1 Q.B.

Reg. v. Hull Visitors, Ex p. St Germain (CA.)

467
Waller L.J.

^ conclusion on the hypothesis that some of their grounds may be true.

Without expressing any such opinion I would allow this appeal.
Appeals of St. Germain, Anderson,
Reed, Saxton and Rajah allowed
with costs here and below. Legal
aid taxation of costs in all cases
except Reed.
Application by Rosa allowed with
costs here and below. Legal aid
taxation of costs.
All applications remitted to Divisional
Court for hearing and determination.
Leave to appeal refused.

~,

Solicitors: George E. Baker & Co., Guildford; Douglas-Mann & Co.

for Patterson, Glenton & Stracey, South Shields; Sharpe, Pritchard & Co.
for Philip Homer & Co., Hull; Bindman & Partners; Hilary Kitchin;
Neilson & Co.; Treasury Solicitor.
E. M. W.
D

[COURT OF APPEAL]
E

BRIKOM INVESTMENTS LTD. v. CARR

SAME v. RODDY
SAME v. HICKEY

1979 Jan. 11, 12, 15, 16

Lord Denning M.R., Roskill and

Cumming-Bruce L.JJ.

WaiverLandlord and tenantCovenantTenants of flats contributing. to landlords' costs of maintenance under terms of
leaseOral assurances by landlords to pay cost of roof repairs
Whether oral collateral contract or promissory estoppel
Q .
Whether waiver by landlords of strict legal rights under
leaseWhether benefit of waiver extending to assignees of
leases

pj

In 1971 the plaintiff company, landlords of blocks of

flats, with flat roofs urgently needing resurfacing, decided to
offer for sale 99-year leases of the flats and also applied
for planning permission to build 26 new flats on the existing
roof. A pre-lease agreement and a draft lease were prepared;
the lease contained an express covenant by the lordlords to
maintain, inter alia, the roofs and an express stipulation that
the tenants would pay a maintenance charge and an annual
contribution to excess expenses incurred by the landlords

468
Brikom Investments v. Carr (C.A.)

[1979]

apportioned between lessees in certificates from the landlords'

accountants and payable within 28 days of service. When "
the leases were on offer a residents' association was formed
by persons interested in acquiring them, one matter of concern being the bad state of the roofs, which affected their
prospects of obtaining mortgages. In February 1972 the landlords by their managing director gave the chairman of the
association an oral assurance that they would at their own
expense repair the roofs that summer (unless planning per- B
mission was granted) and would not seek to claim contributions for the cost of those particular repairs from the lessees
under the covenant in the lease. The chairman communicated
that assurance by letter to all the flats. Some prospective
lessees obtained the landlords' assurance in writing, but others
relied on the oral assurance and executed leases. The work
was not done that summer, as an appeal against refusal of p
permission for the extra flats was pending; but in January
1973 the oral assurance was repeated; and in 1974, after the
planning appeal had been dismissed, the landlords repaired
the roofs at a cost of over 15,000.
In 1976 the landlords issued certificates claiming charges
from the tenants which included apportioned shares of the
sum spent on the roofs in 1974. When they were not paid,
the landlords took proceedings in the county court for breach
of covenant against some of the tenants, who had not obtained
the assurances in writing. The defendants' main defence was
that the landlords were estopped from seeking to enforce their
strict legal rights under the leases by their oral promises on
which the defendants had relied and acted by entering into
the leases; and in a few cases also claimed that the assurances
to the original lessee constituted a collateral contract varying
the strict terms of the lease in respect of the cost of those
particular repairs.
The defendants included (1) an original lessee who had
been given the oral assurance by the landlords' selling agents
before signing the lease agreement and who also knew of
the assurance to the residents' association; (2) assignees from
an original lessee who were told of the landlords' assurances
before taking the assignment; and (3) an assignee from a
first assignee who entered long after the roofs had been
repaired and whose predecessors had received or knew of
the assurances before taking the assignment. The judge held
in each case that as the defendants had relied and acted on
the oral promises the landlords were thereby estopped from
claiming contributions under the leases and that it would be
inequitable to allow them to do so; and he dismissed the
claims.
On appeal by the landlords, the three defendants sought
also to rely on the assurances as collateral contracts varying
the terms of the lease in respect of those particular costs:
Held, dismissing the appeals (per Roskill and CummingBruce L.JJ.), (1) that the original lessee could rely on the
oral assurances given to her before she signed the contract
or entered into the lease as an oral collateral contract between
the parties that in respect of the cost of outstanding repairs
to the roofs the landlords would not thereafter seek to enforce
their strict legal rights under the lease against her; and that
it would be inequitable to allow them to do so.
Hughes v. Metropolitan Railway Co. (1877) 2 App.Cas.

j)

"

469
1 Q.B.
A

n
"

Brikom Investments v. Carr (C.A.)

439, H.L.(E.) and De Lassalle v. Guildford [1901] 2 K.B.

215, C.A. applied.
(2) That though the assignees and second assignee could
not rely on a collateral contract between the landlords and
the original lessee, the assurances given to the original lessees
constituted a plain waiver by the landlords of their legal
right to claim contributions under the lease for the cost of
roof repairs necessary at the time when the leases were
granted; and that waiver subsisted so that, on any subsequent
assignment of a lease, what was then assigned and reassigned
was a lease free of the waived obligation which had come to
an end once and for all before the assignment.
Per Lord Denning M.R. Each defendant is entitled to
rely on the doctrine of promissory estoppel, the benefit of
which is not personal to the promissee; the assignees are
entitled to rely on it, since the burdens and benefits of a
promissory estoppel run down the line of assignor and
assignee on each side. Reliance on collateral warranty is a
roundabout way of reaching the same result. I prefer the
simple way the judge put it on promissory estoppel which
I think was correct in law (post, pp. 484G485A, D-E).
Per Roskill L.J. I do not rest my decision in these cases
on the uncertain doctrine of promissory estoppel. I would
not say that it is now the law that the benefits and burdens
arising from a promise made in circumstances such as those
found by the judge " run down both sides " (post, pp. 486GH,
489H490A).

Central London Property Trust Ltd. v. High Trees House

Ltd. [1947] K.B. 130 considered.
Per Lord Denning M.R. and Roskill L.J. If the landlords have refrained from claiming contributions under the
lease from lessees who had their assurance in writing, they
are equally debarred in the cases where they gave the
assurances orally (post, pp. 4 8 2 A - B , 4 8 8 B - C ) .

The following cases are referred to in the judgments:

Alan (W. /.) & Co. Ltd. v. El Nasr Export and Import Co. [1972] 2
Q.B. 189; [1972] 2 W.L.R. 800; [1972] 2 All E.R. 127, C.A.
Central London Property Trust Ltd. v. High Trees House Ltd. [1947]
K.B. 130; [1956] 1 All E.R. 256n.
Crabb v. Arun District Council [1976] Ch. 179; [1975] 3 W.L.R. 847;
[1975] 3 All E.R. 865, C.A.
De Lassalle v. Guildford [1901] 2 K.B. 215, C.A.
Evans (J.) & Son (Portsmouth) Ltd. v. Andrea Merzario Ltd. [1976]
1 W.L.R. 1078; [1976] 2 All E.R. 930, C.A.
Hughes v. Metropolitan Railway Co. (1877) 2 App.Cas. 439, H.L.(E.)
Woodhouse A.C. Israel Cocoa Ltd. S.A. v. Nigerian Produce Marketing
Co. Ltd. [1972] A.C. 741; [1972] 2 W.L.R. 1090; [1972] 2 All
E.R. 271, H.L.(E.)
The following additional cases were cited in argument:
Brandt v. Liverpool, Brazil and River Plate Steam Navigation Co. Ltd.
[1924] 1 K.B. 575, C.A.
Burkinshaw v. Nicolls (1878) 3 App.Cas. 1004, H.L.(E.).
City and Westminster Properties (1934) Ltd. v. Mudd [1959] Ch. 129;
[1958] 3 W.L.R. 312; [1958] 2 All E.R. 733.

