Guest v Guest

LORD BRIGGS (with whom Lady Arden and Lady Rose agree)

1. “One day my son, all this will be yours”. Spoken by a farmer to his son when in his teens, and repeated for many years thereafter. Relying on that promise of inheritance from his father, the son spends the best part of his working life on the farm, working at very low wages, accommodated in a farm cottage, in the expectation that he will succeed his father as owner of the farm, to be able to continue farming there, and in due course to pass on the farm to his own children.

1. Many years later, father and son fall out. It does not matter who is to blame for the falling out, but they can no longer work together or even live in close proximity. The son has no alternative but to leave, to find alternative work and rented accommodation for himself and his family elsewhere. Meanwhile the father cuts him out of his will. The facts of this case differ from the above common example only because the father David Guest has two sons, Andrew and Ross as well as a daughter Jan. Andrew was not promised the whole of the farm (“Tump Farm”) as an inheritance, but only a sufficient (but undefined) part of it to enable him to operate a viable farming business on it after the death of his parents.

1. What if anything can the law do for Andrew? There is no contract between them which Andrew can enforce. The farm was not put into trust for the parents for life with remainder to be shared between Andrew, Ross and Jan. The Inheritance (Provision for Family and Dependants) Act 1975 is unlikely to assist Andrew because he can still earn a living. Anyway his parents may have many years to live. And the farmhouse is their home. Most people would think that Andrew has been very unfairly treated by his father, but many would also think it strange if the court were to require David to give Andrew a viable share of the farm now, when he had promised to do so only upon his and his wife’s death. Why should Andrew receive a share of the farm earlier than he had been promised it, because of a family dispute for which he may have been no less to blame (if blame is the right word at all) than his father?

1. Providing a remedy for Andrew is a task for which the courts have recourse to equitable principles. One of the principal functions of equity is to put right injustice to which the law is otherwise blind, by restraining the rigid application of legal rules where their implementation would be unconscionable. Two legal rules are engaged here. The first is that a promise is not enforceable unless it is made part of a contract. The second is that a person is free to change his will until he dies (or loses mental capacity to do so). David was, in accordance with those rules both free to renege upon his promise to Andrew, and to do so both by evicting him and then changing his will. But equity may in such circumstances provide the promisee (here Andrew) with a remedy if a promise has been made to confer property upon him in the future, (or an informal assurance that the property is already his) in reliance upon which he has acted to his detriment. The remedy is called proprietary estoppel. The word “proprietary” reflects the fact that the remedy is all about promises to confer interests in property, usually land. The perhaps quaint word “estoppel” encapsulates the notion that the equitable wrong which has been threatened or done is the repudiation of the promise where it would be unconscionable for the promisor to do. So the equitable remedy is to restrain, or stop or “estop” the promisor from reneging on the promise. The court may require the promise to be performed by the promisor or, if he has died in the meantime, by or at the cost of his estate. It may in limited circumstances affect successors in title of the promisor to the relevant property.

1. Equitable remedies are generally more flexible than those afforded by the common law and they are always discretionary. The very notion of the specific enforcement (or performance) even of a contractual promise is equitable in origin. It exists to fill the lacuna in the common law remedy of damages, where the nature of the underlying property is such that damages would be an inadequate remedy. But there is no cause of action for damages for breach of a non-contractual promise. Equity is not in this context merely providing an ancillary remedy in support of a common law cause of action, for which damages is the primary remedy. Under the doctrine of proprietary estoppel the specific enforcement of the promise or assurance is the primary remedy for the unconscionability threatened or occasioned by its breach.

1. Nonetheless there have been many cases where the court has recognised that full specific enforcement is not the appropriate remedy. The promise may be incapable of specific enforcement, for example where the underlying property is no longer in the hands of the promisor or his estate. The promised date for performance may lie so far in the future, or the date may be so unpredictable, that an order for performance on the promised date would be too insubstantial as a remedy. Or the early enforcement in full of a promise which, although repudiated, is years away from the due date for performance may give the promisee too much, or something radically different from that which was promised. The promisor may have other powerful equitable or moral claims on his bounty, so that the appropriation of the whole of the promised property to meet the claim of the promisee may be unjust to those other claimants, and be more the cause of unconscionable conduct than a remedy for it. Finally the magnitude of specific enforcement in full may be so disproportionate to the detriment undertaken by the promisee that something much less than full specific enforcement is needed to clear the conscience of the promisor.

1. These real-life difficulties (and those outlined above are only a few examples) have come to mean that in the field of proprietary estoppel equity is regarded as being at its most flexible in terms of remedy. Furthermore the lack of any necessary or even likely equivalence between the value of the expectation generated by the promise and the burden of the detriment undertaken in reliance on it has led, during the last 25 years, to a fundamental divergence of view about which, as between satisfying the expectation and compensating for the detriment, is or rather should be the true underlying aim of the remedy. The divergence is best understood, at the academic level, by reading Elizabeth Cooke’s The Modern Law of Estoppel (2000) and Ben McFarlane’s The Law of Proprietary Estoppel, 2^nd ed (2020). It is mentioned by Robert Walker LJ in Jennings v Rice [2003] 1 P & CR 8, by Dyson LJ in Cobbe v Yeoman’s Row Management Ltd [2006] 1 WLR 2964, by Lewison LJ in Davies v Davies [2016] 2 P & CR 10 and by Floyd LJ in the Court of Appeal in the present case [2020] 1 WLR 3480. It even continued on the internet during the hearing of this appeal. It has been complicated by the well-known but often misunderstood dictum of Scarman LJ in Crabb v Arun District Council [1976] Ch 179, 198 that the court’s remedy in that case was “the minimum equity to do justice”. Mr Tom Dumont KC for the Appellants placed this dictum in the forefront of his submissions, describing it as the golden thread which explains the nature and purpose of the remedy.

1. I shall in due course examine some of the many authorities to ascertain whether they answer this supposed conundrum. Relief on the ground of proprietary estoppel is a purely judge-made remedy, so that the assistance from authority is, if available, likely to be compelling. That said, the dicta mentioned above do not suggest that the search is likely to be a short or simple one. But it is worthwhile first to look at the problem from the perspective of first principles, free from authority. As I have already said, the remedy afforded under the label of proprietary estoppel is there to eliminate, or at least mitigate, the affront to conscience constituted by a decision by the maker of a non-contractual promise or assurance about property upon which the recipient has relied to their detriment to go back on it. Although part of the same doctrine, I can leave aside the cases about the informal assurance of a supposed existing right, because this case is about a promise of a future interest, no more and no less.

