Certainty of assurance and of property in proprietary estoppel

In Thorner v Major ([2009]UK HL 18) David Thorner worked without pay on the farm owned by his father’s cousin Peter Thorner. Peter was a man of few words but it was found as a fact that he had given assurances to David that he would inherit the farm. These assurances were in very vague terms but it was found as a fact that in the context of the personalities and relationship involved they were clear enough and had been understood and relied on. Peter died without leaving a will. David claimed the farm on the basis of proprietary estoppel. The House of Lords focused on two issues. First, was there a clear assurance. Second, was there sufficient certainty as to the identity of the property?

The Court of Appeal had decided against David on the basis that the assurance lacked clarity. The House of Lords rejected this.  Lord Hoffman said:

‘It was enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon.’

The assurance must be ‘clear enough’. It did not have to be clear, precise and unambiguous (per Lord Roger of Earlsferry). Especially when the assurance is oral or to be implied from behaviour then the question as to whether it was clear is a question of fact and is highly context-specific. The first instance judge had found as a fact that Peter had indicated that David would have the farm and also that it was reasonable for David to have understood and relied on Peter’s assurances.

The second question concerned certainty of property. Over the years, the precise identity of the farm had changed from time to time; some land had been sold and other land had been bought. This did not defeat David’s claim:

‘In this case, the extent of the farm might change but .. there is, as I see it, no doubt as to what was the subject matter of the assurance, namely the farm as it existed from time to time .. As in the case of a very different equitable concept, namely the floating charge, the property the subject of the equity could be conceptually identified from the moment the equity came into existence, but its precise extent fell to be determined when the equity crystallised, namely on Peter’s death.’ (per Lord Neuberger of Abbotsbury).

This is not like a case of a commercial agreement where more precision might be expected.

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