Estoppel—what, when and how to plead
Produced in partnership with Nicholas Macklam of Radcliffe Chambers
Estoppel—what, when and how to plead

The following Dispute Resolution practice note produced in partnership with Nicholas Macklam of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Estoppel—what, when and how to plead
  • What is an estoppel?
  • The different types of estoppel
  • The 'reliance-based' estoppels
  • Estoppel—a defence or a cause of action?
  • Relationship between estoppel and negligent misstatement
  • Waiver by estoppel
  • Pleading an estoppel

What is an estoppel?

As Lord Denning MR put it in Moorgate Mercantile v Twitchings (page [323]), estoppel is a principle of justice and of equity which provides, in very basic terms, that:

'…when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.'

(The decision in Moorgate was reversed on its facts by the House of Lords but this principle was not negated).

In some circumstances, a party's failure to speak out or act (ie, their acquiescence), may give rise to an estoppel in the same way that a direct, express promise or representation can.

Per Calver J in Active Media v Burmester, Duncker:

‘As the Court of Appeal explained in Ted Baker v Axa Insurance, the doctrine [of acquiescence] arises where “a reasonable person in the position of the person seeking to set up the estoppel…would expect the other party…acting honestly and responsibly to take steps to make his position plain” (at [82]).’

For an understanding of the general doctrine of estoppel, see also the following from Lord Denning MR in Amalgamated Investment, as cited with apparent approval by Lord Bingham in Johnson v Gore Wood:

'When the parties to a transaction proceed on the basis of an underlying assumption

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