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The doctrines of Equity are typically directed to prevent the law being used to further conduct described as “unconscionable”. The OED defines the word as “contrary to conscience”, “unreasonably excessive” or “unscrupulous” but it has no very precise meaning and is not a word much used in common parlance. It seems to have been introduced in the 16th C when the Chancellors Court would grant injunctions to restrain conduct regarded as “unconscionable in that it would imperil the soul of the agent – the Court was trying to  protect the wrong-doer and incidentally his victim.

A few years ago I gave a lecture in the Blundell series on Estoppel by Convention. The burden of my song was that the criterion of “unconscionable” behaviour for the application of equitable principles, particularly estoppels, was unhelpful.  To illustrate this I posited a time travel experiment in which the Athenian philosopher, Socrates, subjects a judge of the Chancery Division  to  the Socratic method of philosophical inquiry. Here it is again.  In the lecture I played the part of the hapless Judge and Kirk Reynolds QC was Socrates.

I went on to suggest a set of  criteria for establishing estoppel by convention that did not invoke unconsciability.

Mr Justice Who Meets Socrates

Judge:            You’re Socrates, aren’t you. I recognise you from your statue in the Colosseum.

Socrates:        Indeed I am. But who are you and where do you come from?

Judge:            I am a Judge of the Chancery Division of the High Court and I am from England. There seems to have been some dislocation of time. I come from about 2,400 years after your death.

Socrates:        How very interesting. I am afraid my last experience of Judges was not very encouraging. I was sentenced to death for corrupting the young with my ideas and made to drink hemlock.

Judge:            Yes, I know Socrates. That was very unjust. Everybody has thought so ever since.

Socrates:       How interesting that you should think so. I was charged with an offence which was criminal according to law, tried by due process and convicted by the Court. Where was the injustice in that?

Judge:            Well, your Judges got it wrong. They should not have convicted you.

Socrates:       I see that you do not regard Judges as infallible in these matters.

Socrates:       Yes, I expect that over two millennia later you will have worked out how to make the law reflect more perfectly what is just.

Judge:            We like to think we have.

Socrates:       I should be very interested to hear about such developments. As you may know, I was always very interested in the concept of justice. Indeed I believe my rather slow pupil, Plato, inadequately recorded some of my thoughts on the subject.

Judge:            Indeed he did and I read them as a young man. I hope I wasn’t corrupted.

Socrates:       Tell me, then, how injustice is to be avoided.

Judge:            Well, for example, we have laws that govern contracts between businessmen, how they are to be interpreted and enforced, but they sometimes conduct their affairs otherwise than in accordance with their contract on a different basis but one that they both share.

Socrates:        Ah, so they have varied the contract?

Judge:            Well no, because to do that may require some formality such as writing or may require consideration.

Judge:            It is a reciprocal promise or obligation.

Socrates:       So your law enforces promise keeping? How admirable.

Judge:           Well, no. Only if there are promises made by each party to the other.

Socrates:      So your law will enforce two promises, but not one? How peculiar. I do not see how any of this avoids injustice.

Judge:           I was just coming to that. When the parties to a contract have conducted their affairs on the basis of a non- contractual understanding that is different from the terms of their contract, the Courts will not allow either to go back on that understanding if it would be unconscionable for him to do so.

Socrates:     Yes. I do see that that is an admirable and useful principle. Tell me, Judge, do you agree that it is important that the law should be clear, so that citizens can organise their affairs in the knowledge of what their rights and obligations are?

Judge:            Of course.

Socrates:       Do you agree that if the law is not clear, that itself is apt to produce injustice?

Judge:            Indeed.

Judge:            Absolutely and, since I became a Judge, I have been shocked by how much lawyers are paid.

Socrates:       Am I to understand that that was not a view you held before you became a Judge?

Judge:           Well, no. I don’t think it was.

Socrates:      Well, I am a little puzzled by the requirement that it should be “unconscionable” for a person to resile from an understanding, but I know you will be able to explain what that means.

Judge:           Certainly. He cannot resile if to do so would be contrary to conscience or unfair or wrong.

Socrates:      Whose conscience?

Judge:           His conscience.

Socrates:      But by definition he wants to resile and will do so if he can and will deny that to do so troubles his conscience in the least. Is not the function of law to protect citizens against the actions of unscrupulous men?

Socrates:  How is that to be determined and by what test?

Judge:       It is to be determined by the Judge.

Socrates:  Judge, do you not agree that different people have different ideas as to what is right and what is wrong and what ought and ought not to trouble their conscience? For example I have heard that there is now a man in Rome who tells his followers that it is wrong to use methods to prevent the conception of children but others do not agree with him. Are you perhaps a follower of the man in Rome?

Judge:      No, I am not.

Socrates:  But perhaps there are Judges who are.

Judge:      I expect so.

Socrates:   And if they were devout followers, they might think the use of such methods wrong and against conscience, but you would not.

Judge:       That is true.

Socrates:   And I have heard that some men marry many wives but that others think this wrong. Perhaps you have many wives?

Judge:       No. The one I have is quite enough.

Judge:      That is true.

Socrates:  So different Judges might have different views about what is wrong or against conscience?

Judge:      They might, but that is unlikely – they tend to share common values and beliefs in our society.

Socrates:  Nevertheless, it would seem that it is not possible to predict in advance what a particular Judge will regard as “against conscience”.

Judge:       I suppose not.

Socrates:  And we have agreed, have we not, that uncertain law, unpredictable law, is unjust law.

Judge:      We have.

Socrates: And that Judges, especially if not guided by any pre- determined rules but left to their own intuitions and sense of values, are fallible?

Judge:       We did.

Judge:      If the Judge gets it wrong, the losing party can appeal to the Court of Appeal.

Socrates:   What is that?

Judge:       A panel of three Judges.

Socrates:  Judge, I was convicted by 50 Judges and you said that was unjust. I do not think that in over 2000 years you have made any progress at all.

Judge:      I certainly see that my example has not convinced you.

One thing that strikes one about estoppel cases is that not infrequently a plea fails simply because the party seeking to set up the estoppel fails to tender any evidence to prove some essential element. This may be because an estoppel plea is often run as an alternative and counsel is concentrating on his principal case or it may be because the evidence has emerged in an unexpected way, but it may also be because the authorities are so dense and the outcomes so fact sensitive that it is difficult to find a comprehensive list of what has to be proved. So here is mine. It accords with Prof Beale’s criteria but it is addressed from the litigator’s standpoint. A is the party seeking to set up the estoppel.

Required to prove:

1. That when dealing with B, A entertained a certain understanding as to the facts or the relevant law;
2. That B entertained the same understanding;
3. That A let B know of his understanding;
4. That B let A know that he shared it;
5. That both parties thereafter conducted their mutual affairs on the basis of that shared and communicated understanding;
6. That his understanding and the knowledge that B shared it caused A to alter his position;
7. That A would not have done what he did had it not been for his understanding and the knowledge that B shared it;
8. That A’s alteration of his position has left him significantly worse off (if B is allowed to resile from the understanding) than he would otherwise have been.

Is that to fashion a new Procrustean Bed? Never mind. It is clear; it is rigorous; it is practical in that it tells us what has to be proved and it makes no use of antiquated language of uncertain meaning or appeal to subjective notions of what is fair. Better relax with confidence in a bed of known proportions than risk suffocation under the infinite fluffy duvet of “unconscionability”.