Walton Stores v Maher

There was little or no dispute as to the terms that the law considers essential for an effective agreement for lease. The judgment of Finnegan P in Cosmoline identifies five such terms (though noting that there may be others, depending on the circumstances) namely (i) the parties; (ii) the premises; (iii) the term; (iv) the commencement date; and (v) the rent.

The debate here centred on the commencement date. In O' Flaherty v Arvan Properties Limited (Supreme Court, 21 July 1977) this Court (per Kenny J) stated that it was " settled law ... that the date of the commencement of the period for which the lease is to be granted is an essential term in a contract to grant a lease if it is to be enforceable " (at 5). In O' Flaherty , there was no agreement as to the commencement date and thus there was never any enforceable agreement to grant a lease (" enforceable " here is clearly being used to mean binding or concluded rather than enforceable for the purposes of the Statute of Frauds).

In her judgment, Whelan J refers to the discussion in Farrell (at §3.16) in which the author states that " [t]here cannot be a concluded agreement " to grant a lease without agreement as to the commencement date. He goes on to state that a commencement date may be " shown inferentially or from indications in correspondence "(§166). Silver Wraith is cited as an authority for the proposition that the commencement date can be established inferentially. Unfortunately it is not evident from the judgment of Keane J precisely what had been agreed in relation to the issue of commencement, though it seems to have related to the granting of planning permission (and that is consistent with the further citation of Silver Wraith in Farrell as authority for the proposition that the commencement date may be ascertained " referentially " from when planning permission is obtained). [19] The " normal rule ", Farrell continues, is that " it is sufficient if it appears either in express terms, or by reference to some writing which would make it certain, or by reasonable inference from the language used, on what date the term was to commence. " That formulation derives from Phelan v Tedcastle (1885) 15 Law Reports (Ireland) 169 in which the Court of Appeal for Ireland held that the commencement date had been sufficiently specified by the agreement of the parties that the lease should commence on the expiry of the 6-month period within which the existing tenant (who was being ejected) might redeem the premises.

How these principles apply in the circumstances here will be considered below.

Distinct from ACE's proprietary estoppel claim (which is addressed separately in this judgment), an issue of estoppel also arises in the context of ACE's contractual claim. It arises in the following way. In the High Court, Owens J held that the parties were never ad idem on the issue of renunciation/disclaimer. That finding was, in his view, fatal to ACE's contractual claim (see, for example, pages 31 and 35 of his Judgment) (Owens J also held that there were other terms which had not been agreed but the focus in this appeal was on the issue of renunciation/disclaimer). Owens J also rejected ACE's contention that Motorpark, by its representations and/or conduct, had led ACE to believe that it would not insist on a renunciation clause or that there was a binding agreement notwithstanding the absence of any agreement on that issue (High Court Judgment, pages 35-36).

As already explained, the Court of Appeal, per Whelan J, took a different view on the second issue, concluding that Motorpark's conduct precluded it " from asserting that renunciation was ever an issue or essential term of the contract " (Court of Appeal Judgment, §198; see also §135).

Before this Court, counsel for ACE took no issue with the High Court's finding that there had never been any actual agreement on the issue of renunciation but, he said, estoppel " bridges the gap on that contractual issue. " [20]

This aspect of the case was not the subject of any significant legal argument: the principal battleground was in respect of the factual findings and inferences to be drawn from the evidence.

Only a limited number of authorities were cited. One was the High Court's decision cited by the Court of Appeal in this context, McDonagh v Denton . McDonagh v Denton is a case with particular - indeed singular - facts. Notably, it is clear from the judgment of O' Sullivan J that he regarded it as a case of proprietary estoppel rather than one of promissory estoppel or estoppel by representation. In any event, it does not appear to me that the judgment is authority for the broad proposition attributed to it at §198 of the judgment of the Court of Appeal. True it is that O' Sullivan J held that the defendant's failure to respond to, or take issue with, the plaintiff's assertion of title in correspondence amounted to a representation that there was no disagreement with that assertion (page 34) but, as the Judge was careful to emphasise, that finding was one made in the (very particular) circumstances of that case, involving a tangled history of dealings going back over a decade ( ibid ). O' Sullivan J did not articulate any general principle to the effect that, where an issue arises in a conveyancing transaction (or, for that matter, any other form of contractual transaction) a failure to take issue with an assertion by the other side is tantamount to a representation of agreement with that assertion, nor is such a broad principle supported by authority. In the absence of a duty to speak, silence is not generally to be regarded as a representation: Chitty on Contracts (34 th ed; 2021) (Vol 1) (" Chitty ") §6-100; Feltham et al (eds) Spencer Bower: Reliance-Based Estoppel (5 th ed; 2017) (" Spencer Bower ") §1.90 and following. The true position therefore is that silence may amount to a representation in certain circumstances: the issue will in every case be fact-sensitive.

While the decision of the High Court of Australia in Waltons Stores (Interstate) Limited v Maher (1987- 1988) 164 CLR 387 was included in the authorities provided to the Court, no submissions were directed to it. Again, the facts in Waltons Stores (Interstate) Limited v Maher were rather particular: see page 390 of the report. In the belief that the terms of a lease had been agreed by the proposed lessee (W), the proposed lessors (M) demolished a building on their lands and began to construct a new building as per specifications agreed with W. Prior to commencing demolition work, M's solicitors had been told by their counterparts that W had orally indicated their acceptance of the terms of the lease, that formal instructions were being obtained and that, if there was any difficulty with any of the terms, W's solicitors would revert the following day. No issue having been raised within the time indicated, M executed the lease and forwarded it to W's solicitors. Despite having second thoughts about the transaction, W kept silent and allowed M to proceed. In these circumstances, the High Court was satisfied that W was estopped from denying that it was bound by the lease.

The judgments in Waltons Stores (Interstate) Limited v Maher are lengthy and complex and different members of the Court reached that conclusion by different analytical routes. Whether the decision - and in particular the central holding that promissory estoppel may be relied on to enforce a non-contractual promise in the absence of any pre-existing relationship - is consistent with English law is doubted by Chitty (at §6-115) and Spencer Bower (at §14.37 and following) refers to a number of decisions from England and Wales, including that of the Court of Appeal in Baird Textile Holdings Ltd v Marks and Spencer plc [2001] EWCA Civ 274 , [2002] 1 All ER (Comm) 737 , in which it has not been followed. So far as I can ascertain, the decision has never been considered by an Irish court. In Courtney v McCarthy [2007] IESC 58 , [2008] 2 IR 376 , Geoghegan J in this Court expressed the view that there is no difference between Irish and English law on estoppel (§25) but, in the absence of any Irish authority that has considered Waltons Stores (Interstate) Limited v Maher and in the absence of any argument directed to whether it ought to be regarded as good law here, it would be undesirable to express a definitive view on that issue and it is not necessary to do so. For reasons I shall explain, even if Waltons Stores (Interstate) Limited v Maher is good law in this jurisdiction - and I express no view on that issue - it does not avail ACE on the facts here.

The doctrine of promissory estoppel is, of course, an established part of Irish law, as is the " overlap[ping] " doctrine of estoppel by representation: Courtney v McCarthy [2007] IESC 58 , [2008] 2 IR 376 , per Geoghegan J at 388. The essential elements of both are a sufficient, clear, and unequivocal representation (whether by words or conduct), reliance and detriment. Estoppel by convention - the essential element of which is that the parties should have proceeded on some common assumption, whether of fact or of law - is also a well-established part of Irish law: Ulster Investment Bank Limited v Rockrohan Estate Limited [2015] IESC 17 , [2015] 4 IR 37 . That is not to say that there are no unresolved issues as to the precise parameter of these doctrines and the extent to which they differ. Fortunately, however, it is not necessary to enter into such questions here.