1. The equitable “wrong” (if that is the right word) is not the making of the promise in the first place. In almost all the cases, and certainly this one, the promise was genuinely made, in complete good faith, typical of the relations between a farmer and his eldest son, and it was adhered to over more than 25 years. Nor is the detrimental reliance to be classified as harm in any conventional sense. It is usually (and was in this case) something freely and willingly undertaken in the expectation of the fulfilment of the promise, not being daily counted as a cost, still less resented at the time when it was being incurred. Nor is it something which can necessarily or even usually be valued. In the present case, as in many where the promisee is a young person who gives up other career opportunities to work for their parents on the family farm, a measure of the supposed wages differential to date, coupled with interest, will not begin to recognise the improvement in life which further education, an independent career and the opportunities to develop their own farming or other business might have generated. A modest home, bought on an 80% LTV mortgage twenty-five years ago could itself now be worth hundreds of thousands of pounds, because of the meteoric rise in property prices.

1. Nonetheless the detriment is relevant to both the arising of the equity and to the remedy. Without reliant detriment there is simply no equity at all. This reflects the notion that it is the reliant detriment which makes it unconscionable for the promisor to go back on his promise. Detriment is relevant to remedy because a slavish enforcement of the promise may be so completely disproportionate to the detriment that it goes much further than necessary to put right the unconscionability inherent in the repudiation of the promise. A simple example will suffice. Suppose that a disabled 50 year old person with no expectation of an early death secures a commitment by her carer to look after her at very low wages for the rest of her life, on the assurance that she will inherit her large mansion. But she dies only three months later, without making a will to give effect to her promise. Plainly some compensation less than the mansion would be sufficient to remedy any unconscionability.

1. But the harm caused by the repudiation of the promise is not the same as the detriment. That lies entirely in the past. It cannot be undone and is in no sense caused by the repudiation, or by any wrong at all (unless the original promise was dishonest, in which there would be a cause of action in deceit). In a case like the present the harm consists of the soul-destroying, gut-wrenching realisation of being deprived, and then actually being deprived over the rest of a lifetime, of an expected inheritance of land upon which the promisee has spent the whole of his life and work to date and which, in due course, he expected to be able to pass on to one or more of his own children, making the same promise to them as his father made to him. Again that cannot necessarily be valued with any reliability, not least if (as here) the expectation of inheritance still lies mainly in the future at the time when the promise is repudiated. Discount for the accelerated receipt of a future benefit is an imperfect tool, as has been vividly demonstrated in the field of personal injuries litigation.

1. It is true that the common law courts have developed a formidable armoury for valuing or monetising harm (and for present purposes even detriment) in comparable circumstances, and even for treating some kinds of what a lay person would easily recognise as harm as being too remote on policy grounds. So if the only difficulty in identifying compensation for detriment or fulfilment of expectation as the true purpose of proprietary estoppel was difficulty in quantification in monetary terms, that might perhaps not be insuperable, at least from the perspective of the common law. Quantifying the detriment might generally be harder than valuing the expectation, but that would not of itself be a sufficient ground for preferring one over the other, certainly as a general rule, not least because those difficulties are likely to be widely different in particular cases. Even in an individual case a perception that one was much easier to quantify than the other would not of itself be a sound basis for concluding that it was therefore the more just. Furthermore the expectations typically generated by this kind of estoppel are, in part because they are always about property and usually land, not generally susceptible to being fairly reduced to monetary terms unless that is truly unavoidable. That is why equity grants specific performance of contracts concerning land rather than damages for breach, even if the value of the land can be reliably ascertained. In that respect neither is the detriment fairly capable of being monetarised, when it consists of decisions about education, training and career which (as here) have life-long consequences. The expectation of being a farmer for life may or may not be more valuable in money terms than being a plumber, but neither is a fair substitute for an expectation of the other, and nor is their monetary equivalent.

1. In my view the notion that the problems about framing an appropriate remedy in proprietary estoppel cases can all be solved by identifying either compensation for detriment or fulfilment of expectation (or in default compensating for its loss by a monetary award) as the true purpose of the remedy, is misconceived. The true purpose, as recognised by the Court of Appeal in the present case, is dealing with the unconscionability constituted by the promisor repudiating his promise. It is wrong to treat the unconscionability question as limited to the issue whether or not an equity arises, and then to leave it out of account when framing the remedy. Concern about disproportionality between expectation and detriment is not the only one of the many real-life problems that have made the framing of an appropriate remedy so difficult in many cases. Nor is the beguiling application of “minimum equity” necessarily a just solution. The suggestion is that the court separately values the expectation and the detriment and then chooses whichever is the cheaper for the promisor: see Robertson: The reliance basis of proprietary estoppel remedies [2008] Conv 295. Scarman LJ had nothing like that in mind in Crabb. His dictum was not minimum equity, but minimum equity to do justice. In this context justice means remedying the unconscionability identified in the promisor’s repudiation of his promise.

The Authorities

1. The principles applicable to proprietary estoppel have never been before the Supreme Court, and only twice in recent times before the House of Lords, in Cobbe v Yeoman’s Row [2008] 1 WLR 1752 and Thorner v Major [2009] 1 WLR 776. Neither yields rich pickings for a reasoned understanding of the principles governing the identification of appropriate relief to satisfy the equity once established. Cobbe v Yeoman’s Row was primarily about whether proprietary estoppel had any role to play in an arms-length commercial subject to contract relationship where one party incurred expense on a speculation that a binding contract would eventually be entered into, but from which the other resiled. The claim failed in limine in the House of Lords, so that the question of appropriate remedy never arose. Besides containing the well-known dicta of Lord Walker of Gestingthorpe about the need for certainty in property transactions and the need for principle rather than uncontrolled judicial opinion as to the morality of the parties’ conduct, a bare recognition of the debate between detriment and expectation as the basis for relief, it offers nothing more by way of a solution.

