Sibley v Peer Securities Ltd

Permission to appeal will be refused where the proposed appeal has no real prospect of success and raises neither an important point of principle or practice nor another compelling reason for the Court of Appeal to intervene. Proprietary estoppel is a flexible doctrine. The central questions are whether encouragement or acquiescence led the other party to act to his detriment, and whether it would be unconscionable to permit the encouraging party to resile. Reliance may readily be inferred from encouragement followed by detrimental action, leaving the encouraging party to show that there was no reliance. A summary judgment application may be resolved without a trial where the evidence gives the claimant no real prospect of success.

Peer Securities Ltd sought summary judgment in a claim arising from rent arrears under a commercial lease. David Mark Sibley alleged that the landlord had breached the lease by building over a pedestrian access serving his premises and claimed that the resulting loss of business gave rise to a defence or counterclaim.

The district judge and His Honour Judge Coningsby concluded that the landlord had a strong case on construction, proprietary estoppel, and causation and damages. The renewed application concerned whether permission should be granted to appeal those decisions, in circumstances governed by Parts 24(2) and 52.13.

1. Application refused. The proposed appeal had no real prospect of success and did not raise an important point of principle or practice or any other compelling reason for the Court of Appeal to hear it. The application was refused with costs.
2. Although the construction of the lease was arguable, it presented a one-off factual issue rather than an important point of principle or practice. The relevant reservation concerned alteration of pedestrian access, and the applicant's prospects on that issue were not sufficiently strong to justify permission.
3. The proprietary estoppel issue was decisive. The evidence showed repeated discussions, enthusiastic support for the proposed redevelopment, and failure to object before the landlord entered into arrangements and carried out the works. In that context, it was unconscionable for the tenant later to allege breach and attribute his business losses to it.
4. Proprietary estoppel is flexible and may be tailored to active encouragement or passive acquiescence. The primary considerations are the encouragement given, the extent to which it led the other party to act to his detriment, and whether it would be unconscionable to permit the encouraging party to go back on the position adopted. Reliance may readily be inferred once encouragement and detrimental action are shown, leaving the person who encouraged the conduct to show that there was no reliance.
5. The applicant's evidence on causation and loss was exceptionally weak. Valuation evidence did not establish any relevant difference in value, and accounting evidence did not attribute the fall in turnover to the blocked access. The courts below were therefore entitled to conclude that there was no real prospect of establishing recoverable loss.
6. The comparison with Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 did not assist the applicant. That case involved mutual mistake, whereas the applicant asserted that he knew of the alleged breach and deliberately chose not to object.

• Croydon County Court: The district judge granted permission to appeal after granting summary judgment against the applicant.
• Croydon County Court: His Honour Judge Coningsby considered the matter and reached the same conclusion.
• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused, with costs.