1 Midland Bank v Massey [1995] 1 All ER 929; Bunco Exterior Internacional v Mann [1995] 1 All ER 936; TSB v Camfield [1995] 1 WLR 430; Halifax Mortgage Services Ltd v Stepsky [1996] Ch I; Barclays Bank v Coleman [2000] 1 All ER 385.

2 See eg B Fehlberg ‘The Husband and Bank, the Wife and her Signature’ (1994) 57 MLR 467; B Fehlberg ‘The Husband, the Bank, the Wife and her Signature — the Sequel’ (1996) 59 MLR 675; S Cretney ‘Mere Puppets, Folly and Imprudence: Undue Influence for the Twenty First Century’ [1994] RLR 3; R Gross and D Wolfson’ Enforcing security against the surety: Matters left unresolved by the House of Lords in Barclays Bank v O'Brien’ (1994) 9 JIBFL 265; A Lawson ‘O'Brien and Its Legacy: Principle, Equity and Certainty?’ (1995) 54 CLJ 280; J Mee ‘Undue Influence, Misrepresentations and the Doctrine of Notice’ (1995) 54 CLJ 536; S Goo ‘Enforceability of Securities and Guarantees after O'Brien’ (1995) 15 OJLS 119; M Oldham, ‘Neither a borrower nor a lender be — the life of O'Brien’ (1995) 7 CELQ 104; J O'Sullivan ‘Undue Influence and Misrepresentation after O'Brien: Making Security Secure’ in Rose, F (ed) Restitution and Banking Law (Oxford: Mansfield Press, 1998) p 42 Google Scholar; M Pawlowski and S Greer ‘Constructive Notice and Independent Legal Advice: A Study of Lending Institution Practice’ [2001] Conv 229; A Hudson Equity and Trusts (London: Cavendish Publishing, 2nd edn, 2001) pp 602–614.

3 [2001] 4 All ER 449.

4 [1994] 1 AC 180.

5 [2001] 4 All ER 449 at 463.

6 See eg M Oldham ‘If at First … Undue Influence and the House of Lords' [2002] 61 CLJ 29 at 29–30: M Thompson’ Wives, Sureties and Banks' [2002] Conv 174 at 185–186; G Andrews ‘Reducing the Solicitor's Burden?’ (2001) 5 Mountbatten JLS 78 at 88.

7 The Office for National Statistics has recently released the results of the 2001 Census. Commenting on the overall trends of the census, the Office stated: ‘As well as increasing in size, the UK population is now also older overall than it was in 1951. While the proportion of the population aged under 16 has decreased to 20 per cent from 24 per cent on census day 1951, the proportion of the population aged 60 and over has increased to 21 per cent from 16 per cent on census day 1951. Thus, for the first time ever there are more people aged over 60 than there are children. This ageing of the population reflects longer life expectancy due to improvements in living standards and health care. It also reflects the fact that there have not been any events with a corresponding effect on life expectancy like that of the first and second world wars.

9 The ageing of the UK population is particularly evident when the number of people aged 85 and over is considered. On census day 1951, there were 0.2 million people aged 85 and over (0.4 per cent of the total population) in the UK. By census day 2001, this had grown to just over 1.1 million (1.9 per cent of the total population)’: http://www.statistics.gov.uk/census2001/demographic_uk.asp.

10 The Office for National Statistics also drew attention to the fact that women outlive men, noting that men aged 65 in 2000 could expect to live to the age of 81, while women could expect to live to the age of 84: http://www.statistics.gov.uk/cci/nugget.aspfiid=168.

8 For the purpose of this paper elder generally means any person of pensionable age. Pensionable age at present is 60 for women and 65 for men. See generally Help the Aged ‘Background Briefings: The Older Population’: http://www.helptheaged.org.uWAdviceInfo/InfoPoint/-default.httm#background. The Office of National Statistics reported that the 2001 Census indicated that there were10.8 million men and women in this age category: http://www.statistics.gov.uk/census2001/demographic-uk.asp

9 See eg L Whalley The Ageing Brain (London: Weidenfeld & Nicholson, 2001) ch 4, who considers the issue of the slowing of mental speed, particularly after the age of 70, which can affect memory and language; Ian Stuart-Hamilton ‘Intellectual changes in late life’ in R Woods Handbook of the Clinical Psychology of Ageing (Chichester: John Wiley & Sons, 1996) p 23.

