Jones v Stones

Acquiescence or estoppel requires more than delay in asserting a legal right. The court must ask whether the right-holder’s action or inaction encouraged or allowed the other party to believe that the conduct was permitted, whether that belief caused detriment, and whether it would be unconscionable in all the circumstances to assert the right. The traditional five probanda are important considerations, not mandatory conditions or a universal formula. Delay or silence alone is insufficient. The appeal was allowed because the evidence did not establish the necessary encouragement, reliance or detriment concerning an oil tank and flower pots placed on a boundary wall.

This was an appeal from the Caernarfon County Court concerning alleged trespasses on a boundary wall and adjoining land. The judge found that the wall belonged to the claimants and that the defendant had trespassed. He nevertheless upheld acquiescence in relation to an oil tank and six flower pots, allowing them to remain, and made a corresponding costs order.

The claimants appealed against that part of the order and the costs order. The central issue was whether delay and failure to object established acquiescence or estoppel where there was no finding that the defendant had relied on conduct by the claimants or suffered detriment.

1. Appeal allowed. Lord Justice Aldous held that the judge had applied the defence of acquiescence incorrectly. Lord Justice Tuckey agreed.
2. Applicable principles. The five probanda associated with Willmott v Barber (1880) 15 Ch D 96 are important considerations, but they need not be literally established in every case. The modern approach is broader and fact-sensitive. The court must determine whether, in the particular circumstances, it would be unconscionable for a rights-holder to assert a right which he or she had knowingly or unknowingly allowed or encouraged another to assume could be exercised. The approach was reflected in Shaw v Applegate [1977] 1 WLR 970, Electrolux Ltd v Electrix Ltd (1954) 71 RPC 23, and Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265. The court expressly adhered to the formulation in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 2 WLR 576 at p.593.
3. Operative inquiry. The court should first ask whether action or inaction encouraged or allowed a belief in entitlement. It should then ask whether that belief caused detriment, and finally whether assertion of the legal right would be unconscionable. Delay is relevant, but it is not sufficient by itself. The equitable assessment also involves the length of the delay, the acts done during the interval and the resulting balance of justice, as discussed in Erlanger v New Sombrero Phosphate Co (1878) 3 AC 1218 at p.1279.
4. Application. In relation to the flower pots, the evidence did not establish that the defendant had relied on any conduct or inaction by the claimants, or that he had suffered detriment. In relation to the oil tank, there was no evidence that the claimants’ inaction had encouraged the defendant to believe that he could maintain it on the wall. The defendant had placed it there himself, and removal did not constitute established detriment. Delay was therefore insufficient in both cases.
5. Orders. The defendant was ordered to remove the oil tank and flower pots within 28 days. The judgment below on costs was set aside, and the defendant was ordered to pay the claimants’ costs before the judge and in the Court of Appeal. An order nisi was made against the Legal Aid Fund pursuant to section 18 of the Legal Aid Act 1988.

1. Court of Appeal: In Jones & Anor v Stones [1999] EWCA Civ 1379, the appeal was allowed. The acquiescence defence failed in relation to the oil tank and flower pots, and the costs order was varied.
2. Caernarfon County Court: His Honour Judge Eifion Roberts QC found trespasses but upheld acquiescence for the oil tank and flower pots, excluding them from the injunction.