Fontana NV v Mautner

Promissory estoppel–Action for possession of flat not subject to the Rent Acts–Tenant in occupation of flat under a succession of terms since 1952–Tenant’s wife suffering from severe mental and physical illness likely to be aggravated if she had to move out of the familiar surroundings of the flat–After a change of landlords, tenant was warned that he would have to give up possession of the flat–At a meeting with a representative of the landlord company who had authority to arrange the lettings of the flats the tenant explained his wife’s serious condition–Landlord’s representative said ‘it is quite all right, you can stay here as long as you wish’–Subsequently tenant was given a notice to quit–In the possession proceedings tenant relied on this statement as constituting a promissory estoppel–Judge found that tenant had all along been convinced that his possession of the flat could not be disturbed and that he did not do anything, either by action or inaction, in reliance on this representation–Doctrine of promissory estoppel considered at length–Whether necessary that promisee should suffer ‘detriment’ and, if so, at what point of time–Lord Denning’s views in Alan & Co Ltd v EI Nasr Export and Import Co questioned–In present case, as tenant had not in fact relied on the representation made on behalf of landlord company, an essential ingredient in the equitable doctrine of promissory estoppel was lacking–Judgment in favour of landlord company for possession and other relief In these proceedings the plaintiff company, Fontana NV, registered in the Netherlands Antilles, sought possession, arrears of rent (a claim subsequently abandoned) and mesne profits against the defendant, Jack Mautner, in respect of a flat, no 55, at Fountain House, Park Lane, London W1, which the defendant had occupied as a tenant since 1952. Robert Pryor (instructed by Stephenson, Harwood) appeared on behalf of the plaintiff company; G Godfrey QC and J Littman (instructed by Bernard Sheridan & Co) represented the defendant. Giving judgment, BALCOMBE J said: Although this case, in the way that it has been presented and argued before me (and69 may I say at once very well argued) raises a point of law of some interest, since I have formed a very clear view of what is the answer here I think it is not right that I should delay to reserve my judgment merely to put it in perhaps more elegant form than I can do if I give an extempore judgment, and therefore I propose to give judgment straight away. The facts are as follows. The defendant, Mr Jack Mautner (who told me in evidence he was 29 at the outbreak of the war and therefore must now be a man of some 69 years of age) has been a tenant of Flat 55, Fountain House, Park Lane, since 1952. He took that tenancy shortly after the war, during which he had, although in reserved occupation, volunteered for the RAF and served as aircrew. During the war, in 1941, he married his present wife. They have had no children. As I said, they moved into this flat in Fountain House, Park Lane, which, as I suppose will be apparent to anybody from the address, was a flat at a considerable rental, and a material fact for the purposes of this case is that it was not subject to any statutory protection under the Rent Acts. At the time he moved in the owners of the block were the Prudential Assurance Co Ltd, and they had a policy of granting five-year leases, which at the end of each term they renewed to people who, like himself, were satisfactory tenants. That position continued with renewed five-year terms at intervals, with a slight increase in rent on each occasion, until 1973, when the last of the five-year terms expired. In the meantime, in 1970 or 1971, the Prudential had sold the reversion to Mr Mautner’s lease to a company, the Lyon Group Ltd, and at the time of that sale there was an exchange of letters, both by the Prudential and the Lyon Group to the tenants, saying that the Lyon Group would propose to continue a similar policy to that of the Prudential. Whether or not they would have done so is not absolutely clear. Certainly at one stage they were reluctant to renew a five-year lease and were prepared to grant only a shorter-term tenancy, but events overtook them because, as I have heard in evidence and I think is quite well known, the Lyon Group was one of the companies that got caught in the property difficulties of late 1973, and in due course a receiver was appointed by, as I understand it, a mortgagee of the building and eventually, in 1977, that property was sold to a company, the plaintiff in these proceedings, registered in the Netherlands Antilles, Fontana NV. In the meantime, as I have said, Mr Mautner’s last five-year term had expired in March 1973. He held over. He had a one-year term eventually granted until March 25 1974 at £2,200 per annum. That was extended until December 31 1974. In May of 1975 the receiver of the Lyon Group offered him a one-year term at an increased rent of £6,750. He did not accept that; but in May 1976 (and this is perhaps the vital fact underlying this case) Mr Mautner’s wife regrettably and tragically became