10 Dementia and Alzheimer's disease are strongly associated with mental impairment and the ageing of the brain: see eg Whalley, n 9 above, ch 8; ‘Mental health problems in late life’ in Woods, n 9 above, p 197.

11 Eg due to severe mental impairment: see eg the Mental Health Act 1983, proposed amendments to that legislation: http://www.doh.gov.uWmentalhealth/draftbill 2002/index.htm and the Adults with Incapacity (Scotland) Act 2000. For a helpful and comprehensive discussion of the mental health regime see P Bartlett and Sandland, R Mental Health Law: Policy & Practice (London: Blackstone Press Limited, 2000 Google Scholar).

12 [1987] 1 Ch 378.

13 [1987] 1 Ch 378 at 390, per Nourse LJ.

14 [2002] EWCA Civ 885.

15 [2002] EWCA Civ 885 at [35].

16 The doctrine has been used to set aside gifts and contracts for nearly two centuries and some of the leading cases have involved elders: Williams v Bayley (1866) LR LH 200; Noriah v Shaik Allie Bin Omar [1929] AC127; Lloyds Bank v Bundy [1975] 1 QB 326; Avon Finance Co Lid v Bridger [1985] 2 All ER 281; Goldsworthy v Brickell [1987] 1 Ch 378; Re Brocklehurst [1985] AC 686; Cheese v Thomas [1994] 1 All ER 35. Undue influence post mortem has been reviewed from the perspective of the elderly and in the context of elder parent and adult children relationships: L Frolik ‘The Biological Roots of the Undue Influence Doctrine: What's Love got to do with it?’ (1996) 57 U Pitt LR 841; L Frolik ‘The Strange Interplay of Testamentary Capacity and the Doctrine of Undue Influence: Are We Protecting Older Testators or Overriding Individual Preferences?’ (2000) 24 Int J Law and Psychiatry 253.

17 In recent time commentators have generally neglected the application of undue influence inter vivos O'Brien and Etridge on elders. However, a few clear exceptions where aged adults have been touched upon are: P Birks and Chin Nyuk Yin’ On the Nature of Undue Influence’ in J Beatson and D Friedman (eds) Good Faith and Fault in Contract Law (Oxford: Clarendon Press, 1995) pp 57, 91; M Richardson’ Protecting Women who Provide Security for Husband's, Partner's or Child's debts: The Value and Limits of an Economic Perspective’ (1996) 16 LS 368; M Trebilcock and S Elliot’ The Scope and Limits of Legal Paternalism: Altruism and Coercion in Family Financial Arrangements' in Benson, P (ed) The Theory of Contract Law: New Essays (Cambridge: Cambridge University Press, 2001 CrossRefGoogle Scholar) p 45; G McMeel The Modern Law of Restitution (London: Blackstone Press, 2000) p102; A Tettenborn The Law of Restitution in England and Ireland (London: Cavendish Publishing, 2002) para 4–26.

18 See eg Glanville v Glanville [2002] EWHC1271 (Ch); Meredith v Lackschewitz [2002] EWHC1462 (Ch); Re Morris (deceased); Special Trustees for Great Ormond Street Hospital for Children v Rushin (unreported, 19 April, 2000) Ch D, Rimer J.; Farquhar v Boyd (unreported,14 March 1997), Ch D, Campbell J; Langton v Langton [1995] 2 FLR 890; Casimir v Alexander [2001] WTLR 939; Re Craig Deceased [1971] 1 Ch 95.

19 See eg Davies v Dobson (unreported, 7 July, 2000), Ch D, Geoffrey Vos QC; Brown v Palmer (unreported, 27 October 1997), CA (Civ), Peter Gibson, Millett LJJ, Sir John Balcombe; Love v Love (unreported, 11 March, 1999), CA (Civ), Brooke, Chadwick LJJ; Ransome v Leeder [1994] CLY 2246.

