobs would require. However, in return for this, she did receive some benefits, such as free accommodation. Furthermore, at various times she left the farm without any expectation of returning following disputes with her parents. In the words of the first instance judge, Ms Davies expectation that she would inherit the farm land and business was not “equivalent” [33] to the detriment she had suffered and so it was necessary for the court to determine what an appropriate figure would be.

Ms Davies herself had claimed she was entitled to the entirety of the farm business and land, which were together valued at approximately £4.4mn. Her parents argued she was entitled to some recompense for mortgage expenses and a share of the profits of the partnership together totaling £350,000. The first instance judge decided that the appropriate remedy lay somewhere between Ms Davies’ expectation and a rough calculation of her detriment, and valued it at £1.3 mn. The judge (as is perhaps inevitable in highly fact-sensitive estoppel cases) gave little guidance as to how this figure had been achieved except to state that he had taken the expectation as his starting point.

The Court of Appeal does however give some assistance by outlining the general principles which are relevant in cases such as these. It is useful to cite these in full here, as they represent a helpful summary of recent case law concerning estoppel: 

(i) Deciding whether an equity has been raised and, if so, how to satisfy it is a retrospective exercise looking backwards from the moment when the promise falls due to be performed and asking whether, in the circumstances which have actually happened, it would be unconscionable for a promise not to be kept either wholly or in part: Thorner v Major [2009[ UKHL 18, [2009 1 WLR 776 at [57] and [101].

(ii) The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity and (b) reliance by the claimant on that assurance and (c) detriment of the claimant in consequence of his reasonable reliance: Thorner v Major at [29].

(iii) However, no claim based on proprietary estoppel can be divided into watertight compartments. The quality of the relevant assurance may influence the issue of reliance; reliance and detriment are often intertwined, and whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood: Gillett v Holt [2001] Ch 201 at 225; Henry v Henry [2010] UKPC 3; [2010] 1 ALL ER 988 at [37].

(iv) Detriment need not consistent of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances: Gillett v Holt at 232; Henry v Henry at [38].

(v) There must be a sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. The question is whether (and if so to what extent) it would be unjust or inequitable to allow the person who has given the assurance to go back on it. The essential test is that of unconscionability: Gillett v Holt at 232.

(vi) Thus the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result: Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 8 at [56].

(vii) In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant’s assurances against any countervailing benefits he enjoyed in consequence of that reliance: Henry v Henry at [51] and [53].

(viii) Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application: Henry v Henry at [65]. In particular there must be a proportionality between the remedy and the detriment which is its purpose to avoid: Jennings v Rice at [28] (citing from earlier cases) and [56]. 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: Jennings v Rice at [50] and [51].

(ix) In deciding how to satisfy the equity the court has to exercise a broad judgmental discretion: Jennings v Rice at [51]. However, the discretion is not unfettered. It must be exercised on a principled basis, and does not entail what HH Judge Weekes QC memorably called a “portable palm tree”: Taylor v Dickens [1998] 1 FLR 806 (a decision criticized for other reasons in Gillett v Holt).
— Lewison LJ, [2016] EWCA Civ 463 at [38]

Having outlined these general principles, the Court of Appeal then highlights that there is a significant controversy as to how to manage the discretion referred to at (ix). In particular, the court is cognisant of the debate in the academic literature and case law as to whether the most appropriate solution is the expectation measure or the reliance interest. However, the Court declines to resolve the controversy, [39], even though it is prepared to acknowledge the logic of a reliance focused approach:

Logically, there is much to be said for the second approach. Since the essence of proprietary estoppel is the combination of expectation and detriment, either is absent the claim must fail. If, therefore, the detriment can be fairly quantified and a claimant receives full compensation for that detriment, that compensation ought, in principle, to remove the foundation of the claim.
— Lewison LJ, [2016] EWCA Civ 463, at [39]

However, the Court then goes on to reason that in cases where the estoppel is akin to a contract in that there is a consensual bargain at its heart, then the expectation may well be the appropriate starting point, [40]. Furthermore, Lewison LJ reasons that: 

the clearer the expectation, the greater the detriment and the longer the passage of time during which the expectation was reasonably held, the greater would be the weight that should be given to the expectation.
— Lewison LJ, [2016] EWCA Civ 463, [41]

On the basis of these principles, and the starting points discussed, the Court of Appeal therefore concluded that the first instance judge had not explained his conclusion sufficiently, using “far too broad a brush” [42], not least because on the facts of the case there were multiple iterations of the promise made, and therefore various different expectations in play at different times. Furthermore, considering the types and scale of detriment suffered, the Court concluded that, as this “was not a case in which [Ms Davies’] whole life was positioned on the representations” [65], and as she had no expectation to inherit the farm at all and the detriments suffered were largely non-pecuniary, it was appropriate to decrease the award granted to Ms Davies to £500,000.

On reading the facts of this case, it is perhaps not surprising that the award was reduced. The detriment suffered by Ms Davies seemed at times slight, and the to-and-fro nature of her relationship with her parents, and the mutual changing of minds when it came to the future of Ms Davies’ involvement in the farm business, reduces not only the scale of the detriment for the purposes of a proportionate remedy, but also the certainty of the expectation. The case is therefore a very good example of how the different elements of estoppel influence each other rather than being standalone requirements.

However, the decision of the Court of Appeal in other respects raises some difficulties. Not least among these is the relationship or interaction between unconscionability and proportionality. Both “factors” are essential elements in the search to provide an appropriate remedy, but how these two tests or factors might interact is unclear. It could well be that proportionality is a test used to assist in discovering unconscionability in the round, or it could be that proportionality is relevant to the remedy awarded: unconscionability to the existence of the estoppel in the first place, but as things stand, their relationship is unclear. Furthermore, invoking the concept of proportionality is a notoriously difficult task. Given the immense difficulty which already exists in defining unconscionability, it might be thought unwise to focus on another concept without explaining relationship between the two.

Estoppel is, by its very nature, always going to be difficult to define precisely. Its boundaries will ebb and flow according to the facts of particular cases. For an appellate court, it will therefore be a difficult task to control the actions of the lower courts whilst retaining the essential flexibility of the doctrine. The Court of Appeal has done a commendable job of that here, but we must wonder whether, at the end of the day, broad brush discretion and a degree of “palm tree-ery” are inevitable. Indeed, and some what ironically, it is very difficult to work out why £500,000 was a more appropriate and proportionate outcome that £1.3mn. Explanation of reasoning does not, in the end, always produce predictability.

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