In dealing with this issue in her judgment, Whelan J also refers to the judgment of Steyn LJ in Trentham and the judgment of the UK Supreme Court in RTS Flexible . These are not estoppel cases — they are, rather, concerned with contract formation. As I have said, before this Court counsel for ACE made it clear that this part of its case was based on an asserted estoppel. There is, it seems to me, a material distinction between a contention that, applying the principles set out in Trentham and RTS Flexible , a court should find that there was in fact a concluded agreement and a contention that one party should be estopped from denying that there was a concluded agreement. As I understood ACE's submissions, it makes the latter case. In any event, Whelan J cites a passage from Trentham in which Steyn LJ (at 27) expresses the view that the law " generally ignores the subjective expectations and the unexpressed mental reservations of the parties " and that " the governing criterion is the reasonable expectations of honest men " meaning that " the yardstick is the reasonable expectations of sensible businessmen " (Court of Appeal Judgment, §199). No doubt that is so, in this jurisdiction as in England and Wales. But, as I have explained, the " objective theory of contract formation " (which is what these observations of Steyn LJ were directed to) does not upend the fundamental principles of contract law: §57 above. It is the parties - not the court - that are the " masters of their contractual fate " ( Pagnan , at 611) and the court " should not impose binding contracts on the parties which they have not reached " ( RTS Flexible , §47). That is, in my view what the Court of Appeal did here.

As already mentioned, one of the issues arising in the appeal is whether in its assessment of the evidence the Court of Appeal went beyond the permissible parameters of appellate review.

The principles set out by McCarthy J in his judgment in Hay v O' Grady are too well-known to require detailed recitation. They reflect the fundamental fact that an appellate court does not have the opportunity of seeing and hearing the witnesses giving their evidence that the trial judge enjoys - that, in McCarthy J's vivid language, " [t]he arid pages of a transcript seldom reflect the atmosphere of a trial " - and emphasise that, provided that such findings of fact were supported by credible evidence, an appellate court is bound by them, however cogent the evidence to the contrary may appear to be (at 217). An appellate court should also be slow to substitute inferences of fact for those drawn by the judge, at least where such inferences depend on oral evidence or recollection of fact.

In its submissions, Motorpark also brought the Court's attention to Thorner v Major [2009] UKHL 18 , [2009] 1 WLR 776 in which, in the specific context of a proprietary estoppel claim, a number of the law lords emphasised the advantage that the trial judge had in assessing the oral evidence of witnesses as to representation and reliance. In his speech in that case, Lord Walker rejected the suggestion that the meaning of spoken words was " a question of law ", observing that " [w]hen a judge, sitting alone, hears a case of this sort, his conclusion as to the meaning of spoken words will be inextricably entangled w ith his factual findings about the surrounding circumstances ... " (§58).

Hay v O' Grady must now be read in light of this Court's subsequent decision in Doyle v Banville [2012] IESC 25 , [2018] 1 IR 505 in which the Court (per Clarke J, as he then was) picked up on another aspect of the judgment of McCarthy J - the need for " a clear statement, ... by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows " (at 218) – adding that " it is important that the judgment [of the trial judge] engages with the key elements of the case made by both sides and explains why one or other side is preferred " (§10). But the limits of that duty to engage were emphasised by Clarke J himself. The trial judge's duty is simply " to analyse the broad case made on both sides " and it is no function of an appellate court to rummage through the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument that arguably was not adequately addressed (§11). The obligation of the trial court " is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides " ( ibid ). This Court has subsequently emphasised the importance of not permitting complaints of " non-engagement " with the evidence to be used as a vehicle to circumvent the principles in Hay v O' Grady : see, for instance, Leopardstown Club Limited v Templeville Developments Ltd [2017] IESC 50 , [2017] 3 IR 707, per MacMenamin J at §109. A trial judge's decision may only be reversed on this basis where there is " a clear non-engagement with essential parts of the evidence " ( ibid ). Something " truly glaring, " going to " the very core, or the essential validity " of the trial judge's findings is required. That is " a high threshold " (§110).

In his judgment in Doyle v Banville , Clarke J also made it clear that " part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. " Such a situation was, he explained, different to that where the judge preferred one piece of evidence over another " for a stated and credible reason " — the appellate court having no function to second guess the judge's view in the latter situation (§14).

Before considering the Court of Appeal's assessment of the evidence in light of these principles, a number of points should be made as to the relevant factual context. Both ACE and Motorpark are significant commercial enterprises. Each obviously had considerable experience in negotiating commercial transactions. ACE in particular had significant experience in negotiating commercial leases, as is apparent from the evidence of Mr Sutton referred to earlier. Each party had legal advice available to them at all times and each retained solicitors to assist them in the negotiation of a formal written agreement for lease in relation to the Body Shop, intended to contain all the terms that one would expect to find in a standard commercial lease. This was, in short, an arms-length commercial transaction between two experienced and well-resourced commercial actors, acting with the benefit of (if not necessarily in accordance with — itself a point of some significance) expert legal advice, with the common endpoint of the execution of a comprehensive written agreement for lease. That is the context in which the issues in dispute are to be considered and resolved.

ACE's contractual claim - at least as pleaded - rested on an assertion that it and Motorpark entered into an agreement " [i]n or around December 2016 ". It was that agreement that ACE sought specific performance of. Owens J rejected the contention that there was ever any agreement for a lease: in his view, there was never a concluded agreement, and a significant number of issues remained to be agreed, including (but not limited to) the renunciation/disclaimer issue, which he regarded - correctly - as one of particular importance. The Judge also found that, as of August and September 2016, those involved in the negotiations knew that there was no concluded oral agreement for a lease (while key points had been agreed, other issues such as the commencement date had not been agreed) and further found that, at the time that it went into possession of the Body Shop in January 2017, there was " no basis " on which ACE could have considered that Motorpark was contractually obliged to grant a lease to it (High Court Judgment, at page 37). These findings by the Judge were made with the advantage of having heard the evidence of the principal actors involved in the negotiations (with the exception of Mr Roe, ACE's solicitor).

On the basis of her review of the transcripts, Whelan J took a very different view. In her view, there was a concluded agreement in place as of September 2016 (Court of Appeal Judgment, §167). That finding is key to her analysis of the contractual issue, forming the basis of her view that there was a " final and concluded agreement " prior to the date when matters were put into the hands of the parties' solicitors (Judgment, §69), that the " subject to contract " language was introduced by the solicitors only " after the parties considered themselves and held themselves out vis-à-vis each other as having concluded a binding agreement for the grant of the lease " (§175) and that the parties " merely retained solicitors for the purpose of putting the agreement into legal shape " (§177).

The exercise undertaken by Whelan J effectively involved a de novo assessment of the evidence given in the High Court, with little or no regard given to the findings of fact made by the High Court Judge. Doyle v Banville makes it clear that it is the function of an appellate court to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts . However, while Whelan J's judgment sets out the High Court Judge's findings of fact at some length (§§25-61) with some limited exceptions (such as at §§96-98) it does not meaningfully engage with those findings and instead proceeds to set out an entirely new factual narrative, as if at first instance. In doing so, in my respectful view, the Court of Appeal went beyond the permissible bounds of appellate review, having regard to Hay v O' Grady . But that (fundamental) point aside, the findings made by the Court of Appeal are, in my view, unsustainable on the evidence.

It is worth recalling here that ACE itself did not make the case that a concluded or binding agreement had been reached in September 2016. That is perhaps unsurprising. It is clear from the evidence that, notwithstanding agreement on the matters set out in the Term Sheet , there were many other terms which required agreement. While the parties may have been confident that these would in fact be agreed (many would be relatively standard for commercial leases), it is nonetheless the case that they had not been agreed as of September 2016. Critically, there was no agreement on commencement date, absent which there could not be a concluded agreement. Even if it was the case that the parties envisaged completion/commencement " within weeks ", as Whelan J suggests at §167 and §181 of her judgment - and it is not clear what evidential basis there is for that suggestion or how the parties might ever have had any such expectation given that it was at all times contemplated that a detailed contract for lease would be prepared by the parties' solicitors and executed by the parties - that would not be sufficient to satisfy the requirement for agreement as to the commencement date. The principle that the commencement date can be ascertained " inferentially " or " referentially " cannot be stretched so far as that. It must be possible to ascertain a date certain, even if that date is not stated expressly and even if that date is contingent (as where the lease is to commence by reference to the date on which planning permission is granted). The commencement date must be certain, or at least capable of being made certain. An agreement that a lease should commence " as soon as ready " (as ACE put it in response to a written question from the Court) or " as soon as was feasible " (as counsel put in argument) is simply too vague to satisfy the law's requirements in this respect.

