The House of Lords, the highest court of appeal in England and Wales, has for the second time in as many years, turned its attention to the doctrine that can transform informal and non-binding promises or assurances into rights in or over land and other property. This is known as the doctrine of proprietary estoppel.

The case before the House of Lords involved two members of a farming family, the Thorners, from Somerset in South West England. Peter Thorner was the farmer of a considerable parcel of land who had no children. Peter's cousin, Jimmy, did have children of which David Thorner was one. David helped Peter out on the farm fromor as early as 1976, when David was 26, and continued doing so until Peter's death in 2005. Throughout this time, David did not receive any pay for his work on Peter's farm and it seems that David survived on a little money given to him by his father.

What David did have, however, was an expectation that he would, on Peter's death, inherit the farm. But Peter died without leaving a will and under the rules of intestacy David would not have inherited any of Peter's property and certainly not his entire farming enterprise. David claimed that in the circumstances of the case, he was entitled to become the owner of the farm.

David's case relied on proprietary estoppel, a doctrine that is well known to Bermuda law. The doctrine is based on three main elements: a representation or assurance made to the claimant, reliance on that representation or assurance, and detriment to the claimant in consequence of his reasonable reliance on the representation or assurance. David could clearly show very significant detriment – he had given up various other career opportunities to remain farming with Peter for no pay. The work on the farm involved very long and irregular hours and was physically arduous. What David could not point to, however, was a moment in time at which Peter had said to him words like "in return for your hard work you will inherit my farm on my death". The case turned on whether or not Peter had made a sufficient representation or assurance to David on which he was entitled to rely. As appears from the case report, the problem was that Peter was a man of very few words. He was a private man who generally kept his thoughts about his business and financial affairs to himself. As one of the judges put it, this was a case "…about two countrymen leading lives that it may well be difficult for many city-dwellers to imagine… taciturn and undemonstrative men committed to a life of hard and unrelenting physical work, by day and sometimes by night, largely unrelieved by recreation or female company". It was noted that Peter was not the sort of man who would make an announcement at a family gathering about whether or not he intended David to inherit his farm after his death.

David admitted that up until 1990 (which was about half way through his 29 years of labour on the farm) he only had a hope, and not an expectation, that he would inherit the farm. David's case was that this hope turned into an expectation one day in 1990 when Peter gave David two life assurance policies and said: "That's for my death duties". David contended that this was something of a watershed in that it was the first direct reference made by Peter with regard to matters concerning his estate and inheritance. The trial judge found that Peter's words, together with the handing over of the life policies, encouraged David to remain in his unpaid position as Peter's assistant. This encouragement was then supplemented over the years by various comments about everyday farming matters that reinforced in David's mind that he was to be the successor to Peter in the farming enterprise.

The House of Lords held that it was irrelevant that Peter had actually intended David to inherit the farm. What was vital was whether Peter's words and actions would reasonably have conveyed to David an assurance that he would inherit. It was enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance that could be relied on. It is clear from the decision of the House of Lords that context is extremely important or perhaps that context is everything in cases of this sort. Without an understanding of Peter's quiet and reserved nature or the way in which Peter and David communicated (as much by what was not said as what was said) it seems remarkable that the words used by Peter could be enough to sustain a claim to inherit a substantial and valuable farming business.

However, in the context of these two cousins' lives, the House of Lords upheld the trial judge's decision that there was a sufficiently clear representation on which David had relied and was entitled to rely. In the words of one of the members of the House of Lords and in perhaps an unusually pragmatic decision, Peter's representation was held to be "clear enough".

Readers in Bermuda should regard the decision of the House of Lords outlined in this article as a cautionary tale. While the outcome was a good result for David and clearly what Peter had intended, readers should be aware that the expense and uncertainty of years of litigation could have been avoided had Peter made proper provision by will for David in the first place.

Attorney Keith Robinson is a member of the Litigation and Insolvency Practice Group at Appleby. A copy of Mr. Robinson's column can be obtained on the Appleby website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.