1. The main significance of Thorner v Major was to rescue proprietary estoppel from what some commentators thought had been a fatal blow delivered to it by Cobbe. It displays strong similarity of type with the present case, since it was about the disappointed expectation that a farmer (“Peter”) would leave his farm on his death to the son of his cousin (“David”), on which David had worked full-time but for no payment for many years. The House of Lords restored the judge’s order that David should receive the whole of the farm, animal stock and equipment on the farmer’s death. There was no valuation of, or compensation for, David’s detriment, although the judge concluded that, without needing a precise valuation of the detriment, his expectation of inheriting the whole farm was not disproportionate to it. The decision may have rescued proprietary estoppel from an unintended early demise, but the House saw no need to reinvent it or recast the underlying principles as they had been developed by the courts of equity over more than a century.

1. If nothing else Thorner v Major demonstrates how factual differences within the same type of case may make all the difference to a perception about the justice of the outcome, and therefore the difficulty of laying down rules or principles applicable even to cases of a particular type, let alone across the wide field covered by proprietary estoppel. In particular there was no falling out between Peter and David. Peter had provided fully for David’s expectation in his will, but then destroyed it only because it also contained a legacy to someone else, of which he had repented. He was warned of the consequences of intestacy but died before making a new will, and David got nothing. The critical difference with the present case was that the time for fulfilment of the promise did not lie in the future at the time when David discovered that it had been repudiated. There were therefore no problems arising from early receipt and potential injustice to the promisor and his other dependants from the imposition of a clean break lifetime remedy which complicate the present case. Nonetheless both the expectation and the detriment were of very similar kinds to those in the present case. Yet the judge plainly started from a disposition to satisfy David’s expectation rather than calculate and then compensate for the detriment, and this was not criticised as an error of principle by the House of Lords. A “minimum equity” point was raised as a ground of appeal but not, as far as can be seen from the judgments, seriously argued.

1. There being no decisive treatment of the present issue by the highest court, the student is thrown upon the confused waters of a large body of non-binding but persuasive authority in the Court of Appeal and below, with the (in the event) less than compelling assistance of the parallel learning of other common law jurisdictions. The repeated judicial statements that they contain no conclusive resolution of the question which, of satisfying expectation or compensating for detriment, is the purposive bedrock of the equitable jurisdiction to grant appropriate relief does not mean that they can therefore just be passed by. As Floyd LJ said in the Court of Appeal, this may be because neither is.

1. It is instructive to look first at some of the antecedents to what is now called proprietary estoppel, since the jurisdiction did not suddenly spring up, fully fledged, in the 20^th century. There are much earlier cases which, although sometimes classified under different legal headings, are based upon remarkably similar fact types. The first is illustrated by the attempted application in Loffus v Maw (1862) 3 Giff 592; 66 ER 544 of the principle laid down by the House of Lords in Hammersley v De Biel (1845)12 Cl & F 45; 8 ER 1312 that where a person induces another to act upon the faith of a representation, then he will be compelled to make it good. The plaintiff was a young widow who was induced to care for the needs and home of an elderly and very unwell uncle for nothing more than pocket money by the promise that he would leave her specified interests in real property in his will, verified three years before his death, and on her threatening to leave, by her being showed a codicil to that effect. Sixteen days before he died he made a further codicil giving the same property to his son, cutting the plaintiff out altogether. The plaintiff claimed, in the alternative, the specific enforcement of the promise (i.e satisfaction of her expectation) or compensation by way of proper remuneration for all her work (i.e compensation for her detrimental reliance). Sir John Stuart VC gave her the former.

1. This early precursor of proprietary estoppel proved to be stillborn, because Loffus v Maw was overruled by the House of Lords in Maddison v Alderson (1883) 8 App Cas 467, on the ground that, in order to found a cause of action based on detrimental reliance, the representation in question had to be about an existing fact, not a promise of future conduct. The unsuccessful plaintiff had worked for many years without wages as housekeeper for Alderson, on the faith of a promise that he would leave her his house in his will, fortified by his showing her his signed but unfortunately not properly executed will to that effect. He therefore died intestate. The House of Lords considered whether the facts satisfied the doctrine of part performance, but held that her conduct was not sufficiently referable to a contract by Alderson to transfer his house to her. The case is best remembered as the classic exegesis of the (now abolished) equitable doctrine of part performance, under which the claimant’s right to the promised property lies not in the contract itself, which is void under the Statute of Frauds, but “upon the equities resulting from the acts done in execution of the contract” (per Lord Selborne at p 475). Those acts are generally a form of detrimental reliance, but the relief normally consists of fulfilment of the plaintiff’s expectation rather than compensation for her detriment.

1. The same single-minded determination to satisfy an equitable claim by reference to expectation rather than detriment is found in Dillwyn v Llewelyn (1862) 4 De G F & J 517, a case now widely regarded as an early precursor of proprietary estoppel, but treated by Lord Westbury LC as analogous to part-performance of an ineffective contract. A father invited his younger son to take a farm of his and build a house on it, producing a document of purported transfer which was ineffective for the purpose because it was neither a contract nor a deed. The son built a house on the farm for £14,000, following which his father died without ever perfecting his intended gift. His will did not provide for the plaintiff to inherit the farm. But the House of Lords satisfied the son’s equity, derived from his detrimental reliance, by an award of the fee simple, whereas the Court of Appeal had granted him only a life interest. The cost of the detriment was known to the last penny, but compensation for it did not form the basis of the remedy. Nor did it in the classic case about the doctrine of estoppel by acquiescence, in Lord Kingsdown’s famous dictum (while dissenting, but not on this point) in Ramsden v Dyson (1866) LR 1 HL 129, 170:

   “If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.”

An alternative remedy consisting of refunding the money laid out did not even come a poor second.

1. Expectation was preferred to detriment again when Ramsden v Dyson, and Lord Kingsdown’s dictum, was applied by the Privy Council in Plimmer v Wellington Corpn (1884) 9 App Cas 699, but there was express recognition of the flexibility of the remedy, and of the alternative possibility of compensating for the detriment incurred in making expenditure on another’s land: see per Sir Arthur Hobhouse at pp. 713-714. He cited Unity Joint Stock Mutual Banking Corpn v King (1858) 25 Beav 72 as an example, where the landowner had not intended or suggested that the expenditure on the land by his sons should lead to the conferring of a proprietary interest upon them. They were declared to have a lien on the land for the recoupment of their expenditure upon it. This appears to be a case where there was no reasonable expectation greater than that to satisfy.

