Herbert v Doyle & Anor

Proprietary estoppel requires a sufficiently certain interest in land and clarity about the fact or mixed fact and law which the promisor is estopped from asserting or denying. It cannot enforce a promise to make an agreement, or to perform acts which do not amount to transferring a certain interest in land. Detriment is assessed by asking whether the representor would act unconscionably by leaving the representee with a subsisting and unremedied prejudice. The court may permit amendment after judgment but before perfection of the order. That jurisdiction is exceptional and requires a careful assessment of finality, prejudice, further proceedings and the balance of justice.

The claimant had previously failed in a proprietary estoppel claim concerning the transfer of parking spaces connected with a residential development. The defendants had obtained judgment on their counterclaim, including damages in lieu of an injunction and, in the alternative, a declaration reflecting the claimant’s obligations under the parties’ arrangements.

After judgment but before the order was perfected, the defendants applied to re-amend their defence and counterclaim. They sought a stronger declaration requiring the claimant, upon specified performance by the defendants, to transfer parking spaces, grant leases, complete building works, install gates and grant a further lease. The issues were whether the proposed claims disclosed a reasonable prospect of success and whether the exceptional jurisdiction to amend after judgment should be exercised.

1. Proprietary estoppel. The proposed claim had to identify a promise of a certain interest in land, detrimental reliance, unconscionability, and a fact or mixture of fact and law which the claimant was estopped from denying. Cobbe v Yeomans Row Management Limited [2008] 1 WLR 1752 was applied in requiring certainty both as to the interest in land and as to the content of the estoppel.
2. Claims concerning completion of building works and installation of electrically operated gates did not concern certain interests in land and had no reasonable prospect of success through proprietary estoppel. Leases of the compressor house and staff room extension, on known terms and for an agreed price, did qualify. The reformulated claim concerning parking space F2 or an equivalent space was sufficiently arguable, although its ultimate validity was left open.
3. Detriment did not require separate proof of both prejudice and unconscionable advantage. It was unconscionable to leave a representee with a subsisting and unremedied prejudice where the representor’s conduct prevented full enjoyment of property rights.
4. The court had jurisdiction under CPR r 17.1(2) to permit amendment after judgment and before perfection of the order. The jurisdiction was exceptional. The court had to balance the finality of litigation and the other party’s legitimate expectations against the need to determine reasonably arguable issues and achieve justice between the parties. The principles in Charlesworth v Relay Roads Limited [2000] 1 WLR 230 and Stewart v Engel [2000] 1 WLR 2268 were applied.
5. The amendment was allowed only in relation to the leases and the additional parking space. The claims concerning building works and electrically operated gates were refused. No final decision was made on whether the reformulated parking-space provision ultimately satisfied the certainty requirement or whether the defendants would succeed on it.

The judgment concerned an application made after the court’s earlier judgment in the same proceedings, [2008] EWHC 1950 (Ch), had been handed down but before the order was perfected. It was a first-instance procedural decision, not an appeal.