In Abraaj Investment Management Ltd (In Liquidation) v KES Power Ltd [2026] EWHC 65 (Comm), Foxton LJ at first instance, under the subheading 'Estoppel by acquiescence', said, at paragraph 183:

'The parties were content to treat Lord Wilberforce's statement in Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890, 902-903 as a sufficient statement of the applicable law for the purposes of this case:

"English law has generally taken the robust line that a man who owns property is not under any general duty to safeguard it and that he may sue for its recovery any person into whose hands it has come .. He is not estopped from asserting his title by mere inaction or silence, because inaction or silence, by contrast with positive conduct or statement, is colourless: it cannot influence a person to act to his detriment unless it acquires a positive content such that that person is entitled to rely on it. In order that silence or inaction may acquire a positive content it is usually said that there must be a duty to speak or to act in a particular way, owed to the person prejudiced, or to the public or to a class of the public of which he in the event turns out to be one. …

What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the "acquirer" of the property, would expect the 'owner' acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the 'acquirer' and whether, in the face of an omission to do so, the 'acquirer' could reasonably assume that no such title was claimed."'

Collatory Case Series

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