(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. 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