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Hello all

Further to my general message on the estoppel v change of position debate, I would like to make two more specific points about Robert Walker LJ's judgment in Derby v Scottish Equitable. First, quoting Prof Burrows, the "'novel and ingenious argument' that Robert Walker LJ found convincing in ... is that the defences of change of position and estoppel are mutually exclusive because change of position operates to knock out the detriment required for estoppel". This must misconstrue the nature of the detriment to be established for the purposes of estoppel, which would consist in having to return money which has been spent (at least if I am right in my previous message that estoppel requires a statement, reliance, and consequential detriment which may flow from the consequences of falsifying the statement by requiring the return of the money). Furthermore, I agree with Prof Burrows that the short answer to Robert Walker LJ's point must be that it is for the defendant to decide what defence he wants to plead, and if he wants to plead estoppel first, and change of position second or not all, that is up to him.

Focussing more specifically on Robert Walker LJ's example of A paying £1000 to B, representing that it is Bıs, so B spends £250, B has a change of position defence in respect of that £250, and as a consequence, Robert Walker LJ argues that B cannot argue estoppel. I think this must be wrong, at least if I am right in my previous message that estoppel requires a statement, reliance, and consequential detriment which may flow from the consequences of falsifying the statement by requiring the return of the money. Plainly, B cannot return the £250. Because estoppel focuses on the statement, and operates in an 'all or nothing' way upon that statement, if there are any difficulties in returning any of the money, estoppel operates as a complete defence. These are facts in which estoppel would operate as an "all" defence, a complete defence.

There are four separate issues here. Take Robert Walker LJ's example of A paying £1000 to B, representing that it is B's. At one end of the spectrum stands the case where B had spent the full £1000 and estoppel would again operate as an "all" defence, a complete defence. At the other end of the spectrum stands the case where B had spent nothing, (and assuming that there is nothing else to constitute a detriment) then estoppel would operate as a "nothing" defence, that is, it would not operate at all. Near the centre stand two cases; in one, estoppel operates as an "all" defence, a complete defence, where it seems strange that it should: as where expenditure of some money gives a complete defence; in the other, estoppel does not operate as a defence at all, where it seems strange that it should not: as where expenditure of some money does not generate any defence. These last two examples are mirror opposites - where there is no defence of estoppel where perhaps there ought to be; and where there is a defence of estoppel where perhaps there ought not to be - and they arise because of the "all or nothing" way in which estoppel operates.

As with the previous message, again, sorry for going on for so long; I hope some of this is helpful / makes some sense.

Best

Eoin.

EOIN O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin University Law Journal.
Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland.
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m)
(All opinions are personal. No legal responsibility whatsoever is accepted.)