The law of undue influence has been reviewed in a number of cases, most prominently:

(a) Barclays Bank Plc v O’Brien [1994] 1 A.C. 180 [1993] 3 W.L.R. 786 (‘O’Brien’), House of Lords (Lord Browne-Wilkinson, Lord Templeman, Lord Lowry, Lord Slynn, Lord Woolf)

(b) Royal Bank of Scotland pic v Etridge (No 2) [2002] 2 AC 773 ('Etridge No.2'), House of Lords (Lord Bingham, Lord Nicholls, Lord Hobhouse, Lord Clyde, Lord Scott)

(c) Nature Resorts Ltd v First Citizens Bank Ltd [2022] UKPC 10 [2022] 1 W.L.R. 2788 ('Nature Resorts'), Privy Council (Lord Briggs, Lord Kitchin, Lord Burrows, Lady Rose, Lady Arden JJSC)

(d) One Savings Bank plc v Waller-Edwards [2024] EWCA Civ 302 ('One Savings'), Court of Appeal (Sir Geoffrey Vos MR, Peter Jackson, Falk LJJ)

For the purposes of this article, it is convenient to start with the case of Etridge No.2, leaving the earlier case of O'Brien to an annex at the end.

Etridge No.2
In Etridge No.2, House of Lords considered the law on undue influence. Lord Nicholls gave he most authoritative judgment (Vos MR, in One Savings, at paragraph 23[1]).

The factual cases of the 8 cases on appeal, were set out by Lord Nicholls, at paragraph 5:

‘Seven of the present appeals are of this character. In each case the bank sought to enforce the charge signed by the wife. The bank claimed an order for possession of the matrimonial home. The wife raised a defence that the bank was on notice that her concurrence in the transaction had been procured by her husband's undue influence. The eighth appeal concerns a claim by a wife for damages from a solicitor who advised her before she entered into a guarantee obligation of this character.’

Under the heading ‘Undue Influence’, and after stating that it was ‘…necessary to go back to first principles.’ (paragraph 6), Lord Nicholls characterised the equitable doctrine of undue influence, at paragraphs 6 to 12:

'Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence.

Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion. The law will investigate the manner in which the intention to enter into the transaction was secured: "how the intention was produced", in the oft repeated words of Lord Eldon LC, from as long ago as 1807 (Huguenin v Baseley 14 Ves 273, 300). If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or "undue" influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion.

Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage. An example from the 19th century, when much of this law developed, is a case where an impoverished father prevailed upon his inexperienced children to charge their reversionary interests under their parents' marriage settlement with payment of his mortgage debts: see Bainbrigge vBrowne (1881) 18 ChD 188.

In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired. In Allcard v Skinner (1887) 36 ChD 145, a case well known to every law student, Lindley LJ, at p 181, described this class of cases as those in which it was the duty of one party to advise the other or to manage his property for him. In Zamet v Hyman [1961] 1 WLR 1442., 1444-1445 Lord Evershed MR referred to relationships where one party owed the other an obligation of candour and protection.

The law has long recognised the need to prevent abuse of influence in these "relationship" cases despite the absence of evidence of overt acts of persuasive conduct. The types of relationship, such as parent and child, in which this principle falls to be applied cannot be listed exhaustively. Relationships are infinitely various. Sir Guenter Treitel QC has rightly noted that the question is whether one party has reposed sufficient trust and confidence in the other, rather than whether the relationship between the parties belongs to a particular type: see Treitel, The Law of Contract, 10th ed (1999), pp 380-381. For example, the relation of banker and customer will not normally meet this criterion, but exceptionally it may: see National Westminster Bank pic v Morgan [1985] AC 686, 707-709.

Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place.

In CIBC Mortgages pic v Pitt [1994] 1 AC 200 your Lordships' House decided that in cases of undue influence disadvantage is not a necessary ingredient of the cause of action. It is not essential that the transaction should be disadvantageous to the pressurised or influenced person, either in financial terms or in any other way. However, in the nature of things, questions of undue influence will not usually arise, and the exercise of undue influence is unlikely to occur, where the transaction is innocuous. The issue is likely to arise only when, in some respect, the transaction was disadvantageous either from the outset or as matters turned out.'

Under the heading ‘Burden of proof and presumptions’, Lord Nicholls said, from paragraph 13:

‘Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.

Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.

‘ In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.’

After considering, at paragraph 15[2]: (1) Bainbrigge v Browne 18 ChD 188; and (2) National Westminster Bank pic v Morgan [1985] AC 686, 707, as illustrative examples, Lord Nicholls went on, from paragraph 16 to 18:

‘Generations of equity lawyers have conventionally described this situation as one in which a presumption of undue influence arises. This use of the term "presumption" is descriptive of a shift in the evidential onus on a question of fact. When a plaintiff succeeds by this route he does so because he has succeeded in establishing a case of undue influence. The court has drawn appropriate inferences of fact upon a balanced consideration of the whole of the evidence at the end of a trial in which the burden of proof rested upon the plaintiff. The use, in the course of the trial, of the forensic tool of a shift in the evidential burden of proof should not be permitted to obscure the overall position. These cases are the equitable counterpart of common law cases where the principle of res ipsa loquitur is invoked. There is a rebuttable evidential presumption of undue influence.

The availability of this forensic tool in cases founded on abuse of influence arising from the parties' relationship has led to this type of case sometimes being labelled "presumed undue influence". This is by way of contrast with cases involving actual pressure or the like, which are labelled "actual undue influence": see Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 953, and Royal Bank of Scotland pic v Etridge (No z) [1998] 4 All ER 705, 711-712, paras 5-7. This usage can be a little confusing. In many cases where a plaintiff has claimed that the defendant abused the influence he acquired in a relationship of trust and confidence the plaintiff has succeeded by recourse to the rebuttable evidential presumption. But this need not be so. Such a plaintiff may succeed even where this presumption is not available to him; for instance, where the impugned transaction was not one which called for an explanation.