1. The early cases which deal with proprietary estoppel under its now customary name demonstrate a similar assumption that expectation is the main driver of the remedy. That is probably why it was thought fit to call the remedy a form of estoppel, even though a cause of action rather than merely a defence. The earliest of the well-known modern cases is Inwards v Baker [1965] 2 QB 29. A son was encouraged to build a bungalow on his father’s land, with the expectation that it should be his home for as long as he wished. After the father’s death his executors claimed to be able to terminate the son’s licence. The case was therefore a direct descendant of Dillwyn v Llewelyn, Ramsden v Dyson and Plimmer v Wellington, all of which were relied upon by bothLord Denning MR and Danckwerts LJ. It was the latter who called the remedy a form of equitable estoppel (at p 38). In his view the purpose of the remedy was to protect the promisee from injustice. But Denning MR was characteristically more specific. At p 37 he said:

   “All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do.”

The son’s expectation was specifically enforced. He had been living rent free in the bungalow for 34 years by the time of the appeal and his father had paid half the £300 cost of its construction. There was nonetheless no attempt to evaluate and then compensate for the net continuing detriment (if any, because even at those days’ prices rent free occupation for over 30 years seems quite a good quid pro quo for the payment of £150), nor any suggestion that this was the purpose of the remedy. The recognition by the Court of Appeal that equity enjoyed a flexibility as to remedy was treated as enabling the best means to be provided for the fulfilment of the expectation.

1. Lord Denning MR and Danckwerts LJ gave the leading judgments in the next case: E R Ives Investments Ltd v High [1967] 2 QB 379. This was factually distinct from those already discussed, since the detrimental reliance consisted of the defendant building a garage on his own land on the faith of an understanding, encouraged by his neighbour’s predecessor in title, that he enjoyed a right of way to it across his neighbour’s land. Unfortunately the supposed right of way was, in law, ineffective against the successor in title because of inter alia non-registration, although the successor had been informed about it at the time of purchase. It was a case of a genuinely defensive use of an estoppel or, as Lord Denning MR called it, at p 394, “equity arising out of acquiescence”. The remedy had by then been labelled proprietary estoppel by the editors of Snell’s Equity, 26^th ed (1966), pp 629-633 and Danckwerts LJ was content to give that name the court’s first official blessing, at p 399. For present purposes all that needs to be noted (apart from Snell’s observation, at p 633, that “the doctrine thus displays equity at its most flexible”) is that again the promisee received specific enforcement of his expectation, and that there was no mention made of compensation for detriment.

1. Crabb v Arun District Council [1976] Ch 179 falls into much the same fact-set as Ives v High. The plaintiff, in the expectation encouraged by the defendant council that he would be given a right of access to his land over the defendant’s neighbouring land, sold off part of his land so as (to the defendant’s knowledge) to leave the retained part with no means of access other than by means of the expected easement. The defendant then blocked up the route of the expected easement leaving the plaintiff’s retained property landlocked. The plaintiff lost at first instance but duly received the expected easement by way of proprietary estoppel from the Court of Appeal, in which Lord Denning MR was joined by Lawton and Scarman LJJ. The case is memorable for Lord Denning’s robust but perhaps less than fully reasoned affirmation that proprietary estoppel can be used as a cause of action. At p 187 he said:

   “When Mr Millett (later Lord Millett), for the plaintiff, said that he put his case on an estoppel, it shook me a little: because it is commonly supposed that estoppel is not itself a cause of action. But that is because there are estoppel and estoppel. Some do give rise to a cause of action. Some do not. In the species of estoppel called proprietary estoppel, it does give rise to a cause of action.”

Academic writers have been puzzling over that explanation ever since but it has stood the test of time. It is not in dispute, nor material to this appeal.

1. Much more important for present purposes is Scarman LJ’s famous observation about “minimum equity to do justice”, which now calls for serious examination. Fortunately the case is very fully reported. In opening the appeal Mr Millett QC made it clear that his client’s expectation was not that the easement would be provided for nothing in return. Rather he submitted that the loss sustained by having his land sterilised by being landlocked for a time (in fact for five or six years) should be set off to the extinction of any requirement for payment for the easement: see pp181-182. Lord Denning accepted that submission in terms, at p.189-190. Scarman LJ did so as well, but in more detail, at pp. 198-199. The basis of the analysis, both in Mr Millett’s submission and in the judgments of Lord Denning and Scarman LJ, was how best and most fairly to fulfil, but not to exceed, the plaintiff’s expectation. It had nothing at all to do with compensating for the detriment as an alternative to fulfilling the expectation, still less choosing in any particular case the cheaper (or more minimalist) alternative, as between the two. The true “detriment” in that case was the sale-off by the plaintiff of part of his land in a way which left the remainder landlocked without the promised easement. The true harm caused by the defendant’s repudiation was not a few years’ obstruction of an easement to which in equity the plaintiff was already entitled (which was the subject of the set-off) but the permanent sterilisation of part of the plaintiff’s land by the denial of the easement in perpetuity. That was not itself valued, and the remedy awarded was specific enforcement of the expectation, not compensation for the detriment or harm. Lord Scarman’s “minimum equity” dictum appears in the following passage, at pp. 198-199:

   “I turn now to the other two questions-the extent of the equity and the relief needed to satisfy it. There being no grant, no enforceable contract, no licence, I would analyse the minimum equity to do justice to the plaintiff as a right either to an easement or to a licence upon terms to be agreed. I do not think it is necessary to go further than that. Of course, going that far would support the equitable remedy of injunction which is sought in this action. If there is no agreement as to terms, if agreement fails to be obtained, the court can, in my judgment, and must, determine in these proceedings upon what terms the plaintiff should be put to enable him to have the benefit of the equitable right which he is held to have.”

This analysis is all about fine-tuning the fulfilment of the expectation of the promisee, and nothing to do with valuing and then compensating for the detriment, while denying him the expectation.

1. This expectation-based approach is hardly surprising. The authorities to which the Court of Appeal had regard included Ramsden v Dyson, Plimmer v Wellington, Inwards v Baker and Ives v High. As I have sought to demonstrate, they are almost single-minded in their pursuit of the enforcement of expectation. None of them would have given Scarman LJ any inkling that compensating for the detriment, as an alternative to satisfying or enforcing the expectation, had anything to do with the remedy of proprietary estoppel. Nor, for completeness, would Duke of Beaufort v Patrick (1853) 17 Beav 60, to which Scarman LJ referred during argument at p 182. Attempts since then to use “minimum equity” as a sort of mantra for that purpose are in my view misconceived, and would have left that distinguished judge very surprised at such misuse.

