estoppels

Estoppel is a doctrine of law to prevent or bar some assertion of fact or law by party. Estoppel applied when two statements present a contradiction with the result that the earlier is taken as the truth. An application of the doctrine prevents a defendant setting up the true set of facts (namely represented by its change of position), and force the defendant to accept the set of facts as represented by him.

Effect of Estoppel

Therefore, estoppel precludes a person from asserting something contrary to what is implied by his or her previous action or statement or by a previous judicial determination concerning that person. Put another way, and generally speaking, when parties proceed on a common assumption of either fact or law, neither of the parties will be permitted to go back on the common assumption arising from the representation when it would be unfair or just for him to do so. Whether or not the common understanding arises from a mistake or misrepresentation is immaterial.

Types of Estoppel

There are a number of types of estoppel in English law.

1. Estoppel in pais, which is subdivided into estoppel by representation and estoppel by representation. Estoppel in pais is generally considered to comprise equitable forbearance and proprietary estoppel.
2. Promissory estoppel.
3. Estoppel by convention.
4. Estoppel per rem judicatam has two forms: cause of action estoppel and issue estoppel; the doctrine of merger applies to English judgments but not foreign judgments.

Broadly speaking, estoppels operate to set up a state of facts that play a central role in altering what would otherwise be the legal rights of the parties, as the rights of the parties are judged by a different set of facts. The relevant estoppel may be used to set up a cause of action, provide a defence to a cause of action or have some other decisive effect on evidence causing a claim to succeed or fail.

Shield and Sword

In England, it is often said that estoppel may only be used as a shield to a claim rather than as a sword. This is a reference to nature estoppel, in that it is a rule of evidence that prevents a party asserting facts that either give rise to a claim or allow a party to defend a claim. This is not to say that estoppel cannot be used either offensively or defensively, that is by either a defendant or a claimant.

If an estoppel has been made out, a court will prevent the estopped party adducing or relying on evidence which contradicts the truth of the representation. In this way, the legal rights of the parties and consequences thereof are judged by the facts represented, and not in accordance with the true state of affairs.

The exceptions to the general rule are proprietary estoppel and equitable forbearance, which grant substantive rights and may be used as a sword. Moreover, some commentators suggest that the two forms of estoppel per judicatam are not estoppels at all. Whether or not they are is a moot point, as the affect of these types of estoppel are well understood under the principles of res judicata.

Different Forms of Estoppel

The common factors to the different forms of estoppel are:

1. A representation. The requisite form of representation varies from estoppel to estoppel. Sometimes a statement of fact or required sometimes mere belief or promise and in fewer instances, silence or other passive conduct.
   
   In some instances a clear and unequivocal representation is required, in the sense that it is reasonably understood in by the person to whom it is addressed, so that the addressee was not left in any doubt as to the meaning. Thus the representation may be required to be unqualified, precise and unambiguous, in circumstances where it is unlikely that addressee would have interpreted them differently. There is authority to say that the representation does not have to have only one interpretation, provided that the meanings other than that relied upon by the claimant is far-fetched and strained.
   
   Identifying or ascertaining a representation discharging the requirements of the form of estoppel relied usually presents the most difficulty in establishing a cause of action.
2. Reliance upon the representation.
3. A causative link between the representation and the person asserting that an estoppel ought to apply in the circumstances: the innocent party must have acted differently as a result of the representation.
4. That reliance caused material detriment, if the correctness of the representation is denied.

The different forms are estoppel: 

1. by deed;
2. by representation;
3. by convention.

Promissory estoppel operates so as to prevent a person making a promise which was intended to be relied from going back on that promise.

Also, proprietary estoppel operates as a proprietary remedy, allowing a successful claimant to trace through to the assets deprived the claimant was deprived of. Each of (1) issue estoppel and (2) cause of action estoppel apply in the context of legal proceedings so as to prevent disputes being re-litigated, and stand apart from the above forms above.