(v) Alternative Claims
In some cases where the claimant has incurred expenditure pursuant to an anticipated or incomplete contract the remedy will not lie within the law of restitution at all, because it is not possible to show that the defendant had been enriched. In such circumstances it may be possible for the claimant to identify a collateral contract whereby the defendant agrees to reimburse the claimant for the expenditure which had been incurred.2 4 It might even be possible for the claimant to sue the defendant in tort if, for example, the defendant had said that he or she would make a contract but never intended to do so, for the defendant could then be liable to the claimant for misrepresentation.
Alternatively, the claimant might in the future be able to establish a claim founded on promissory estoppel, even though the orthodox approach in English law is that this operates as a shield rather than a sword so that it does not constitute a cause of action.[1] [2] Whilst the Privy Council in Attorney-General of Hong Kong v Humphreys Estate[3] held that, on the facts of that case where the claimant had incurred expenditure in respect of an agreement which was ‘subject to contract’, the claimant could not found an action for reimbursement on estoppel, it was accepted that in certain circumstances the defendant’s conduct would mean that he or she would be estopped from denying that the parties had entered into a contract, even where the agreement was ‘subject to contract’, so a contractual claim would succeed.
- [1] Turriff Construction Ltd v Regalia Knitting Mills Ltd [1972] EGD 257.
- [2] Unlike proprietary estoppel: see Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County
- [3] Council (1981) 41 P and CR 179. In Australia promissory estoppel is a cause of action: Walton Stores(Interstate) Ltd v Maher (1988) 164 CLR 38 7. 246 [1987] AC 114.