1. The earliest case of compensation for detriment as a remedy by way of proprietary estoppel which I have found appears to be Dodsworth v Dodsworth (1973) 228 EG 1115. The plaintiff persuaded her brother and his wife (who had just returned from Australia and were looking for somewhere to live) to come and live with her in her bungalow on the basis that they could use it as their home for as long as they wanted. They spent about £700 on improvements. The cohabitation lasted only a few months, after which the parties fell out and the plaintiff sued them for possession. The County Court judge held that an equity had been established but, because the specific enforcement of the defendants’ expectation would force then to live with the plaintiff under the same roof while they were at loggerheads, a more just solution would be to order the plaintiff to refund their expenditure, so that they could use it on another property. The defendants appealed and the plaintiff then died. The Court of Appeal also considered them entitled to an equity, and recognised that the obstacle which had prevented the judge from fulfilling their expectations had disappeared on the plaintiff’s death. But the court held that the conferral on the defendants of a life interest would make them tenants for life under the Settled Land Act 1925 which would give them statutory powers (including a power of sale) which far exceeded their expectations. So they were given a right to possession until repaid their outlay. This was not because compensation for detriment was regarded as the purpose of the remedy, but only because the court thought that an expectation-based remedy could not be awarded in a way which would not have been in excess of their real expectation.

1. The same problem arose in Griffiths v Williams (1977) 248 EG 947, but with an outcome that fully vindicated the promisee’s expectation. Mrs Williams had lived for many years in a house belonging to her mother, in the expectation encouraged by her mother that she would inherit a life interest in it. Her mother had so provided in a will, and Mrs Williams has spent about £2,000 on the house, partly in running repairs and partly in improvements. Her mother then changed her will, cutting out Mrs Williams altogether. After her mother’s death Mrs Williams was sued for possession. Reginald Goff LJ asked, at p 948:

   “What is the equity? That must be an equity to have made good, so far as may fairly be done between the parties, the representation that Mrs Williams should be entitled to live in the house rent-free for the rest of her life”

   He then (with the parties’ consent) neatly avoided the Settled Land Act problem by providing for her to have a long lease at a nominal rent determinable on her death. But he made this comment, at p949, about the Dodsworth case:

   “But it seems to me that Dodsworth v Dodsworth proceeded upon the basis which I have spelt out of Crabb’s case – that the third problem (i.e. remedy) is one of discretion: the court ought to see, having regard to all the circumstances, what is the best and fairest way to secure protection for the person who has been misled by the representations made to him and subsequently repudiated”

For my part I would readily accept that the remedy is discretionary, but “the best and fairest way to secure protection” for the promisee begs the question: protection from what? Crabb’s case is clear authority for an expectation-based form of protection, at least as a starting point.

1. A dispassionate observer of those two cases might think that the real distinction between them (once the plaintiff in Dodsworth had died) lay not so much in the ability of the Court of Appeal in Griffiths to navigate a safer route around the Settled Land Act, but in the very large difference in the period during which the promisees relied on the promises made. It goes far beyond the idiosyncrasies of particular judges to regard reliance during the best part of the promisee’s working life as creating a much stronger case for the fulfilment of expectation than a few months spent as a lodger on return from abroad. If there is some kind of spectrum between expectation and detriment as the basis for relief based upon the length of the period of detrimental reliance, then the length of that period in the present case must surely lie at the expectation end of the spectrum.

1. Pascoe v Turner [1979] 1 WLR 431 is the first of the cases cited in this appeal in which Scarman LJ’s “minimum equity to do justice” dictum appears to have been elevated into a guiding principle. It is a direct descendent of Dillwyn v Llewelyn, and the outcome was the same. The plaintiff and the defendant lived together as man and wife in a house bought by the plaintiff. When their relationship was breaking down due to the plaintiff’s infidelity he assured the defendant that the house was hers and everything in it. She then spent sums on improvements which were objectively modest but substantial for her. He had by then left but, later, sued her for possession. The Court of Appeal awarded her the house outright, together with the contents, by way of remedy for proprietary estoppel. It was a full specific enforcement of her expectation and rejected her alternative lesser claim for a life interest. After reviewing the authorities from Dillwyn v Llewelyn to Crabb v Arun Cumming-Bruce LJ said this, at pp 437- 438:

   “So the principle to be applied is that the court should consider all the circumstances, and the counterclaimant having at law no perfected gift or licence other than a licence revocable at will, the court must decide what is the minimum equity to do justice to her having regard to the way in which she changed her position for the worse by reason of the acquiescence and encouragement of the legal owner.”

It is clear from the court’s review of her detrimental reliance that the award in her favour was worth more by many orders of magnitude than any value which could have been placed upon her detriment. Indeed the court regarded a life interest or outright ownership as the only real alternatives and gave heavily fact-dependent reasons for preferring the latter, even though it was of course worth much more than the former. It is certainly a good example of the discretionary approach to a remedy designed primarily to satisfy expectation, and a clear demonstration that, even using the “minimum equity to do justice” dictum as a principle, (which in my view it was not intended to be) “minimum” plainly does not mean cheapest.

1. It is therefore not at all surprising to find, three years later, one of the greatest equity judges, Oliver J (later Lord Oliver of Aylmerton) treating as uncontroversial the following summary by counsel of the remedy of proprietary estoppel in the following terms, in Taylors Fashions Ltd v Liverpool Victoria Trustees Co. Limited [1982] QB 133, at 144:

   “if under an expectation created or encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection by him, [A] acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation.” (my italics).

This found its way into the 31^st Edition (2005) of Snell’s Equity, at para 10-16, as “the most important and authoritative modern statement of the doctrine” subject to a health warning about the need for the remedy to be proportionate to the detriment, and satisfaction of the expectation not being an invariable requirement. That summary was duly adopted as his guidance by the deputy judge Mr John Randall QC at first instance in Thorner v Major [2008] WTLR 155, para 5, and his judgment was eventually upheld by the House of Lords.

