Introduction

In recent years both courts and scholars have embraced the idea that the notion of unconscionability has a role to play in determining the appropriate remedy in proprietary estoppel cases. This means that, in exercising the remedial discretion it exercises in giving effect to proprietary estoppel, a court should consider what remedy is required in the circumstances to assuage the conscience of the representor. If the fundamental concern of proprietary estoppel is to prevent or redress unconscionable conduct, then it stands to reason that the remedial discretion should be informed by a consideration of what the representor's conscience, properly informed, would require. There are three different ways in which unconscionability might be taken into account in the framing of relief. First, the remedy could reflect the reprehensibility of the representor's conduct (the ‘reprehensibility’ approach). On this view, the more reprehensible the conduct, the more extensive the remedy that is needed to correct the representor's conscience. Second, the remedy could reflect the extent of the representor's responsibility for the relying party's predicament (the ‘extent of responsibility’ approach). Under this approach, the more significant the role played by the representor in inducing the relevant assumption and failing to correct it, the more extensive the remedy that will be required to prevent unconscionable conduct. Third, the exercise of the remedial discretion could involve a broad assessment of what relief, considering all circumstances ‘in the round’, is necessary to assuage the representor's conscience (the ‘in the round’ approach).