Lloyd's Maritime and Commercial Law Quarterly
CONTRACTUAL ESTOPPEL AND NON-RELIANCE CLAUSES
Kelry CF Loi*
In recent years, the English Court of Appeal appears to have developed a new species of estoppel. This novel “contractual estoppel” is controversial for at least two reasons. First, although it is not necessarily so restricted, this contractual estoppel is commonly raised on the basis of “non-reliance clauses”, and such clauses are typically statements of past fact known by both contracting parties to be untrue. Secondly, it is said to be an estoppel which is founded on nothing more than a contractual term and, as such, it shows no consanguinity with any of the other established forms of estoppel. This article examines the nature of this novel estoppel.
A. INTRODUCTION
Between 2006 and 2010, the Court of Appeal in Peekay
1 and Springwell
2 brought into the limelight what appeared to be a new species of estoppel in English law. In 2011, the Court of Appeal in Axa Sun Life
3 was prepared to assume that Springwell and this novel doctrine of “contractual estoppel” could be challenged only in the Supreme Court. By 2014, the Court of Appeal in Richards
4 seems to have regarded the “receipt clause” in the Privy Council decision of Prime Sight
5 as giving rise to a form of contractual estoppel. Whilst contractual estoppel appears to be of general application and may apparently be
* Faculty of Law (Centre for Law & Business and Centre for Banking & Finance Law), National University of Singapore; Merton College, Oxford. Many thanks to the anonymous referee and to Professors MG Bridge, M Chen-Wishart, G McMeel, E Peel and H Tjio for reading an earlier draft and for helpful comments. The author is also grateful to participants of the Obligations VII conference (July 2014) for attending the presentation of a previous version. The usual caveats apply.
The following abbreviations are used:
Coote: B Coote (R Bigwood, ed.), Contract as Assumption: Essays on a Theme (Hart, Oxford, 2010);
Treitel: E Peel (ed.), Treitel: The Law of Contract, 13th edn (Sweet & Maxwell, London, 2011);
Wilken & Ghaly: S Wilken and K Ghaly, The Law of Waiver, Variation, and Estoppel, 3rd edn (OUP, Oxford, 2012).
1. Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386; [2006] 2 Lloyd’s Rep 511, [56–57] (Moore-Bick LJ).
2. Springwell Navigation Corp v JP Morgan Chase Bank [2010] EWCA Civ 1221; [2010] 2 CLC 705,
[144–169] (Aikens LJ).
3. Axa Sun Life Services Plc v Campbell Martin Ltd [2011] EWCA Civ 133; [2011] 2 Lloyd’s Rep 1, [2012] Bus LR 203; [2011] 1 CLC 312, [34] (Stanley Burnton LJ).
4. Richards v Wood & Wood [2014] EWCA Civ 327, [16] (Lewison LJ).
5. Prime Sight Ltd v Lavarello [2013] UKPC 22; [2014] AC 436 (Gibraltar, PC).
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