The evidential presumption discussed above is to be distinguished sharply from a different form of presumption which arises in some cases. The law has adopted a sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected. Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical adviser and patient. In these cases the law presumes, irrebuttably, that one party had influence over the other. The complainant need not prove he actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship.'

Husband and wife is not one of these special relationships. Lord Nicholls in Etridge (No.2) said, at at paragraph 19:

‘It is now well established that husband and wife is not one of the relationships to which this latter principle applies. In Yerkey v Jones (1939) 63 CLR 649, 675 Dixon J explained the reason. The Court of Chancery was not blind to the opportunities of obtaining and unfairly using influence over a wife which a husband often possesses. But there is nothing unusual or strange in a wife, from motives of affection or for other reasons, conferring substantial financial benefits on her husband. Although there is no presumption, the court will nevertheless note, as a matter of fact, the opportunities for abuse which flow from a wife's confidence in her husband. The court will take this into account with all the other evidence in the case. Where there is evidence that a husband has taken unfair advantage of his influence over his wife, or her confidence in him, "it is not difficult for the wife to establish her title to relief": see In re Lloyds Bank Ltd; Bomze and Lederman v Bomze [1931] 1 Ch 289, 302, per Maugham J.’

Under the heading ‘Independent advice’, Lord Nicholls in Etridge (No.2) said, at paragraph 20:

‘Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.’

Under the heading ‘Manifest disadvantage’, Lord Nicholls in Etridge (No.2) said, at paragraph 21 to 31:

‘21 As already noted, there are two prerequisites to the evidential shift in the burden of proof from the complainant to the other party. First, that the complainant reposed trust and confidence in the other party, or the other party acquired ascendancy over the complainant. Second, that the transaction is not readily explicable by the relationship of the parties.

22 Lindley LJ summarised this second prerequisite in the leading authority of Allcard v Skinner 36 ChD 145, where the donor parted with almost all her property. Lindley LJ pointed out that where a gift of a small amount is made to a person standing in a confidential relationship to the donor, some proof of the exercise of the influence of the donee must be given. The mere existence of the influence is not enough. He continued, at p 185 "But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift." In Bank of Montreal v Stuart [1911] AC 120,137 Lord Macnaghten used the phrase " immoderate and irrational" to describe this concept.

23 The need for this second prerequisite has recently been questioned: see Nourse LJ in Barclays Bank pic v Coleman [2001] QB, 20, 30-32, one of the cases under appeal before your Lordships' House. Mr Sher invited your Lordships to depart from the decision of the House on this point in National Westminster Bank pic v Morgan [1985] AC 686.

24 My Lords, this is not an invitation I would accept. The second prerequisite, as expressed by Lindley LJ, is good sense. It is a necessary limitation upon the width of the first prerequisite. It would be absurd for the law to presume that every gift by a child to a parent, or every transaction between a client and his solicitor or between a patient and his doctor, was brought about by undue influence unless the contrary is affirmatively proved. Such a presumption would be too far-reaching. The law would be out of touch with everyday life if the presumption were to apply to every Christmas or birthday gift by a child to a parent, or to an agreement whereby a client or patient agrees to be responsible for the reasonable fees of his legal or medical adviser. The law would be rightly open to ridicule, for transactions such as these are unexceptionable. They do not suggest that something may be amiss. So something more is needed before the law reverses the burden of proof, something which calls for an explanation. When that something more is present, the greater the disadvantage to the vulnerable person, the more cogent must be the explanation before the presumption will be regarded as rebutted.

25 This was the approach adopted by Lord Scarman in National Westminster Bank pic v Morgan [1985] AC 686, 703-707. He cited Lindley LJ's observations in Allcard v Skinner 36 ChD 145, 185, which I have set out above. He noted that whatever the legal character of the transaction, it must constitute a disadvantage sufficiently serious to require evidence to rebut the presumption that in the circumstances of the parties' relationship, it was procured by the exercise of undue influence. Lord Scarman concluded, at p 704:

"the Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it." (Emphasis added.)

26 Lord Scarman attached the label "manifest disadvantage" to this second ingredient necessary to raise the presumption. This label has been causing difficulty. It may be apt enough when applied to straightforward transactions such as a substantial gift or a sale at an undervalue. But experience has now shown that this expression can give rise to misunderstanding. The label is being understood and applied in a way which does not accord with the meaning intended by Lord Scarman, its originator.

27 The problem has arisen in the context of wives guaranteeing payment of their husband's business debts. In recent years judge after judge has grappled with the baffling question whether a wife's guarantee of her husband's bank overdraft, together with a charge on her share of the matrimonial home, was a transaction manifestly to her disadvantage.

28 In a narrow sense, such a transaction plainly ("manifestly") is disadvantageous to the wife. She undertakes a serious financial obligation, and in return she personally receives nothing. But that would be to take an unrealistically blinkered view of such a transaction. Unlike the relationship of solicitor and client or medical adviser and patient, in the case of husband and wife there are inherent reasons why such a transaction may well be for her benefit. Ordinarily, the fortunes of husband and wife are bound up together. If the husband's business is the source of the family income, the wife has a lively interest in doing what she can to support the business. A wife's affection and self-interest run hand-in-hand in inclining her to join with her husband in charging the matrimonial home, usually a jointly owned asset, to obtain the financial facilities needed by the business. The finance may be needed to start a new business, or expand a promising business, or rescue an ailing business.

