Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Fri, 23 Mar 2001 09:12:39 |
| Re: |
Estoppel/Change of Position |
Joachim
Dietrich wrote:
In relation to the point made by Robert Stevens:
However, having read the following passage [in Scottish
Equitable] it seems to me that it can now be argued that the existence
of the defence of change of position prevents the defendant, in the
usual case, from establishing that he has detrimentally relied upon
the claimant's statement: 'A pays £1000 to B, representing to him "I
have carefully checked all the figures and this is all yours". B spends
£250 on a party and puts £750 in the bank. A discovers that
he has made a mistake and owed B nothing. He learns that B has spent
£250 and he asks B to repay £750. B: "You are estopped by your representation on which
I have acted to my detriment." A: "You have not acted to your detriment. You have
had a good party, and at my expense, because I cannot recover the
£250 back from you."' In my view, the Court of Appeal seem to be saying that
estoppel does operate in this situation, but is limited to the minimum
equity to do justice: ie there is no detriment which arises from denying
the representation as to B's right to £750 only. This must be right
(and see also Fung and Ho Note in 117 LQR 14). Walker L.J. states that the argument is "that, since
Lipkin Gorman, the defence of change of position pre-empts and disables
the defence of estoppel by negativing detriment." (para 45).
I find it difficult to see how on any fair reading the
CA are suggesting applying the defence of estoppel.
Robert Stevens
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