Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether it is necessary to prove a likely loss to establish detriment in Proprietary Estoppel claims 

Proprietary Estoppel claims and the requirement to establish detriment or detrimental reliance

Proprietary Estoppel is a legal device by which the courts can determine rights over a property notwithstanding a written enforceable agreement is not in place with no direct payment of consideration (for a share in the property). The most common situation is where promises have been made by a property owner to (usually) a close relative over many years (which confirm the gifting of the property in question at some point to the relative) in reliance on which the relative has worked for many years in a business associated with the property – invariably this is a farm. Our earlier blog “Proprietary Estoppel in an Inheritance Dispute” provides a usual summary: 

Proprietary Estoppel in an Inheritance Dispute – Will Claim Solicitors 

The factors required to “prove” Proprietary Estoppel 

There are three main elements as per Lord Walker in Thorner v Major [2009] UKHL 18, at paragraph 29: 

“a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance”. 

Of course, one of the most common issues is the provability of the “representation or assurance” given it may have consisted of private conversations over many years without much, if any documents to record them. However, leaving this to one side, detriment is equally difficult to prove and for a number of reasons: 

– there are likely to have been advantages in (typically) working in the business, whether financial or otherwise 

– it is usually difficult to construct and prove what might have happened if the claimant had done something different and/or whether he/she might have been much better off 

Winter v Winter [2024] EWCA Civ 699 and the consideration of “detriment”

Winter which is another farming case recently considered the extent and nature of detriment against background where the claimants appeared to gain considerable financial advantages from the business notwithstanding that promises in relation to the business had (allegedly) been broken. The appeal to the Court of Appeal was broadly along the lines that the claimants had not proven that in working on the farm they had missed out on opportunities which would have put them in a much better financial position.  

In fact, the opportunities they had missed and relied upon, did not appear to offer a much greater financial benefit at all. For instance one of the claimants (Richard) suggested that he would have pursued a career in the military; the other (Adrian) that he would have undertaken work as an independent demolition contractor. Given (para 22) “The Judge…found that they would not then have accumulated as much wealth as they did by working in the family business” one can immediately see why the appeal was brought. The claimants in Winter appeared to enjoy considerable advantages in the family business which were not likely to have been replicated and/or enhanced elsewhere.  

The Court in “Winter” determined detriment in another way 

The Court of Appeal in Winter was not prepared to find detriment by way of a straight-forward accounting exercise comparing the financial benefits of work for the family business to what the claimants could have achieved elsewhere. This may not be that surprising given it would also have required the deployment of a crystal ball! 

The Court of Appeal was prepared to consider that detriment was established by virtue of the many years of work carried out in the family business. Paragraphs 43 to 45 apply: 

Was, then, the Judge entitled to find that, by “committing their working lives to the family business”, Richard and Adrian had suffered detriment outweighing the financial benefits which they had derived from working in the family business? In my view, he was.  

44. A first point is that I do not think the Judge was precluded from so finding by the terms of the particulars of claim. It is true that these identified only two alternative careers, but they also “highlighted” “Working very hard for long hours for low/poverty wages over years uncounted” and “Loss of social enjoyment and substantial detriment to family life” as well as referring to “Loss of alternative careers” in general terms.  

45. Secondly, the authorities seem to me to show that, where a claimant has devoted his working life to a particular course in reliance on an assurance, it may be proper for the Court to find detriment even if the claimant has not shown that he would otherwise have been likely to take a specific alternative course which would probably have been more beneficial.  

The Court of Appeal went further by downplaying the need to establish a “lost opportunity” and the financial benefits which had been with it. For example, at paragraph 47:  

Detriment was thus “amply established” even though it was “entirely a matter of conjecture what the future might have held for the Gilletts” and they “might have done no better” “[h]ad they decided to move on” (in particular, because they “might … have found themselves working for a less generous employer”). In circumstances where the Gilletts had “devoted the best years of their lives to working for Mr Holt and his company”, it sufficed that they had “deprived themselves of the opportunity of trying to better themselves in other ways”, 

This appears on its face then to reduce, if not abolish, the difficult if not impossible task of establishing (to prove Proprietary Estoppel) what “might have been” with any degree of realism alongside a provable financial benefit from the lost opportunity as compared to the work undertaken on the back of broken promises.  

Finally, for the link to Winter please use the following: 

Winter & Anor v Winter & Anor [2024] EWCA Civ 699 (21 June 2024) (

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