seriously ill. Her illness, as has been described in a medical report which has been put before me and which is not contested, was cerebral atrophy aggravated by senile arteriosclerosis. Early in 1979, which is after the date I am speaking of now, this was further complicated by a minor cerebrovascular accident involving the right side of the brain. I will at a later stage deal with the effect that that illness has on Mrs Mautner. The symptoms of her illness became apparent in May 1976 and were apparently aggravated by a fire in the flat below, and she had to be rescued by firemen from her own flat. It does not require much imagination to realise that to a person who was already suffering from illness that could have a traumatic effect. I should have said that Mrs Mautner was herself a talented dress designer and had, at any rate until the onset of her illness, practised in partnership with her sister. In any event, in May 1976 the effect of her illness aggravated by the fire became apparent, and in June 1976 Mr Mautner accepted an agreement from the receiver for a further one-year term, from June 25 1976 until June 24 1977, at a rent of £5,000 per annum. A large bundle of correspondence has been put in and I do not propose to go through it in any detail, but I can summarise the effect of the letters which were passing between Mr Mautner and the various representatives of the landlords, because after Keith Cardale Groves & Co, the agents for the Lyon Group, there were J Trevor & Sons, who came in when Fontana became the owners of the building. It was Mr Mautner’s contention, which indeed he has maintained in evidence, that as a model tenant, as he put it, for a period of 25 years upwards, of a flat which was his home, and where a move could be disastrous in relation to his wife’s health, he had a right to stay on; and, as he put it in his letters, he could not believe that any court before whom the matter might come could make an order against him, evicting him, and also of course inevitably his wife, from their flat. In April 1977 the building was sold to this company Fontana, and there was a suggestion (I am not sure how far it was proved in evidence, but it matters not for this purpose) that the owner of the share capital of Fontana at this time was a Mr Sassoon Sofair, and his nephew, a Mr Isaac Sofair, was, through the medium of his company, A1 Gazar Properties (London) Ltd, given certain powers of management over the block. Although on the pleadings the extent of Mr Sofair’s powers of management was put in issue, Mr Pryor for the plaintiffs fairly conceded on the evidence which I have heard (and that included not merely Mr Mautner himself but the evidence of Mr Carter, who was the house manager of the block for a considerable time) that Mr Isaac Sofair was held out by the owners as having ostensible management authority, and certainly for the purposes of this judgment I find as a fact that, to Mr Mautner, Mr Isaac Sofair was held out as having authority to make arrangements connected with the block on behalf of the landlords. This authority continued up to the relevant date, which as will be apparent in a moment was July 2 1977, although in June of 1977 it appears that Mr Sassoon Sofair sold his shares in Fontana to a Sheik Khojah, who, it is again asserted, though I have heard no direct evidence on this, is an Arab, and so far as I am aware that may be where the ownership of the shares in Fontana still rests. Again it does not seem to be material. On July 2 1977 there was a vital conversation between Mr Mautner and Mr Sofair. Before I deal with that I should mention the position of Mrs Mautner’s health, because it is that which has throughout been the prime consideration of Mr Mautner. As I have said, she suffers from chronic illness of the brain. In October-November 1976 she had a period at the Priory Hospital in Roehampton for psychiatric treatment. But it then became apparent that her illness was neurological in nature and she was subsequently examined by a neurologist, who diagnosed the cerebral atrophy which I have already mentioned. In late 1976 she came back to the flat, Fountain House, where she has since lived and where she lives to this day. I quote from one of the medical reports which I have already mentioned, of Dr Myrddin-Evans, who is her medical practitioner. He says, ‘Her present medical condition is such that she is delusional, hallucinatory and almost completely bed-ridden. Added to this she is incontinent. It requires the assistance of two nurses to get her out of bed and stand her up. To move her to any other room bar the bedroom a wheelchair has to be used. She can, with great difficulty, manage to feed herself, but it is obviously much easier and quicker if the nursing staff undertake this. Drinking is a physical impossibility as she cannot control a cup.’  