29 Which, then, is the correct approach to adopt in deciding whether a transaction is disadvantageous to the wife: the narrow approach, or the wider approach? The answer is neither. The answer lies in discarding a label which gives rise to this sort of ambiguity. The better approach is to adhere more directly to the test outlined by Lindley LJ in Allcard v Skinner 36 ChD 145, and adopted by Lord Scarman in National Westminster Bank pic v Morgan [1985] AC 686, in the passages I have cited.

30 I return to husband and wife cases. I do not think that, in the ordinary course, a guarantee of the character I have mentioned is to be regarded as a transaction which, failing proof to the contrary, is explicable only on the basis that it has been procured by the exercise of undue influence by the husband. Wives frequently enter into such transactions. There are good and sufficient reasons why they are willing to do so, despite the risks involved for them and their families. They may be enthusiastic. They may not. They may be less optimistic than their husbands about the prospects of the husbands' businesses. They may be anxious, perhaps exceedingly so. But this is a far cry from saying that such transactions as a class are to be regarded as prima facie evidence of the exercise of undue influence by husbands.

31 I have emphasised the phrase "in the ordinary course" . There will be cases where a wife's signature of a guarantee or a charge of her share in the matrimonial home does call for explanation. Nothing I have said above is directed at such a case.’

Under the heading ‘A cautionary note’, Lord Nicholls in Etridge (No.2) said, at paragraph 32 to 33:

'I add a cautionary note, prompted by some of the first instance judgments in the cases currently being considered by the House. It concerns the general approach to be adopted by a court when considering whether a wife's guarantee of her husband's bank overdraft was procured by her husband's undue influence. Undue influence has a connotation of impropriety. In the eye of the law, undue influence means that influence has been misused. Statements or conduct by a husband which do not pass beyond the bounds of what may be expected of a reasonable husband in the circumstances should not, without more, be castigated as undue influence. Similarly, when a husband is forecasting the future of his business, and expressing his hopes or fears, a degree of hyperbole may be only natural. Courts should not too readily treat such exaggerations as misstatements.'

Inaccurate explanations of a proposed transaction are a different matter. So are cases where a husband, in whom a wife has reposed trust and confidence for the management of their financial affairs, prefers his interests to hers and makes a choice for both of them on that footing. Such a husband abuses the influence he has. He fails to discharge the obligation of candour and fairness he owes a wife who is looking to him to make the major financial decisions.’

Lord Nicholls in Etridge (No.2) considered policy considerations behind the law in this area, in relation to spouses standing as surety’s for their spouses’ debts. He stated, at paragraph 34- 36:

’The problem considered in O'Brien's case and raised by the present appeals is of comparatively recent origin. It arises out of the substantial growth in home ownership over the last 30 or 40 years and, as part of that development, the great increase in the number of homes owned jointly by husbands and wives. More than two-thirds of householders in the United Kingdom now own their own homes. For most home-owning couples, their homes are their most valuable asset. They must surely be free, if they so wish, to use this asset as a means of raising money, whether for the purpose of the husband's business or for any other purpose. Their home is their property. The law should not restrict them in the use they may make of it. Bank finance is in fact by far the most important source of external capital for small businesses with fewer than ten employees. These businesses comprise about 95% of all businesses in the country, responsible for nearly one-third of all employment. Finance raised by second mortgages on the principal's home is a significant source of capital for the start-up of small businesses.

If the freedom of home-owners to make economic use of their homes is not to be frustrated, a bank must be able to have confidence that a wife's signature of the necessary guarantee and charge will be as binding upon her as is the signature of anyone else on documents which he or she may sign. Otherwise banks will not be willing to lend money on the security of a jointly owned house or flat.

At the same time, the high degree of trust and confidence and emotional interdependence which normally characterises a marriage relationship provides scope for abuse. One party may take advantage of the other's vulnerability. Unhappily, such abuse does occur. Further, it is all too easy for a husband, anxious or even desperate for bank finance, to misstate the position in some particular or to mislead the wife, wittingly or unwittingly, in some other way. The law would be seriously defective if it did not recognise these realities.’

[Lord Nicholls continued]

Nature Resorts

In Nature Resorts, on 4.4.22, Lord Briggs and Lord Burrows JJSC gave the judgment of the Board (Lord Kitchen and Lady Rose JJSC agreeing; Lady Arden dissenting). The judgment commences with:

'This case is primarily about the doctrine of undue influence.It is accepted that the law on undue influence in Trinidad and Tobago is the same as that in English law. This case therefore requires the Board to examine and apply the law on undue influence that was so rigorously and helpfully analysed by the House of Lords in the leading modern case of Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773...' (paragraph 1)

Under the heading 'The law on undue influence', Lord Briggs and Lord Burrows JJSC said, at paragraphs 10 to 15:

'10. Putting to one side illegitimate threats (which are nowadays better viewed as falling within the doctrine of duress: see Times Travel (UK) Ltd v Pakistan International Airlines Corpn [2021] 3 WLR 727, paras 8–9 and 89–90) undue influence is concerned with a situation where, by reason of the relationship between them, one party (B) has such influence over the other (A) that A does not exercise a free judgment, independent of B, in relation to the making of a transaction between A and B (or, in a three-party situation, between A and a third party, C).

11. Ever since Allcard v Skinner (1887) 36 Ch D 145, it has been commonplace to divide undue influence into two categories: actual and presumed. But in Etridge the House of Lords made clear that undue influence is a single concept. It does not have two different forms. The correct analysis of the two categories is that they refer to different ways of proving undue influence. Presumed undue influence refers to where the person alleging undue influence relies on an evidential presumption. Actual undue influence refers to where the person alleging undue influence relies on direct proof (of A's conduct, within a relationship with B, which led to B not exercising a free and independent judgment).

