ABSTRACT
The majority judgment of Lord Briggs in the decision of the UK Supreme Court in Guest v Guest [2022] UKSC 27 makes it clear that the aim of a remedy in cases where a claim based on proprietary estoppel has been established is the prevention or undoing of unconscionable conduct. However, questions remain about the appropriateness of employing the concept of unconscionability in this manner particularly in a commercial context. His judgment also clarifies that, rather than framing the question relating to the proportionality of a remedy in positive terms by asking what remedy would be proportionate to the detrimental reliance incurred, it is to be formulated in negative terms by asking whether the proposed relief was ‘out of all proportion’ to the detriment suffered. However, arguably using proportionality in a positive way by seeking to ensure proportionality between the remedy and the detriment suffered might be more likely to meet the aim of achieving justice between the parties. Although the issue of the appropriate manner in which to formulate a remedy in cases of this nature has come before the courts in this jurisdiction, there has been less detailed analysis of the principles which should be applied in this context and for this reason, the judgment of Lord Briggs in Guest v Guest may be of significance.
€ (Westlaw)
Hilary Biehler, ‘Guest v Guest: a reconsideration of the role of the concepts of proportionality and unconscionability in formulating remedies in cases of proprietary estoppel’ (2024) 71 Irish Jurist 133-147.
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