Mr Mautner gave evidence, describing in graphic terms the effect of his wife’s illness; she has very occasional, very brief, moments when she is aware of her surroundings, and, as he puts it, she relies very much in those moments on the familiarity of her surroundings. She would be distraught if she had to move, so he tells me, and this again is borne out by what the doctor says, in the sense that he says he does not know how much her surroundings are actually taken in by a person in her condition, but he is certain that, if she were moved to somewhere completely strange and without her personal possessions in their usual places, that would be extremely bad for her. So there we have the position from late 1976 onwards to date of Mrs Mautner, living in the flat with the full-time attention of day and night nurses, ill in the way that I have described and in her occasional brief moments of lucidity recognising and relying on her surroundings. She occasionally gets taken out into the park by the nurses and, perhaps as a detail I should mention, Mr Mautner told me that in order that his wife should get the maximum feeling of being at home rather than in an institution even the nurses are not allowed to wear nurses’ uniform; they have to wear their civilian clothes. There had been from time to time, prior to this date in 1977, notices served on Mr Mautner by the landlord–I say notices, it would be more accurate to say letters–saying that his tenancy would not be extended. On one occasion there was in fact a three months’ notice to quit, but it was never in fact carried into effect; and in early 1977 Mr Mautner was negotiating with Trevors for the possible purchase of this flat. He had put forward an offer on behalf of himself and some of the other tenants, but that offer was never accepted, and those negotiations never came to anything. Mr Mautner had learned that Mr Isaac Sofair was in fact the person who appeared to be ‘the boss,’ as he put it–the owner’s representative in relation to these flats–and in the early summer of 1977 Mr Mautner had been attempting to arrange a meeting with him to discuss his problems, but had been unable to do so because Mr Sofair’s secretary had said–and for all I know this may be true–that Mr Sofair was busy, and no meeting had in fact come about. But on July 2 1977–which was a Saturday–Mr Mautner met Mr Sofair in the following circumstances. Mr Mautner had two tickets for the men’s singles final which was due to be held at the All England Tennis Club at Wimbledon on that day, and because of his wife’s health (I think that was the reason, but it does not matter) he was unable to go himself. He telephoned his nephew, Roger Mautner, to see whether he could take advantage of those tickets. Mr Roger Mautner was delighted to take advantage of them, and it was arranged that he should come by to Fountain House to pick them up on his way to Wimbledon. He arrived there at about 1.20 or 1.25 that afternoon. When he came into the entrance hall of the block (and Mr Carter who was there telephoned up for Mr Jack Mautner to come down and hand over the tickets), Mr Roger Mautner happened to meet in the foyer Mr Isaac Sofair, whom he had known as a social acquaintance for a number of years. Mr Isaac Sofair had with him a young lady. When Mr Jack Mautner came down to hand the tickets over to Mr Roger Mautner, Mr Roger Mautner took the opportunity of introducing Mr Isaac Sofair to his uncle, as he knew that Mr Jack Mautner was anxious to meet Mr Isaac Sofair, and thereafter a comparatively brief conversation took place. But in the course of that conversation Mr Jack Mautner told Mr Sofair of his problem, that he had been a model tenant for 25 years, and he emphasised his wife’s condition. Mr Sofair, he said, seemed a reasonable man, and Mr Roger Mautner, who also gave evidence before me, stressed that as far as he knew Mr Sofair was an honourable man. And it was the evidence of both Mr Jack Mautner and Mr Roger Mautner (which was not contradicted in any way whatsoever, because in fact Mr Sofair was not called to give evidence, and indeed no evidence was called on behalf of the plaintiff landlords) that Mr Sofair said, ‘Mr Mautner, it is quite all right, you can stay here as long as you wish.’  Mr Roger Mautner soon after that left to go to Wimbledon, but Mr Jack Mautner invited Mr Sofair upstairs to his flat. He and the girl with him came upstairs. Mrs Mautner was in the front room with her nurse, and in order to avoid distressing her Mr Jack Mautner took Mr Isaac Sofair into an adjoining room from which at any rate he could see Mrs Mautner and could therefore realise Mr Mautner had not exaggerated the state of her health. And again Mr Mautner described his wife’s condition: the nature of her brain damage and the fact that she had to have day and night nurses. Mr Sofair expressed sympathy. He asked Mr Mautner what rent he was paying and he was told £5,000 a year exclusive of rates. Mr Sofair said that that was very satisfactory and he again said, according to Mr Mautner–and this was not challenged–that Mr Mautner need have no concern, he could stay as long as he wished. It is on the legal effect of those remarks that this case turns. That was on July 2 1977, although on June 2 1977 Mr Mautner had had a letter from J Trevor & Sons saying: ‘As you know we act for the managing agents for Fontana. Under the terms of your lease your tenancy expires on June 24 1977. We confirm that our clients will require full vacant possession of the flat on that date.’  