Date: Thu, 21 Aug 2008 12:40

From: Andrew Robertson

Subject: Yeoman's Row

Dear Jason,

You are not alone. Ben McFarlane and I have written a note on the case entitled “The Death of Proprietary Estoppel”, which we are presenting at the SLS conference next month. This was a hard case, as is perhaps obvious from the fact that the trial judge and the Court of Appeal were unanimous in finding for Cobbe on the estoppel claim, while the House of Lords were unanimous in finding against him. It was a hard case because, on the one hand, Cobbe undertook substantial work and incurred significant expense on the basis of a preliminary, oral agreement for the sale of land, which he knew was not binding. Although the commercial basis of the deal had been agreed, there were significant matters left to be resolved. It was an arm's length commercial transaction, and Cobbe was clearly taking a risk in proceeding. He didn't need a lawyer to tell that what he was doing was unwise. On the other hand, the agreed basis of the arrangement was that Cobbe would undertake the work and incur the expenditure in reliance on the transaction proceeding. On the facts found by the trial judge, Mrs Lisle-Mainwaring continued to encourage and assist Cobbe in his efforts to obtain planning permission after she had decided not to proceed on the agreed terms.

While this is a great fact situation for teaching issues of pre-contractual liability, it is just the kind of awkward case that produces bad law.

Andrew

On 16/8/08 6:46 AM, "Jason Neyers" wrote:

Colleagues:

Just got around to reading this case and I have to say that it was very disappointing on the estoppel analysis. It’s almost as if it was decided in 1940. There is no mention of the Australian principle of equitable estoppel (or the writings of people like Cooke or Robertson), of s. 90 of the Restatement, nor any effort to examine if the claimant might have a claim based upon his detrimental reliance (as opposed to for his expectation or for the defendant's gain). I think I would give my student a C if they gave Lord Scott's answer on the exam (more or less correct with the cases but no sense if they thought any principle tied them together).

Am I alone in this view?

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