In my view, it is clear that the earliest point at which it could be said that there was agreement on a commencement date was 22 December 2016, when it was agreed that ACE would go into possession of the Body Shop on 16 January 2017. Indeed, Whelan J herself appears to acknowledge that to be the case at §§181-182 of her judgment. Therefore, the earliest point at which there could have been a concluded and binding (if unenforceable) agreement for lease was 22 December 2016.

On that basis, key elements of the Court of Appeal's analysis fall away. It is not the case that the solicitors became involved only after a concluded agreement was in place. It is not the case that the parties merely retained solicitors for the purposes of " putting the agreement into legal shape " if by that it is meant that the parties had reached an agreement prior to that point (Court of Appeal Judgment, §177). From the outset of their involvement, both sets of solicitors clearly indicated in their correspondence that, as far as their respective clients were concerned, any agreement was " subject to lease. " In the words of Jessel MR in Winn v Bull , that meant " what it [said] ". Mr Roe, went further, stipulating as per Embourg that no contract should be deemed to come into existence " until such time as approved draft Contracts have been engrossed, executed and exchanged and a contractual deposit paid. " [21] Such a stipulation was within the implied authority of the solicitors ( Mulhall v Haren ) and, as Motorpark observed in submission, it was not in any event ever suggested that Mr Roe was acting outside his instructions or beyond his authority in proceeding as he did. Thus, both parties, putative lessor and putative lessee, clearly communicated their intention to be bound only upon the execution of a formal contract for a lease. That is a wholly unsurprising approach for legally represented commercial enterprises to adopt: as Mr Sutton confirmed in his evidence, all of the other leasehold premises occupied by ACE, including the six sites opened in 2016, were occupied on the basis of modern commercial leases.

It is also evident from the correspondence between the solicitors that they were not of the view that a concluded agreement had been made. Notably, while Mr Roe pushed against the proposed deed of renunciation - suggesting that it was not " appropriate because his client would be taking a 10-year lease (which seems rather a logical and legal non sequitur ) - he did not suggest that Motorpark was improperly seeking to " extract new terms " by asking for such a deed (as is suggested at §167 of the Court of Appeal Judgment). The parties were clearly still in negotiation at that stage. Neither did Mr Roe suggest that a requirement for a deed of renunciation to be executed might be a deal-breaker for ACE and, while he asked for confirmation that a renunciation would not be required, no such confirmation was forthcoming. Mr Roe was also aware from Mr McNamara's correspondence that Motorpark was not then in a position to grant any 10-year lease to ACE and would not be able to do so until Brecol granted a lease to Motorpark or at least had agreed the terms of such a lease.

Central to the Court of Appeal's conclusions on the contractual claim is its finding that the parties dispensed with their solicitors in mid-December 2016, " thereby effectively dispensing with the ['subject to contract/lease'] qualification " (Court of Appeal Judgment, §178; see also §§179-180). However, that finding does not appear to have any basis in the evidence. Contrary to what is stated at §180, neither Mr Barry nor Mr McNamara (Motorpark's solicitor) gave evidence to the effect that Mr Barry intended to dispense with Mr McNamara's services in connection with the proposed lease to ACE. No such suggestion was put to them in evidence and the evidence given by them, in particular the evidence of Mr McNamara was not consistent with any such suggestion. [22] Neither was there any evidence that Mr Roe's services were ever dispensed with. No suggestion to that effect was made by Mr Plunkett (Mr Roe did not give evidence). Mr Plunkett did of course give evidence that ACE went into possession of the Body Shop against Mr Roe's advice but so far from suggesting that Mr Roe's services had been dispensed, that clearly indicates that he was continuing to advise ACE (even if his advice was not accepted). The fact that Mr Plunkett and ACE elected to make a " commercial decision " to go into possession without a lease being in place against Mr Roe's advice does not provide any basis for suggesting that the " subject to contract/lease " stipulation had somehow been waived. In the first place, ACE was not in a position to waive that stipulation unilaterally. Whatever may have been the position had ACE been the only party to have imposed such a stipulation, the fact is that Mr McNamara had, on Motorpark's behalf, made it clear that there would be no agreement unless and until the terms of the proposed lease were agreed in writing. While that position could of course have been waived by Motorpark, it could not be waived by Mr Plunkett or ACE on its behalf. Secondly, and in any event, it is clear from Mr Plunkett's evidence as to the advice given by Mr Roe that the continuing understanding and intention of the parties (including ACE) was that there would be no agreement unless and until the terms of the proposed lease were agreed in writing. Mr Plunkett and ACE knew that there was no written agreement in place but nonetheless elected to go into possession in spite of Mr Roe explicitly advising of the risk of doing so. They did not do so on the basis of a belief that the requirement for a written contract was being waived: they did so despite knowing (and being advised) that the requirement remained operative. [23]

That is fatal to the contractual claim. The parties had agreed that there would be no agreement unless and until a written agreement was signed and executed. None was. ACE went into possession knowing that to be the case and having been advised of the potential risk of doing so. It made a " commercial decision " to take that risk. That distinguishes this case from Waltons Stores (Interstate) Ltd v Maher .

Furthermore, the parties were never ad idem on the renunciation issue. That was clearly an important issue to both parties. [24] According to Mr McNamara (Motorpark's solicitor) renunciations were included in nearly all commercial leases, landlords not wishing tenants to acquire rights to continue at the end of the term. [25] I respectfully disagree with the Court of Appeal's finding that Motorpark is estopped from relying on the absence of agreement on the issue of renunciation in defence of ACE's contract claim. I do not think it apt to characterise Motorpark's requirement for the execution of a deed of renunciation as " an unexpressed mental reservation ". Motorpark's solicitors had drafted a formal deed of renunciation and sent it on to ACE's solicitors. The significance of the issue to Motorpark must have been obvious to both ACE and Mr Roe. While Mr Roe pushed back against the need for such a deed (on a stated basis which, frankly, makes little or no legal sense), he certainly did not convey that such a deed was wholly unacceptable to his client. Significantly, he expressly sought confirmation that Motorpark would not require a deed, but no such confirmation was ever provided. Notably, Mr Plunkett never suggested in his evidence that he had been led to believe or understood that Motorpark had abandoned its request for a deed of renunciation or that he made the decision for ACE to go into possession on that basis. Mr Plunkett knew that the renunciation had not been agreed and while he may have hoped and/or expected that Motorpark would yield on the issue (though he did not say that in his evidence either) that does not suffice to found any form of estoppel, whether promissory or by convention. No " clear and unequivocal " representation was made by Motorpark, by words or deed, capable of being characterised as a promise to ACE that it would not rely on its legal rights in this respect (an essential element for any promissory estoppel) nor did the parties proceed on any mutual assumption of fact or law (a prerequisite for any estoppel by convention): see generally the discussion in McGhee et al (eds), Snell's Equity (34 th ed; 2020), Chapter 20. There is, on the facts, no parallel with McDonagh v Denton . On this basis also, the contractual claim fails.

The parties here were substantial commercial entities, with access to expert legal advice. They agreed that there would be no binding or enforceable agreement for a lease unless and until a written agreement was executed by them both. That never altered. No such agreement was ever signed. Nor were the parties ever ad idem on the terms of their intended agreement. ACE's contractual claim effectively invites the court to remake the bargain made by the parties and to impose on them an agreement they did not in fact ever make. But that is not the court's role: the parties, not the court, are the " masters of their contractual fate. " Applying the rules adopted by the parties, it is clear that there was never a concluded agreement for a 10-year lease of the Body Shop. ACE may well have entered into possession in the expectation that such an agreement would be finalised and Motorpark may well have created that expectation for the purpose of inducing ACE to do so but, while that may well be relevant to ACE's alternative proprietary estoppel claim, it does not give rise to a concluded contract where there was none.

I would therefore set aside this aspect of the judgment and order of the Court of Appeal.

In the absence of a concluded agreement, this issue does not arise. However, the acts of part performance relied on by ACE are also relevant to issue (3) and will be discussed further in that context.

Again, the High Court and the Court of Appeal differed sharply in their analysis of this aspect of the case and reached very different conclusions on it.

According to one commentator, the term " proprietary estoppel " was effectively unknown prior to its usage in the 26 th edition of Snell's Equity in 1966: McFarlane, The Law of Proprietary Estoppel (2 nd ed; 2020) (" McFarlane "), at §1.01. However, the roots of the doctrine go back considerably further.

