Mr. Combe made an agreement to pay his wife £100 per year after they split up. Mrs. Combe claims that she agreed to forego her rights for recovery in divorce court in consideration of this. The husband did not pay the £100, and the wife sued claiming that he was estopped from ceasing his promise because she had relied upon it. At trial the judge accepted the wife's case and says that it is clear that she relied upon his promise, and acted upon it by refusing to take action in court. He says that this is in line with Denning's judgment in High Trees, and that estoppel can be a cause of action. Mr. Combe appealed.
- Can estoppel be used as a cause of action?
Denning, writing for the court, clarifies his words concerning estoppel from High Trees. He clearly states that it cannot be used as a cause of action, but only as a defence when someone is trying to claim that a promise they made did not have consideration and is therefore not binding; estoppel is a "shield", not a "sword". Therefore, the only issue in this case is whether or not the wife gave consideration for the yearly payments. Denning decides that she did not, as there is no evidence the husband ever requested the wife not to go to court. Even if she had promised not to do so, there would still be no cause of action as one cannot waive a statutory right. In the result, her claim must fail.
Estoppel is only a defence, not a cause of action where one did not exist before.