470
Brikom Investments v. Carr (C.A.)
[1979]
Crawford v. White City Rink (Newcastle-on-Tyne) Ltd. (1913) 57 S.J.
357.
Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801; [1976] 2 W.L.R.
583; [1976] 2 All E.R. 5, C.A.
Heilbut, Symons & Co. v. Buckleton [1913] A.C. 30, H.L.(E.)
Hopgood v. Brown [1955] 1 W.L.R. 213; [1955] 1 All E.R. 550, C.A.
Mackley v. Nutting [1949] 2 K.B. 55; [1949] 1 All E.R. 413, C.A.
Steadman v. Steadman [1976] A.C. 536; [1974] 3 W.L.R. 56; [1974] 2
All E.R. 977, H.L.(E.).
Vandervell's Trusts (No. 2), In re [1974] Ch. 269; [1974] 3 W.L.R. 256;
[1974] 3 All E.R. 205, C.A.
Whitmore v. Lambert [1955] 1 W.L.R. 495; [1955] 2 All E.R. 147, C.A.
APPEALS from Judge Granville Slack sitting at Willesden County
Court.
The plaintiffs, Brikom Investments Ltd., landlords of blocks of flats
at Herga Court, Sudbury Hill, Harrow, began proceedings in January
1977 in the county court against, inter alia, Mrs. Theobisti Carr (formerly
Dufton), tenant of flat 14 under a 99-year lease dated March 20, 1972,
for breach of a covenant in the lease to pay the landlords in addition
to the rent a maintenance charge together with excess contribution calculated in accordance with clause 4 (2) of the lease and payable to the
landlords within 28 days of the service on the tenant of a certificate
prepared by the landlords' accountant. They claimed that the accountant's
certificate had been sent to the tenant in May 1976 but that the tenant
had failed to pay the excess contribution due under the covenants; and
they claimed possession of the flat; 264 75 balance of excess contributions for the period January 1 to December 31, 1974; and mesne profits
until possession. By her defence, as amended, the tenant/lessee while
admitting the terms of the lease, stated that 58 4 per cent, of the total
contribution claimed as " the roof repairs contribution " constituted what
would, but for the facts and matters detailed in " particulars of conduct
raising estoppel," be due to the landlords under the provisions of the
lease, but that the landlords were estopped from claiming the 58-4 per
cent, for roof repairs contribution for the following reasons. (1) In or
about January or February 1972 the tenant, who was an intending
purchaser of the flat (purchasing as a sitting tenant) was informed by
the landlords' selling agents or solicitors either orally or in writing that
the landlords would themselves be bearing the cost of the roof repairs
then urgently needed and would not be debiting the maintenance fund
as provided for in the lease. (2) On or about February 18, 1972, the
tenant, having been informed by the Herga Court Residents' Association,
of which she was a member, that the association was engaged in negotiations with the landlords over the condition of the roofs at Herga Court,
received a circular letter from the association stating, inter alia, that the
association had obtained an assurance from the landlords in the same
or similar terms and to the same effect as set forth in paragraph (1).
(3) That, induced by one or other or both of those representations she
had entered into the lease, as the landlords intended she should. In the
premises she claimed that she relied on and was entitled to rely on the

JJ

47:1
1 Q.B.

JJ

Brikom Investments v. Can- (C.A.)

representations made by the solicitors and selling agents or those made

to the residents' association, and if necessary the same or similar representations made in writing to other prospective purchasing tenants of
which she had knowledge prior to the execution of the lease; and on the
fact that by reason of the undertaking obtained by the residents' association contained in the circular and/or the written undertakings given to
other prospective tenants in the same or similar terms it was a matter of
common knowledge at Herga Court in the spring of 1972 that the landlords would be repairing the roofs without debiting the maintenance
charge, and various other confirmations of the representations given on
behalf of the landlord company.
By a claim of the same date the landlords claimed against Mr. Eugene
Patrick Roddy and Mrs. Margaret Mary Roddy similar relief and the
sum of 136 "67 in respect of excess contributions for the repairs to the
roof. The defendants, being the assignees of flat 12 from the original
tenant, one Raymond Alexander Harris, on December 11, 1972, claimed
that though they were not original parties to the original lease and so
could not rely on the representations on which Mrs. Carr relied in her
defence, contended that the party from whom they purchased was
induced to purchase the flat from the landlords relying on the same or
similar representations and that as successor in title to the original
lessee they were entitled to the benefit thereof.
By another claim of the same date, the landlords claimed against
Miss Margaret Mary Hickey, of flat 68A, the same relief and the sum
of 81-02 for balance of excess contributions for maintenance in respect
of the same period. The defendant, who was the assignee of an assignee,
Mr. McGregor, to whom the original tenant, John Patrick Kavanagh, had
assigned his lease in June 1974, had taken the assignment on July 12,
1974, after the work of repair had been done, the certificate of contribution had been served on Mr. McGregor, and the 28 days for payment
had expired on June 7. By her amended defence, she too claimed that
as the successor in title to the original lease she was entitled to the
benefit of the estoppel by reason of the representations on which the
original lessee could have relied.
Judge Granville Slack in a reserved judgment given on July 4, 1977,
held in the three claims under appeal that the landlords' claims be
dismissed and that the original tenant, Mrs. Carr, the first assignees Mr.
and Mrs. Roddy, and the second assignee Miss Hickey, were entitled
to set up promissory estoppels against the landlords from which it would
be inequitable to allow the landlords to resile. The landlords appealed
in each of the three cases, and the defendants cross-appealed. The
grounds of appeal in the case of the original tenant, Mrs. Carr, were
that (1) the judge erred in law in holding that the oral statements made
to the tenant by Mr. Robert Stacpoole on behalf of the landlords to the
effect that the landlords intended to repair the roofs at their own cost
and the oral assurance given about five days before February 18, 1972,
by Mr. G. R. Jarvis on behalf of the landlords to Mr. Rowe on behalf
of the Herga Court Residents' Association gave rise to a promissory
estoppel from which it would be inequitable to allow the landlords to

472
Brikom Investments v. Carr (C.A.)

[1979]

resile. In so holding the judge had (a) misconstrued the evidence in

finding that (i) the statements and assurance amounted to a promise,
alternatively to a representation, by the landlords which was intended to
affect the legal relations between the parties: (ii) the tenant in agreeing
to take and in taking a lease of the flat acted in reliance on the statements and assurance and so acted to her detriment; (b) erred in law in
holding that (iii) the oral assurance being made after the tenant had
signed the agreement to purchase the lease of the flat could affect the
legal relations between the landlords and the tenant; (iv) it would be
inequitable to allow the landlords to resile from the assurance. (2) In
February 1972 the defendant was a tenant at Herga Court but not a
member of the residents' association. Accordingly the judge erred in law
in holding that (i) she was entitled to rely on and/or take the benefit
of the assurance given by Mr. Jarvis (for the landlords) to Mr. Rowe
(for the association); (ii) she was entitled to call evidence as to the
communication to her of the assurance by Mr. Rowe.
By a respondent's notice the defendant Mrs. Carr, sought to contend
that the judgment should also be affirmed on the grounds (1) that the
judge ought to have accepted the submissions of the defendant and
ruled (a) that the facts and matters pleaded in paragraph 6 of the
defence being, first, the oral assurance given by Stacpoole & Co. to
the defendant prior to the contract between the parties, and, secondly,
the oral assurance given by Mr. Jarvis to Mr. Rowe on or before the
lease between the parties was entered into amounted in law to a collateral
contract (or representation) between the landlords and the defendant
whereby the landlords intended to induce and did in fact induce her
to enter into the contract to purchase flat 14 Herga Court and subsequently to take the lease thereof and on the faith of which she so acted;
(b) that the facts and matters pleaded in the defence and in particular
the oral assurance referred to therein (i) was intended to affect and did
affect the legal relations between the parties and (ii) was intended by
the landlords to be so acted upon by the tenant and (iii) amounted in
law to a promissory estoppel in favour of the tenant from which it would
be unjust and inequitable to allow the landlords to resile.
The grounds of the landlords' appeal in the case of the assignees,
Mr. and Mrs. Roddy, were that (1) the judge erred in law in holding
that the oral assurance given in February, 1972, by Mr. Jarvis on behalf
of the landlords to Mr. Rowe on behalf of the residents' association
gave rise to a promissory estoppel from which it would be inequitable
to allow the landlords to resile; that in so holding the judge (a) misconstrued the evidence in finding that (i) the assurance amounted to a
promise, alternatively to a representation by the landlords which was
intended to affect the legal relations between the parties; (ii) the original
lessee in agreeing to take and in taking a lease of the flat acted in
reliance on the assurance and so acted to his detriment; (b) erred in
law in holding that (iii) the effect of the assurance was not extinguished
by reason of the fact that after it was made the original lessee entered
into the agreement to purchase the lease and took the lease of the flat
on terms which were inconsistent with the assurance; and (iv) it would

JJ

473
1 Q.B.

fj

Brikom Investments v. Carr (C.A.)

be inequitable to allow the landlords to resile from the assurance. (2)

