Lloyd's Maritime and Commercial Law Quarterly
CONTRACTUAL ESTOPPEL AND THE FORK IN THE ROAD
Lau Kwan Ho*
First Tower Trustees v CDS
It is not often that a legal treatise is written on a subject without having the benefit of considering any direct or indirect guidance from the highest court in the land. That is the objectively unfortunate position of Mr Trukhtanov, who has nevertheless managed helpfully and comprehensively to gather and analyse the existing authorities in his book Contractual Estoppel,1 intended both as a guide for judges and practitioners as well as a paean to the doctrine (in defiance of those who demur as to its existence, it might be added). That his full insight is now available for contemplation is undoubtedly to our advantage, but it should not be allowed to obscure, it is suggested, the fact that the Court of Appeal had adopted the contractual estoppel doctrine in not uncontroversial circumstances, as some readers of this Quarterly may recall,2 and that there remains undetermined the all-important question whether the doctrine, as it is currently understood, will receive or be denied the imprimatur of the Supreme Court when an appropriate case eventually arises for decision there.
* Assistant Professor of Law, Singapore Management University.
1. A Trukhtanov, Contractual Estoppel (Informa, Oxford, 2018).
2. See G McMeel, “Documentary Fundamentalism in the Senior Courts: The Myth of Contractual Estoppel” [2011] LMCLQ 185; A Trukhtanov, “Limits of Contractual Estoppel” [2012] LMCLQ 358; KCF Loi, “Contractual Estoppel and Non-Reliance Clauses” [2015] LMCLQ 346. Writings elsewhere include: A Trukhtanov, “Misrepresentation: Acknowledgement of Non-Reliance as Defence” (2009) 125 LQR 648; KY Low, “Misrepresentation and Contractual Estoppel” (2011) 23 SAcLJ 390; E Macdonald, “Exception Clauses: Exclusionary or Definitional? It Depends!” (2012) 29 JCL 47, 64–66 and 70–71; D McLauchlan, “The Entire Agreement Clause: Conclusive or a Question of Weight?” (2012) 128 LQR 521; N Goh, “Non-Reliance Clauses and Contractual Estoppel: Commercially Sensible or Anomalous?” [2015] JBL 511; J Braithwaite, “The Origins and Implications of Contractual Estoppel” (2016) 132 LQR 120; R Hooley, “Contractual Estoppel and the Misrepresentation Act 1967” (University of Cambridge Faculty of Law Legal Studies Research Paper No 57/2016); J White, “Defining ‘Exclusion’ Clauses and Excluding ‘Defining’ Clauses: The Need to Clarify the Scope of the Unfair Contract Terms Act 1977” [2016] JBL 373; J Braithwaite, “Springwell-watch: New Insights Into the Nature of Contractual Estoppel” (LSE Law, Society and Economy Working Paper No 12/2017).
Case and comment
335