20 See eg Lungton v Langton [1995] 2 FLR 890.

21 See eg Clarke v Prus (unreported, 8 March 1995), Ch D, Knox J; Hanna v McGeevey (unreported, 30 July 1993), QBD, Murray LJ.

22 Note in this regard the old authority Re Coomber; Coomber v Coomber [1911] 1 Ch 174; [1911] 1 Ch 723.

23 See eg Hughes v MacPherson (unreported,17 March 1999). CA (Civ), Sir Richard Scott VC, Thorpe, Judge LJJ; Banco Exteror Internacional SA v Thomas [1997] 1 WLR 221. Such an agreement can also take place in a commercial context: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1999] Lloyds Rep PN 496. These kinds of schemes have become so common that organisations concerned with the well-being of elders have provided general information on the merits and pitfalls of them: see eg Age Concern ‘Raising income or capital from your home’ (2002), available at http://www.age.org.uk/ageconcerdmedia/Factsheet_12pdf.

24 There have been several recent cases involving elders including: Greene King plc v Stanley [2001] EWCA Civ 1966; Wright v Cherrytree Finance Ltd [2001] 2 All ER (Comm) 877; Portman Building Society v Dusangh [2000] 2 All ER 221; State Bank of India v Soni (unreported,17 February 1997), CA (Civ), Sir Stephen Brown P, Hobhouse, Ward LJJ.

25 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 457, per Lord Nicholls; note also R Pearce and J Stevens The Law of Trusts and Equitable Obligations (London: Butterworths, 2nd edn, 1998) p 72.

26 J McGhee Snell's Equity (London: Sweet & Maxwell, 30th edn, 2000) para 38–10. However, it has been suggested that it is not necessary to have pressure or coercion: see McGhee, para 38–10; Virgo, G The Principles of the Law of Restitution (Oxford: Clarendon Press, 1999) pp 254–255 Google Scholar. It has been associated with domination: J Beatson Anson's Law of Contract (Oxford: Oxford University Press, 27th edn, 1998) p 279; J Martin Hanbury & Martin: Modern Equity (London: Sweet & Maxwell, 16th edn, 2001) p 828. See S Hedley A Critical Introduction to Restitution (London: Butterworths, 2001) p 189 citing Lloyds Bank Ltd v Bundy [1975] QB 326 at 324, per Judge McLellan, quoted by Sir Erich Sachs. It has also been associated with exploitation — Virgo, above, pp 253–254.

27 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 500, per Lord Scott; Pettit, P Equio and the Law of Trusts (London: Butterworths, 9th edn, 2001) p 675 Google Scholar.

28 Sir G Treitel’ Contract: General Rules' in P Birks (ed) English Private Law (Oxford: Oxford University Press, 2000) vol II, para 8.202; Virgo, n 26 above, p 255.

29 Barton v Alexander [1976] AC105 at118, per Lord Cross.

30 Mutual Finance Ltd v John Wetton & Sons Ltd [1937] 2 KB 389 at 394–395, per Porter J.

31 Bank of Credit & Commerce International SA v Aboody [1990] 1 QB 923.

32 Williams v Bayley (1866) LR1 HL 200.

33 CIBC Mortgages plc v Pitt [1994] 1 AC 200; McGhee, n 26 above, para 38–10; Lord Goff of Chieveley and G Jones The LAW of Restitution (London: Sweet & Maxwell, 5th edn, 1998) p 358; Beatson, n 26 above, p 279; Jaffey, P The Nature and Scope of Restitution: Vitiated Transfers, Imputed Contracts and Disgorgement (Oxford: Hart Publishing, 2000) p194 Google Scholar.

34 Royal Bank of Scotland v Etridge (No 2) [1998] 4 All ER 705 at 713; McGhee, n 26 above, para 38–10.

35 Lord Goff of Chieveley and Jones, n 33 above, pp 363–364.

36 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 457–458, per Lord Nicholls, 481, per Lord Hobhouse, 500, per Lord Scott.