In February 1972 the defendants were not tenants at Herga Court
Accordingly the judge erred in law in holding that (i) they were entitled
to rely upon and/or take the benefit of the assurance given by Mr. Jarvis
to Mr. Rowe; (ii) they were entitled to call evidence as to the communication to them of the assurance by a person or persons other than
Mr. Rowe, namely Mr. Harris, the original lessee. (3) The defendants
being the assignees of the original lessee, the judge erred in law in
holding that they were entitled to rely on or benefit from any promissory
estoppel on which the original lessee might have been entitled to rely.
By their respondents' notice the respondent assignees sought to
support the judge's judgment on the same additional grounds, namely,
first, that the oral assurance given to the representative of the residents'
association prior to the contract between the landlords and their
predecessor in title, Mr. R. A. Harris, amounted in law to a collateral
contract (or representation) between the original parties whereby the
landlords intended to induce and did in fact induce the original lessee
to enter into the contract to purchase flat 12 and subsequently to take
the lease thereof and on the faith of which the original lessee so acted;
and, secondly, that despite the fact that the present respondents were not
tenants of the flat when the oral assurance was given they were nonetheless enabled to defeat the landlords' claim by showing that they were
assignees of the benefit of the assurance; and to claim in terms similar to
those in paragraph 1 (b) of the first respondent's notice the legal consequences of the oral assurance relied on.
In the landlords' third appeal in the case of the respondent, Miss
Hickey, the landlords' grounds of appeal in paragraph (1) were similar
to those in the other two notices of appeal, namely, that the judge had
similarly erred in law in relation to the original oral assurances given
to the original lessee (Kavanagh) and had misconceived the evidence,
and further (2) that in February 1972 the respondent was not a tenant
at Herga Court. Accordingly the judge erred in law in holding that
(i) she was entitled to rely on and take the benefit of the statements
given by Mr. Stacpoole and/or Mrs. Manning to the original lessee;
(ii) she was entitled to call evidence as to the communication to Mr.
McGregor (the first assignee) of the statements. (3) The respondent
being the second assignee of the original lessee and there being no
evidence that, at the time of the assignment to her of the lease, she
had any knowledge of the statements made to the original lessee on
behalf of the landlords, the judge erred in law in holding that the
respondent was entitled to rely on or benefit from any promissory
estoppel on which the original lessee may have been entitled to rely.
By her respondent's notice the respondent Miss Hickey relied as her
first additional ground on the oral assurance given by Stacpoole & Co.
for the landlords to one J. P. Kavanagh, her predecessor in title prior
to the contract between the landlords and him as amounting in law to
a collateral contract (or representation) between the landlords and
Kavanagh as the original lessee whereby the landlords intended to induce
and did in fact induce him to enter into the contract to purchase flat 68A

474
Brikom Investments v. Carr (C.A.)

[1979]

and subsequently to take the lease thereof and on the faith of which the A
original lessee so acted; that despite the fact that she was not a tenant
of the flat when the assurance was given to Kavanagh she was nonetheless
enabled to defeat the landlords' claim by showing that she was the
assignee of the benefit of the assurance; and that the facts and matters
pleaded in her defence gave rise to a promissory estoppel from which
it would be inequitable to allow the landlords to resile in that (i) the
assurance was intended to affect and did affect the legal relations between B
the landlords and Kavanagh and as a direct consequence the legal relations between them and herself; and (ii) the assurance was intended by
the landlords to be so acted upon by Kavanagh and any person deriving
title from or under him such as herself.
Ronald Bernstein Q.C. and Richard Fernyhough for the landlords, Q
The appeals raise the question how far the doctrine of promissory estoppel,
enunciated in Central London Property Trust Ltd. V. High Trees House
Ltd. [1947] K.B. 130, extends as a defence to persons to whom a promise
was not made, where the original promise was in respect of an interest in
land. In the appeals the defendants rely not only on promissory estoppel,
the ground on which the judge decided in their favour, but also on a legal D
collateral warranty constituted by the oral promise as varying the maintenance clause in the lease in respect of the particular expenditure on the
roof repair. The exemption clause in the pre-lease contract (which excludes reliance on all promises, warranties, etc.) makes the defence of
collateral warranty difficult, though that clause may not present the same
difficulty for the equitable defence, since courts tend in such cases not to
give effect to such wide exemption clauses.
E
As a general proposition, both the defences relied on have been
developed mainly as defences in personam. In an ordinary commercial
contract such as that in J. Evans & Son (Portsmouth) Ltd. v. Andrea
Merzario Ltd. [1976] 1 W.L.R. 1078, it is open to the court to decide
that the contract was not confined to the written agreement but was partly
written and partly oral; but it is not so easy to apply that to a p
contract for an interest in land which has to be in writing and under
seal; under which the landlords have rights and remedies in rem, such as
distress and forfeiture; which is intended to be freely assignable; and
where future purchasers or their advisers should by looking at the written
document alone know what they are acquiring.
In the first case under appeal, that of the original lessee whose pleaded
defence was promissory estoppel through promises made in 1972 before ^
she entered into the contract or executed the lease, it was also argued
before the judge on collateral warranty. But an examination of the
evidence as a whole shows that she neither relied on the promises nor
acted on them since both she and her husband said that she would have
bought the lease whether or not the promise had been made. To establish
the defence of promissory estoppel the defendant must show an intention JJ
by the promisor that the promisee should act on the promise, that she
did act on it in a way she would not have done but for the promise, and
that she acted to her detriment: see Spencer Bower and Turner, Estoppel

475
1 Q.B.

"

JJ

Brikom Investments v. Carr (C.A.)

by Representation, 3rd ed. (1977) pp. 388, 389-393: and the author of
the latest edition also indicates the view that the doctrine has no application where parties are not yet in a contractual relationship: see p. 378,
para. 349. [Reference was also made to Steadman V. Steadman [1976]
A.C. 536; Cheshire and Fifoot's Law of Contract, 9th ed. (1976), pp. 89
et seq. and Snell's Principles of Equity, 27th ed. (1973), pp. 562, 563,
footnotes 21 and 22.] On the authorities and the evidence the conditions
requisite to raise the equitable defence in Mrs. Carr's favour are therefore
not satisfied.
The second and third appeals raise the position of an assignee. Whether
the doctrine of promissory estoppel applies and whether its benefits are
transmitted by implication on an assignment is virgin territory. The
landlords say that in such cases the prerequisite to raising an equity,
namely, the combination of a promise intended to induce the promisee
to act on it and a change of position by the promisee to his detriment,
simply cannot apply. Two points arise on that: (1) whether the rights
which vest in a promisee are personal or are assignable; and (2) whether
the assignee can show that he himself has an equity which he can either
raise in his own right or which has been transmitted to him either expressly or by being attached to something transmitted to him.
In the case of the first assignees, Roddy, their affidavit does not show
whether they took the assignment in reliance on the existence of a promise
to the original lessee which he communicated to them when they viewed
the flat and saw the state of the roof. Again the questions arising are
whether the original promise was assignable or capable of being passed
on, or whether it was intended to be no more than a promise to the
original lessee. What was assigned was the balance of a 99-year lease.
If the benefit of the promise was to be assignable why did the landlords decline to put it into the original lease which both parties intended to be assignable and enforceable? In the absence of authority on the position of the
assignee a question for the court is whether as between landlord and
original lessee the promise was intended to be personal only or whether it
was intended to enure for the benefit of successors to the original lessee
who assigns the lease, and whether it is transmitted automatically or must
be express. In City and Westminster Properties {1934) Ltd. v. Mudd
[1959] Ch. 129, though no question of assignment arose, Harman J. held
that the benefit of a promise was personal to the promisee. The fact that
the relevant promise was not connected with the person of the promisee
but with urgently needed repairs to the roof is not a sufficient ground for
saying that the promise " ran with the land." Though the first assignees,
Roddy, have deposed that the landlords' promise was communicated to
them by the original lessee they have not shown that they acted on that
promise in a manner different from that in which they would have acted
without the promise. In any event, if it is a necessary ingredient of the
defence of promissory estoppel that the promisee acts on a promise by
the promisor and the evidence does not establish that the assignees relied
on a promise communicated to them, not by the landlord but by the
promiseethe original lesseethat is an end of their case. Justice does
not require the benefit of a promissory estoppel to be transmitted with
the land or be assignable by implication, for normal conveyancing practice