1. Another case in which there was a need to avoid forcing warring parties into cohabitation was Burrows v Sharp (1991) 23 HLR 82. The appellant, a long-term council tenant, had managed to exercise her right to buy the freehold of her house by securing the financial assistance of her grand-daughter and her husband (the respondents) on the basis that they would pay the necessary mortgage and look after the appellant’s handicapped daughter after the appellant’s death, and inherit the house. They also planned to extend the house and moved in with their children to live with the appellant and her daughter. The extension had not been built by the time the relationship broke down within a year of the move, not least because of the serious overcrowding involved. The County Court judge made what the Court of Appeal described as a complicated but wholly unworkable order which sought to provide for their continued cohabitation. In the end, after a detailed analysis of the insuperable obstacles in the way of satisfying the respondents’ expectations, and a review of Crabb, Dodsworth and Griffiths, Dillon LJ made an order for refunding the respondents’ expenditure. They had fortunately not parted with their own council flat, to which they were able to return. So they were not left homeless. He summarised the very difficult remedial task in this way, at p 92:

   “It is often appropriate to satisfy the equity by granting the claimant the interest he or she was intended to have. If that is not practicable however, the court has to do the best it can. In general it would, if possible, want to avoid giving the claimant more than he was ever intended to have.”

That case illustrates a number of the problems which have led the court to depart from specific enforcement of the promised expectation. They included the need to avoid enforced cohabitation, in the present case called the need for a clean break, the fact that the promise had been repudiated well before the benefit was to be conferred (on the appellant’s death) and the very short period during which the reliant conduct had occurred. It was also relevant that the reliant respondents had not burned their boats, and could return to their own flat. But the problems do not have appeared to have included a concern that the expectation was disproportionate to the detriment. It almost certainly was, but that was not treated as an obstacle to an expectation-based remedy. Still less was compensating for the detriment treated as the aim of the equitable remedy.

1. The order of the Court of Appeal in Baker v Baker (1993) 25 HLR 408 is sometimes regarded as an example of a detriment-based remedy. In fact it was the opposite. The plaintiff was a 75 year old man who contributed £33,950 to the purchase of a house for his son and daughter-in-law, on the basis that he would be given a room there in which to live for the rest of his life. The relationship failed within a year, and the plaintiff moved into council accommodation. The trial judge rejected his claim to a resulting trust interest but ordered repayment of his outlay as a remedy for proprietary estoppel. The defendants appealed on the basis that this was much more than his expectation interest was worth. Agreeing, the Court of Appeal ordered his expectation interest to be valued and paid, by a majority ruling that there should be no discount for the fact that the plaintiff had found somewhere else to live at public expense. No one suggested that the parties could be expected to continue to live together. It was therefore a case in which the promisee received a monetary proxy for his expectation interest. There is a useful analysis by Beldam LJ at p 415 of the “minimum equity to do justice” dictum in Crabb, in which he concludes:

   “I would not interpret Lord Scarman's remarks as suggesting that in a case in which a plaintiff's equity could only be satisfied by a monetary award, that the court necessarily had to place the minimum value on the disappointed interest.”

Thus the reduction in the plaintiff’s monetary remedy was not because expectation was, in that case, cheaper than compensation for detriment, but because the expectation was the true and maximum measure of the equity.

1. The penultimate 20^th Century English authority to which I need to refer is Walton v Walton (unreported) 14 April 1994. It is a farming case with considerable similarities with the present, at a high level of generality. The promise by mother to son was that the son would inherit her farm. It was first made when he was a teenager, and he devoted many years labour to the farm at very low wages before the mother retired. The main differences, which made the question as to remedy much easier than here, are that although the mother and son had fallen out during her lifetime she had died by the time of the trial, and there was no other family member with relevant expectations in relation to the farm which had been promised to the son. There were, in short, none of the obstacles in the way of the full expectation-based remedy ordered by the Court of Appeal of the type which make the present case so difficult. The case is of value because of the brief statement of principle about the purpose of the remedy by Hoffmann LJ. At para 11 he said:

   “The plaintiff’s claim is based upon equitable estoppel. That sounds very technical but the principle is really quite simple. Ordinarily the law does not enforce promises unless they have been made formally under seal or as part of a contract. Mrs Walton’s promise was not, of course, made under seal and for reasons which I shall explain in a moment, I do not think that it was part of a contract. So if there was nothing more than the promise, she would have been free to change her mind. It would have been a matter for her conscience and not the law. But the position is different if the person who has been promised some interest in property has, in reliance upon it, incurred expense or made sacrifices which he would not otherwise have made. In such a case the law will provide a remedy. It can take various forms. It may order the maker of the promise to pay compensation for the expense which has been incurred. It may make payment of compensation a charge on the property. Or it may require the promise to be kept. The choice of remedy is flexible. The principle on

   which the remedy is given is equitable estoppel. As Oliver J put it in Taylor Fashions Ltd. v Liverpool Trustee Co. Ltd [1982] 1 QB 133, 151, [1981] 1 All ER 897, the question is -

   ‘whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment.’”

In the event the court ordered the mother’s executors to keep her promise in full. There was no attempt to value either the expectation or the detriment, still less to choose the cheaper as the “minimum equity”.

1. In Sledmore v Dalby (1996) 72 P & CR 196 Mr and Mrs Sledmore allowed their daughter Jacqueline and her husband Mr Dalby use of an unoccupied house which they owned, initially at a modest rent but, after Mr Dalby lost his job and Jacqueline contracted cancer, rent-free, and on the basis that it would one day be theirs by inheritance. The Dalbys then spent a significant amount on improvements. Mr Sledmore did make a will leaving the property to Jacqueline if she survived her mother, but she did not. After Mr Sledmore died, his widow sought possession of the house for her own use, her existing home being precarious due to disrepair and a large mortgage. By that time Mr Dalby had little use for the property, spending two nights there a week and living mainly with a new partner at her home, while again employed. But he successfully resisted the possession claim at first instance, on the basis of proprietary estoppel.

1. The Court of Appeal ordered him to leave. The court was palpably offended at the injustice of his conduct in insisting upon his supposed equity at a time when he hardly needed the property while his mother-in-law, in straightened circumstances, plainly did. Roche LJ (with whom Butler Sloss LJ agreed) held that Mr Dalby had to be content with something less than his full expectations, that his equity had expired and that in the changed circumstances there was nothing unconscionable in Mrs Sledmore seeking possession. While agreeing, Hobhouse LJ also made reference to recent dicta from Australia (to which I will return) in support of an additional conclusion about the need for proportionality between the remedy and the detriment. He said at p 209 that:

   “This is to say little more than that the end result must be a just one having regard to the assumption made by the party asserting the estoppel and the detriment which he has experienced.”