As I have said, Mr Mautner had had letters of that kind before at intervals and in the event had not had to leave. Then the letter proceeds. ‘Of course if your negotiations with our residential department proceed with the purchase of a 999-year lease of the above flat then this will not apply.’ Then there was the meeting of July 2 and then nothing happened until August 2, when the solicitors for Fontana, Malkin, Cullis & Sumption, through their partner Mr Bluston, wrote a letter to Mr Mautner in the following terms: Dear Sir–Flat 55, Fountain House–Would you kindly note we act for Fontana NV, the freeholders of Fountain House, and we have been asked to write to you in particular following your meeting with Mr Isaac Sofair. And I pause there to say that it is common ground that there was only the one meeting between Mr Mautner and Mr Isaac Sofair, namely that of July 2 1977. Following this meeting it has in fact been decided that it is not our clients’ policy to sell flats at this time, and indeed our clients wish to pursue the possibilities of taking possession of those flats which are available for this purpose in order to carry out their refurbishment programme. We have looked through your correspondence with our clients’ managing agents, J Trevor & Sons, including the correspondence with their predecessors, Keith Cardale Groves & Co. It is our understanding that following your letter of June 2 1976 to the latter firm a one-year’s tenancy which would therefore have expired in June last– there is an obvious omission there but the sense is clear This, of course, would entitle our clients to pursue the possibility of obtaining possession of the flat, but our clients do not wish to take any precipitate action and we look forward to your reply. Although Mr Mautner said that when he read that letter he did not see it was in any way inconsistent with what Mr Sofair had told him–and he has said more than once that he is not a lawyer; he is, however, a very intelligent man, and indeed is a property developer–it does seem to me that anybody reading that letter would realise that at the very least it contains the seeds of an inconsistency, because if Mr Sofair were to be taken entirely at face value Fontana could not be even considering pursuing the possibilities of taking possession as against Mr Mautner, even though they might not wish to take any precipitate action. And indeed, Mr Mautner realised this. There was some correspondence between him and Malkin, Cullis & Sumption, to which I need not refer in detail until one gets to a letter of September 2, when he wrote back to them. There had been intervening letters. Mr Bluston of Malkin, Cullis & Sumption was, according to Mr Godfrey in his opening, speaking with forked tongue–I would rather put it that he was, perhaps very reasonably in the circumstances, trying not to exacerbate a delicate position, and he had written a letter which was not an outright demand for possession, but simply saying his clients’ policy was that set out in the letter of August 2 and there were these plans for refurbishment, and would a meeting be of some assistance. To which Mr Mautner replied on September 2 1977: I am not quite sure what this is all about as I thought I had made the position clear in my previous letter of August 8 that I wished to continue to live here in my home of the last 25 years. Either you have misread that letter or misinterpreted Mr Sofair’s instructions, as regardless of any other aspect of the matter he has already informed me that I can continue to live here as long as I wish. If before that date Mr Mautner had not realised that there was a potential inconsistency between what Mr Sofair had70 told him on the one hand and what the landlords’ solicitors were saying on the other, by that date he clearly was aware of that inconsistency, because he makes the point, ‘Either you have misread my letter or misinterpreted Mr Sofair’s instructions.’  But the fact is–and I stress this, and it comes out quite clearly from Mr Mautner’s evidence–that nothing I have heard in the evidence persuades me that Mr Mautner either did or did not do something in reliance upon what Mr Sofair had told him. He had all along taken the line, and he continued to take it after the conversation with Mr Sofair, that Flat 55 was his home, that that gave him if not some sort of right at any rate a position which no judge of an English court would disturb, and he neither considered looking for alternative accommodation nor did so. That, I think, is an important question when I come to consider the effect of estoppel. I find as a fact, and I am quite clear on the evidence of Mr Mautner himself (which was not contested on this point; indeed it was given very fairly), that his view all along was that he could stay there. He was going to stay, and although he was delighted to hear from Mr Sofair that he would be able to stay he in no way changed his position, either by action or inaction, in reliance upon what Mr Sofair had told him. Matters then went ahead. There