476
Brikom Investments v. Carr (C.A.)

[1979]

would cover such situations. The obligation to repair the roof is in the
lease, as is also the obligation on the original lessee or assignee to pay
his proportion of the cost; and the normal conveyancer, told of the
promise by the landlords to the original lessee, would ascertain from the
landlords whether the benefit of the promise would extend to his client
before taking the assignment. Established conveyancing practice includes
the search procedure for registration of land charges and inquiries designed
to enable a purchaser of an interest in land to ascertain what rights and
liabilities he is acquiring. If assignable estoppels or oral waivers of
covenants in a lease are introduced into the law, it could throw the whole
conveyancing system into confusion.
In the third case, that of a second assignee, Miss Hickey, the evidence
is that when she took the assignment the repairs had been completed and
she knew nothing about the promise, so that any reliance by her on the
doctrine of promissory estoppel must fail unless it is held that the original
promise was not intended in personam and the benefit of it " ran with
the land " on assignment.
On the alternative defence of collateral contract or warranty, the judge
made no finding although it was argued before him. His decisions were
founded on promissory estoppel; and it would not be right for this court
to find a collateral warranty where the judge has not found it. It would
extend the doctrine of collateral warranty beyond De Lassalle v. Guildford
[1901] 2 K.B. 215, the Mudd case [1959] Ch. 129, and the Evans case
[1976] 1 W.L.R. 1078, where there were specific findings that the party
would not have entered into the contract without the representation or
promise. [Reference was made to Phipson on Evidence, 12th ed. (1976),
para. 1902; and Crawford v. White City Rink (Newcastle-on-Tyne) Ltd.
(1913) 57 S.J. 357].
[ROSKILL LJ. On the authority of Hughes v. Metropolitan Railway
Co. (1877) 2 App.Cas. 439, why in legal principle should not an assurance
by landlords not to claim the cost of outstanding repairs be enforceable
when he is executing a 99-year lease under which the tenant is to pay an
aliquot part of such repairs? Surely there is sufficient consideration, at
least in the case of the original lessee, in that she relied on the promise
and held her hand so far as her solicitors were concerned?]
Such a promise is not enforceable under the collateral warranty doctrine
unless the promisee shows that she acted on it and says that she would
not have taken the lease unless she had the promise. In light of her
evidence it is clear that she did not act on the promise. [Reference was
made to Heilbut, Symons & Co. V. Buckleton [1913] A.C. 30.]
/. E. Jacob for the defendants. The general proposition on promissory
estoppel is that where a statement or promise is made by one party to
the other which is intended to affect their respective rights and is acted
on, the parties' respective rights will be limited or increased in accordance
with the statement or promise. Alternatively an equity will be raised
against the promisor which may need to be satisfied in a number of ways,
including his rights in property. It has never been a requirement of the
doctrine that there should be detriment to the promisee who acts on the
promise. All that needs to be shown is that the representation had an
influence and was a factor. [Reference was made to Esso Petroleum Co.

*"

Gr

JJ

477
1 Q.B.

_,
"

Brikom Investments v. Carr (CA.)

Ltd. v. Mardon [1976] Q.B. 801 and Halsbury's Laws of England, vol. 9,
4th ed. (1974), paras. 334 and 347.] Moreover in the case of the original
lessee there was some detriment in that a promise about the roof repairs
made in January 1972, repeated in 1973, and not carried out until 1974
meant that the cost was much higher, and if she were required to pay
her proportion under the lease it would be much greater.
The representation: " We will do this particular repair at our own
cost" was intended to cover tenants and assignees during the whole of
the 99-year lease, for the representation was that the clause on maintenance and costs recoverable from tenants would not be enforced in
respect of those particular repairs.
Promissory estoppel does arise as a defence available to the first
assignees, Roddy, since the promise was made in his presence in 1973; and
in the case of Miss Hickey the promise was communicated to the first
assignee by the original lessee so that Miss Hickey could have claimed
against the first assignee McGregor from whom she took, under section
76 (1) (B) of the Law of Property Act 1925, since when she entered the
repairs had been done and she knew nothing about their history; McGregor
could have sued the tenant but the tenant could not have sued the landlords
on a promise without consideration. Therefore he would have suffered a
detriment, as it were, by " delayed action."
[ROSKILL L.J. These appeals are being complicated by reliance on
promissory estoppel. What is wrong in saying in each case: " The landlord said ' I won't enforce the covenant quoad these repairs' and thereupon that liability ceased to exist." There was in fact a waiver.]
In substance that was the way the case was put for the defendants in the
court below, though waiver was not mentioned. Certainly in the first case
there was a clear collateral warranty as between the original lessee and the
landlords before she signed the contract or the lease.
In the second case of the assignees Roddy, the promise made in
February 1972 to the residents' association was repeated in January 1973
when the lease had already been assigned to them, so that it was a
promise or representation made to them and intended to cover not only
original lessees but also assignees for the duration of the leases.
Where there has been a promise that the maintenance clause in the
lease will not include these particular repairs to the roof there is a waiver
of a right the landlord would otherwise have or alternatively a representation of an existing fact that is intended to cover tenants and assignees
during the duration of the lease. It was also intended to and did affect
the legal relations of the parties, and the judge has so found. So just as
a collateral warranty would affect legal relations between landlord and
tenant, it would affect them between landlord and assignee. The difficulties which have arisen are only because the landlord went back on his
word.
[CUMMING-BRUCE L.J. It will open up a new field of inquiry in every
transaction by deed if purchaser and vendor have to look beyond the deed
to find out if any promise has been made by A to B.]
That has been the position for many years without affecting the practice
of conveyancing, where all manner of inquiry has to be made. The
situation might be different where the landlord has to assent to an

478
Brikom Investments v. Carr (C.A.)

[1979]

assignment for in such a case he would have a chance of resiling from a

promise made; but that is not this case since no consent is required for
assignments. The letters written for the landlords to some individual
lessees' solicitors are really no more than statements to the tenant which
could be repeated to assignees. The landlords must have assumed that
their representations in letter form would be filed with the conveyancing
documents.
On the question of representations being transmitted, see Spencer
Bower and Turner, Estoppel by Representation, 3rd ed., pp. 117-119 and
Burkinshaw v. Nicolls (1878) 3 App.Cas. 1004, 1026, per Lord Blackburn.
That can be applied literally to the present cases save that of Miss Hickey
because she is one along the line of assignees. [Reference was also made
to Hopgood v. Brown [1955] 1 W.L.R. 213 and Brandt v. Liverpool,
Brazil and River Plate Steam Navigation Co. Ltd. [1924] 1 K.B. 575.]
Though the representations in a commercial shipping case may be different
in quality from those in real property transactions where the normal
mechanism is a written contract followed by a lease, the question in each
case is whether the representation was intended to affect the parties' legal
relations; and that was the position here. It is conceded that it would
be better to have more formality in a representation relating to land. But
on the question whether the representation entitles the assignee to whom
it was not made to rely on it when the landlords seek to resile from it in
this way, see In re Vandervell's Trusts (No. 2) [1974] Ch. 269 where
executors were held bound by a representation made by a promisor. See
also Spencer Bower, paras. 188, 191, 192 and Coke, Commentary upon
Littleton, pp. 352 a, 352 b, that " every estoppel ought to be reciprocal..."
[Reference was made to Mackley v. Nutting [1949] 2 K.B. 55.] See also
Whitmore v. Lambert [1955] 1 W.L.R. 495, 497, per Sir Raymond
Evershed M.R. on the distinction between the definition of tenant in the
Act and in the lease. In the present lease the definition of tenant is wide
enough to include assignees. In Crabb v. Arun District Council [1976] Ch.
179, the equity was held to be satisfied by giving the plaintiff right of
access at the point where it was represented that he might have it. That
right of access must have been transmitted on a sale. In the case of the
assignees reliance is placed on the assignment of the benefit of a collateral
contract.
Bernstein Q.C. in reply. In the case of assignees the rights which may
attach to a tenant in possession have always been a matter for inquiry
in conveyancing practice: see Crabb v. Arun District Council [1976] Ch.
179 and Mackley v. Nutting [1949] 2 K.B. 55. But the position is quite
different where there are promises or alleged promissory estoppels not
recorded in writing.
So far as there is a principle of equity in the doctrine of promissory
estoppel, it acts in personam and not in rem and that principle has not
been questioned in any discoverable decision. The notion that an equity
can bind a purchaser taking without notice has similarly not been affirmed
in any decision, and before assuming the injustice of a promisor escaping
the consequences of his promise by assigning the reversion one should bear
in mind that in such a case a purchaser for value without notice would
be bound by the promise.

"

j]

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1 Q.B-

Brikom Investments v. Carr (C.A.)

