In Greenhouse v Paysafe Financial Services Ltd [2018] EWHC 3296 (Comm), Andrew Burrows QC (sitting as a Judge of the High Court) (now Lord Burrows JSC) said, under the heading 'Promissory estoppel', at paragraphs 14 to 17:

'14. Even if there is no contractual variation, a promise to give up (ie to waive) one's rights may be legally binding, at least to some extent, under the doctrine of promissory estoppel. This has been one of the most discussed doctrines in English law since it was relied on by Denning J in Central London Property Trust Ltd v High Trees House Ltd [1947] 1 KB 130. Promissory estoppel does not create a cause of action but operates as a defence, which means in practice that it applies to a promise to give up an existing right (most commonly, a right under a contract between the parties) but not to a promise to confer a new right: see Combe v Combe [1951] 2 KB 215, CA; Baird Textiles Holdings Ltd v Marks and Spencer plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737.

15. Assuming that it is being used as a defence and not as a cause of action, the three central requirements of the doctrine are as follows. First, the promise (or representation as to one's future conduct) must be clear and unequivocal. That there was no such promise/representation was the reason the doctrine could not be made out in Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1972] AC 741, HL. Viscount Dilhorne said, at 761: 'To found an estoppel, the representation must be clear and unequivocal. In my opinion, the [relevant] letter … could not reasonably be understood to contain or to imply a clear and unequivocal representation of the nature alleged.' Secondly, the promise must have been relied on by the promisee although it is a controversial question whether reliance is sufficient or whether detrimental reliance must be shown. In WJ Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189, CA, Lord Denning MR thought that reliance alone (ie acting on the promise) was sufficient and that there was no need for detriment. But in Societe Italo-Belge pour le Commerce et l'Industrie SA v Palm and Vegetable Oils (Malaysia) Sdn Bhd, The Post Chaser [1981] 2 Lloyd's Rep 695, Robert Goff J regarded the crucial question as being whether it was inequitable for the promisor to enforce its rights and, on the facts, detrimental reliance was held to be required and was not present. Thirdly, the promise must not have been induced by the promisee's inequitable conduct, such as duress (as in D & C Builders v Rees [1966] 2 QB 617, CA) or misrepresentation.

16. Where the doctrine is made out, it may in some cases extinguish the original rights of the promisor but often it merely suspends those rights so that the original rights can be reverted to at least by giving reasonable notice: see the difficult case of Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 1 WLR 761, HL; and generally Chitty on Contracts, paras 4-097 - 4-098.

17. What is particularly critical in this case is the application of the requirement that the promise or representation be clear and unequivocal. It is important to recognise that the relevant promise or representation may be made by conduct as well as by words. [Counsel for the Defendant] drew to my attention, in support of that proposition, Glencore Grain Ltd v Flacker Shipping Ltd, The Happy Day [2002] EWCA Civ 1068, [2002] 2 Lloyd's Rep 487, at [67] ( per Potter LJ) and see generally Chitty on Contracts, paras 4-091 – 4-093. [Counsel for the Claimant] relied on an especially helpful passage from Snell's Equity (ed McGhee) (33rd edn, 2015) at para 12-024, written by Professor McFarlane, as to what is meant by the 'clear and unequivocal' requirement in promissory estoppel. I here set out that passage in full (omitting footnotes which refer to the relevant authorities):

'[T]he promise, or encouragement must be "clear and unequivocal" in the sense that, objectively understood, it makes apparent to B that A's right will not be enforced. If A's conduct is instead capable of a number of different reasonable interpretations, at least one of which is inconsistent with A's right not being enforced, no promissory estoppel may arise. If, for example, B's claim is that he or she was encouraged to believe that a right would be suspended, there must be certainty as to the specific right of A's in question and as to the period of the supposed suspension. A must have encouraged B to believe that A's right would not be enforced: if A's conduct can instead be reasonably understood as involving only advice, a suggestion or even a threat that A may act in a particular way, there are no grounds for a promissory estoppel.

As the effect of a promissory estoppel is to prevent A's enjoying the full benefit of a particular right, and as such an estoppel can arise without any contractual consideration's being provided by B, a court will naturally be cautious in ascertaining whether A did give the required clear and unequivocal encouragement to B. So, whilst it is clear that a promissory estoppel may arise even in the absence of an express statement by A, a court will require clear evidence before finding that A impliedly encouraged B. If, for example, it would not have objectively appeared to B that A was even aware of the right in question, encouragement is likely to be implied from A's course of conduct only if A created the impression that A was willing to "abandon any rights that he might enjoy which were inconsistent with [A's] course of conduct". Further, the general position is that mere silence and inaction by A cannot found a promissory estoppel, as A's failure to act, if capable of communicating anything, will generally be open to differing reasonable interpretations, at least one of which will be inconsistent with A's right not being enforced. …' '

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