Understanding unconscionability in proprietary estoppel

In a series of recent cases, courts have reasserted unconscionability as the basis of proprietary estoppel and in doing so have moved away from the structured form of discretion envisaged in the classic Taylors Fashions formula. In light of these developments, this paper traces the use of unconscionability in estoppel and examines the changing role attributed to the concept. In a parallel development, in exercising their remedial discretion once a claim to estoppel has been established, the courts have emphasised the foundation of estoppel in unconscionability to assert the need for proportionality between the detriment and remedy as ‘the most essential requirement’. Collectively, the cases demonstrate a lack of transparency or consistency, which raises concerns that the courts are descending into a form of individualised discretion. These developments are of particular concern as they come at a time when commentators are predicting a ‘boom’ in estoppel to follow the introduction of electronic conveyancing.

Proprietary estoppel: a functional analysis

This article argues in favour of a functional analysis of proprietary estoppel which focuses on the role of the doctrine in enabling claims to the informal acquisition of property rights in land. The article shows that adopting such an analysis both assists our understanding of two recent decisions of the English House of Lords and helps to resolve issues of taxonomy that arise in relation to the doctrine. A functional analysis both unites the sub-categories of proprietary estoppel into a single principle and distinguishes this principle from other types of estoppel claim. It is suggested, however, that the unification of common law and equitable estoppel remains both possible and desirable as long as ‘unification’ is understood broadly and is not confined to the recognition of a doctrine that is identical in its scope and operation in all cases. It is further shown that despite a lack of discussion of the concept in the House of Lords, unconscionability continues to play a key role in proprietary estoppel and therefore in the informal acquisition of property rights. Unconscionability may now benefit from a closer connection with the other elements of claims which should prevent abuse of the concept and allay concerns of ‘palm-tree justice’.

Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.