12. As Etridge also made clear, there are two requirements for establishing the (rebuttable) presumption of undue influence. First, there must be a relationship of influence. This may be established on the facts. But in respect of some relationships there is what is commonly referred to as an irrebuttable legal presumption (but is more appropriately referred to as a legal rule) that the relationship is one of influence (but note not undue influence). Examples of such relationships are doctor and patient (Mitchell v Homfray (1881) 8 QBD 587), spiritual adviser and follower (Allcard v Skinner), parent and young child (Lancashire Loans Ltd v Black [1934] 1 KB 380) and, of direct relevance to the facts of this case, solicitor and client (Wright v Carter [1903] 1 Ch 27). The second requirement is that the transaction must not be readily explicable on ordinary motives. The House of Lords preferred this test, which uses the words of Lindley LJ in Allcard v Skinner, to a test of whether the transaction was manifestly disadvantageous which had been put forward by Lord Scarman in National Westminster Bank plc v Morgan [1985] AC 686, 703–707. The underlying idea behind the test is that the nature and/or contents of the transaction must make one conclude, in the context of the relationship of influence, that, absent evidence to the contrary, undue influence has been exercised. A contract between A and B which is substantively very unfair to A stands on one side of the line: a Christmas present by A to B stands on the other side of the line.

13. If those two requirements are satisfied, so that there is a presumption of undue influence, the burden of proof shifts and it is for the party seeking to uphold the transaction to rebut the presumption by showing that A was not acting under undue influence (ie that A exercised free and independent judgment) when entering into the transaction. Although neither necessary nor conclusive, the main method of rebuttal is to show that A obtained the fully informed and competent independent advice of a qualified person, most obviously a lawyer: see Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 and Etridge.

14. In a three-party situation, where there is undue influence by B over A such that A enters into a transaction with C, the transaction will be voidable by A provided that C had notice of the undue influence or that B was acting as C's agent in procuring the transaction. The concept of notice, and how it applies in this context, was explained in detail in Etridge. That the law of agency has a role to play in the context of undue influence was accepted in cases such as Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 972 and Barclays Bank plc v O’Brien [1994] 1 AC 180, 191, 195; see also Chitty on Contracts, 34th ed (2021), para 10-139.

15. Finally, it should be pointed out that there is no need to classify undue influence as a civil wrong (as opposed to a factor vitiating a transaction) in order to explain why transactions are set aside for undue influence: see Birks and Chin, “On the Nature of Undue Influence” in Good Faith and Fault in Contract (eds Beatson and Friedmann) (1995), pp 57–97. This was clearly explained by Mummery LJ (with whom Pill and Jacob LJJ agreed) in Pesticcio v Huet [2004] WTLR 699 at para 20:

“Although undue influence is sometimes described as an ‘equitable wrong’ or even as a species of equitable fraud, the basis of the court's intervention is not the commission of a dishonest or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confidence should not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives … A transaction may be set aside by the court, even though the actions and conduct of the person who benefits from it could not be criticised as wrongful.”'

One Savings
In One Savings, Vos MR said, at paragraph 4:

‘It is common ground between the parties that the authorities provide for two different categories of case relating to secured borrowing by two persons in a relationship.’

Paragraphs 5 and 6, Vos MR in One Savings said:

'First, there is the category of case described, perhaps only partly accurately, as a "surety case". A surety case covers non-commercial situations where, for example, (a) one borrower guarantees the debts of the other or of a company, or (b) of more relevance to our case, the borrowers take secured borrowing on jointly owned property to pay o› the debts of only one of them. In such circumstances, the lender will normally have constructive notice of the possibility of one borrower being unduly influenced by the other, and will be put "on inquiry". In current terms, if a lender is put on inquiry, it is normally required to follow what the parties before us called the "Etridge protocol". The Etridge protocol involves the series of steps described by Lord Nicholls of Birkenhead at para 79 in Etridge.

Secondly, there are cases, epitomised by Pitt, where a loan is taken for the joint non-commercial purposes of two borrowers in a relationship (whether husband and wife or not). In Pitt, the bank was told that the purpose was to remortgage previous debts and to release capital for a jointly owned holiday home. In such circumstances, the lender will not normally have constructive notice of the possibility of one borrower being unduly influenced by the other, and will not be put on inquiry. I shall refer to these two clear cut categories of case as the "surety case" and the "joint borrowing case”.'

Vos MR said though that the case before the Court of Appeal was a hybrid case. At paragraph 7 he said,

‘That is the situation in which the borrowers seek a loan partly for their joint non-commercial purposes and partly for the benefit of one borrower only (described before us as a “hybrid case”).’

And

‘The case before us raises an issue that has not seemingly been addressed (at least head on) before.’

Annex - O'Brien

There is a large cross over between the legal wrongs[3] of: (a) ’misrepresentation’ and (b) ’undue influence’. O’Brien is a misrepresentation case, but refers to the law of undue influence in detail.

In O’Brien, the facts were that H and W (the defendants) were married. H (alone) had an interest in a company (Heathrow Fabrications Ltd; the ‘Company’). A bank, P (Woolwich Branch of Barclays Bank), granted the Company an overdraft. H and W owned a matrimonial home, in their joint names, subject to a first mortgage.

The Company needed the overdraft increasing. P and the Company agreed that it be raised to £135,000 (reducing to £120,000 after 3 weeks), and that security be granted for the overdraft.

