The Gazette 1985

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GAZETTE JULY/AUGUST 198
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- Cullen35 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- Cullen39 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 Fashions49
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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