The basic concept of an estoppel is that where a person (A) has caused another (B) to act on the basis of a particular state of affairs, A is prevented from going back on the words or conduct which led B to act on that basis, if certain conditions are satisfied.

Development of the doctrine of estoppel Estoppel is the general term frequently given to the equitable doctrine which (broadly speaking) provides that if a person (person A) causes another person (person B) (whether by word or action, and whether expressly or impliedly) to believe that a particular set of facts or circumstances are true, then A should not later be permitted to draw back from the statements and/or actions they made or carried out which led B to such a conclusion, if it would be unjust or unconscionable for A to do so. There are various different categories of estoppel that the courts (both in England and Wales and elsewhere) have recognised and adopted to address particular cases, the doctrine having grown and developed beyond its original boundaries. Main characteristics of estoppel In most forms of the doctrine, it is insufficient for A simply to have made representations (by word or action) which are later found to be wrong and misleading; B must have relied on the representations in some way (eg by incurring expenses

Pensions analysis: The Pensions Ombudsman (PO) has upheld a complaint that a pension scheme incorrectly advised a member about the eligibility of his partner for a survivor’s pension. Martin Scott of gunnercooke LLP looks at the decision.

This Practice Note considers estoppel by representation and estoppel by convention (sometimes seen as a sub-species of estoppel by representation). For general guidance on what an estoppel is and when it may be pleaded, see Practice Note: Estoppel—what, when and how to plead. For guidance on other forms of estoppel, see Practice Notes: • Contractual estoppel • Promissory estoppel • Proprietary estoppel Estoppel by representation—what is it? An estoppel by representation arises where one person (A) makes, by words or conduct, a unilateral representation of fact or law to another (B), which was made by A with the intention of inducing B to rely upon it (or was made in circumstances where A’s conduct is such that a reasonable person would understand that it was intended to be acted upon), and B does in fact rely upon it to their detriment. In those circumstances A will be estopped from subsequently resiling from their original representation. The representation of fact may be made by positive action (eg, by words or conduct) or, in

Estoppel by silence describes a situation where a person’s failure to speak or correct a known misunderstanding prevents them from later denying the assumed position. In practice, it arises where one party is under a duty to speak, realises another party is acting to their detriment on a mistaken assumption, remains silent, and it would be unconscionable to allow them to later contradict that assumption. In UK and Irish law, estoppel by silence is not usually a standalone labelled doctrine, but is treated as a form of estoppel by representation, acquiescence or conduct, developed through case law in equity rather than detailed statute. Courts look for clear reliance and detriment, and for circumstances creating a duty to speak (for example, in ongoing contractual, fiduciary or commercial relationships). Across England & Wales, Scotland, Northern Ireland and Ireland, the core idea is broadly consistent, though terminology may differ (with Scots law often discussing personal bar and acquiescence). It is practically significant in contract disputes, land and property matters, and commercial litigation where a party’s silence has effectively misled another party and the court is asked to prevent a later inconsistent position.

Pensions analysis: The Pensions Ombudsman has partially upheld a complaint about incorrect member communication. Martin Scott of gunnercooke LLP looks at the decision.

What is estoppel? The basic concept of an estoppel is that where a person (A) has caused another (B) to act on the basis of a particular state of affairs, A is prevented from going back on the words or conduct which led B to act on that basis, if certain conditions are satisfied. In such cases, A is estopped (ie 'stopped') from resiling from, or denying, the existence of that particular state of affairs. At the heart of all pleas of estoppel is the central question of whether it would be unjust for a party to resile from a position previously agreed with, or represented to, another party. Sometimes, the court will simply consider whether an estoppel has arisen, without necessarily specifying the type. In the context of construction projects, and as demonstrated by the examples in this Practice Note, the forms of estoppel most likely to be relevant are: Estoppel by representation An estoppel by representation arises where one person (A) makes, by words or conduct, a unilateral representation of fact or law to another (B), which was

Banking & Finance analysis: In the recent case of Abraaj Investment Management v Kes Power, the court held that an assignment by way of security granted by the wrong company was nevertheless valid due to estoppel convention. This News Analysis looks at the court’s reasoning and when estoppel may save a lender with defective security, as well as discussing a number of other areas of interest examined by the judgment, including when assignments can be implied, whether ‘no assignment’ clauses are subject to a reasonableness qualification and consideration issues in acknowledgements of notice.

The doctrine of estoppel has been described as ‘one of the most flexible and useful in the armoury of the law’ by Lord Denning MR. Estoppel is a wide term used to describe the position where one party is stopped by the court from advancing certain propositions because they are contrary to the position which that party has previously taken. It is normally only available where there has been some form of reliance on the representation previously made by the other party to the proceedings. There are various academic debates as to whether estoppel is a rule of evidence or a rule of law and whether it can found a positive claim or can only be used as a defence. While estoppel has previously had significant application to occupational pension schemes, estoppel-based arguments have since been less likely to succeed in cases heard in the High Court. Practitioners should note that estoppel is sometimes applied in Pensions Ombudsman cases for the benefit of a pension scheme member, such as a defence to a claim

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

A Profit à prendre that allows its owner to take wood from another's land.

NOTE—to see whether notification thresholds in Eswatini (Swaziland) and throughout the world are met, see further: Where to Notify. Swaziland is now known as Eswatini. Eswatini is a COMESA Member State (see Question 12 below). 1. Have there been any recent developments regarding the Eswatini merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Eswatini? The Eswatini Competition Commission (ECC) published a Competition Bill, 2020 (Draft Bill) on its website, which is intended to be presented to the Minister of Commerce, Industry and Trade. The object of the Draft Bill is to increase effectiveness, consistency, predictability, and transparency in the enforcement and administration of competition law in Eswatini. It also aims to give effect to regional frameworks, such as COMESA Competition Regulations and international best practices. To the best of our knowledge, the Draft Bill has yet to be signed into law. The ECC further published guidelines to assist it in imposing appropriate administrative penalties (Penalty Guidelines), which will ensure that it uses a consistent