As security for repayment of any money drawdown on the overdraft, H gave an unlimited guarantee (‘PG’) of the Company’s overdraft debt. This PG was in turn, secured. H and, crucially, W, granted an in rem security (the ‘H/W Legal Charge’) over their home, to ‘secure any liability of [H] to the bank’ (at 186)

In terms of the execution of the H and W in rem security, P’s employee (at Woolwich branch) gave instructions to another branch (Burnham branch) about the execution of the in rem security. But these instructions were ignored by the Burnham branch.

(1) on 1.7.87, H signed the guarantee and legal charge
(2) on 2.7.87, W went to the branch with H. Whereupon, as Lord Browne-Wilkinson described, at 186-187:

‘There were produced for signature by [W], the legal charge on the matrimonial home together with a side letter which reads:

"We hereby agree acknowledge and confirm as follows: (1) That we have each received from you a copy of the guarantee dated 3 July 1987 (a copy of which is attached hereto) under which [H] guarantees the payment and discharge of all moneys and liabilities now or hereafter due owing or incurred by [the Company] to you. (2) That the liability of the said [H] to you pursuant to the said guarantee is and will be secured by the legal charge dated 3 July 1987 over the property described above made between (1) [H] (2) [H] and [W] and (3) Barclays Bank Plc. (3) That you recommended that we should obtain independent legal advice before signing this letter."

In fact the Burnham branch gave [W] no explanation of the effect of the documents. No one suggested that she should take independent legal advice. She did not read the documents or the side letter. She simply signed the legal charge and side letter and her signature was witnessed by the clerk. She was not given a copy of the guarantee.’

In other words, ‘…to the knowledge of the bank…[W] signed the documents without any warning of the risks or any recommendation to take legal advice.’ (at 199)

In doing so, W relied upon H’s (mis)representations (that the H/W Legal Charge was limited to £60,000 and would only last 3 weeks) (at 199).

Subsequently, the Company’s borrowing on the overdraft increased to £154,000. P issued a demand to H on H’s PG. When the demand was not met, P commenced possession proceedings founded upon the H/W Legal Charge, seeking an order for possession and sale of the matrimonial home.

W defended on the basis she signed the H/W Legal Charge as a result of:
(a) H’s undue influence - however, this was not pursued following its rejection at first instance and in the Court of Appeal (at 187)
(b) misrepresentation - the first instance judge had found that H had falsely represented to W ‘…that the charge was to secure only £60,000 and that even this liability would be released in a short time when the house was remortgaged’ (at 187)

Lord Browne-Wilkinson (with whom Lord Templeman, Lord Lowry, Lord Slynn and Lord Woolf agreed) framed, at 186, the question as:

‘…whether a bank is entitled to enforce against a wife an obligation to secure a debt owed by her husband to the bank where the wife has been induced to stand as surety for her husband's debt by the undue influence or misrepresentation of the husband.’

Lord Browne-Wilkinson in O’Brien then set out some policy consideration[4], considering
(a) more homes are put into the joint names of both spouses
(b) when finance is sought for a business enterprise, ‘…the jointly owned home has become a main source of security.’ (at 188)
(c) the concept of the wife as subservient to the husband in the management of the family’s finances is an outmoded concept (at 188). But while ‘…the concept of the ignorant wife leaving all financial decisions to the husband is outmoded, the practice does not yet coincide with the ideal.’ (at 188) and that,

‘In a substantial proportion of marriages it is still the husband who has the business experience and the wife is willing to follow his advice without bringing a truly independent mind and will to bear on financial decisions. The number of recent cases in this field shows that in practice many wives are still subjected to, and yield to, undue influence by their husbands. Such wives can reasonably look to the law for some protection when their husbands have abused the trust and confidence reposed in them.’

(d) on the other hand, ‘it is important to keep a sense of balance in approaching these cases.’ - to avoid ‘…wealth currently tied up in the matrimonial home does not become economically sterile.’ - because bank’s won’t accept it as security, it is too vulnerable to being unenforceable as security.[5]

Lord Browne-Wilkinson then turned to the law of undue influence, which Lord Browne-Wilkinson expressly recognised, was ‘…not directly applicable in the present case…’ - but was relevant, because Turnbull & Co. v. Duval [1902] A.C. 429 in the Privy Council, the then case the then modern law in this area was founded upon, was founded upon it.

Under the heading ‘Undue Influence’, Lord Browne-Wilkinson in O’Brien said, at 189:

'A person who has been induced to enter into a transaction by the undue influence of another ("the wrongdoer") is entitled to set that transaction aside as against the wrongdoer. Such undue influence is either actual or presumed. In Bank of Credit and Commerce International S.A. v. Aboody [1990] 1 Q.B. 923, 953, the Court of Appeal helpfully adopted the following classification.

Class 1: Actual undue influence

In these cases it is necessary for the claimant to prove affirmatively that the wrongdoer exerted undue influence on the complainant to enter into the particular transaction which is impugned.

Class 2: Presumed undue influence

In these cases the complainant only has to show, in the first instance, that there was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the impugned transaction. In Class 2 cases therefore there is no need to produce evidence that actual undue influence was exerted in relation to the particular transaction impugned: once a confidential relationship has been proved, the burden then shifts to the wrongdoer to prove that the complainant entered into the impugned transaction freely, for example by showing that the complainant had independent advice. Such a confidential relationship can be established in two ways, viz.,’

Under the heading ‘Class 2(A)’, Lord Browne-Wilkinson in O’Brien said, at 189:

‘Certain relationships (for example solicitor and client, medical advisor and patient) as a matter of law raise the presumption that undue influence has been exercised.’