Ramsden v Dyson (1866) LR 1 HL 129 exemplifies one strand, characterised in McFarlane as the " acquiescence-based strand " (§§1.06-1.09) and in Spencer Bower as " standing by " (§§12.13-12.18). The principle for which Ramsden v Dyson is authority is succinctly stated in the headnote, as follows: " [i]f a stranger begins to build on land supposing it to be his own, and [the real owner], perceiving his mistake, abstains from setting him right, and leave him to persevere in his error, a Court of equity will not allow [the real owner] afterwards to assert [his] title to the land " (at 140-141). While in McMahon v Kerry County Council [1981] ILRM 419 Ramsden v Dyson was described by Finlay P (as he then was) as the " locus classicus ", the principle in fact goes back much further to The Earl of Oxford's Case (1615) 1 Rep Ch 1, 21 ER 485.

McFarlane suggests that, when the term " proprietary estoppel " first came into general use, it was " essentially equated with the application of the acquiescence principle " (§1.08). But very significant doctrinal development has occurred since then, much of which can be traced back to views expressed by Lord Kingsdown in his speech in Ramsden v Dyson . There he formulated the applicable " rule of law " as follows:

Spencer Bower characterises the principle thus articulated by Lord Kingsdown as " the misprediction form of proprietary estoppel, where A, without any mistaken belief in a present entitlement, acts to his detriment in reliance on an unenforceable expectation, created or encouraged by B, that B will grant him an interest in the future " (§12.19).

Plimmer v Wellington Corp (1884) 9 App Cas 699 , which has frequently been cited in this jurisdiction and to which we were referred, is an early application of that principle. Plimmer had erected a wharf and jetty in Hamilton harbour with the permission of the local government. In 1856, following an earthquake, he had (on the encouragement of the government) expended monies on the extension of the jetty and reclaimed land on which he erected a warehouse, facilities which were subsequently used by the government. The land was subsequently vested in the respondents by statute and the issue that arose was whether Plimmer had an estate or interest in the land entitling him to compensation. Although the licence granted to Plimmer was revocable at will, the Privy Council found that it had become irrevocable because of the 1856 transactions " because those transactions were sufficient to create in his mind a reasonable expectation that his occupation would not be disturbed " and he was to be regarded as having an estate or interest in the land for the purposes of compensation (at 714). In reaching that conclusion, the Board rejected the respondent's contention that Ramsden v Dyson was confined to cases of mistake (at 711-714).

This strand of Ramsden v Dyson - what McFarlane characterises as the " promise-based strand " of proprietary estoppel - was largely forgotten before being revived by the Court of Appeal under Lord Denning MR in Inwards v Baker [1965] 2 QB 29 (which did not use the term " proprietary estoppel ") and, somewhat later, in decisions such as Crabb v Arun District Council [1976] Ch 179 (which did). In Inwards v Baker , a father encouraged his son to build a house on his (the father's) land. He did so with financial assistance from the father. Many years later the father died without having transferred the land to his son. Under the father's will, the land vested in trustees for the benefit of third parties. On the trustees' application for possession, the Court of Appeal unanimously found that the son had an equity to remain in possession of the house as long as he wished to live there as his family home. In Crabb v Arun District Council , the Court of Appeal upheld the plaintiff's claim to be entitled in equity to be granted a right of access to the public highway by the defendant council, arising from assurances it had given to him that such access would be given, in reliance on which the plaintiff had sold other lands without reserving a right of access for his benefit. At this remove, Crabb v Arun District Council is most frequently cited for a statement made by Scarman LJ on the issue of remedy. An equity having been established, two questions arose — the extent of the equity and the relief needed to satisfy it (at 193). There " being no grant, no enforceable contract, no licence ", Scarman LJ stated that he would " analyse the minimum equity to do justice to the plaintiff as a right either to an easement or to a licence on terms to be agreed. " The court could determine " on what terms the plaintiff should be put to enable him to have the benefit of the equitable right which he is held to have " (at 198-199): since Ramsden v Dyson the courts had acted on the basis that they have to determine not only the extent of the equity " but also the conditions necessary to satisfy it " (at 199). The reference by Scarman LJ to " the minimum equity to do justice to the plaintiff " has given rise to much subsequent debate, which is still far from settled. [26]

As already noted, McFarlane characterises this strand of the proprietary estoppel doctrine as the " promise-based strand " (§§1.15-1.23). It is, the author suggests, the most practically important of the three strands of the doctrine (the third strand being the " representation-based strand "), [27] applying " where A makes a promise that B has or will acquire a right in relation to A's property and B, reasonably believing that A's promise was seriously intended as a promise on which B could rely, adopts a particular course of conduct in reasonable reliance on A's promise. " In such circumstances, then " if, as a result of that course of conduct, B would then suffer a detriment were A to be wholly free to renege on that promise, A comes under a liability to ensure that B suffers no such detriment " (§1.15).

According to McFarlane , promise-based proprietary estoppel may apply in the commercial context as well as the domestic context. [28] It provides an independent cause of action (an important point of distinction from other forms of estoppel) and is confined to property. Where the promisor (A) comes under a liability to the promisee (B), A " may be required, for example, to transfer property to B, to grant B a particular right in property, to hold a right on trust for B, to allow B to make particular use of A's property, or to pay a sum of money to B " (§1.16). I will return to the issue of remedy and in that context consider the significant decision of the (UK) Supreme Court in Guest v Guest [2022] UKSC 27 , [2024] AC 833 .

Keane, Equity and the Law of Trusts in Ireland (3 rd ed; 2017) (" Keane ") contains an illuminating discussion of the development of proprietary estoppel from Ramsden v Dyson onwards. The author notes that the courts and academic commentators have, on occasion, expressed differing views as to what should be regarded as the critical factor in the " expectation limb " of the doctrine (what McFarlane characterised as " promise-based estoppel ", §1.15 ). One view was that the court should ensure that the " expectation " should be satisfied: the other focused on compensation for the detriment. However, the author continues:

Keane goes on to emphasise the importance of context. Referring to criticisms of the House of Lord's decision in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 , [2008] 1 WLR 1752 (" Cobbe ") - in which a proprietary estoppel claim arising from a large scale commercial property transaction had failed ( Cobbe is referred to further below) - the author suggests that " [t]o treat the absence, not merely of a contract in writing, but of any concluded agreement, as of crucial significance in a property development transaction involving millions of pounds is simply to recognise commercial realities " (§27.61). The author then notes that in An Cumann Peile Boitheimeach Teoranta (Bohemian Football Club Limited) v Albion Properties Limited [2008] IEHC 447 – a case with a " striking resemblance " to Cobbe - the court had not discussed in any detail its apparent view that, even in a purely commercial context, the absence of a concluded agreement was not fatal to the existence of a proprietary estoppel (§27.64).

Biehler and Gavin, Equity and the Law of Trusts in Ireland (8 th ed; 2025) (" Biehler ") also provides a comprehensive survey of the jurisprudence and the issues arising from it. The authors refer to the identification by Lord Walker of the three " main elements " of proprietary estoppel (in his speech in Thorner v Major ) as " a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance " (at 1059). Biehler also emphasises the importance of context and the fact-sensitive nature of the inquiry (at 953-954). " Clearly " - so the author states - " different considerations will apply where the relationship between the parties is arm's length and commercial on the one hand and familial or personal on the other hand. In the former case, the parties would be expected to enter into a contract but may have chosen not to at that point in the transaction whereas in the latter, the entering into a formal contractual relationship may never have been envisaged at any stage " (at 1085-1086).

Biehler also contains a helpful discussion on the question of remedy. The authors state that the case-law demonstrates " that the remedies granted by the courts range dramatically " (at 1089) and while there was authority from England and Wales indicating that the appropriate remedy was the " minimum equity " necessary to do justice to the claimant (the statement of Scarman LJ in Crabb v Arun District Council referred to above) that had not led to any uniformity of approach, with tension between the expectation-based and reliance-based approaches. [29] The authors go on to suggest that " the court now tends to ask 'what is the minimum equity necessary to do justice' and to avoid an unconscionable and disproportionate result " (at 1091). The authors go on to develop their analysis in some detail, referring to developments in England and Wales and elsewhere, as well as to Irish authority. However, it seems sensible to defer further discussion of the issue of remedy until the prior question of whether ACE has established any equity to be satisfied is addressed.