were further letters. There was a notice to quit given by solicitors on behalf of Fontana certainly on June 6 1978, and that was a six months’ notice to quit. But the point was considered that that might not terminate on the right date, and a further notice to quit was given on December 20 1978, terminating the tenancy on June 24 1979. Mr Mautner made it quite clear that he was not proposing to quit on that date, and in due course the action 1979 F No 1 was issued in which the landlords Fontana set out the relevant facts and simply claimed a declaration that the defendant’s tenancy had been determined and would expire on June 24 1979, and a declaration that they were entitled to possession of the flat on June 24 1979. Subsequently, after the second notice had expired, they started a second action, F No 895 between the same parties, claiming possession, arrears of rent and damages for trespass–and at the beginning of this hearing I consolidated those two actions, so that the claim for the declaration and the claim for possession are both before me. To that action the defendant, Mr Mautner, has put in a defence and counterclaim, relying on the equitable doctrine which is known generally by the term promissory estoppel. After setting out the uncontroversial facts he sets out in paragraph 4 an allegation of his wife’s illness, and then in paragraph 5 sets out the effect of the conversation of July 2, 1977, with Mr Isaac Sofair. Then in paragraph 6 it is said: The Defendant in reliance upon the said statement of the said Sofair has forborne to seek other accommodation for himself, and other accommodation and treatment for his wife, than in the said flat; has altered his position to his and his wife’s detriment or prejudice; and has incurred expense. As a result of the Defendant’s said acts, the Defendant’s wife has become more dependent for her health upon continued residence in the said flat than would have been the case had she been moved to other accommodation during or about July 1977. As I have already found as a fact, I do not accept that the defendant has altered his position in any way in reliance upon Mr Sofair’s statement. Then the defence and counterclaim as amended goes on: In the premises, the Defendant avers that by his said statement the said Sofair intended the Defendant to believe and act upon the assurance that the Plaintiffs would forbear to seek to recover possession of the said flat, so long as the Defendant was prepared to pay a commercial rent therefor, until the happening of the earliest of the recovery of health by the Defendant’s wife, the death of the Defendant’s wife, or the death of the Defendant; and the Plaintiffs are estopped from alleging that they will be entitled to possession of the said flat on June 24 1979. Further or alternatively, in the premises it would be inequitable to allow possession of the said flat to the Plaintiffs on the 24th day of June, 1979. Then the relief counterclaimed in its original form was, ‘A declaration that the Defendant’s said yearly tenancy might not be determined by the Plaintiffs until the happening of the earliest of the recovery of health of his wife, her death, or his death.’  At an early stage in the course of the proceedings I pointed out to Mr Godfrey that a declaration in that form was not entirely consistent with the allegation contained in the statement of claim, that the defendant should be allowed to remain a yearly tenant at a commercial rent, because if they could never determine the existing tenancy it would follow from that that the landlords could never put up the rent. So that claim was amended to claim A declaration that the Plaintiffs are not entitled to seek to recover possession of the said flat, so long as the Defendant is prepared to pay a commercial rent therefor, until the happening of the earliest of the recovery of health of his wife, her death, or his death. Before getting on to the law there are two problems there which I should deal with. First, Mr Mautner said in his evidence that as far as he was concerned what he understood from Mr Sofair’s statement that ‘he could stay there for as long as he liked’ was that his wife would be secure. It certainly never entered his head that should he die first his wife would not have security of tenure. Mr Pryor, for the landlords, relied on that difference between what Mr Mautner believed as a matter of his understanding of the assurance and how the claim was pleaded for a submission that therefore the representation by Mr Sofair was not sufficiently clear or unequivocal to found the basis of promissory estoppel. I do not accept that. It seems to me that Mr Godfrey was right in his submission, that provided the person who relies on the representation establishes the fact of the representation sufficiently clearly, and if the court is satisfied that the representation was clear and unequivocal, then the legal consequences to be drawn from that statement are a matter for the judge, and the fact that in this case Mr Mautner may have believed that Mr Sofair’s representation had a wider ambit than his lawyers have felt able to put before the court