Under the heading ‘Class 2(B)’, Lord Browne-Wilkinson in O’Brien said, at 189-190:

‘Even if there is no relationship falling within Class 2(A), if the complainant proves the de facto existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer, the existence of such relationship raises the presumption of undue influence. In a Class 2(B) case therefore, in the absence of evidence disproving undue influence, the complainant will succeed in setting aside the impugned transaction merely by proof that the complainant reposed trust and confidence in the wrongdoer without having to prove that the wrongdoer exerted actual undue influence or otherwise abused such trust and confidence in relation to the particular transaction impugned.

As to dispositions by a wife in favour of her husband, the law for long remained in an unsettled state. In the 19th century some judges took the view that the relationship was such that it fell into Class 2(A) i.e. as a matter of law undue influence by the husband over the wife was presumed. It was not until the decisions in Howes v. Bishop [1909] 2 K.B. 390 and Bank of Montreal v. Stuart [1911] A.C. 120 that it was finally determined that the relationship of husband and wife did not as a matter of law raise a presumption of undue influence within Class 2(A). It is to be noted therefore that when the Duval case was decided in 1902 the question whether there was a Class 2(A) presumption of undue influence as between husband and wife was still unresolved.’

Under the heading ‘An invalidating tendency?’, Lord Browne-Wilkinson in O’Brien said, at 190-191:

‘Although there is no Class 2(A) presumption of undue influence as between husband and wife, it should be emphasised that in any particular case a wife may well be able to demonstrate that de facto she did leave decisions on financial affairs to her husband thereby bringing herself within Class 2(B) i.e. that the relationship between husband and wife in the particular case was such that the wife reposed confidence and trust in her husband in relation to their financial affairs and therefore undue influence is to be presumed. Thus, in those cases which still occur where the wife relies in all financial matters on her husband and simply does what he suggests, a presumption of undue influence within Class 2(B) can be established solely from the proof of such trust and confidence without proof of actual undue influence.

In the appeal in C.I.B.C. Mortgages Plc. v. Pitt (judgment in which is to be given immediately after that in the present appeal), post, p. 200, Mr. Price for the wife argued that in the case of transactions between husband and wife, there was an "invalidating tendency" i.e. although there was no Class 2(A) presumption of undue influence, the courts were more ready to find that a husband had exercised undue influence over his wife than in other cases. Scott L.J. in the present case also referred to the law treating married women "more tenderly" than others. This approach is based on dicta in early authorities. In Grigby v. Cox (1750) 1 Ves.Sen. 517 Lord Hardwicke, whilst rejecting any presumption of undue influence, said that a court of equity "will have more jealousy" over dispositions by a wife to a husband. In Yerkey v. Jones (1939) 63 C.L.R. 649 , 675, Dixon J. refers to this "invalidating tendency." He also refers to the court recognising "the opportunities which a wife's confidence in her husband gives him of unfairly or improperly procuring her to become surety:" see p. 677.

In my judgment this special tenderness of treatment afforded to wives by the courts is properly attributable to two factors. First, many cases may well fall into the Class 2(B) category of undue influence because the wife demonstrates that she placed trust and confidence in her husband in relation to her financial affairs and therefore raises a presumption of undue influence. Second, the sexual and emotional ties between the parties provide a ready weapon for undue influence: a wife's true wishes can easily be overborne because of her fear of destroying or damaging the wider relationship between her and her husband if she opposes his wishes.

For myself, I accept that the risk of undue influence affecting a voluntary disposition by a wife in favour of a husband is greater than in the ordinary run of cases where no sexual or emotional ties affect the free exercise of the individual's will.’

Lord Browne-Wilkinson recognised that up until this point, he had been dealing with a two party situation: (a) claimant wife vs (b) wrongdoer husband. But he recognised that in surety cases, it was a 3 party situation, involving also the creditor/bank. In such a 3 party situation, a surety case, Lord Browne-Wilkinson said, at 191, that:

‘…the decisive question is whether the claimant wife can set aside the transaction, not against the wrongdoing husband, but against the creditor bank.’

Where it is a 3 party situation, and the wrongdoer is an agent for the creditor bank
On this Lord Browne-Wilkinson said, at 191:

‘Of course, if the wrongdoing husband is acting as agent for the creditor bank in obtaining the surety from the wife, the creditor will be fixed with the wrongdoing of its own agent and the surety contract can be set aside as against the creditor.’

Non wrongdoer agent of creditor bank situations
But, apart from this scenario, where it is a 3 party situation, there needs to be an additional ingredient, for the creditor bank to have its rights affected. That ingredient is: notice

In this regard, Lord Browne-Wilkinson said, at 191:

‘…if the creditor bank has notice, actual or constructive, of the undue influence exercised by the husband (and consequentially of the wife's equity to set aside the transaction) the creditor will take subject to that equity and the wife can set aside the transaction against the creditor (albeit a purchaser for value) as well as against the husband…’

So the notice is:
(a) either actual or constructive;
(b) of the undue influence, which in turn is notice of the (innocent party) wife’s ‘equity’ (‘Equity’). That is, that the wife has an Equity. The Equity being a right - an entitlement - to cause the impugned transaction set aside (rendered void / getting it avoided). In other words, a right to convert what is a voidable transaction, into a void transaction.

It is the principle of notice in a 3 party situation, which means a creditor, who is not the wrongdoer, might have a voidable transaction (voidable at a surety’s election on an Equity). Lord Browne-Wilkinson said ‘…it is the proper application of the doctrine of notice which provides the key to finding a principled basis for the law.’ (at 194).

Lord Browne-Wilkinson then said that the law for misrepresentations was the similar to the law of undue influence. Lord Browne-Wilkinson said, at 191:

‘Similarly, in cases such as the present where the wife has been induced to enter into the transaction by the husband's misrepresentation, her equity to set aside the transaction will be enforceable against the creditor if either the husband was acting as the creditor's agent or the creditor had actual or constructive notice.’