LORD DENNING M.R. This case concerns four blocks of flats at Herga
Court, Sudbury Hill, Harrow. There are 102 flats altogether. In 1974 the
landlords expended over 15,000 in repairing the roofs. They say that under
a clause in the leases each of the tenants is bound to pay a contribution
towards the expenditure, each according to the rateable value of his
flat. The amount of the contribution ranges from 50 to 250. The
landlords sued the tenants in the county court for their contributions.
The tenants disputed the claim because they said that the landlords had
told them that they would repair the roofs at their own cost. The
landlords contended that the express clause in the leases had priority
over anything the tenants were told: and that they were entitled to
the sums claimed. The judge heard the case for seven days. He decided
in favour of the tenants, relying on the principle stated in Central London
Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130, and
the cases that have followed it. The landlords appeal to this court,
saying that that principle does not apply for several reasons. It is these
that we have to consider. But before I come to them, I must state the
facts in more detail.
In the years before 1971, the landlords had let the flats to tenants at
rack rents. But in 1971 they decided to offer long leases of 99 years each
to the sitting tenants of the flats. Many accepted the offer: and after
meetings, correspondence and contracts, leases were signed. They were
all in standard form. They provided that the tenants should pay rent,
and by way of additional rent, a maintenance charge, together with an
excess contribution. Each lease contained an express covenant by the
landlords that they would repair and maintain the main structure of
the building, " including the principal internal timbers and the exterior
walls and the foundations and the roofs thereof." But each lease also
contained an express stipulation that the tenant would pay a maintenance
charge: and, in addition, the tenant would pay an annual contribution
in respect of all the excess expenses which the landlords incurred. The
amount of the contribution was to be ascertained by a certificate prepared
by the landlords' accountant. It was to be paid by the tenants within
28 days of the service of the certificate. So, on the terms of the lease,
the landlords could charge a contribution against each of the tenants on
getting a certificate as to the amount, and serving it on the tenant.
Everything was done to satisfy the terms of the lease. In 1974 the
landlords repaired the roof at a cost of over 15,000. In 1976 the accountants issued their certificates. These were served on the tenants. But in
some cases the original tenants had assigned their leases. The landlord then
claimed against the assignees.

In all strictness of law, neither the tenants or their assignees have

any answer to the claim for contribution. The covenants in the lease are
clear. But the tenants and their assignees rely on various representations
or promises made by the landlords before and after the leases were
executed. These were to the effect that the landlords would themselves
repair the roofs at their own cost without making any charge against
the tenants. The tenants and their assignees claim that, on this account,
it would be inequitable and unjust for the landlords to insist now on

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Brikom Investments v. Carr (C.A.)

[1979]

their paying a contribution. They rely on the High Trees principle

A
[1947] K.B. 130.
Before I consider this defence, I would draw attention to a preliminary objection on which the landlords relied. It was an exception clause
which was included in all the contracts which the tenants signed before
entering into the leases. It purports to except the landlords from any
responsibility for any representations whatever. It is clause 7, which says:
" It is expressly agreed and declared that the foregoing conditions "
form and include the entire basis and terms of the agreement for
sale and purchase of the said leasehold flat and that no representation warranty or statement whether written oral or implied heretofore
made by or on behalf of one party to the other shall be capable of
being treated as forming part of the said terms or as an inducement
by the vendor for the lessee to enter into this agreement or as a c
warranty in relation to the subject matter thereof or be the ground
upon which the lessee shall base any claim against the vendor."
All I need say about that clause is that it is of no avail to the landlords whatever. The cases are legion in which such a clause is of no
effect in the face of an express promise or representation on which the
other side has relied (see /. Evans & Son {Portsmouth) Ltd. v. Andrea D
Merzario Ltd. [1976] 1 W.L.R. 1078) at any rate when the circumstances
are such that it would not be fair or reasonable to allow the landlord
to rely on it: see section 3 (b) of the Misrepresentation Act 1967.
So I put clause 7 aside and turn to the representations and promises
on which the tenants and their assignees relied. They were first made
in February 1972at a time when some of the tenants had signed agree- g
ments for leases, but had not actually executed the leases. The tenants
of Herga Court had formed a residents' association. About February 13,
1972, there was a conversation between the landlords' representative and
the chairman of the residents' association, Mr. Rowe. The roofs had
got very badly out of repair by this time. According to the lease, the
landlords ought to have repaired the roofs already. But they had put
off the repairs because the landlords were hoping to get planning per- F
mission to put an extra storey on the top. In that case it would be
unnecessary to repair the roofs. So their managing director, Mr. Jarvis,
made this promise or representation to the tenants:
" If we get planning permission to put the extra storey on, there
will be no need to repair the roofs. But, if we do not get permission,
then we will repair the roofs at our own cost."
G
The judge found clearly that that representation was made by the landlords' representative Mr. Jarvis.
As a result of that conversation, the tenants' representative, Mr. Rowe,
wrote a circular letter which he sent to all the tenants of the 104 flats.
It was dated February 18, 1972, and said:
" Dear Sir or Madam,
" I have to advise you that the association did not succeed in
their approach to get the 99 years lease altered. We have to accept

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Brikotn Investments v. Carr (C.A.)

Lord Denning M.R.

it in its present form, or not at all. However, we have successfully

obtained the landlord's covenant that he will arrange to repair all
the roofs this summer at his own cost. As the condition of the roofs
was our main concern (and that of many building societies who had
been approached for mortgages), our efforts have not been in vain.
Regarding any future redevelopments, we shall have to rely on the
Harrow Planning Committee to refuse permission, as they have done
B
in the past. We understand that they consider the density at Herga
Court has reached its limit and would refuse further applications for
this reason alone.
" The association committee thank you for your support and
hope the necessity will not arise for us to be called upon at any
future date.
P
Yours truly,
J. M. Rowe."
Some tenants relied on that circular letter and signed their leases on
the faith of the oral representation. Others were more cautious: and by
themselves or their solicitors got written confirmation from the landlords'
agents saying that they would repair the roofs at their own expense.
Q The judge said:
" These documents, in my view, are overwhelming evidence of
the attitude of the landlords at that time. They were assuring tenants,
one after another, that the landlords would resurface the flat roofs,
they would not charge the cost of doing so to the maintenance
account, and that the work would be done in the summer of 1972."
E

Relying on those promisessome oral and some in writingthe

tenants signed the leases. Some asked for the leases to be altered to give
effect to the promise: but the landlords said that they could not alter
the form of the leases: because it covered the whole 99 years and they
could not insert anything about this particular expenditure.
The landlords did not repair the roofs in 1972. They still sought
F planning permission to put an extra storey on top. This was opposed by
some of the tenants. In 1973 there was another meeting between the
landlords' representative and the tenants. The tenants were aggrieved
because the landlords had not yet repaired the roofs. The judge found
that the landlords' representative:
" in effect repeated the assurance which had been given to Mr. Rowe
Q
and others in the early part of 1972, that if planning permission
was refused, they would undertake resurfacing of the flat roofs and
not charge it to the tenants."
On the faith of the renewed promise in 1973, the tenants did not press
for further repairs to be done at that time. In November 1973, the
landlords' application for planning permission was turned down. Then
jl at last the landlords began to buy the asphalt to repair the roofs.
In due course in 1974 the landlords did repair the roofs. It cost them
something over 15,000. In May 1976 the accountant got out the certificates
and they were served on each of the tenants or their assignees at the time.

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Brikom Investments v. Carr (C.A.)