does not, as it seems to me, defeat his claim. The other point about the amendment of the claim to pay a commercial rent I will deal with at a later stage, because it does seem to me that that introduces an additional difficulty in the way of Mr Mautner. However, having said that, and that being the legal issue I have to decide, I now turn to the question of the relevant law. It has been said more than once that the doctrine of promissory estoppel is in a state of development, and so it is. I think all lawyers will know that from the late 19th century when there were the two cases, one in the House of Lords, Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, and the Court of Appeal case of Birmingham and District Land Co v London and North Western Railway (1888) 40 Ch D 286, the doctrine seems to have lain dormant until it was revived by Denning J (as he then was) in the Central London Property Trust Ltd v High Trees House Ltd case just after the war [1947] KB 130. And since then it has been the subject of much development. But although I know that Lord Denning himself would not accept the definition which I am about to cite as a definitive definition (and Mr Godfrey submits that I should not so accept it), for the purposes of this case I accept as a correct statement of the law the judgment of Lord Hodson in the Privy Council (and I realise, of course, that Privy Council decisions are only of persuasive authority, but of the very highest persuasive authority) in the case of Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326, where Lord Hodson says this at p 1330: Their Lordships are of opinion that the principle of law as defined by Bowen LJ– and pausing there to interpolate that is in the Birmingham and District Land Co case– has been confirmed by the House of Lords in the case of Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 1 WLR 761, where the authorities were reviewed and no71 encouragement was given to the view that the principle was capable of extension so as to create rights in the promisee for which he had given no consideration. The principle, which has been described as quasi estoppel and perhaps more aptly as promissory estoppel, is that when one party to a contract in the absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party. This equity is, however, subject to the qualifications (1) that the other party has altered his position, (2) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position, (3) the promise only becomes final and irrevocable if the promisee cannot resume his position. If I might say so, with respect, that, as I understand it, and subject to the various references which I shall deal with in a moment, correctly states the law, and certainly accurately summarises what Lord Simonds said in Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd (supra). In that case at the bottom of p 763 Viscount Simonds sets out the passage from the judgment of Bowen LJ in the Birmingham and District Land case, which perhaps I should read as it is referred to so frequently. It seems to me to amount to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a court of equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before. Then Viscount Simonds goes on: These last words are important, for they emphasise that the gist of the equity lies in the fact that one party has by his conduct led the other to alter his position. I stress those words, because the doctrine is an equitable doctrine and is based entirely, as I understand it, on the premise that where one person has made a representation to another in reliance upon which the other alters his position, then it would be inequitable to allow the first person to go back on what he had said. This appears, and I am very much obliged for the citation, in a helpful passage from the leading textbook on the subject, Spencer Bower & Turner on Estoppel by Representation, 3rd ed at p 109, where the learned author, Sir Alexander Kingcome Turner, who was formerly President of the Court of Appeal in New Zealand; says this: Whether the representee has ‘altered his position’ by way of positive change, or merely by refraining from some action which he was otherwise at liberty to take and I pause there to interpolate that I of course accept that you can alter your position by inaction just as much as you can by action he must be able to show ‘detriment,’ which as we have seen is some prejudicial effect upon his temporal interests. But it is of the utmost importance to notice that the ‘detriment’ which the representee must be shown to have suffered is judged only at the moment when the representor proposes to resile from his representation. It has been pointed out by Dixon J who of course later became Chief Justice Dixon of the High Court of Australia in the course of his enunciation of the principles governing this part of the subject contained in his judgment in Grundt v Great Boulder Proprietary Gold Mines Ltd [1948] Ch 145 that in measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true. So long as the assumption continues to be regarded by the parties as true, the question of estoppel does not