37 Discussed below in Part 3 below.

38 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 477, per Lord Clyde.

39 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 459, per Lord Nicholls.

40 See eg A Phang and H Tjio ‘The uncertain boundaries of undue influence’ [2002] LMCLQ 231, pp 232–233; and note Hedley, n 26 above, p193.

41 See R Bigwood ‘Undue Influence in the House of Lords: Principles and Proof’ (2002) 65 MLR 435, p 440.

42 Pearce and Stevens, n 25 above, p 72.

43 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 457, per Lord Nicholls, 481, per Lord Hobhouse; see also Hudson, n 2 above, pp 598–599; Beatson, n 26 above, p 278. It is important to recognise the interface and overlap between actual undue influence, duress and misrepresentation. However, this issue goes beyond the purpose and scope of this paper.

44 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 481, per Lord Hobhouse. Note in this regard the decision of the Court of Appeal in Bank of Credit and Commercial SA v Aboody [1990] 1 QB 923.

45 Birks and Chin, n17 above, pp 63–67; and note P Birks and C Mitchell ‘Unjust Enrichment’ in P Birks (ed), n 28 above, vol 11, p 525, paras 15.81–15.83. Virgo has drawn a distinction between cases where the transaction is the result of lawful threats, which ought to be considered as part of the principle of compulsion and cases where the defendant unfairly exploited a position of influence; see Virgo, n 26 above, p 253; note also Jaffey, n 33 above, p193. Andrew Tettenborn discusses the doctrine of undue influence as it pertains to restitution generally under duress: see Tettenborn, n17 above, para 4.21.

46 See also Virgo, n 26 above, p 253; Jaffey, n 33 above, pp195–197; Cf Allcard v Skinner (1887) 36 ChD 145 at 185, per Lindley LJ; Lord Goff of Chieveley and Jones, n 33 above, p 360 n12; R Bigwood ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation”?’ (1996) OJLS 503; M Conaglen ‘Duress, Undue Influence and Unconscionable Bargains — The Theoretical Mesh’ (1999) 18 NZUR 509; Pettit, n 27 above, p 675.

47 [1998] 4 All ER 705 at 712.

48 Royal Bank of Scotland plc v Etridge (No2) [2001] 4 All ER 449 at 458, per Lord Nicholls.

49 It has been suggested that ‘courts exercise considerable restraint in the use of the doctrine’ and that there is no danger of an uncontrolled judicial activisim: see Hedley, n 26 above, p190.

50 Note also the statement of criteria in Bank of Credit and Commerce International SA v Abondy [1990]1 QB 923 at 967; Virgo, n 26 above, pp 254–255.

51 (Unreported, 8 March 1995), Ch D, Knox J.

52 (Unreported, 8 March 1995). Ch D, at 32.

53 (Unreported, 8 March 1995). Ch D, at 25.

54 (Unreported, 8 March 1995), Ch D, at 33.

55 Ransome v Leeder [1994] CLY 2246.

56 [1995] 2 FLR 890.

57 [1995] 2 FLR 890 at 902.

58 [1995] 2 FLR 890 at 902.

59 One example was the decision in Bank of Credit & Commerce International SA v Aboody [1990] 1 QB 923. In Aboody, notice of facts constituting actual undue influence was unavoidable as the solicitor who advised Mrs Aboody acted for the bank and witnessed the husband's aggressive attitude: see 974–975. However, Aboody remains an exceptional case not only because solicitors may not act for both parties, but also because the solicitor or the bank may not be aware of the underlying facts which give rise to actual undue influence.

60 [1985] 2 All ER 281.

61 [1985] 2 All ER 281 at 286.

62 In the same case, [1985] 2 All ER 281 at 287–288, Brandon and Brightman LJJ relied on the agency of the son, lack of independent advice and the fact that the son had acted as agent for the building society.

63 These matters are considered further below: see Part 4.

64 See Hedley, n 26 above, p190.

65 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923 at 953; Barclays Bank plc v O'Brien [1994] 1 AC180.

