The Gazette 1985

JULY/AUGUST

198

GAZETTE

the McMahons to the County Council. Like Kenny J., however, Finlay P. appears to have taken the view he had no power to order a conveyance. He said: "I wish to make it clear as Kenny J. did under similar though by no means identical circumstances in the case of Cullen -v- Cullen 35 that if at the period of 12 years from 1973 the defendant County Council apply to have themselves registered as owners of this folio by reason of their adverse title to it, it appears to me that that is an order to which they should be entitled and that they should therefore at that time become the owners in law as well as they are now the owners in fact as a result of my judgment". 36 Comment McMahon -v- Kerry County Council is something of a conundrum. On the one hand, it extends the principle in Ramsden -v- Dyson 37 to a new point. Finlay P., indeed, considered his decision so innovative that, contrary to the ordinary rule, he awarded costs to the unsuccessful plaintiffs. 38 Against this, the decision perpetuates the fallacy in Cullen -v- Cullen 39 that the court has no power to order a conveyance. It is not apparent from the report whether counsel referred to cases such as Crabb -v-Arun District Council,* 0 in which it has been accepted that the court has power to order the grant of a legal interest. To this extent the decision may be considered to have been decided per incuriam. Another difficulty is that Finlay P.'s decision was expressed in such cautious terms that its value as a precedent may be limited. Clearly conscious of the novelty of his decision, and wishing to avoid "the classic fault of creating bad law by the consideration of a hard case", 41 Finlay P. was at pains to emphasise that it was only the combination of factors in the McMahon case "which are many and possibly in their combination unique" which forced him to his decision". 42 Every case is, of course, decided and must be understood secundum subjectam materiam . 43 But even though Finlay P. might have been reluctant to see his decision applied widely, it does establish a principle which will surely be explained and developed. It is, moreover, broadly in line with the thrust of recent cases in England concerning proprietary estoppel. Oliver J. in his discussion of recent cases on equitable estoppel in Taylor Fashions Ltd. -v- Liverpool Victoria Trustees Co. Ltd.** concluded that they could not be confined into rigid categories. They "support a much wider equitable jurisdiction to interfere in cases where the assertion of strict legal rights is found by the Court to be uncon- scionable". 45 Later, he emphasised the point again. "[The] more recent cases indicate, in my judgment, that the application of the Ramsden -v- Dyson principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encourage- ment is really immaterial) requires a very much broader approach which is directed to ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted

within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour". 46 This analysis was accepted by Robert Goff J. in Amalgamated Investment and Property Co. Ltd. -v- Texas Commerce International Bank Ltd. 47 The existence of a broad equitable jurisdiction to restrain the unconscion- able exercise of legal rights thus has the status of orthodoxy. It is true that McMahon -v- Kerry County Council* % goes much further than the Taylor Fashions 49 and Amalgamated Investment cases. 50 In neither of these cases was the person alleged to be estopped in ignorance of the acts of the other. Indeed, Oliver J. accepted 51 that it might well be that in a case of passive acquiescence the defendant, the possessor of the legal right, must know of the existence of his own right and of the plaintiffs mistaken belief of his rights. 52 He did, however, say that this must now be considered open to doubt, and it would be inconsistent for a broad equitable doctrine based upon conscience to be fettered "within the straight-jacket of some fixed rule governing the circumstances in which, and in which alone, the court will find that a party is behaving unconscionably". 53 It will be rare that it will be unconscionable for the owner of land to rely upon his legal rights where he has no knowledge whatever of acts of improvement by a stranger. But McMahon -v- Kerry County Council decides that there can, exceptionally, be such a case. The difficulty, and it is substantial, is upon what basis a judgment can be made that it is unconscion- able to rely upon legal rights. Finlay P. in the McMahon case was content to reach a decision on the unusual facts of that case without explaining in more general terms what could give rise to an estoppel. The development of the guidelines applicable in a case such as this must await a future decision. • The author wishes to record his thanks to Vincent Power for his assistance with an earlier draft of this article, and to Professor Birks for his comments and advice. Footnotes 1. GofT and Jones, The Law of Restitution (2nd. ed. 1978)pp. 106-107; for the U.S.A. see Palmer. The Law of Restitution (1978) pp. 435 IT. 2. [1981] ILRM 419 (High Court). Finlay P. delivered judgment on 25th July 1976. 3. (1866) LR 1 HL 129. The citation of the case given in the report of McMahon -v- Kerry County Council inaccurately gives the year of Ramsden -v- Dyson as 1886. The same error was made in an article by J.C. Brady, "An English and an Irish view of proprietary estoppel" (1970) V. Ir. Jur. (n.s.) 239. 4. The longest discussion is in Brady and Kerr, The Limitation of Actions in the Republic of Ireland (1984) pp. 105-106. 5. [1981] ILRM 419. 6. The doctrine of proprietary estoppel could aptly be described as part of Ireland's subliminal legal system. The broader English view of the doctrine has now been judicially adopted by Finlay P. in Smith -v- Ireland [1983] ILRM 300. Sec also J.C.W. Wylie, Irish Land Law (1975) p. 806. 7. [1962] IR 268. 8. [1962] IR 268 at 291. 9. Above, note 3. 10. [1962] IR 268 at 291-292. 11.(1866) IR 1 HL 129 at 140-141. The key passage from Lord Cranworth's speech is given below in the text to footnote 31. 12. Ibid, at 170. 13. See Inwards -v- Baker [1965] 2 Q.B. 29 at 38 per Danckwerts LJ and

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