Estoppel is a legal principle of Anglo-Saxon origin whereby a party is prevented from making assertions that are contradictory to the detriment of its opponents. It is generally referred to as “the prohibition of contradicting oneself to the detriment of another”. It constitutes, in civil proceedings, a plea of inadmissibility, that is to say, a means of defense which results in a final termination of the proceedings without any debate on the merits.
Far from embodying a general prohibition of contradicting itself to the detriment of others, the principle of estoppel may only be usefully opposed only under certain conditions: the contradiction which it is supposed to sanction must result from a change of position in law of a litigant liable to mislead the other party in its intentions and intervene in the same proceeding.
In a recent decision of 22 June 2017, the Court of Cassation persists in its restrictive tendency by imposing two additional conditions:
– The first requires that the contradictory positions be adopted in the course of a “judicial debate”. In the present case, a party was accused of having contradicted itself in its “writings” by adopting a position contrary to that taken in correspondence exchanged with its opponent before referral to the courts. The Court of Cassation considered that only judicial writings filed by the parties had to be taken into account in assessing whether there was a contradiction. The formula used by the High Court also suggests that even exchanges after the issuance of the summons could be indifferent.
– The second consists in taking only into account a contradiction between “claims” (that is to say, claims made in the context of the legal proceedings initiated). Only allegations (i.e. the facts relied upon) would not allow a characterization of a breach of the duty of coherence of the litigants.
In the Principality of Monaco there is little published case law on the subject. The Higher Court has a tendency to leave the task of defining the elements capable of characterizing estoppel to the discretion of the trial judges. It merely states that the principle requires a contradiction capable of characterizing procedural disloyalty. The Court of Appeal was able to point out that the contradiction must take place within the same procedural framework (thus meeting the requirements of the Court of Cassation) and between the same parties. It also seems to require that the contradiction be invoked in bad faith by the litigant to whom it is reproached, thus, in a way, referring to the notion of procedural disloyalty
It can therefore be argued that the Monegasque courts, like those in France, have a restrictive interpretation of the principle of estoppel, thus demonstrating their willingness to grant the litigants a certain tolerance in the development of their arguments.