While a number of decisions of the Irish courts have considered the doctrine of proprietary estoppel, in few if any of those decisions has it been necessary for the court to engage in detail with it. The jurisprudence from the United Kingdom is considerably more developed, particularly as regards the role of proprietary estoppel in the commercial context, and it may make sense to begin with it.

While there are a great many earlier decisions on various aspects of proprietary estoppel, the decision of the Privy Council in Attorney General of Hong Kong v Humphrey's Estate (Queen's Garden) Ltd [1987] AC 114 (" Humphrey's Estate ") seems an appropriate starting point. In Humphrey's Estate the Hong Kong government entered into negotiations with a company (HKL) to acquire a large number of flats owned by HKL on the basis of an exchange of property, with HKL taking property owned by the government (and agreeing to make a substantial monetary payment representing the difference of value between the two properties). An agreement in principle was reached " subject to contract ", which expressly provided that the agreed terms could be varied or withdrawn prior to formal execution of a contract and that there would be no binding agreement until formal documents were executed. The government was permitted to go into possession in advance of the execution of a contract and did so, expending money on fitting out the flats. HKL took possession of the government's property and demolished it for redevelopment and made the agreed monetary payment to the government. Negotiations proceeded and agreement was reached on all issues, but no contract had been signed when HKL decided to withdraw. The government sued, asserting that HKL was estopped from seeking to withdraw. That claim was successful at trial and that decision was upheld by the Court of Appeal of Hong Kong.

On HKL's further appeal, the Privy Council reversed. The Board accepted that the government had acted to its detriment and, to the knowledge of HKL, in the hope that HKL would not withdraw. But that was not enough to found an estoppel. The government was required to show, firstly, that HKL created or encouraged a belief that it would not withdraw from the agreement in principle and, secondly, that it had relied on that belief or expectation, but it failed on both counts (124D). While the government had acted " in the confident and not unreasonable hope " that the agreement in principle would come into effect, HKL had never indicated or implied that it had surrendered its right to withdraw at any time prior to the execution of a formal contract (124H-125A). Furthermore, it was apparent from the evidence that the government did not believe that HKL was bound to proceed: in fact, the government had been expressly advised of the " possible danger in proceeding " in the absence of an executed agreement (126D-F). The government had relied on Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council (1980) 41 P & CR 179 as an instance of where an agreement " subject to contract " had been enforced but, in the Board's view, the fact that the arrangement in that case was " subject to contract " was irrelevant. The Board stated the essence of its analysis at the end of its opinion:

Humphrey's Estate was considered in detail in Cobbe . The claimant, Mr Cobbe, was an experienced property developer who had made an oral (and unenforceable) agreement to purchase a substantial residential property (owned by the first defendant) for the purposes of redevelopment. The first defendant was to obtain vacant possession of the property (which was in a number of flats) and the claimant would then develop it. The purchase price was agreed, and it was also agreed that the first defendant would have a share of the proceeds of sale of the redeveloped property if those proceeds exceeded a certain agreed threshold. Cobbe spent significant time and money obtaining planning permission but, as soon as permission was granted, the first defendant resiled from the agreed deal and sought more favourable terms.

Mr Cobbe sued, asserting that the defendants were estopped from denying that he had a beneficial interest in the property because they had acted unconscionably in knowingly inducing him to believe that the property would be sold to him and he had acted to his detriment in reliance on that belief by undertaking the process of obtaining planning permission. He contended, in the alternative, that the property was held on a constructive trust. These claims succeeded at trial and the defendants' appeal to the Court of Appeal was unsuccessful. Cobbe had initially made a claim in contract also but had abandoned that claim at the start of the trial (in the course of his speech in the House of Lords, Lord Scott described the contract claim as " untenable " given the absence of a written contract capable of satisfying section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (" the 1989 Act ").

The House of Lords reversed (although holding that the claimant should be reimbursed for the expenditure he had undertaken in obtaining planning permission). According to Lord Scott (giving the principal judgment) Cobbe had the " wrong sort of expectation " for proprietary estoppel purposes. It was not an expectation that, if planning permission was granted, he would become entitled to a " certain interest in land " (that being a reference to the speech of Lord Kingsdown in Ramsden v Dyson ). His expectation was that he would at some stage sit down with the defendants and agree the outstanding contractual terms which would then be incorporated into a written contract of sale along with the core financial terms that had already been (orally) agreed (§20). Accordingly, to the extent that the claimant had any expectation of a " certain interest in land " it was always a " contingent one ", contingent not simply on the grant of planning permission but also " on the course of the further contractual negotiations and the conclusion of a formal written contract " (§71).

Lord Scott went on to consider a line of cases in which a claimant had expended money on land on the basis of an " informal or incomplete agreement ", including the decision of the Privy Council in Humphrey's Estate . Having set out the passage set out above, he stated that " [ t]he reason why, in a 'subject to contract ' case, a proprietary estoppel cannot ordinarily arise is that the would-be purchaser's expectation of acquiring an interest in the property in question is subject to a contingency that is entirely under the control of the other party to the negotiations... The expectation is therefore speculative " (§25). While he accepted that a subject to contract reservation made in the course of negotiations could be withdrawn, that was nihil ad rem in the circumstances. No such reservation was needed to make an oral agreement unenforceable given the statutory requirement for a written contract. Mr Cobbe had not spent his money and time on the planning application in the mistaken belief that there was an enforceable agreement: he knew that the defendants were not legally bound (§27). Proprietary estoppel required " clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that the denial, or assertion, would otherwise defeat. " Unless those were recognised " proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so " (§28). Lord Scott went on to suggest that proprietary estoppel could not " be prayed in aid in order to render enforceable an agreement that statute [section 2 of the 1989 Act] had declared to be void "— equity surely could not contradict the statute (§29).

Lord Walker wrote separately. He began by sounding a warning note. While equitable estoppel was a " flexible doctrine " which the court could use " to prevent injustice caused by the vagaries and inconstancy of human nature ", it was " not a sort of joker or wild card to be used whenever the court disapproves of the conduct of a litigant who seems to have the law on his side. " Certainty was important in property transactions and equitable estoppel therefore had to be formulated and applied " in a disciplined and principled way " (§46). Noting that any formulation of the principle must, if it is to be comprehensive, " be expressed in such general terms as to give little idea of what it is really about ", Lord Walker undertook a survey of the authorities, ending with Humphrey's Estate , where, in his words , " the parties' knowledge that neither had any enforceable rights was fatal to the Government's claim to rely on equitable estoppel " (§61). While the Privy Council had placed some reliance on the use of the phrase " subject to contract " in the correspondence, that was simply a " routine acknowledgement " of what both knew very well in any event — that they were involved in a complex negotiation which might come to nothing. The government itself had been at pains to emphasise that it was not committing itself in any way and it could not be unconscionable for the developer to follow a course that the government had repeatedly insisted was open to itself (§62).

According to Lord Walker, it was not enough to hope, or even to have a confident expectation, that the person who has given assurances will eventually do " the proper thing " (§65). That point had been made most clearly in cases with a commercial context, of which Humphrey's Estate was the most striking example. Distinguishing between cases with a commercial context and those concerned with " domestic arrangements ", in the former category of case, the claimant was typically a businessperson with access to legal advice " and what he or she is expecting to get is a contract " (§68; original emphasis). In Cobbe , neither party (all very experienced in property matters) had regarded themselves as legally bound. That was, in Lord Walker's view " the simple but fundamental point " on which Mr Cobbe's claim failed: " as persons experienced in the properly world, both parties knew that there was no legally binding contract, and that either was therefore free to discontinue the negotiations without legal liability - that is, liability in equity as well as at law " (§91). The claimant " ran a commercial risk, with his eyes open " ( ibid ). The estoppel claim therefore failed.

In the course of his speech, Lord Walker also made some brief but important observations about the role of equitable estoppel in the context of commercial transactions. In his view, the courts below had stretched the boundaries of the doctrine of equitable estoppel too far in granting relief. In his opinion " the Court of Appeal's decision, if it were to stand, would tend to introduce considerable uncertainty into commercial negotiations, and not only in the field of property development ... Equity has some important functions in regulating commercial life, but those functions must be kept within proper bounds... " (§85).

