KINGS BENCH DIVISIONCENTRAL LONDON PROPERTY TRUST LTD v HIGH TREES HOUSE LTD 1947 KB 130 July 18 1946 Full textDENNING J: By a lease under seal made on September 24, 1937, the plaintiffs, Central London Property Trust Ltd, granted to the defendants, High Trees House Ltd a tenancy of a block of flats for the term of ninetynine years from September 29, 1937, at a ground rent of 2,500 a year. The block of flats was a new one and had not been fully occupied at the beginning of the war owing to the absence of people from London. With war conditions prevailing, it was apparent to those responsible that the rent reserved under the lease could not be paid out of the profits of the flats and, accordingly, discussions took place between the directors of the two companies concerned, which were closely associated, and an arrangement was made between them which was put into writing. On January 3, 1940, the plaintiffs wrote to the defendants in these terms, we confirm the arrangement made between us by which the ground rent should be reduced as from the commencement of the lease to 1,250 per annum The defendants paid the reduced rent from 1941 down to the beginning of 1945 by which time all the flats in the block were fully let, and continued to pay it thereafter. In September, 1945, the plaintiffswrote to the defendants saying that rent must be paid at the full rate and claiming that arrears amounting to 7,916 were due If I were to consider this matter without regard to recent developments in the law, there is no doubt that the plaintiffs would have been entitled to recover ground rent at the rate of 2,500 a year from the beginning of the term, since the lease under which it was payable was a lease under seal which, according to the old common law, could be varied only by deed. Equity, however stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced by writing), the courts may give effect to it as is shown in Berry v Berry 1929 2 KB 316. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v Money (1854) 5 HL 185, a representation as to the future must be embodied as a contract or be nothing.But what is the position in view of developments in the law in recent years? The law has not been standing still since Jorden v Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said that the promise must be honoured. The cases to which I particularly desire to refer are: Fenner v Blake 1900 1 QB 426, In re Wickham, 1917 34 TLR 158, Re William Porter & Co. Ltd 1937 2 All ER 361 and Buttery v Pickard 1946 WN 25. As I have said they are not cases of estoppel in the strict sense. They are really promises promises intended to be binding, intended to be acted on, and in fact acted on. Jorden v Money can be distinguished, because there the promisor made it clear that she did not intend to be legally bound, whereas in the cases to which I refer the proper inference was that the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense, and that sense only, that such a promise gives rise to an estoppel. The decisions are a natural result of the fusion of law and equity: for the cases of Hughes v Metropolitan Ry. Co, Birmingham (1877) 2 App Cas 439 and District Land Co. v London & North Western Ry. Co. (1888) 40 Ch D 268 and Salisbury (Marquess) v Gilmore 1942 2 KB 38, afford a sufficient basis for saying that a party would not be allowed in equity to go back on such a promise. In my opinion, the time has now come for the validity of such a promise to be recognised. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of