Finding that Duval case had given the law ‘unsure foundations’ (at 194), Lord Browne-Wilkinson reasoned that the House of Lords ‘…should seek to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.’ (At 195)

Under ‘Conclusions’, Lord Browne-Wilkinson restated the law, dealing with (a) wives; and then (b) other persons, from 195-199. The following passage is long, but necessarily set out in full:

‘(a) Wives

My starting point is to clarify the basis of the law. Should wives (and perhaps others) be accorded special rights in relation to surety transactions by the recognition of a special equity applicable only to such persons engaged in such transactions? Or should they enjoy only the same protection as they would enjoy in relation to their other dealings? In my judgment, the special equity theory should be rejected. First, I can find no basis in principle for affording special protection to a limited class in relation to one type of transaction only. Second, to require the creditor to prove knowledge and understanding by the wife in all cases is to reintroduce by the back door either a presumption of undue influence of Class 2(A) (which has been decisively rejected) or the Romilly heresy (which has long been treated as bad law). Third, although Scott L.J. found that there were two lines of cases one of which supported the special equity theory, on analysis although many decisions are not inconsistent with that theory the only two cases which support it are Yerkey v. Jones, 63 C.L.R. 649, and the decision of the Court of Appeal in the present case. Finally, it is not necessary to have recourse to a special equity theory for the proper protection of the legitimate interests of wives as I will seek to show.

In my judgment, if the doctrine of notice is properly applied, there is no need for the introduction of a special equity in these types of cases. A wife who has been induced to stand as a surety for her husband's debts by his undue influence, misrepresentation or some other legal wrong has an equity as against him to set aside that transaction. Under the ordinary principles of equity, her right to set aside that transaction will be enforceable against third parties (e.g. against a creditor) if either the husband was acting as the third party's agent or the third party had actual or constructive notice of the facts giving rise to her equity. Although there may be cases where, without artificiality, it can properly be held that the husband was acting as the agent of the creditor in procuring the wife to stand as surety, such cases will be of very rare occurrence. The key to the problem is to identify the circumstances in which the creditor will be taken to have had notice of the wife's equity to set aside the transaction.

The doctrine of notice lies at the heart of equity. Given that there are two innocent parties, each enjoying rights, the earlier right prevails against the later right if the acquirer of the later right knows of the earlier right (actual notice) or would have discovered it had he taken proper steps (constructive notice). In particular, if the party asserting that he takes free of the earlier rights of another knows of certain facts which put him on inquiry as to the possible existence of the rights of that other and he fails to make such inquiry or take such other steps as are reasonable to verify whether such earlier right does or does not exist, he will have constructive notice of the earlier right and take subject to it. Therefore where a wife has agreed to stand surety for her husband's debts as a result of undue influence or misrepresentation, the creditor will take subject to the wife's equity to set aside the transaction if the circumstances are such as to put the creditor on inquiry as to the circumstances in which she agreed to stand surety.

It is at this stage that, in my view, the "invalidating tendency" or the law's "tender treatment" of married women, becomes relevant. As I have said above in dealing with undue influence, this tenderness of the law towards married women is due to the fact that, even today, many wives repose confidence and trust in their husbands in relation to their financial affairs. This tenderness of the law is reflected by the fact that voluntary dispositions by the wife in favour of her husband are more likely to be set aside than other dispositions by her: a wife is more likely to establish presumed undue influence of Class 2(B) by her husband than by others because, in practice, many wives do repose in their husbands trust and confidence in relation to their financial affairs. Moreover the informality of business dealings between spouses raises a substantial risk that the husband has not accurately stated to the wife the nature of the liability she is undertaking, i.e., he has misrepresented the position, albeit negligently.

Therefore in my judgment a creditor is put on inquiry when a wife offers to stand surety for her husband's debts by the combination of two factors: (a) the transaction is on its face not to the financial advantage of the wife; and (b) there is a substantial risk in transactions of that kind that, in procuring the wife to act as surety, the husband has committed a legal or equitable wrong that entitles the wife to set aside the transaction.

It follow that unless the creditor who is put on inquiry takes reasonable steps to satisfy himself that the wife's agreement to stand surety has been properly obtained, the creditor will have constructive notice of the wife's rights.

What, then are the reasonable steps which the creditor should take to ensure that it does not have constructive notice of the wife's rights, if any? Normally the reasonable steps necessary to avoid being fixed with constructive notice consist of making inquiry of the person who may have the earlier right (i.e. the wife) to see whether such right is asserted. It is plainly impossible to require of banks and other financial institutions that they should inquire of one spouse whether he or she has been unduly influenced or misled by the other. But in my judgment the creditor, in order to avoid being fixed with constructive notice, can reasonably be expected to take steps to bring home to the wife the risk she is running by standing as surety and to advise her to take independent advice. As to past transactions, it will depend on the facts of each case whether the steps taken by the creditor satisfy this test. However for the future in my judgment a creditor will have satisfied these requirements if it insists that the wife attend a private meeting (in the absence of the husband) with a representative of the creditor at which she is told of the extent of her liability as surety, warned of the risk she is running and urged to take independent legal advice. If these steps are taken in my judgment the creditor will have taken such reasonable steps as are necessary to preclude a subsequent claim that it had constructive notice of the wife's rights. I should make it clear that I have been considering the ordinary case where the creditor knows only that the wife is to stand surety for her husband's debts. I would not exclude exceptional cases where a creditor has knowledge of further facts which render the presence of undue influence not only possible but probable. In such cases, the creditor to be safe will have to insist that the wife is separately advised.