arise. It is only when the representor wishes to disavow the assumption contained in his representation that an estoppel arises and the question of detriment is considered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation. and then perhaps somewhat ironically As Lord Denning has observed, the principles governing this branch of the subject cannot be better put than in the words of this great Australian jurist, which are accordingly reproduced in full in the following quotation. I do not think it would help and would probably merely lengthen what is already turning out to be an unduly long judgment if I were to cite the quotation in full, but it is quite clear that what the learned editor said there follows from what Dixon J says: the detriment is determined at the moment when the representor otherwise seeks to resile from the representation. The final paragraph in the text is: The test of detriment, in a word, is whether it appears unjust or inequitable that the representor should now be allowed to resile from his representation, having regard to what the representee has done, or refrained from doing, in reliance on the representation. Now in deference to the careful and attractive argument of Mr Godfrey it is only right that I should deal with the cases which he has cited in which Lord Denning has suggested that detriment is no longer necessary. The cases are first, Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189. That was a commercial case, and the question essentially was one of waiver. Lord Denning sought to equate waiver with the doctrine of promissory estoppel, and then said at p 213: The principle of waiver is simply this. If one party by his conduct leads another to believe that the strict rights arising out of the contract will not be insisted upon, intending that the other should act on that belief and he does act on it, then the first party will not afterwards be allowed to insist on strict legal rights when it would be inequitable for him to do so. I pause there to say that there is the question of equity arising again. He goes on: There may be no consideration moving from him who benefits by the waiver. There may be no detriment to him by acting on it. There may be nothing in writing. Nevertheless the one who waives his strict rights cannot afterwards insist on them. His strict rights are at any rate suspended so long as the waiver lasts. He may on occasion be able to revert to his strict legal rights for the future by giving reasonable notice in that behalf or otherwise making it plain by his conduct that he will thereafter insist upon them (Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd). But there are cases where no withdrawal is possible. It may be too late to withdraw or it cannot be done without injustice to the other party. In that event he is bound by his waiver. He will not be allowed to revert to his strict legal rights. He can only enforce them subject to the waiver he has made. With the greatest respect to Lord Denning I do not believe anyone would dissent from the propositions there cited. He then sets out certain cases by way of example, and then says: In none of those cases does the party who acts on the belief suffer any detriment. It is not a detriment but a benefit to him to have an extension of time or to pay less, or as the case may be. Nevertheless he has conducted his affairs on the basis that he has that benefit and it would not be equitable now to deprive him of it. It does seem to me, and I do not propose to go into this further because at the end of the day I believe it is not necessary for me to deal with it in my judgment, that Mr Pryor was right when he said that with the greatest of respect to Lord Denning he was considering the question of detriment at the wrong point in time. As was said by Dixon J as set out in Spencer Bower, almost in every case at the moment of acting on the representation the representee is far from suffering a detriment, he is getting a benefit. And the only question of considering whether he has altered his position, whether you say it as a matter to his detriment or whether you say because it would be inequitable to hold him to the original bargain, must be at the point of time at which the original representor says, ‘I didn’t mean it, I want to go back to what I said.’  If that is right then it seems to me that with the greatest of respect the judgment of the Master of the Rolls in Alan & Co Ltd v El Nasr Export and Import Co is not directly helpful to me in this case. I would add in any event that the other two learned Lord Justices in that case, Megaw and Stephenson72 LJJ, did not accept this approach to the matter at all; they simply said it was a straight question of waiver, and they held there was a waiver and that was that. Lord Denning has made a similar suggestion about the lack of necessity for detriment in other cases. The point was touched on in Crabb v Arun District Council [1975] 3 WLR 847, which again was a case not of the type of equitable or promissory estoppel we are concerned with here but a question of proprietary estoppel, and again with respect it does seem to me