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Lay and another v Independent Vetcare Limited [2026] EWCA Civ 1027
Independent Vetcare Limited sought to run two conflicting cases in two different courts, and the Court of Appeal was not prepared to countenance it doing so. Lady Justice Andrews, with whom Bean and Cockerill LJJ agreed, described the company’s “volte-face” as “a classic example of the conduct which is prohibited by the principle of estoppel by conduct”.
In June 2023, when resisting an application for interim relief in the Employment Tribunal brought by Clifford Lay, Independent Vetcare Limited adopted a position both in evidence and through their leading counsel that the direct debits business (‘EDD’ – now known as Vet Success Limited) that Paul Strelitz’s client had sold to it was not operating in breach of relevant regulations. Then in February 2024, after Clifford Lay had brought a debt claim relating to an earn-out payment under a share purchase agreement that he entered into, Independent Vetcare Limited submitted a counterclaim alleging that EDD was operating in breach of relevant regulations. An application to strike out the counterclaim was heard and dismissed in March 2026 but the Court of Appeal, in allowing the appeal, has decided unanimously that Independent Vetcare Limited is not allowed to allege in the High Court proceedings that EDD was operating otherwise than in compliance with the regulations.
Andrews LJ undertook an exposition of the relevant law on the doctrine engaged (sometimes called ‘approbation and reprobation’, but seemingly preferring the nomenclature ‘estoppel by conduct’) and redoubled its roots as ensuring the integrity of a justice system. Having considered the relevant material available as time progressed, Andrews LJ concluded inter alia that Independent Vetcare Limited “has no compunction in adopting whatever legal position it considers to best suit its interests in the exigencies of the moment”. She further noted that where Independent Vetcare Limited had asserted it was entitled to change positions by reason of the change in legal advice it received, that (i) they had “chosen not to tell us” what that advice was (since they asserted privilege over it, and (ii) “a simple change in the legal advice received would never be enough in itself to justify a change in position, unless possibly the state of the law had materially changed in the interim” but that “In order to justify the change in stance, the change in the legal advice would need to be based on some material change of circumstances, such as information coming to light which could not reasonably have been obtained previously, fraud, mistake or something of a similar nature”.
Parties would therefore be well advised to consider carefully the positions they adopt in litigation or arbitration where those proceedings are unlikely to resolve all matters between them. The Court of Appeal’s decision makes clear that a party cannot expect to advance one case in one forum and a contradictory case in another simply because it suits its interests at the time.
A copy of the judgment of the Court of Appeal is available here.
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