[1979]

The landlords claimed that they were entitled to a contribution from each
of the tenants in regard to their part of this 15,000.
Many of the tenants refused to pay. The landlords no doubt took
legal advice. As a result they selected the defendants carefully. They did
not sue those tenants to whom they had given a written undertaking
that they would repair the roofs at their own cost. They only sued those
tenants who did not have anything in writing, but to whom they had
given an oral promise. It is quite plain that that distinction is bad in B
point of law. If the landlords are debarred in the cases where they gave
a written undertaking, equally they are debarred where they gave an oral
promise.
In discussing the law, three cases were taken before us. Each had a
separate point. The first was that of Mrs. Dufton. In the autumn of
1971 she was engaged to be married to a Mr. Carr. She was anxious to Q
take Flat No. 14a top flat. It had stains on the ceiling where water
had come through. She raised the question with Mr. Stacpoole, the
landlords' agent. He told her that the landlords would be paying the
cost of repairing it and that letters would be going out to other tenants
to that effect. She agreed to buy the 99 year lease for 10,750 and signed
the contract on January 19, 1972. In her evidence she said:
"she had Mr. Stacpoole's assurance about the roof in mind when
she signed the contract and relied on it, even though she would still
have gone ahead if she had not been told this about the roof."
(It is by reason of that evidence that the landlords say she cannot avail
herself of the High Trees principle [1947] K.B. 130). Her fiance\
Mr. Carr, attended the meeting on February 14, 1972, and reported to E
her that the landlords had agreed to repair the roofs at their own cost:
and they both saw the circular of February 18, 1972. She signed the
lease on March 20, 1972. She is being sued for 264-75.
Mr. Bernstein, for the landlords, submitted that Mrs. Dufton (now
Mrs. Carr) could not rely on the principle in the High Trees case [1947]
K.B. 130, because it was essential that she should have acted on the F
representation: and here she had not acted on it. On her own admission,
he said, she would have gone on and taken the lease even if she had
not been told about the roof. In all the cases, Mr. Bernstein said, the
courts had said that the party must have " acted " on the promise or
representation in the sense that he must have altered his position on the
faith of it, meaning that he must have been led to act differently from
what he would otherwise have done: see W. J. Alan & Co. Ltd. v. G
El Nasr Export and Import Co. [1972] 2 Q.B. 189, 213. This argument gives, I think, too limited a scope to the principle. The principle
extends to all cases where one party makes a promise or representation,
intending that it should be binding, intending that the other should rely
on it, and on which that other does in fact relyby acting on it, by
altering his position on the faith of it, by going ahead with a transaction JJ
then under discussion, or by any other way of reliance. It is no answer
for the maker to say: "You would have gone on with the transaction
anyway." That must be mere speculation. No one can be sure what he

483
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Brikom Investments v. Carr (C.A.)

Lord Denning M.R.

would, or would not, have done in a hypothetical state of affairs which

never took place: see Halsbury's Laws of England, 3rd ed., vol. 26 (1959),
p. 852, para. 1583. Once it is shown that a representation was calculated
to influence the judgment of a reasonable man, the presumption is that
he was so influenced. The judge put it quite simply:
"Mrs. Dufton had an assurance from Mr. Stacpoole before she
signed the contract on January 19, 1972, that the landlords would
"
repair the roof, and she was aware of the assurance by Mr. Jarvis
before she signed the lease. The landlords should not be allowed to
go back on these assurances."
The next case is rather different. It concerns a Mr. and Mrs. Roddy.
They took Rat No. 12. But they did not take it as original lessees. They
became lessees by an assignment from a Mr. Harris, dated December 12,
1972. Their case raises the question of an assignee of a lease.
In 1971 Mr. Harris was the tenant of No. 12. Like other tenants, he
received an offer to purchase the flat. He became a member of the
residents' association, and he received the circular dated February 18,
1972. He accepted what was said in the circular and relied on it. He
signed a lease on June 1, 1972. Six months later, on December 12, 1972,
D he assigned the lease to Mr. and Mrs. Roddy. At the time of the assignment Mr. Harris told Mr. and Mrs. Roddy that the landlords had
promised to repair the roof. As it happened, at the time of the trial
they were in Nigeria, but they swore an. affidavit saying they had been
told by Mr. Harris that the landlords had agreed to repair the roofs at
their own expense, and they relied on it. Moreover, they were present
c at the meeting in 1973 when the landlords or their agent repeated the
assurance about the roof.
It is plain that, if Mr. Harris had remained the tenant, he could have
relied on the landlords' assurance and could have resisted the claim, just
as Mrs. Dufton did. But can Mr. and Mrs. Roddy rely on it? The judge
put it quite simply:
p
" The question, therefore, . . . is whether Mr. and Mrs. Roddy
can rely on an estoppel which Mr. Harris could have relied on.
It comes back to what is just and equitable. I have come to the
conclusion that in all the circumstances of this case it would be
unjust and inequitable to allow the landlords to recover as against
Mr. and Mrs. Roddy when they could not have recovered against
Mr. Harris had there been no assignment."
r
Before I deal with the law about assignees, I will go on to the third
case. It is of Miss Hickey, Flat 68A. She was an assignee of an assignee.
The original tenant was a Mr. Kavanagh. He received the assurance
that the landlords would repair the roofs at their own expense: and
in reliance on it he took a 99 year lease. In June 1974 he assigned his
JJ lease to Mr. McGregor. Mr. McGregor said that he noticed the roof
was very bad. He went up to the roof and saw the cracks in the ceiling.
Mr. Kavanagh assured Mr. McGregor that the cost of the repairs to
the roofs was being borne by the landlords. Relying on it, Mr. McGregor

484
Lord Denning M.R.

Brikom Investments v. Carr (C.A.)

[1979]

took an assignment of the lease of that flat from Mr. Kavanagh. During
Mr. McGregor's tenancy in 1974 the landlords finished the work of
repairing the roof. It was a long time before the accountants got out
the certificate. Eventually in May 1976 the certificate was made out
certifying that a contribution of 81 "02 was payable by Mr. McGregor.
It was served on Mr. McGregor. The 28 days expired on June 7. So,
if the money was payable at all, it was payable on June 7. A month
later, on July 12, 1974, Miss Hickey took an assignment from Mr.
McGregor of the lease. By then the roof was completely repaired. She
had no idea that there would be any charge on her for repairs to the
roof. Mr. McGregor said nothing to her about it. She knew nothing.
Then, to her surprise, she found herself to be one of the defendants
against whom it is sought to charge a contribution towards the expense
of repairing the roofs.
The judge put this case, too, quite simply. He said: " Now I have to
consider whether Miss Hickey is entitled to set up an estoppel against
the landlords. I think that, in these circumstances, she is."
Mr. Bernstein submitted that the doctrine of promissory estoppel (as
enunciated in the High Trees case [1947] K.B. 130) was personal to the
person to whom the representation or promise was made. So the original
tenantsMr. Harris (in the Roddy case) and Mr. Kavanagh (in Miss
Hickey's case) could rely on the estoppel, but no one else. Mr. Bernstein
said that the assignees could not rely on it. They took their assignments
in the usual conveyancing way. They take the benefit and burden of the
covenants in the lease itself which run with the land at law or in equity,
but not of estoppels such as this.
The judge did not accept that contention. We have had it elaborately
argued before us today. It was suggested that if assignees are able to
rely on an oral or written representation (not contained in the deeds)
it would cause chaos and confusion among conveyancers. No one buying
property would know where he stood.
I am not disturbed by those forebodings. I prefer to see that justice
is done: and let the conveyancers look after themselves. Suppose that
the landlords here (before or after doing the repairs to the roof) had
assigned their reversion to a purchaser: and then that purchaser sought
to recover the contribution from the tenantscontrary to the promise
made by the original landlords. Surely the assignee of the reversion
would be bound by the promise made by the original landlords. It would
be most unjust and unfair if he could go back on the promise. Equity
would not allow him to do it.
Now if the assignee of the reversion takes subject to the burden of
the estoppel, so also the assignee of the tenant should take subject to
the benefit of it. As Lord Coke said long ago in his Commentary upon
Littleton, vol. II, p. 352, a.b. " . . . every estoppel ought to be reciprocal
. . . privies in estate, as the feoffee, lessee &c. . . . shall be bound and take
advantage of estoppels; . . ." So when the original tenant assigns the lease
over to an assignee, the benefit of the promise passes to the assignee.
The burden and the benefit run down the line of assignor and assignee
on each side. Especially in this case, because it is plain (as the judge

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Brikom Investments v. Carr (C.A.)

