Liberating Minerva’s Owl: The (ir)relevance of s2 LP(MP)A 1989 to Estoppel Claims

Bevan, Chris

Abstract

The relationship between s2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989) and the doctrine of estoppel has long been a thorny issue; a lingering canker that has bedevilled an otherwise flexible, popular and productive equitable doctrine and one which has frequently been the subject of articles and case notes in this journal and others. This article, coming in the wake of the important judgment in Howe v Gossop (2021), draws on this latest pronouncement on the interplay between estoppel and s2 as an opportunity to revisit and re-emphasise the argument that s2 does not and should not have any relevance to proprietary estoppel. It contends that, while the sensible approach of Snowden J in Howe is to be welcomed, the judgment does not go far quite enough in finally settling the status of estoppel under the LP(MP)A 1989. Rather, it is argued here, that, building on the judgment in Howe, the time has at last come to eschew the unhelpful prevarications over how estoppel can be made to fit within the terms of the 1989 legislation and to acknowledge that the doctrine operates entirely outside the statutory framework. The article proceeds in 4 parts. Part 1 reflects on the relevance of s2 LP(MP)A 1989 to the doctrine of estoppel before a second part examines how, to-date, the courts have grappled to rationalise the often difficult relationship between the two. Part 3 explores the recent case of Howe v Gossop and the extent to which it can be seen as ironing out and rationalising the previous authorities on the issue before a closing Part 4 argues that, building on the approach in Howe and examining the policy underlying the 1989 Act, this is the moment to settle the issue decisively and, to reference Lord Hoffmann and Lord Neuberger’s elegant examination of the doctrine, time to conclusively free Minerva’s owl by recognising that s2 has no relevance at all to estoppel claims.

Citation

Bevan, C. (2021). Liberating Minerva’s Owl: The (ir)relevance of s2 LP(MP)A 1989 to Estoppel Claims. Conveyancer and Property Lawyer, 85(4), 381-400

• Journal Article Type: Article
• Acceptance Date: Oct 13, 2021
• Online Publication Date: Dec 1, 2021
• Publication Date: 2021-12
• Deposit Date: Oct 13, 2021
• Publicly Available Date: Dec 1, 2022
• Journal: The Conveyancer and Property Lawyer
• Electronic ISSN: 0010-8200
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 85
• Issue: 4
• Pages: 381-400
• Public URL: https://durham-repository.worktribe.com/output/1233113
• Publisher URL: https://www.sweetandmaxwell.co.uk/Product/Conveyancing/Conveyancer-and-Property-Lawyer-The/Journal-and-Hardback/30820564