BetterLawNotes-5 (2)


In the High Trees case, Denning J said that cases during the previous 50 years had shown that promises such as that made by the landlord in that case ‘must be honoured’:

‘The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense, and that sense only, that such a promise gives rise to an estoppel.’

The distinction between recognising a cause of action and refusing to allow a party to act inconsistently was applied by the Court of Appeal in Combe v Combe:

Combe v Combe [1951] KB 215

Mrs C had obtained a decree nisi of divorce. Mr C agreed to pay maintenance of £100 per annum. The decree was then made absolute. Despite being pressed, Mr C never made any of the payments. Mrs C made no application to the court for a maintenance order but eventually sought payment of the arrears of the maintenance promised by Mr C. Byrne J held that Mrs C had not provided any consideration for the promise of payment made by Mr C. Nevertheless, Byrne J held, the promise was binding on the High Trees principle: the promise was unequivocal; it had been intended to be binding; it had intended to be relied on; and it had been relied on. The Court of Appeal reversed the judge’s decision on the High Trees point.

‘Much as I am inclined to favour the principle stated in the High Trees case, it is important that it should not be stretched too far, lest it should be endangered. That principle does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties . . .

The principle, as I understand it, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word.

Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action.

The doctrine of consideration is too firmly fixed to be overthrown by a side-wind . . . I fear that it was my failure to make this clear which misled Byrne, J, in the present case. He held that the wife could sue on the husband’s promise as a separate and independent cause of action by itself, although, as he held, there was no consideration for it. That is not correct. The wife can only enforce it if there was consideration for it.’

(Denning LJ at 219-221).

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