Report No. 108

Chapter 4

The Problems

4.1. Problems.-

We are now in a position to state the problems arising out of the earlier, discussion. They are:

(a) Should promissory estoppel be allowed to be used as a cause of action?

(b) Could the doctrine be used against the government and if so when?, and

(c) Should the promisee suffer detriment before he can invoke the doctrine?

These problems arise because,1 in all systems of civilised administration, citizens expect the concerned departments and agencies to act in conformity with the procedure they have established for themselves or the promises they have made. Departure from that procedure or promise, be it a mere rule of practice, frustrates legitimate expectations, and the citizens turn to the courts for redress against arbitrary action. The courts will then have to decide whether the procedure or promise in question is enforceable against the body that has adopted or made it. To what extent can the private law principle that persons could be held to representations made by them and acted upon by others to their detriment, be applied against such bodies?

One view is that a public body entrusted with powers and duties for public purposes cannot divest themselves of these powers and duties by entering into contracts or making representations incompatible with the discharge of the powers and duties. If a departmental official makes a representation which is relied on by a private party to his injury, the department can still go back on the representation because that may be necessary in the public interest Another view is that the department can be held to the representation, unless it is shown to the satisfaction of the court that a departure will be justified by overriding considerations of public interest.

1. Govindan v. Cochin Shipyard, 1983 KLT 1083 (1089).