1. This decision seems to me, on its facts, to have been a very proper application of the fundamental principle of unconscionability, and at the correct time, namely when the promisor seeks to repudiate the promise. The facts of the case show vividly that it will not always by then be unconscionable to do so. But the introduction of a supposed general requirement for proportionality between the remedy and the detriment was entirely new in English law. Although not part of the ratio of Sledmore v Dalby, it soon proved to be a fast-growing seed. The irony is that, as will appear, it did not flourish in its country of origin.

1. From the beginning of the current century the cases come thick and fast, as do the academic writings. I intend to consider seven of the cases, as appearing to be the most relevant to the present task. But it is first worth pausing to see what a distinguished academic, Professor Elizabeth Cooke, thought was the animating principle or aim behind the choice of remedy, in England at least, in her book The Modern law of Estoppel (2000). Her view was that despite the dicta in Australia relied upon by Hobhouse LJ in Sledmore v Dalby (to which I shall return) the long-standing tendency of the English courts had been to frame relief on an expectation rather than detriment basis, save where practical considerations made that impossible, impracticable or manifestly unjust. An expectation-based remedy would typically be specific enforcement of the promise, but it might take the form of a monetary equivalent, for example where the promised property had already been sold, as in Wayling v Jones (1995) 69 P & CR 170. My own examination of the pre 2000 authorities leads me to the same conclusion.

1. Gillett v Holt [2001] Ch 210 marks the arrival on the scene of England’s most significant living judicial contributor to this debate, Lord Walker of Gestingthorpe, then Robert Walker LJ. It was a farming case in which a wealthy landowner Mr Holt took the plaintiff (who was not a family member) under his wing in his mid-teens, trained him to be the resident manager of his farm and later encouraged him to expect that he would inherit it. They fell out after the plaintiff had lived and worked there for over 25 years, and Mr Holt sought to dismiss and remove him, also cutting him out of his will. As in the present case the litigation was fought while Mr Holt remained alive, and while therefore the plaintiff’s proprietary expectation of inheritance remained in the future. But there was no problem of cohabitation at the farm, since Mr Holt had long since ceased to live or work there. The plaintiff failed at trial on promise and detriment but succeeded in the Court of Appeal. In relation to detriment his success was significantly based on what Robert Walker LJ said was the judge having taken a “too narrowly financial a view of the requirement for detriment” (p 235). In the event the plaintiff received an expectation-based award, consisting of a mixture of the freehold farmhouse, freehold farmland and monetary compensation for his expectation interest in the remainder of the farming business, in that aspect to achieve a clean break with Mr Holt and his new protegee. There does not appear to have been any attempt to monetarise the detriment, to consider whether it was proportional to the expectation, or to frame a detriment-based remedy.

1. The treatment of the remedy issues is too fact (and tax) specific to yield much express dicta about the underlying principles, but Robert Walker LJ did refer to the need to consider all the circumstances, and to the “minimum equity to do justice” dictum in Crabb. He alsointroduced his analysis of proprietary estoppel with this summary, at p 225:

   “…the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”

All in all Gillett v Holt represents no departure from the tendency of the English courts to prioritise an expectation-based approach to remedy, as firmly established by the turn of the century, over the previous century and a half.

1. The same cannot be said of Jennings v Rice [2003] 1 P&CR 8. This was a classic “one day all this will be yours” case, in which the claimant looked after an elderly widow Mrs Royle on what became an unpaid basis, as a live-in carer tending for her every need, all in the expectation which she encouraged that he would inherit all or part of her large house valued on her death at £420,000 and its furniture, worth £15,000. The judge awarded him £200,000, on the basis that he needed only £150,000 to buy himself a suitable house, and that the sum awarded was a fair estimate of the cost of full-time nursing care for the relevant period.

1. The claimant appealed, unsuccessfully, on the ground that the basic rule was that a proprietary estoppel equity could only be satisfied by making good the expectation. After a review of the authorities, including Sledmore v Dalby, Aldous LJ said, at para 36:

   “There is a clear line of authority from at least Crabb to the present day which establishes that once the elements of proprietary estoppel are established an equity arises. The value of that equity will depend upon all the circumstances including the expectation and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.”

On the way to that conclusion he nonetheless rejected, as forming any part of English law, the notion that compensating for the detriment was the aim or purpose of the award: see para 30. I must confess to some surprise that proportionality between remedy and detriment should have been regarded by Aldous LJ as “the most essential requirement” in the framing of the remedy. It had never previously been so described, during the more than 150 years during which, on broadly comparable facts, the courts of equity had been applying and developing this essentially flexible jurisdiction. And the only prior English recognition of it was in the concurring judgment of Hobhouse LJ in Sledmore v Darby which did not form part of the ratio of the case, borrowed from Australian obiter dicta which advocated a different point (namely that the aim of the remedy is to protect against detriment) and which have not stood the test of time, even in Australia.

1. Robert Walker LJ agreed but added his own analysis.At para 44 he said:

   “The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search, because (as appears from both the English and the Australian authorities) proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurances which give rise to the claimant’s expectations and the extent of the claimant’s detrimental reliance on the assurances. The doctrine applies only if these elements, in combination, make it unconscionable for the person giving the assurances (whom I will call the benefactor, although that may not always be an appropriate label) to go back on them.”

   Turning to the remedy he continued (from para 45) with an analysis of the distinction between, on the one hand, an understanding little short of contract in which the expectation and the detriment have been clearly defined, where a full expectation-based remedy would usually be appropriate and, on the other hand, a case where the expectation is genuine but not clear, where the fulfilment of the highest expression of it may only be a starting point. In a later lecture he said that he would have preferred to use the concept of a spectrum between those extremes. Speaking of the “minimum equity to do justice” dictum in Crabb, he said, at para 48:

   “Scarman LJ’s reference to the minimum does not require the court to be constitutionally parsimonious, but it does implicitly recognise that the court must also do justice to the defendant.”

   He concluded at paras 50-51:

   “ To recapitulate: there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. I have already referred to the typical case of a carer who has the expectation of coming into the benefactor’s house, either outright or for life. In such a case the court’s natural response is to fulfil the claimant’s expectations. But if the claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognise that the claimant’s equity should be satisfied in another (and generally more limited) way.

   But that does not mean that the court should in such a case abandon expectations completely, and look to the detriment suffered by the claimant as defining the appropriate measure of relief. Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant’s expectations.” (my italics).