Concerns about the uncertainty that may arise in the operation of the doctrine of proprietary estoppel, given its essentially discretionary nature (including as to remedy), have often been expressed, particularly but not exclusively in relation to commercial cases or cases involving property. [30] That concern was put powerfully - and colourfully - by Judge Weeks QC in Taylor v Dickens [1998] 1 FLR 806 , 820 (in a passage cited by Lord Leggatt in Guest v Guest ):

In any event, the distinction between claims involving family/domestic arrangements and claims arising from failed commercial transactions is an important one, which has obvious resonance here. Seeking to reconcile Cobbe with the later decision of the House of Lords in Thorner v Major (a typical family/domestic type case), one commentator has stated:

Essentially the same point was made by Lord Leggatt JSC in his judgment in Guest v Guest . Although in the minority on the issue of remedy in that appeal, that does not appear to me to undermine the force of his observations on this more general point. Lord Leggatt noted that Lord Neuberger, who had sat on both Cobbe and Thorner v Major , had addressed the distinction between the two cases in his speech in Thorner v Major , observing that in Cobbe the relationship between the parties was such that they could be expected to enter into a contractual relationship and they had in fact intentionally left their relationship to be negotiated on the understanding that neither was legally bound (§186). That was in contrast with the position in Thorner v Major , where the relationship was familial and personal and, in the context of that relationship, no contract could have reasonably been expected even to be discussed between them (§186). Observing that the leading speeches in Thorner v Major had emphasised the importance of assessing the relevant words or actions in their context, Lord Leggatt continued:

Here, of course, the parties (both substantial and experienced commercial operators, with ready access to legal advice) were involved in the negotiation of a complex and substantial commercial transaction on the agreed understanding that neither party would be bound unless and until a written agreement for lease was executed. That was a stipulation that both parties, through their solicitors, insisted upon. Furthermore, when ACE decided to go into possession, it knew that there was no concluded agreement for a lease. The High Court Judge found that Mr Plunkett clearly knew that to be the position, and it was in any event reinforced by the advice given to him by Mr Roe. ACE made a " commercial decision " to proceed but inherent in that decision was an awareness that it had no legally enforceable agreement for a lease and there was a risk that an agreement for lease would not be concluded.

Writing extra-judicially, Lord Neuberger has suggested that " before he can establish a proprietary estoppel claim, a claimant must show that he acted in the belief that he has something which can be characterised as a legal right - at least in a commercial arm's length context ". [32] If that is so, then clearly ACE's proprietary estoppel claim cannot succeed in the circumstances just referred to.

Whether, even in a commercial context, there is any rule precluding B from relying on any promise by A that B does not believe to be legally binding is questioned in McFarlane (§2.17). But even if that is correct as a general proposition (and Spencer Bower also states that there is no strict requirement that the promisee must believe (mistakenly) that he has a present right, though without adverting to the possible distinction between commercial and domestic cases: §§12.65-12.66), the fact that ACE proceeded against its own legal advice is, on any view, a hugely significant factor here. Furthermore, and generally, even if (as McFarlane states) " the elements of a promise-based proprietary estoppel claim are the same in both the domestic and commercial contexts ", the context is clearly critical to the application of the relevant principles and any suggestion otherwise simply cannot be reconciled with the authorities discussed above, particularly the decision in Cobbe .

As noted in Keane , virtually all of the Irish cases have been domestic/family type cases: see, by way of example, Smyth v Halpin [1996] IEHC 56 , [1997] 2 ILRM 38 , McCarron v McCarron (Unreported, Supreme Court, Murphy J, 13 February 1997), MF v JDF [2005] IESC 45 , [2005] 4 IR 154 , Naylor v Maher [2012] IEHC 408 and Finnegan v Hand [2016] IEHC 255 . As an exception to that pattern, the decision of the High Court in Bohemians Football Club v Albion Properties Ltd warrants particular attention.

The transaction at issue in Bohemians Football Club v Albion Properties Ltd was undoubtedly a significant property transaction (involving the proposed redevelopment of Phibsborough Shopping Centre and the relocation of Bohemians in order to facilitate such redevelopment). Negotiations had broken down and the defendant property developers sued for specific performance (on the basis that a concluded contract had been made) and, in the alternative, claimed that in the circumstances a proprietary estoppel arose in their favour. It appears from the judgment that, in their dealings, the parties had stipulated that any agreement was " subject to contract/contract denied " or " subject to agreement/agreement denied ". For the reasons set out in his judgment, Edwards J found that there was no concluded agreement: at 115-116. The basis for that decision appears to have been that there were outstanding terms that had not been agreed (and which could not be readily agreed). Surprisingly, the fact that the parties had apparently agreed that any agreement was " subject to contract " and that no agreement had been signed, does not appear to have been an operative factor in the court's analysis (notwithstanding that the court had been referred to Boyle v Lee ).

The court then turned to the proprietary estoppel claim. One might have anticipated that, in resisting that claim, the club would rely on the fact that the parties had negotiated on the basis that their dealings were " subject to contract " / " subject to agreement " and that, having agreed that they would be bound only if a contract was concluded, there was no scope for equity to intervene. However, no such argument appears to have been made. The defendants did, however, rely on a number of authorities which, they said, demonstrated that a finding of proprietary estoppel could properly be made in contractual cases, including for the sale of land, where the contract was unenforceable (by reason, for example, of the Statute of Frauds) or where the contract was incomplete (page 119).

The first of these cases was Yaxley v Gotts [2000] Ch 162 . It involved a transaction between friends which appears to have been negotiated informally and without reference to section 2 of the 1989 Act (remarkably, it was first mentioned on appeal). The Court of Appeal held that the oral agreement that had been made, though void as a matter of contract law (by virtue of section 2), could still give rise to a constructive trust (which, by virtue of section 2(5), were not affected by the section). But, as even that briefest of summaries makes clear, the facts in Yaxley v Gotts were very different to the facts here.

Next, there is Kinane v Mackie-Conteh [2005] EWCA Civ 45 . In that case, there was a written agreement to grant a charge over land for a loan which was unenforceable because it did not comply with section 2 of the 1989 Act. Again, the agreement had been negotiated directly between the parties, without the involvement of solicitors. Again, the Court of Appeal held that the mere fact that the agreement was unenforceable as a matter of contract did not exclude a finding of a constructive trust, provided all the components of proprietary estoppel were established. Notably, the court made it clear that, in a case of that kind, the claimant had to show (and did in fact show) that the defendant had represented to the claimant, by his words or conduct, including conduct in the provision or delivery of the agreement, " that the agreement created an enforceable obligation " (per Arden LJ, §29). Similarly, an essential feature of the case as far as Neuberger LJ was concerned was the fact that " [t]here was a common understanding between the parties that a certain relationship existed between them (namely that of mortgagor and mortgagee) " (§44). Again, it will be seen immediately that the facts here are different: the parties, and in particular ACE, did not understand that there was any enforceable agreement. It knew - and was advised - to the contrary.

The third and final case to which the High Court was referred was the decision of the Court of Appeal in Cobbe [2006] EWCA Civ 1139 , [2006] 1 WLR 2964 . That decision was subsequently overturned by the House of Lords. While the House of Lords gave its decision before Edwards J gave judgment in Bohemians Football Club v Albion Properties Limited , it appears that he was not aware of it (probably because the decision post-dated the hearing). In his judgment, Edwards J (at page 123) cites a passage from the judgment of Mummery LJ in Cobbe to the effect that " [e]ven the use of the expression 'subject to contract' would not ... necessarily preclude proprietary estoppel if the claimant established " a subsequent representation by the defendant " that he would not withdraw from the 'subject to contract' agreement or rely on the 'subject to contract' qualification " ( Cobbe , §57). But even if that was the applicable test, it would not avail ACE here, having regard to the High Court Judge's findings. But, as Lord Walker stated on appeal, " the simple but fundamental point " on which Mr Cobbe's claim failed was that " as persons experienced in the property world, both parties knew that there was no legally binding contract, and that either was therefore free to discontinue the negotiations without legal liability — that is, liability in equity as well as at law " (§91). That was the position here and, as was the case in Cobbe , ACE " ran a commercial risk, with [its] eyes open " ( ibid ).