I am conscious that in treating the creditor as having constructive notice because of the risk of Class 2(B) undue influence or misrepresentation by the husband I may be extending the law as stated by Fry J. in Bainbrigge v. Browne , 18 Ch. D. 188 , 197, and the Court of Appeal in the Aboody case [1990] 1 Q.B. 923 , 973. Those cases suggest that for a third party to be affected by constructive notice of presumed undue influence the third party must actually know of the circumstances which give rise to a presumption of undue influence. In contrast, my view is that the risk of Class 2(B) undue influence or misrepresentation is sufficient to put the creditor on inquiry. But my statement accords with the principles of notice: if the known facts are such as to indicate the possibility of an adverse claim that is sufficient to put a third party on inquiry.

If the law is established as I have suggested, it will hold the balance fairly between on the one hand the vulnerability of the wife who relies implicitly on her husband and, on the other hand, the practical problems of financial institutions asked to accept a secured or unsecured surety obligation from the wife for her husband's debts. In the context of suretyship, the wife will not have any right to disown her obligations just because subsequently she proves that she did not fully understand the transaction: she will, as in all other areas of her affairs, be bound by her obligations unless her husband has, by misrepresentation, undue influence or other wrong, committed an actionable wrong against her. In the normal case, a financial institution will be able to lend with confidence in reliance on the wife's surety obligation provided that it warns her (in the absence of the husband) of the amount of her potential liability and of the risk of standing surety and advises her to take independent advice.

Rejecting a submission that this would impose too heavy a burden on financial institutions, Lord Browne-Wilkinson said, at 197-198:

'...the Code of Banking Practice (adopted by banks and building societies in March 1992) provides in paragraph 12.1 as follows:

"Banks and building societies will advise private individuals proposing to give them a guarantee or other security for another person's liabilities that: (i) by giving the guarantee or third party security he or she might become liable instead of or as well as that other person; (ii) he or she should seek independent legal advice before entering into the guarantee or third party security. Guarantees and other *198 third party security forms will contain a clear and prominent notice to the above effect."

Thus good banking practice (which applies to all guarantees, not only those given by a wife) largely accords with what I consider the law should require when a wife is offered as surety. The only further substantial step required by law beyond that good practice is that the position should be explained by the bank to the wife in a personal interview. I regard this as being essential because a number of the decided cases show that written warnings are often not read and are sometimes intercepted by the husband. It does not seem to me that the requirement of a personal interview imposes such an additional administrative burden as to render the bank's position unworkable.

(b) Other persons

I have hitherto dealt only with the position where a wife stands surety for her husband's debts. But in my judgment the same principles are applicable to all other cases where there is an emotional relationship between cohabitees. The "tenderness" shown by the law to married women is not based on the marriage ceremony but reflects the underlying risk of one cohabitee exploiting the emotional involvement and trust of the other. Now that unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society, the law should recognise this. Legal wives are not the only group which are now exposed to the emotional pressure of cohabitation. Therefore if, but only if, the creditor is aware that the surety is cohabiting with the principal debtor, in my judgment the same principles should apply to them as apply to husband and wife.

In addition to the cases of cohabitees, the decision of the Court of Appeal in Avon Finance Co. Ltd. v. Bridger [1985] 2 All E.R. 281 shows (rightly in my view) that other relationships can give rise to a similar result. In that case a son, by means of misrepresentation, persuaded his elderly parents to stand surety for his debts. The surety obligation was held to be unenforceable by the creditor inter alia because to the bank's knowledge the parents trusted the son in their financial dealings. In my judgment that case was rightly decided: in a case where the creditor is aware that the surety reposes trust and confidence in the principal debtor in relation to his financial affairs, the creditor is put on inquiry in just the same way as it is in relation to husband and wife.

Lord Browne-Wilkinson then, under the heading ‘Summary’ said, at 198-199:

‘I can therefore summarise my views as follows. Where one cohabitee has entered into an obligation to stand as surety for the debts of the other cohabitee and the creditor is aware that they are cohabitees: (1) the surety obligation will be valid and enforceable by the creditor unless the suretyship was procured by the undue influence, misrepresentation or other legal wrong of the principal debtor; (2) if there has been undue influence, misrepresentation or other legal wrong by the principal debtor, unless the creditor has taken reasonable steps to satisfy himself that the surety entered into the obligation freely and in knowledge of the true facts, the creditor will be unable to enforce the surety obligation because he will be fixed with constructive notice of the surety's right to set aside the tranxaction [sic]; (3) unless there are special exceptional circumstances, a creditor will have taken such reasonable steps to avoid being fixed with constructive notice if the creditor warns the surety (at a meeting not attended by the principal debtor) of the amount of her potential liability and of the risks involved and advises the surety to take independent legal advice.

I should make it clear that in referring to the husband's debts I include the debts of a company in which the husband (but not the wife) has a direct financial interest.’

As an aside, Lord Browne-Wilkinson in O’Brien said:

(a) ‘a transaction between husband and wife cannot, in the absence of undue influence or misrepresentation, be set aside simply on the ground that the wife did not fully understand the transaction.’ (at 193:)

(b) ‘…the Romilly heresy … is bad law.’ (at 194)

‘…the heresy propounded by Lord Romilly to the effect that when a person has made a large voluntary disposition the burden is thrown on the party benefiting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction: see Hoghton v. Hoghton (1852) 15 Beav. 278. Although this heresy has never been formally overruled, it has rightly been regarded as bad law for a very long time: see the account given by Dixon J. in Yerkey v. Jones, 63 C.L.R. 649 , 678 et seq.’ (at 193)

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