Lord Denning M.R.

found) that when the landlords made this promise they intended it to
be for the benefit of all those from time to time holding the leases,
realising that each in turn would tell his successor that the landlords were
going to repair the roofs at their own expense. The landlords, having
made a representation of that kind, knowing that it would be passed on,
cannot escape from it by simply saying: " These people are assignees."
So it seems to me that the judge was quite right in the way he put
B the case. He held that in all these cases the landlords could not go back
to the strict rights under the lease. They had given the tenants their
promise or representation to repair the roofs at their own cost, and the
tenants relied on it. That gives rise to an equity which makes it unjust
and inequitable for the landlords to seek to charge the tenants for a
contribution; and the benefit of this equity avails the assignees of the
tenants also.
r
But I may say there is another way in which the case can be put
which seems to me equally valid. Although this is called a " promise "
or " representation," it seems to me that it might also qualify for what
we call a " collateral contract" or " collateral warranty." On the faith
of it these tenants signed the leases. After the first day in the county
court, Miss Hickey and Mr. and Mrs. Roddy pleaded that they took
D from their predecessors an assignment of the benefit of the collateral
contract or warranty. That enables them to take advantage of it as
against the landlords. This seems to me a roundabout way of reaching
the same result as the High Trees principle [1947] K.B. 130. It is a
technical way of overcoming technical difficulties. I prefer the simple
way which is the way the judge put it. I would like to pay tribute to
P him for the careful way in which he analysed the evidence and for his
statement of the law, which I think was correct. I would, therefore,
dismiss the appeal.
ROSKILL L.J. I have found this case more difficult than Lord Denning
M.R. While I agree this appeal should be dismissed, I wish, with
respect, to make plain that my reasons differ from those of the judge
F given in his judgment. I do not rest my decision on any question of
promissory estoppel; and I do not think it necessary on the facts of
this case to investigate the jurisprudential basis of that doctrine in order
to arrive at what I conceive to be the right decision. It is necessary to
do no more than to apply that which was said by the House of Lords
and especially by Lord Cairns L.C. in Hughes v. Metropolitan Railway
Co. (1877) 2 App.Cas. 439.
G
I adopt what was said by Sir Alexander Kingcome Turner in Spencer
Bower and Turner, Estoppel by Representation, 3rd ed. (1977), p. 383.
He referred to what Lord Denning M.R. said in Crabb v. Arun District
Council [1976] Ch. 179; and added, at pp. 383-384:
" This case " that is, Crabb" was really an acquiescence case; but
j]
Lord Denning's judgment canvassed also the doctrine of promissory
estoppel, and in this passage the Master of the Rolls said: ' If
I may expand what Lord Cairns L.C. said in Hughes v. Metropolitan
Railway Co., 2 App.Cas. 439, 448: "it is the first principle

486
Roskill L.J.

Brikom Investments v. Carr (C.A.)

[1979]

upon which all courts of equity proceed" that it will prevent a .

person from insisting on his strict legal rightswhether arising
under a contract, or on his title deeds, or by statutewhen it would
be inequitable for him to do so having regard to the dealings which
have taken place between the parties.' But a reference back to the
judgment of Lord Cairns L.C. shows that the Lord Chancellor did
not include in his reference to ' legal rights' those arising from
'title deeds or by statute.' He confined his proposition to: 'parties B
who have entered into distinct terms involving certain legal results
certain penalties or legal forfeiture'; and the estoppel which the
Lord Chancellor held to arise in such cases was founded on: ' a
course of negotiation which has the effect of leading one of the
parties to suppose that the strict rights arising under the contract
will not be enforced.' Hughes v. Metropolitan Railway Co. can _,
certainly not be validly cited in support of any wider proposition
than this. There appear to be serious dangers involved in any wider
extension of the new estoppel, and those who place value on the
doctrine of consideration may think that some degree of caution is
clearly indicated."
I would respectfully add that it would be wrong to extend the doctrine of J-J
promissory estoppel, whatever its precise limits at the present day, to the
extent of abolishing in this backhanded way the doctrine of consideration.
I would also add to that passage a reference to what Lord Hailsham of
St. Marylebone L.C. said in Woodhouse A.C. Israel Cocoa Ltd. S.A. V.
Nigerian Produce Marketing Co. Ltd. [1972] A.C. 741, cited by Sir Alexander Turner at p. 400 of Spencer Bower and Turner. Lord Hailsham
said, at p. 758:
E
" I desire to add that the time may soon come when the whole
sequence of cases based on promissory estoppel since the war,
beginning with Central London Property Trust Ltd. v. High Trees
House Ltd. [1947] K.B. 130, may need to be reviewed and reduced
to a coherent body of doctrine by the courts. I do not mean to say
that any are to be regarded with suspicion. But as is common with F
an expanding doctrine they do raise problems of coherent exposition
which have never been systematically explored. However this may
be, we are not in a position to carry out this exploration here and
in the present proceedings."
I would respectfully adopt that passage.
It seems to me in the present case that Mr. Jacob's argument (in so G
far as it rests on promissory estoppel) involves taking that doctrine
a great deal further than it has hitherto been taken. With great respect,
I would not go as far as Lord Denning M.R. in saying it is now the law
that the benefits and burdens arising from a promise made in circumstances such as those presently found by the judge, to quote the phrase
he used a few moments ago, " run down both sides." It seems to me JJ
that the problem is far more complex. Accordingly, I do not rest my
conclusion that this appeal should be dismissed upon any question of
promissory estoppel.

487
1 Q.B.

Brikom Investments v. Carr (C.A.)

Roskill LJ.

As Lord Denning M.R. said, one has first to look at the leases in
question. There can be no doubt that if one has regard to, and only to,
those leases, the landlords on their true construction have an unanswerable claim. Events have happened which give rise to the tenants' liability.
The roof, although belatedly, has been repaired. The certificate, even
more belatedly, has been issued. Unless the lessees or their assignees can
somehow find a defence, they must be liable for the sums due under the
B respective leases.
When these cases came before the county court, they were most
carefully tried by Judge Granville Slack. But, as Cumming-Bruce L.J.
pointed out, the defendantsthe lessees or assigneesought to have
opened the case. The burden was wholly upon them; and it was for
them to show that they had a defence to what, if one has regard only
r to the leases, was an undefendable claim.
What then is the defence which it is sought to advance? It was put
in various ways. I make no criticism of that fact because this was a
complex case. The pleadings were amended and re-amended from time
to time. But in the end I think Mr. Jacob came to rest on two main
defences. Oneat any rate in relation to the first of these caseswas a
defence of collateral contract or collateral warranty, as it is sometimes
^ called. He also in all three cases relied upon the doctrine of promissory
estoppel. The judgeand like Lord Denning M.R. I would pay tribute
to the care he took over the findings of fact in his judgmentdealt, if
he will forgive my saying so, with the issues of law with a brevity which
leaves me in doubt as to what the principle was on which he decided
these cases in favour of the defendants. In the case of Mrs. Carr he
E simply said: " The landlords should not be allowed to go back on these
assurances." In the case of Mr. and Mrs. Roddy he said:
" I have come to the conclusion that in all the circumstances of this
case, it would be unjust and inequitable to allow the landlords to
recover as against Mr. and Mrs. Roddy when they could not have
recovered against Mr. Harris had there been no assignment."
Finally in the case of Miss Hickey he said: "Now I have to consider
whether Miss Hickey is entitled to set up an estoppel against the landlords. I think that in these circumstances, she is."
It seems to me, with great respect to the judge, that this case
requires more detailed legal analysis.
I consider, first, the case of Mrs. Carr, which is in some respects the
G easiest, for there the question arises between the original lessor and
the original lessee, and there is no question of devolution by assignment
or reassignment. The question is whether Mrs. Carr has a defence to
this claim. The judge set out the facts with the utmost care. I gratefully
adopt his findings without repeating them. They seem to me to be well
justified by the judge's note of the evidence. When I look at that note,
JJ and in particular passages to which Mr. Bernstein drew our attention
(and I am not overlooking the passage to which Mr. Jacob asked Mr.
Bernstein to draw to our attention), I entertain no doubt flooking at the
totality of the evidence and not just picking out from the judge's note

488
Roskill LJ.

Brikom Investments v. Carr (C.A.)

[1979]

one sentence which points one way and another sentence which points
the other) that there was a perfectly clear agreement between the landlords and Mrs. Carran agreement arrived at, first, because of what
Mr. Stacpoole said as their agent and, secondly, because of what Mr.
Jarvis saidthat those who took these 99-year leases from the landlords
would not be liable for their share of the cost of repairing the roofs
if the time ever came to do those repairs.
It seems to me impossible, with all respect to Mr. Bernstein's argument, for his clients nowI make no comments about their ethics; the
judge made enough comments about themto claim that they will not
pursue those claims where there were written assurances given but are
entitled to pursue those claims where there were oral assurances given.
1 do not see how the landlords can escape from the bond of the
promises which were given and which seem to me to have been given
for perfectly good consideration. This case seems to me to fall within
the principle laid down by this court in De Lassalle v. Guildford [1901]
2 K.B. 215. I will read a passage from the judgment of A. L. Smith M.R.,
at p. 222:
"The next question is, Was the warranty collateral to the lease so
that it might be given in evidence and given effect to? It appears to
me in this case clear that the lease did not cover the whole ground,
and that it did not contain the whole of the contract between the
parties."

_.