1. Robert Walker LJ deprecated any detailed computational approach to valuing the detriment. After illustrating an Australian example, he continued, at para 54:

   “That illustrates the Australian preference for compensating the reliance loss only. Under English law that approach may sometimes be appropriate (see paragraph 51 above) but only where, on the facts, a higher measure would amount to overcompensation. In my view it would rarely if ever be appropriate to go into detailed inquiries as to hours and hourly rates where the claim was based on proprietary estoppel (rather than a restitutionary claim for services which were not gratuitous). But the going rate for live-in carers can provide a useful cross-check in the exercise of the court’s discretion.”

   Finally at para 56 he said this about proportionality:

   “The essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result, and a disproportionate remedy cannot be the right way of going about that.”

No one would disagree with the notion that a remedy must be proportionate to the harm. But in the present context that begs the question whether the harm is the detriment or rather (as I think) the loss flowing from the repudiation of the expectation. Nonetheless by that means the seed of proportionality has become firmly embedded in the English law of proprietary estoppel.

1. Ottey v Grundy [2003] EWCA Civ 1176; [2003] WTLR 1253 is an example of a case in which the proportionality principle (by then binding as part of the ratio in Jennings v Rice) was applied in the framing of a remedy. The claimant had cared for a Mr Andreae during a loving relationship of three years’ duration, but promises that she would inherit his apartment in Jamaica and house-boat on the Thames were made only two years before they broke up. Mr Andreae died about a year later. The trial judge awarded the claimant the Jamaica flat (with £50,000 in lieu) plus another £50,000 out of an expectation which he valued at £250,000. He found, without valuing the detriment but noting its short duration, that the expectation and the detriment were out of proportion. The main issue in the appeal was whether the claimant should have received anything, but she cross-appealed for a larger share of her expectations. Both the appeal and the cross-appeal failed.

1. In the circumstances I would propose to adopt a rate of 2% above base rate, which is still a very conservative rate of return to assume.

1. Using the spreadsheet which Andrew’s legal representatives have helpfully provided, I calculate that, at this rate of return, the additional loss attributable to Andrew being kept out the money that he would have earned in another job is £342,162 at the date of handing down this judgment. Adding this to the principal sum of £267,748 and rounding the result to avoid a spurious impression of precision, yields an estimated total financial loss of £610,000.

1. Overall assessment

1. The final question is whether it is appropriate to add to (or reduce) this figure in arriving at the overall award.

1. I have already considered, and rejected, the submission made on behalf of the parents that their own low drawings from the farming partnership or the low wages paid to their other son, Ross, give rise to any countervailing equity. For their part, counsel for Andrew submitted that, in addition to financial loss, Andrew suffered substantial non-pecuniary harm by relying on his parents’ assurances that he would succeed to Tump Farm which should be reflected in the compensation awarded. They cited a statement of Lewison LJ in Habberfield v Habberfield [2019] EWCA Civ 890, para 60, that: “one must not lose sight of the fact that, as the judge found, the three decades of her life that [the claimant] spent on the farm are not susceptible of quantification.” They submitted that the same is true for Andrew in the present case.

1. Although in one sense undoubtedly true, statements that detriment has been incurred which is not susceptible of quantification do not seem to me helpful in a case such as this where the remedy being granted is a purely monetary one. In such a case, if it really is the position that a form of detriment cannot be assigned any monetary value, then the consequence must be that no money can be awarded for it. More in point, in my opinion, is the observation of Lewison LJ in Davies v Davies, para 67, that:

   “… since it is now common ground that the ultimate award will be a purely monetary one, we must do the best that we can. In different situations the court is often called upon to award compensation for non-pecuniary losses, and the difficulty of assessment is no bar to an award.”

1. In this case there seem to me to be two main forms of non-pecuniary loss suffered by Andrew. One, which I have already mentioned, is that in another job he would not only have had more money to spend but probably also more leisure time. In so far as that is true, however, it is taken into account in the calculation made, which rewards what might be called delayed gratification through a compound return on the principal sums awarded. The second form of non-pecuniary detriment is emotional harm from having built his life on an expectation of inheriting Tump Farm which has been disappointed.

1. The object of the present assessment is to work out what compensation is required to put Andrew, so far as money can do it, into as good a position as if he had made a career away from Tump Farm from a much younger age. In that event, he would not have had to undergo a fundamental change of situation at this stage of his life. I accept the submission made on Andrew’s behalf that his sense of who he is and where he belongs must have been profoundly shaped by living and working at Tump Farm for 25 years between 1990 and 2015 in the expectation that it would become his farm and would always be his home. Having to rebuild his life when he was nearly fifty years old is likely to have caused corresponding feelings of dislocation and distress.

1. This is a detriment which in principle a court can take into account in assessing compensation. I would not, however, increase on this basis the amount of money awarded in this case. This is for four reasons.

1. First, it is inherently difficult to separate feelings of dislocation and distress at having to rebuild his life from other harm for which no compensation can be recovered - for example, the anger and sense of betrayal that must have accompanied the disappointment of Andrew’s expectations and breakdown in relations with his parents and brother and the stress and anxiety involved in this litigation: both of these are adversities for which the law offers no remedy.

1. Second, unlike the trial judge who was immersed in the facts of the case and heard the witnesses give evidence, an appeal court is poorly placed to evaluate the extent to which Andrew has suffered feelings of dislocation and distress at having to rebuild his life. People differ widely in their response to major life changes of this kind. In any such evaluation it would also be relevant to consider whether Andrew may have enjoyed some non-financial benefits from living and working at Tump Farm over the relevant period which would not have been replicated in another job and which would need to be weighed on the other side of the scales. Again, this court is not in a position to assess this.

1. My third reason for not attempting such an assessment is that the feelings of dislocation and distress which Andrew must have suffered should be seen in the context that he has managed to rebuild his life away from Tump Farm.

1. Fourth, awarding £610,000 in financial compensation can be expected to go a long way towards alleviating feelings of dislocation and distress at having to rebuild his life. It should give Andrew and Tracey enough money to buy their own home and enjoy reasonable financial security when they retire. Counsel for the parents emphasised evidence given by Andrew in his witness statement that:

   “I worked incredibly long hours at Tump Farm for 32 years … I have nothing to show for that. If I had left the farm at 16 by now Tracey and I would probably own our house outright and we would probably have savings. As things stand, we have no house or savings.”

An award of £610,000 should be enough to repair that loss. Doing so should bring with it the satisfaction for Andrew of knowing that at least he has not laboured in vain.