that certainly for a judge of first instance it makes it difficult if one has to consider the separate doctrines all under the one head. But there again it was not dealt with in the same way by the other members of the Court of Appeal. Equally, in the most recent case, Brikom Investments Ltd v Carr [1979] 2 WLR 737, again Lord Denning says that detriment is unnecessary. But the other two members of the Court of Appeal in the case, Roskill LJ and Cumming-Bruce LJ, treat the matter on a totally different basis. I was also referred to another waiver case, Bremer v Vanden, in the first instance before Mocatta J and reported in [1977] 1 Lloyd’s Rep 133, where he cites (p 165) Lord Denning’s remarks in Alan v Nasr, that proof of actual detriment was unnecessary; and in the same case in the House of Lords, Lord Wilberforce says he prefers Mocatta J’s judgment to that of the Court of Appeal. These are cases of straightforward waiver. Mr Godfrey submitted to me that this really was all this case was about; that there had been a once-and-for-all waiver by the landlords here of their right to serve a notice to quit. The difficulty it seems to me in Mr Godfrey’s way on that point is that if it is simply a mere waiver and nothing else, then the sort of relief which he was originally claiming would follow; namely if it was a mere waiver of a right to serve a notice to quit it would follow, it seems to me, that Mr Mautner’s existing tenancy would continue until it could be determined, which might be never. But once you accept, as Mr Godfrey rightly it seems to me was forced to accept, first that the existing tenancy could not continue indefinitely because it needed in equity to be at any rate varied to the extent that the rent should keep pace with the commercial levels of inflation, and secondly that there could come a point of time, whether it be only at the death of Mrs Mautner or whether it be at the first to happen of the death of Mr Mautner or the death of Mrs Mautner or her recovery of health, when the tenancy would end, then it is not just a question of mere waiver; it is, as Mr Godfrey rightly submitted, a question of the doctrine of promissory estoppel. That is why, with the greatest respect, I hope, to Lord Denning, I do not find these cases which were cases essentially of waiver of any assistance. I prefer to go back to what I believe myself to be the true statement of the doctrine of promissory estoppel as first propounded in Hughes v Metropolitan Railway Co and in the Birmingham and District Land Company case, and set out in the Privy Council case of Ajayi v Briscoe. And, as I hope I have made clear, I am quite positive in my mind on the evidence I have heard that Mr Mautner did nothing, either by action or inaction, in reliance on the representation made by Mr Isaac Sofair. He did what he was going to do anyway, and that was to sit tight for as long as he possibly could. I do not say I blame him for that, but it does seem to me that that is not an example of the doctrine of promissory estoppel. It follows from everything I have said that the plaintiffs here must succeed in their action. I will hear submissions in a moment as to the form of the relief I should grant, but I think I ought to add one thing. Mr Mautner has in the course of this dispute (if I can call it that) written a number of intemperate letters. Mr Godfrey suggested, and I accept the suggestion, that he should be forgiven those because he was under a great and understandable strain arising from his wife’s health. But at one point in the course of the correspondence he seems to have taken the view that in an action between a company incorporated in the Netherlands Antilles, as the plaintiff company is here, with Arab shareholders, and a person like himself, a British subject who served his country well during the war and having the humanitarian claims in regard to his wife’s health that he has, there could only be one answer. I feel in fairness to him that I should say this. A judge in this country has to do justice according to the law, and it is freedom under the law which is one of the freedoms that Mr Mautner, among others, fought for during the last war. It would not be, in my view, justice according to the law to weigh in the balance on the one hand the personalities of the plaintiff company and the personalities of the defendant and therefore say that the defendant must have judgment. I have to give judgment according to what I believe to be my duty under the law, and though I have, and I believe everybody in this court who has heard Mr Mautner’s evidence has, the greatest sympathy for him, my duty requires me to give judgment according to what I believe to be the law, and that is what I have tried to do. Judgment was given in favour of the plaintiffs for possession and mesne profits, possession to be given on or before March 25 1980 and the mesne profits to be determined by the master. The defendant was ordered to pay the plaintiffs’ costs of the action except in respect of two items as to which the plaintiffs were to pay the defendant’s costs. A stay of execution pending a possible appeal was refused.