John Mitchell Spencer and his son, Michael, had farmed land together since 1983 when Michael was 19 years old. Michael claimed that his father had assured him that he would inherit the land on his father's death and in two earlier wills, John had indeed left all his freehold land and buildings to Michael.

However, on 26 March 2018, John executed a will in which all the freehold land and buildings were left to a discretionary trust, on the basis that the land would be held for the benefit of John's children, and would ultimately pass to his grandchildren in equal shares after they had attained the age of 30.  John died on 18 October 2018.  

Michael argued that he had acted, to his detriment, in reliance on the assurances given by his father such that it would be unconscionable to allow his father to renege on that assurance. In short, Michael claimed that he was entitled to have the farmland transferred to him on the basis of the doctrine of proprietary estoppel.

What is proprietary estoppel

There are three main elements to this type of proprietary estoppel claim:-

  • an assurance by one person, B, whether by words or inferred from conduct, that another person, A, either has or is going to be given a right in or over B’s property;
  • reasonable reliance on the assurance by A; and
  • detriment to A in consequence of that reasonable reliance.

If A is able to establish all these elements, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief. The assurance must be: (a) reasonably understood by A to be unambiguous and intended to be taken seriously; (b) that A will acquire a proprietary interest in the specified property owned, rather than merely a job, role or responsibility; and (c) equivalent to a promise, although it does not need to be irrevocable.

There must then be a sufficient link between the assurance and the conduct of A which constitutes the detriment. The issue of detriment is judged at the moment when B decides to repudiate his assurance and it is then for the court to decide whether the repudiation of the assurance was conscionable or unconscionable in all the circumstances.

The Findings of the Court

The Assurances

The Court found that statements were made on many occasions to Michael by John that Michael would inherit the farm. There was a "quasi-bargain" between John and Michael that if Michael worked hard and committed himself to the farm, John would leave him the land they were farming. These assurances were serious and were used by John, sometimes as a threat or inducement, to ensure that Michael stayed committed to the farm and did not take alternative opportunities.

Detrimental Reliance:

Michael had always wanted to be a farmer and had good other reasons to stay on the farm. But there is no doubt that the assurances were a significant inducement to stay on the farm, to work hard and bend to John's will, especially in light of a difficult working relationship between father and son. Michael devoted himself to the farm and worked extremely hard. The constant theme of his father's assurances was that the hardship Michael endured would be to his benefit in the future, because the farm would one day be his.

While Michael enjoyed substantial fiscal benefits as a result of his hard work and commitment, it was not possible to put a money value on the unquantifiable detriment of committing a life to a farm and not building a different life, nor to recreate a world without the assurances.


From the date of the repudiation of the assurances (being the date of John's death), it was unconscionable in all circumstances for the assurances to be repudiated. Michael had done what was asked of him and there was no change of circumstances justifying the repudiation of the assurances.

Therefore, in the end, the Court found in favour of Michael. The provisional remedy pronounced was the transfer of the farm to Michael.

Warning regarding Witness Statements

Michael's success was despite the strong criticism made in the judgment regarding the witness statements given by the his solicitor. The statements were given in relation to events that took place shortly after John's death and were important to assessing when the claim of assurance was first raised by Michael.

The following principal problems with the solicitor's witness statements were highlighted:

(1) The statements contained confirmation in the form required by paragraph 4.1 of Practice Direction 57AC, that the statements only set out the solicitor's personal knowledge and recollection, in his own words. When he was called as a witness, the solicitor confirmed that both his witness statements were true to the best of his knowledge and belief. But in cross examination, he clarified that he had only two specific recollections, whilst "Everything else in his witness statement he accepted was inference, supposition and reconstruction from a badly organised file of matters of which he had no recollection whatsoever". Also contrary to the confirmations, his statements did not it make clear how well he recalled important matters. The judge records that the solicitor was unable to account for why he gave evidence of his memory and recollection of events of which had no such memory or recollection.

(2) Paragraph 4.3 of Practice Direction 57AC requires a Certificate of Compliance to be signed by "the relevant legal representative" which is defined as a legal representative authorised to conduct litigation and who has had the responsibility for ensuring that the purpose, proper content and proper practice in preparation of a witness statement has been explained to and understood by the witness. The solicitor signed the Certificate of Compliance himself. The judge made it clear that it was quite wrong for a solicitor who is witnessing themselves to certify that he has "discussed with and explained to" the proper requirement of a witness statement as detailed by paragraph 4.3 of the Practice Direction. The judge stated that paragraph 4.3 envisages that "the Certificate of Compliance will be given by a different person to the witness who has themselves a separate responsibility for ensuring that the witness has understood his or her obligation".


The full decision of the Court can be found here.

The decision is a good example of the type of issues that often arise in proprietary estoppel cases, particularly the need to be able to provide evidence of the assurances given to the claimant and the extent to which there was detriment caused by reliance on those assurances. The decision is also a timely reminder for any solicitor preparing a witness statement for trial of the need to adhere to the strict provisions of Practice Direction 57AC in substance and not just in form.


Andrew Scott

Senior Associate