Guest v Guest: assistance from dissent

An interesting decision from HHJ Malek sitting in Leeds County Court, reported as Wilson v Wilson & anr [2023] EW Misc 5 (CC). The claimant sought damages for unlawful exclusion from the house in which she lived, and claimed an interest in the house on the basis of proprietary estoppel. She succeeded in both claims. When the judge came to address the appropriate remedy in proprietary estoppel, he turned (as might be expected) to the recent Supreme Court decision in Guest v Guest for the necessary guidance. But he did not cite the majority judgement - he went instead to the dissenting opinion delivered by Lord Leggatt (with which Lord Stephens had agreed) - see in particular paragraphs 49 and 50 of HHJ Malek's judgement.

Surprising? Not really: in a talk I gave in February this year to the Society of Trust & Estate Practitioners in Belfast, I concluded with this:

"Whilst the principles identified by Lord Briggs would require the court to start from the premise that the representation giving rise to the expectation should be enforced, that might not be the appropriate end point in a given case.?I want to suggest, in closing, that provided that Lord Briggs’ clear rejection of any “…theory that the aim of the remedy for proprietary estoppel is detriment-based” is born in mind and applied, a case may still arise where, in order to achieve proportionality and do equity, a court forms the view that the appropriate remedy requires it to evaluate and compensate the detriment suffered by the promisee.?In such a case, the approach of Lords Leggatt and Stephens – including the detailed workings and analysis set out in the appendix to the dissenting judgement - may yet prove to be of practical value in finding and fashioning such a remedy".

And so it has proved to be!