And later on: "The present contract or warranty by the defendant was
entirely independent of what was to happen during the tenancy."
When two parties are about to enter into an agreement for a lease E
a lease which imposes upon the lessee a very burdensome obligation in
respect to repairsI can see no reason why one party cannot say to the
other, " In relation to those outstanding matters, whatever may be our
legal position under the terms of the lease, we will not as landlords
enforce that obligation against you." I see no reason why effect should
not be given to such a position. I think the evidence shows that that p
was the position here; there was a perfectly good collateral contract
between these two parties.
But if I am wrong about that, I think in relation to Mrs. Carr's case
and this applies equally to the other two casesthere was a plain
waiver by the landlords of their right to claim the cost of these repairs
from these tenants. Let me take this example, which I think Lord
Denning M.R. mentioned during the argument: Suppose the landlords G
were now seeking to recover from the assignees the last two instalments
of rent due from an assignee or lessee, having said earlier that they
would not seek to recover those two instalments from him. If that were
the position as between the landlords and Mrs. Carr, and the landlords,
having given that assurance, then sought to recover those two instalments of rent from Mrs. Carr, I think that their claim must fail without JJ
more on the ground that there was there the plainest waiver of the right
to recover that rent. If that be right, then it seems to me that that waiver
subsists notwithstanding any subsequent assignment of the lease to

489
1 Q.B.

Brikom Investments v. Carr (C.A.)

Roskill LJ.

assignees and sub-assignees from the first assignee; because what was
then assigned and reassigned was a lease, the relevant obligation in
which had before assignment been waived by the landlords.
I think it necesary to go no further than what Lord Cairns L.C. said
in Hughes v. Metropolitan Railway Co., 2 App.Cas. 439 where the matter
was put not as one of promissory estoppel but as a matter of contract law
or equity (call it which you will), at p. 448:
" It was not argued at your Lordships' Bar, and it could not be
argued, that there was any right of a Court of Equity, or any
practice of a Court of Equity, to give relief in cases of this kind,
by way of mercy, or by way merely of saving property from
forfeiture, but it is the first principle upon which all Courts of
Equity proceed, that if parties who have entered into definite and
distinct terms involving certain legal resultscertain penalties or
legal forfeitureafterwards by their own act or with their own
consent enter upon a course of negotiation which has the effect of
leading one of the parties to suppose that the strict rights arising
under the contract will not be enforced, or will be kept in suspense,
or held in abeyance, the person who otherwise might have enforced
^
those rights will not be allowed to enforce them where it would be
inequitable having regard to the dealings which have thus taken
place between the parties."

JJ

For my own part, I would respectfully prefer to regard that as an illustration of contractual variation of strict contractual rights. But it could
equally well be put as an illustration of equity relieving from the consequences of strict adherence to the letter of the lease.
But, whichever is the right way of putting it, ever since Hughes v.
Metropolitan Railway Co., through a long line of cases of which there
are many examples in the books, one finds that where parties have made
a contract which provides one thing and where, by a subsequent course
of dealing, the parties have worked that contract out in such a way that
one party leads the other to believe that the strict rights under that
contract will not be adhered to, the courts will not allow that party who
has led the other to think the strict rights will not be adhered to,
suddenly to seek to enforce those strict rights against him. That seems
to me to be precisely what the landlords are trying to do here. Having
said both through their solicitors and Mr. Jarvis to various inquiring
solicitors of intending purchasers of the leases, and to Mr. Rowe, the
chairman of the residents' association, and through their agent Mr.
Stacpoole at lunch with Mrs. Carr, "We will do these repairs at our
expense," they then subsequently, as it would seem as a reprisal because
of disapproval of opposition by these lessees in attempting to prevent
the landlords getting planning permission to add another storey to these
flats, belatedly tried to enforce against one of these lessees, and in the
other two cases against assignees, the strict letter of the contract. I do
not think that the common law or equity will allow them to take that
step; and for my part, with profound respect to Lord Denning M.R., I

490
Roskill LJ.
Brikom Investments v. Can- (C.A.)
[1979]
do not think it is necessary in order to reach that result to resort to the .
somewhat uncertain doctrine of promissory estoppel.
For those reasons which I have given at some length in deference
to the arguments to which we have listened, I would dismiss this appeal.
CUMMING-BRUCE L.J. I agree that the appeals should be dismissed
for the reasons stated by Roskill LJ. I add a word of my own as the
appeals have given rise to a discussion of some controversial problems of
legal analysis.
The first appeal is the case of Mrs. Carr. Before she signed her
contract, to which the draft lease was annexed, she received an assurance
that the grantors who became her landlords under the lease would not
enforce against her a covenant imposing upon her the burden of paying
for repairs to the roof of the building in which she was proposing to
become their tenant. Relying upon that assurance, she entered into an
agreement for a lease. Before she signed the lease, the landlords by their
agent repeated the assurance. Relying thereon, she entered into the lease.
Those facts establish a contract collateral to the agreement for a lease
and collateral to the lease itself. Consideration moved from Mrs. Carr
because she entered into the agreement for a lease and then made the
deed in reliance upon the assurance. Looking back on the transaction
she said in evidence that she would have entered into the lease anyway:
nonetheless on her evidence the inducement of the landlords' promise was
one of the factors that she relied upon. That is enough without giving
rise to the necessity of assessing the weight or quantum of each of the
factors that between them induced her to agree to enter into the lease.
After she had taken possession under the lease she was minded to take
action to make the landlords repair the roof as was their obligation under
the lease. She stayed her hand because the landlords were still assuring
all the tenants that they were going to pay for the roof repairs themselves. A long time afterwards they changed their mind about that,
apparently out of resentment over the line taken by some tenants in
connection with a planning application. The principle declared in Hughes
V. Metropolitan Railway Co., 2 App.Cas. 439 is in point. If I am wrong
in holding that she can rely upon the contract collateral to her lease, she
then acted to her detriment in reliance upon the landlords' promise that
they would not enforce a covenant in the lease, and equity will not
allow them to enforce their legal right.
In the cases of Mr. Roddy and Miss Hickey there was no promise
given by the landlords to them as assignees. The promises were given in
both cases to the first purchasers of the leases, which leases were assigned
by the tenants. So Mr. Roddy stands at one remove, and Miss Hickey
at two removes from the promises given by the landlords to the original
lessees. I do not see how an assignee can claim the benefit of an estoppel
founded on a promise made to somebody else, even though that other
person is the assignor who is assigning the unexpired term of the lease,
Nor is there any collateral contract between the assignees and the original
grantor of their leases. But in both these cases the landlords by their
declarations at the time when the leases were granted communicated to

JJ

491
1 Q.B.

Brikom Investments v. Carr (C.A.)

Cumming-Bruce LJ.

the lessees that they waived the lessees' covenant to pay for repairs so
far as repairs to the roof were required at the date of lease. Having
waived the right to recover the cost of such repairs from the original
lessees, their obligation to pay for those repairs came to an end. There
is nothing in the evidence to suggest that the landlords intended their
assurances to be personal to any individual tenant. On the contrary it is
clear that when those lessees passed on the content of the landlords'
B assurances about the cost of roof repairs to their assignees they were
behaving exactly as the landlords had expected and intended them to do.
When the facts found by the judge are considered, they point to an
overwhelming inference that the landlords acted in such a way as to
lead the original lessees to believe that they had the right to assign an
estate unencumbered by any obligation to pay for the repairs to the roof
r, which were necessary at the time when the leases were granted. On those
facts the landlords' waiver operated so that the lessees' obligation to
which it related came to an end once and for all, and did not revive upon
the accidental contingency of a first or second assignment.
For those reasons I concur in the order that the appeal should be
dismissed.
D

Appeals dismissed with costs.

Leave to appeal refused.

Solicitors: A. E. Hamlin & Co.; J. E. Kennedy & Co., Harrow.

M. M. H.
E

[COURT OF APPEAL]

SERVICES EUROPE ATLANTIQUE SUD (SEAS) v.

STOCKHOLMS REDERIAKTIEBOLAG SVEA
1976 June 17, 18;
July 9
1978 Feb. 8, 9; 22

Robert Goff J.
Lord Denning M.R., Ormrod and
Geoffrey Lane L.JJ.

CurrencyContractDamages for breachCharterpartyCargo

damaged owing to owners' breach of warranty of seaworthiness
Charterers settling cargo receivers' claim in local currency
Currency of charterers' business used to acquire local currency
Owners admitting liabilityCurrency of award
Ships' NamesFolios

H
Cargo shipped to Brazil by charterers of a Swedish-owned
motor vessel was damaged on arrival owing to defective refrigeration. A claim for damages by the cargo receivers was
settled by the charterers, with the owners' agreement, in