Case Facts
The parties married in 1915 and separated in 1939. A decree nisi was pronounced on 1 February 1943 on the wife's petition. Shortly afterwards, by solicitors' correspondence dated 9 and 19 February 1943 — after the decree nisi but before the decree absolute — the husband promised to pay the wife £100 per annum free of income tax. The decree absolute was granted on 11 August 1943. The husband never made any payment under that promise.
The wife had an income of between £700 and £800 per year, while the husband earned only £650 per year. On 28 July 1950, the wife brought an action in the King's Bench Division claiming £675, representing arrears at the rate of £100 per year for six and three-quarter years.
At first instance, Byrne J held that there was no consideration for the husband's promise. Nevertheless, he held the promise enforceable on the basis of the principle established in Central London Property v High Trees [1947], reasoning that the promise constituted an unequivocal acceptance of liability intended to be binding and acted upon by the wife. Having found that the first three quarterly instalments of £25 were statute-barred under the Limitation Act 1939, Byrne J gave judgment in the wife's favour for £600. The husband appealed to the Court of Appeal.
Held
The Court of Appeal allowed the appeal and held that the wife's claim failed. The court found there was no consideration for the husband's promise on three grounds. First, the wife had not in fact promised not to apply to the Divorce Court for maintenance. Second, even if she had made such a promise, she could not have validly deprived herself of that right in any event. Third, and critically, the wife's actual forbearance from making such an application had not been made at the husband's express or implied request. Since the forbearance was entirely voluntary and unsolicited, it could not constitute consideration.
The Court of Appeal further held that the promissory estoppel principle, as articulated in [Central London Property v High Trees, could not assist the wife in these circumstances. That principle does not create a new cause of action where none previously existed. While the court approved Byrne J's finding that there was no consideration, it disapproved his conclusion that promissory estoppel could operate as an independent source of liability to found a claim.
Ratio Decidendi
The ratio of this case is that promissory estoppel operates as a shield but not as a sword. The doctrine — whereby a promisor who has made an unequivocal promise or assurance intended to affect legal relations, and upon which the promisee has acted, cannot subsequently revert to the strict legal position as though no such promise had been made — does not thereby create a new cause of action where none existed before. It may be raised defensively to prevent a party from enforcing strict legal rights inconsistent with a prior promise, but it cannot itself generate a right of action on the part of the promisee.
The absence of consideration was fatal to the wife's claim. The principle from Central London Property v High Trees [1947] presupposes an existing legal relationship between the parties. Where consideration is wholly absent and no pre-existing cause of action exists, promissory estoppel cannot substitute for consideration so as to render a bare promise legally enforceable by way of an action for damages or arrears.
Obiter Dicta
Denning LJ observed that no agreement for maintenance made in the course of divorce proceedings before the date of decree absolute, between husband and wife, is valid unless sanctioned by the Divorce Court, on the ground that such agreements are apt to be collusive.