Introductory Thoughts:
The second article in this series; an exploration on Lord Justice Denning, which will now focus closer on his significant contributions into the profession. In addition to an overall summary of his life, this article will now centre around Denning’s development of promissory estoppel. The doctrine of promissory estoppel is an element of contract law, where a promise is binding but not made with any consideration. Whilst it has certain prerequisites to be enforceable, Lord Denning developed such a doctrine in order to fill the gap between the strict rules of consideration and the social requirements of the 20th century.[1] The change in the law came after the popular ‘High Trees’ House of Lords case,[2] where Denning unveiled the equitable doctrine into the legal sphere. This article will aim to define such an important doctrine, as well as discussing the meaning behind its introduction and why Denning played such a crucial role in its establishment.
How was the Doctrine of Promissory Estoppel Developed?
As a general rule, for a contract to be legally binding it must possess all of the essential elements. This includes the doctrine of consideration and it can be defined as a promise made by each party to that contract to do something. It may be of monetary value or it could be an action to be performed. From the case of Currie v Misa [1875],[3] it can be deduced that consideration should provide a benefit to the promisee, to the detriment of the promisor. However, the development of the doctrine of promissory estoppel was in response to the lack of justice deriving from a promise not being honoured, due to lack of consideration for that promise. Lord Justice Denning recognised such a concern in the High Trees case, where the claimant would not have been able to receive their full payment, nor the excess in arrears owed. It was important for Denning to ensure that parties should be prevented from going back on promises made, despite an inadequate amount of consideration. It was following this case that the doctrine of promissory estoppel was developed. Whilst the courts did not want to be overly involved, cases where it was more difficult to find appropriate consideration were to be covered under this new doctrine.[4] Lord Denning stated that the law will ‘refuse to allow the party making it to act inconsistently with it’. There always comes a balance to be struck by the courts between involvement with promises versus involvement with a legally binding contract. Denning sought to determine each in order to satisfy justice.
How can Promissory Estoppel be Established?
Promissory estoppel as an equitable doctrine does not necessitate consideration of either party. In order for this to be the case, the promisor must have made a clear and unambiguous promise, as well as the promisee relying on said promise. The reliance must be reasonable and foreseeable, and the promisee mush have suffered due to the reliance.[5] Lord Denning’s main aim was for social justice to become the forefront of any contract made, where a promise would be enforced, irrespective of the rigid common law rules. This was demonstrated in Hughes v Metropolitan Railway Co,[6] where the rules of High Trees[7] were enforced, emphasising ‘a flexible alternative to the difficult common law rules’, clarified by Pierce.[8]
Subsequent Cases – Redefining the Doctrine?
Denning aimed to redefine and clarify the doctrine in later cases. Whilst it initially appeared that the doctrine could become a complete replacement for consideration, it has now been determined that this is not the case. Equity would not allow for such a change and conflict with the common law in this instance. In the case of D & C Builders,[9] the court stated that promissory estoppel was not without boundaries. As an equitable alternative, it cannot be used offensively or ‘as a sword’. In addition to this, both the High Trees[10] and Combe[11] case stated that promissory estoppel could not give rise to action alone. There is an argument to suggest that this should in fact not be the case – proprietary estoppel does not have this restriction, therefore questioning this one. It is stated that there is little difference between giving consideration and acting on the basis of a promise, however, this is the format of the law currently. The doctrine intended to prevent the defendant from denying that the contract existed and to promote a remedy in the instance that the claimant was misled. However, promissory estoppel has most definitely achieved the aim of promoting justice for more individuals and parties like Denning intended. On the other hand, perhaps a mid-20th century case may need some modernisation.
Denning’s Key Role and The Future…
Denning has clearly played an essential role in the development of the doctrine of promissory estoppel. There are various schools of thought and ideas about the doctrine that unfortunately cannot all be discussed in one article. However, the main idea to remember is that of the reason why Denning established this doctrine in the first place. It was for the people; by the people’s judge; for the most amount of justice possible. The way Denning has defined such a change is known as ‘a fusion of common law and equity’, which he discussed in depth in the High Trees case.[12]
It is largely unclear what the future will hold for the doctrine of promissory estoppel. Some would argue that the doctrine should completely replace consideration, whereas others believe that consideration within a contract generally still has a significant role to play. It would be wise to research wider to come to your own conclusion. Following reading this article, we recommend if you are interested and have not yet read the High Trees judgment[13] to do so. It is particularly informative and highlights Lord Justice Denning’s clear contributions to the change in the law.
This concludes the second article in the series ‘An Exploration of Lord Justice Denning’. Stay tuned for the final instalment!
[1] Lord Denning, ‘The Discipline of the Law’ (Butterworths, 1979) page 203. [2] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. [3] Currie v Misa [1875] LR 10 Ex 153. [4] Robert Pierce QC, ‘A Promise is a Promise: Central London Property Trust Ltd v High Trees House Ltd’ https://radcliffechambers.com/wp-content/uploads/2019/11/A_promise_is_a_promise.pdf Accessed 06/06/2021. [5] https://uk.practicallaw.thomsonreuters.com/1-518 6318?transitionType=Default&contextData=(sc.Default)&firstPage=true Accessed 04/06/2021. [6] Hughes v Metropolitan Railway Co [1877] 2 AC 439. [7] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. [8] Robert Pierce QC, ‘A Promise is a Promise: Central London Property Trust Ltd v High Trees House Ltd’ https://radcliffechambers.com/wp-content/uploads/2019/11/A_promise_is_a_promise.pdf Accessed 06/06/2021. [9] D & C Builders [1966] 2 QB 617. [10] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. [11] Combe v Combe [1951] 2 KB 215. [12] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. [13] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130.
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