Edwards J did not have the benefit of the House of Lords' analysis in Cobbe . It would not, of course, have been binding on him and neither is it binding on this Court. But, in my view, its reasoning is persuasive and, as will be evident from the discussion above, the approach adopted in it is, in my view, the approach that should be adopted here.

The High Court's judgment in Bohemians Football Club v Albion Properties Limited did not advert to the commercial context and, in upholding the defendants' proprietary estoppel claim, the court did not address the fact that the parties had evidently proceeded on the basis that there would be no enforceable transaction unless and until their agreement was incorporated into a written contract. The order made by the court effectively set out that shared understanding at nought. It is not evident to me that such an approach was justified on the facts of Bohemians Football Club v Albion Properties Limited .

In his judgment in these proceedings, Owens J expressed the view that " [t]he circumstances in which equitable principles replace the certainties of the law of contract in business transactions " were very limited and only " in exceptional circumstances " would equity " ripen a business arrangement which [was] not based on contract into a proprietary interest in land " (High Court Judgment, page 11). Later in his judgment, he emphasised the need for caution before, in pursuit of equity, taking steps which " may undermine well-established certainties of the law of contracts " (pages 43-44). While these observations were criticised by the Court of Appeal on the basis that they were uninformed by any analysis of the authorities, it appears to me that they are entirely consistent with principle and authority. Certainty is an important value in all property transactions (as this Court emphasised in Boyle v Lee ) and certainty and predictability in commercial transactions are also important interests.

The Judge recognised that there might be exceptional circumstances in which these interests might be outweighed but, on his assessment of the evidence, this was not such a case. His findings, particularly his characterisation of the assurances made by Motorpark to ACE as " vague assurances ", [33] were successfully impugned in the Court of Appeal and were again challenged in argument here. However, I cannot identify any basis on which those findings might properly be set aside, consistent with the well- established principles in Hay v O' Grady . It has not been demonstrated that the Judge overlooked or disregarded any material evidence in making the findings that he did. He referred extensively to the oral evidence given by Mr Plunkett and Mr Sutton as to what was said to them by Michael and Colin Barry. He had the advantage of seeing and hearing the witnesses and his findings as to the nature and character of what was said were informed by the findings he made about the surrounding circumstances (the point made by Lord Walker in Thorner v Major ). That is well-illustrated by what the Judge said at page 7 of his judgment: the essential point being made there is that the evidence did " not establish any convention or representation " that could estop Motorpark from relying on the lack of agreement in circumstances where (1) ACE had disregarded its own legal advice; (2) it knew that there was disagreement about the renunciation (or, as Owens J referred to it, the disclaimer) and (3) more generally it knew that no agreement had been concluded. That was the context in which the Judge characterised assurances that a lease had been " agreed " (which ACE knew was not the case) or " would be forthcoming " as " vague ".

The Court of Appeal was invited to set aside the findings of the High Court Judge on the basis of its review of the transcript - or, more correctly, selected extracts from the transcript - with particular emphasis on statements attributed to Motorpark to the effect that a lease was " all agreed " and/or " all done ". [34] But such parsing of the transcript is precisely the exercise deprecated by Hay v O' Grady . A number of different statements were attributed to Motorpark, capable of conveying different meanings and in any event none of the witnesses purported to have a verbatim record of what was said to them. No doubt, as the Judge accepted, ACE anticipated that an agreement for lease would be finalised in due course but took the risk that that might not happen (the " commercial decision " referred to by Mr Plunkett in his evidence).

In these circumstances, the Judge was entitled to find that, although ACE had acted to its detriment in undertaking the investment that it did in the Body Shop, as well as taking on the personnel previously employed by Motorpark, it had failed to establish any equity that the court should protect. Detriment is a necessary element of any proprietary estoppel claim but it is not sufficient in itself to establish such a claim. On the facts found by the Judge, it was not unconscionable for Motorpark to rely on its legal rights (the right to assert that it was not contractually bound to grant a 10-year lease to ACE) and Motorpark was therefore not estopped from asserting that it was not bound to grant such a lease to ACE.

Woulfe J departs from my analysis on this point. There are, I think, two particular points of difference between us. In the first place, I attach greater weight than Woulfe J would to the commercial context here, involving as it did the (intended) arm's-length negotiation of a commercial agreement for lease, with both parties represented by solicitors and both parties indicating that they did not wish to be bound to any contract unless and until written down and executed. The second point of difference relates to the High Court Judge's assessment of the assurances given to ACE as " vague ". I agree with Woulfe J that such a characterisation was not in itself a finding of primary fact. But it was an inference of fact drawn from the oral evidence that the Judge heard as to what was said, the circumstances in which it was said and the other evidence that the Judge heard as to the dealings between the parties. In my view, the Judge's assessment of these statements was " inextricably entangled " with his findings as to the circumstances and context in which they were made and understood and I therefore take a different view of the status of the High Court Judge's findings than my colleague.

I would therefore set aside the judgment and order of the Court of Appeal insofar as it upheld the proprietary estoppel claim.

I would add that, even if ACE had established an equity to be protected, a significant issue would arise as to the remedy granted by the Court of Appeal. The effect of that order was to require Motorpark to grant a 10-year lease to ACE, which was not subject to any renunciation clause. The issue of remedy was not discussed in any detail in the judgment of Whelan J, which appears to have proceeded on the basis that, once ACE succeeded in establishing an equity, it followed that Motorpark should be compelled to grant a lease to it. A notable feature of the Court of Appeal's order is that it was an order for specific performance in precisely the same terms as the order made on foot of ACE's contractual claim. But not even at the high-water mark of ACE's estoppel claim was it suggested that Motorpark had ever represented to ACE that it would grant a lease on such terms. On the contrary, the High Court Judge specifically found that ACE was aware that the issue of renunciation had not been agreed and that Motorpark had never made any commitment to grant such a lease or left ACE under the impression that it would (High Court Judgment, pages 35-36; also at page 6).

Given the fundamental importance of the renunciation issue, and the diametrically opposed positions of the parties on it, it is not readily apparent how any expectation-based remedy might have been fashioned here. Nor is it evident that, in the circumstances here, any expectation-based remedy would have been appropriate. That was, I expect, why the High Court Judge suggested that, if equitable relief had been appropriate, it would have related only to the period of notice appropriate to determine the legal relationship created by ACE's entry into possession (a licence according to Motorpark, a yearly tenancy according to the Judge). The rationale for granting such relief would presumably have been to allow ACE sufficient time to recoup its investment (that investment constituting its " detriment "). The same objective could have been achieved by a monetary award, assessed by reference to such investment costs.

The question of the proper approach to remedy in promised-based proprietary estoppel claims has much occupied judges and commentators alike in recent years. The issue is considered in detail in Biehler (at 1089) and also in a recently-published article by Mee, "Choosing the Remedy for Proprietary Estoppel" (2025) 9(2) Irish Judicial Studies Journal 20-53 (" Mee "). Both analyses are perceptive and valuable. Summarising the position disclosed by the Irish cases, Biehler states that

The leading Irish case is the Court of Appeal's decision in Naylor v Maher [2018] IECA 32 . Naylor was a family farm case. The deceased had promised to leave the family farm to the plaintiff, his son, who had worked on it for many decades for very low wages. The father did in fact make a will devising the farm to his son but before his death he made a new will, leaving the farm to the defendant, his daughter and the sister of the plaintiff but leaving €150,000 to the son. The son sued, unsuccessfully claiming duress and undue influence and successfully asserting an estoppel (curiously, referred to in the judgment as a claim based on " promissory estoppel "). The High Court judge directed that the plaintiff should be awarded the entirety of the lands (while also keeping the €150,000). The defendant did not appeal against the finding of a " promissory estoppel " but she did appeal against the order directing the transfer of the lands, contending that a proportionate satisfaction of the equity would have been to compensate the plaintiff monetarily for the amount he had lost by moving home to assist his father on the farm (there had been evidence that €163,000 represented that loss) or, in the alternative, the transfer of something less than the entire farm.

