(i) De Minimis

If the defendant’s position changed in only a very small way, this should not be sufficient to estop the claimant from denying the truth of the representation. Consequently, the defence should be subject to a de minimis qualification.

(ii) Apportionment of Payments

Burrows has suggested that a single representation of fact made by the claimant might be divided into a number of different representations which operate only to the extent that the defendant’s position changed.[1] This suggestion is surely unworkable where the claimant has only made one payment to the defendant, as occurred in Avon County Council v Howlett, because it would be a fiction to assert that the claimant made more than one representation as to the validity of the single payment. But, where a number of payments have been made, it should be possible to consider each payment separately to determine to what extent the defendant’s circumstances have changed in respect of

each one.[2]

  • [1] possible to apportion benefits received. See p 321, above.
  • [2] 46 Such a solution was advocated by Viscount Cave LC and Lord Atkinson in Jones Ltdv Waring and Gillow
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