The Court of Appeal (per Peart J; Ryan P and Hogan J agreeing) upheld the transfer order, subject to requiring the plaintiff to disclaim the testamentary bequest. Peart J referred to the discussion in Snell's Equity (33 rd ed), §12-048 (repeated in the 34 th ed, at 12-049) which identified the two competing approaches (an order protecting the expectation of the promisee as the starting position, with a departure from that default position permissible only where such a disproportionate burden was on the promisor versus there being no assumption in favour of making good the expectation, with the extent of the reliance determined by the need to do no more than to ensure that the promisee does not suffer any detriment). However, he did not accept that it was necessary to make the " binary choice " represented by those differing approaches in order to achieve a just result for the plaintiff in accordance with equitable principles. The facts of each case would determine how that objective was to be achieved; it was not necessary " to shoehorn the Court's overall disposition of the case into one or other approach " (§13). Peart J agreed with the trial judge's assessment that simply recompensing the plaintiff in purely monetary terms would be a sufficient satisfaction of his claim: he had " altered the course of his life " by moving back to the family farm and that could not " be justly reflected in mere money terms " (§14; also §16).

That part of Peart J's analysis can be readily understood. However, he went on to state that the representations made to the plaintiff, and the reliance placed on those representations, amounted " to a contract which ought to be fulfilled. The deceased should be kept to his contract - 'pacta sunt servanda' " (§15). As Mee points out, there is an obvious difficulty with that reasoning: there was no contract and the deceased had no contractual obligations to the plaintiff (at 49). Otherwise, the plaintiff would have been entitled to a contractual remedy, one which would have been based on the value of the contractual promise to the plaintiff. Even where a contractual claim results in a monetary award (rather than a decree of specific performance), that award is assessed by reference to the benefits that would have flowed to the claimant had the contract been performed. That is a fundamental rule of contract law. However, in the absence of a contract , that rule would appear to have no application.

Such an approach to the identification of the appropriate remedy in proprietary estoppel claims - at least, those that are promise-based - would suggest that an expectations-based remedy is appropriate in virtually every case or, at a minimum, that such should be the starting position or default assumption. Yet Peart J appeared to reject such a " binary choice " earlier in his judgment and later stated that there will be other cases where the circumstances may suggest that it is just that the particular equity would be satisfied by a " pecuniary award " which, in its context, seems clearly intended to refer to a remedy assessed by reference to the detriment suffered by the claimant (§16).

On the facts, the outcome in Naylor v Maher is, perhaps, unsurprising. The plaintiff had committed his adult life to working the family farm on the strength of his father's promise that he would inherit it on his death. " Mere money " - even if assessed by reference to the value of the farm, as opposed to the value of the plaintiff's labour - would not satisfy his claim adequately. The facts here are, clearly, very different to the facts in Naylor v Maher . Overall, I do not read the judgment of Peart J as intended to lay down any broader principle than that the remedy is fact-dependent.

The issue of remedy in this context was considered in detail by the UK Supreme Court in Guest v Guest . There were significant differences between the approaches of Lord Briggs (with whom Lady Rose and Lady Arden agreed) and of Lord Leggatt (with whose judgment Lord Stephens agreed), reflecting divergent views " as to the appropriate value to which proprietary estoppel responds. " [35] As one Irish commentator perceptively observed, " both judgments take significant but very different views of the history of proprietary estoppel. One might say the distinction between the majority and the minority stem from taking a different view of history. " [36] The dispute as to history reflects a corresponding dispute as to purpose . For Lord Briggs the aim of the remedy is " to remedy unconscionability mainly by satisfying expectation " (subject to that remedy not being " out of all proportion to the detriment ") (§68) whereas for Lord Leggatt the " basal purpose " of the doctrine is to protect against detriment: the " equity is to be protected from detriment that [the promisee] will suffer if the promise is not kept " (§§188-190).

I do not propose to undertake any detailed analysis of their stimulating judgments here. Although Lord Briggs and Lord Leggatt would start from different assumptions or default positions as to what the appropriate remedy is likely to be in any given case, it was common case that there was no hard and fast rule and that the issue of a remedy should be approached by reference to the facts and circumstances of the individual case. While Lord Briggs considered that " the specific enforcement of the promise or assurance is the primary remedy for the unconscionability threatened or occasioned by its breach " (§5), he also acknowledged that a more limited remedy may be appropriate on the facts and that in some circumstances the appropriate remedy may be a monetary award as compensation for the detriment suffered. Conversely, while Lord Leggatt's starting point was that " the minimum award necessary to " avoid detriment was the appropriate remedy (§256) and, where the reliance loss is quantifiable in monetary terms, a monetary award compensating for such loss should be the presumptive remedy (§273), he equally acknowledged that justice may, in the particular circumstances of a given case, require enforcement of the expectation. That is, of course, a simplification of two sophisticated and nuanced judgments and tends to understate the real differences between the approaches of the majority and minority. [37] But it is certainly the case that there will be cases where the different approaches would nonetheless yield the same result.

There have also been significant developments in Australia, New Zealand and Canada which are discussed in Biehler . The authors commend the approach taken by the New Zealand Court of Appeal in Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 where the court eschewed any presumptive or prima facie approach one way or another and emphasised the need " to achieve a just and proportionate outcome " ( Biehler , at 1112-1113).

As Mee explains, there are different remedial models. No jurisdiction appears to have adopted either a pure expectation approach or a pure detriment approach. Some intermediate approach has been adopted in the various common law jurisdictions. Mee suggests that this jurisdiction has adopted the " non-committal approach " and suggests that, ultimately, the development of a satisfactory theoretical framework requires the court " to take some position on the role of expectation and detriment in the process of determining the remedy " ( Mee , at 50) (my emphasis).

That may well be so. Here, however, I have already found that ACE's proprietary estoppel claim fails. The issue of remedy does not therefore arise as an issue requiring determination on this appeal. Furthermore, the remedy issue was not debated to any significant extent on the appeal and is hardly touched upon in the judgments below. In these circumstances, it is not necessary, and does not appear to be prudent or appropriate, for the Court to embark on the difficult exercise that divided the UK Supreme Court in Guest v Guest and that has resulted in varying approaches being taken in other common law jurisdictions.

What is clear both from the (albeit) limited Irish jurisprudence, and from the approach adopted in other jurisdictions, is that the court has a discretion as to remedy: in every case, the court must make a judgment as to what is the appropriate remedy to grant, having regard to all the circumstances of the case. There is no rule either requiring, or excluding, an expectations-based remedy in all cases; equally, there is no rule requiring, or excluding, a detriment-based remedy in all cases. Nor does the caselaw appear to support any default or presumptive rule either way. Whether there ought to be such a rule (whether rigid or default) and, if so, what that rule should be, must await further debate in a case in which the issue requires determination and can be the subject of detailed submission.

Because of the difficulties in formulating any expectations-based remedy here, the circumstances point to a more limited remedy. The commercial context points in the same direction. Unlike the claimant in Guest v Guest (which, as its name suggests, was another family case, arising from the repudiation by the parents of the claimant of assurances given to him that he would, after a lifetime of underpaid work on their dairy farm, inherit a substantial interest in the farm), ACE is a commercial operator. The costs it incurred in going into possession of the Body Shop and setting up its outlet are quantifiable in principle, even if the evidence before the High Court did not permit the Judge to do so reliably. If it had been established that it was unconscionable for Motorpark to allow ACE to undertake that expenditure, a monetary award reflecting the expenditure would fully compensate ACE and adequately remedy such unconscionability. That would not, of course, provide ACE with any return on its investment but that is hardly the function of equity in this context.

However, any monetary award to ACE would have to reflect the fact that it has at this stage been in occupation of the Body Shop for 9 years. Furthermore, it is prima facie entitled to a new tenancy under the 1980 Act. The evidence here is that ACE was unwilling to accept a landlord break clause after 5 years because that was not a sufficient period to recover the investment costs of establishing a new ACE business. It has now had 9 years in which to recover those costs. The overwhelming likelihood is that it has by now fully recovered its investment costs (and more). Thus, even if ACE had succeeded on this appeal, it was very unlikely that the resulting remedy would have been of any value to it.

In any event, for the reasons I have set out, I would set aside the Court of Appeal's judgment and order, and, in the circumstances, the issue of remedy does not arise.

I shall summarise my principal findings briefly:

I would therefore allow Motorpark's appeal and set aside the Order of the Court of Appeal. I would give the parties an opportunity to be heard as regards the issue of costs.