66 McGhee, n 26 above, para 38–11; Beatson, n 26 above, pp 279–280; n 26 Virgo, above, p 258; see also Royal Bank of Scotland plc v Erridge (No2) [2001] 3 WLR1021 at1030, per Lord Nicholls.

67 [1994] 1 AC180 at189.

68 [1994] 1 AC180 at189. These relationships include parents and young children, guardians and young children, solicitors and clients, medical advisor and patient and religious advisors and their devotees: see eg McGhee, n 26 above, paras 38–14–39–19; Pettit, n 27 above, p 675; Martin, n 26 above, p 829; Beatson, n 26 above, p 280; Virgo, n 26 above, p 259.

69 Barclays Bank plc v O'Brien [1994] 1 AC180 at 189–190; McGhee, n 26 above, para 38–13; Pettit, n 27 above, p 675; Martin, n 26 above, p 830; Beatson, n 26 above, pp 280–281; Virgo, n 26 above, pp 259–260.

70 Barclays Bank plc v O'Brien [1994] 1 AC180 at 191. The interface and overlap between misrepresentation and undue influence is beyond the purpose and scope of this paper.

71 Birks and Chin, n17 above, pp 67–81.

72 Bigwood, n 46 above; Conaglen, n 46 above.

73 Virgo, n 26 above, p 252; Hedley, n 26 above, p 195.

74 Birks and Chin, n 17 above, pp 67–74.

75 Bigwood, n 46 above, p 512. Note also the comments of D Capper ‘Banks, Borrowers, Sureties and Undue Influence — A Half Baked Solution in a Thoroughly Cooked Problem’ [2002] RLR100, pp 101–102.

76 Virgo, n 26 above, pp 252; Hedley, n 26 above, p195.

77 This was particularly in the case where wives sought to have a charge over the matrimonial home set aside to secure the husband's business: Martin, n 26 above, p 832.

78 Martin, n 26 above, p 832.

79 CIBC Mortgages plc v Pitt [1994] 1 AC 200 at 209; Barclays Bank plc v Coleman [2001] QB 20 at 62–64; Pettit, n 27 above, p 675.

80 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923 at 953; Barclays Bank plc v O'Brien [1994] 1 AC 180 at 189; McGhee, n 26 above, para 38–11.

81 Huguenin v Baseley (1807) 14 Ves Jun 273 at 300; 33 ER 526 at 536; McGhee, n 26 above, para 38–11; Pettit, n 27 above, p 675; Beatson, n 26 above, pp 283–284. Independent advice may not be necessary and in some cases may not be considered sufficient: Tettenborn, n17 above, para 4.27.

82 McGhee, n 26 above, para 38–11; Martin, n 26 above, p 830; Beatson, n 26 above, p 284.

83 Part 4(b).

84 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 459, per Lord Nicholls; note 481–482, per Lord Hobhouse and 500–501, per Lord Foscote.

85 [2001] 4 All ER 449 at 503, per Lord Scott.

86 [2001] 4 All ER 449 at 453, per Lord Hobhouse; note also 477, per Lord Clyde. As to whether there is a great divide between the two forms of undue influence see Hedley, n 26 above, p 193.

87 [2001] 4 All ER 449 at 458.

88 See in this regard Virgo, n 26 above, pp 252–253, who maintains that while courts will take into account both plaintiff and defendant-orientated conduct, undue influence is not a form of wrongdoing within the law of restitution; and Hedley, n 26 above, p195, who has pointed out that as ‘talk of “undue influence” is a reflection on the whole relationship between the parties, it is not clear how much sense it can make to talk either of “claimant-sided” or “defendant-sided” approaches. Both sides are always in issue’.

89 Royal Bank of Scotland plc v Etridge (No2) [2001] 4 All ER 449 at 460, per Lord Nicholls; note also 481–482, per Lord Hobhouse and 503, per Lord Scott.

90 [2001] 4 All ER 449 at 460, per Lord Nicholls.

91 [2001] 4 All ER 449 at 461–462. Note the comments of Tettenborn, n17 above, para 4–27.

92 (1887) 36 Ch D145 at 185.

93 [1985] AC 686.

94 [1985] AC 686 at 704. Quoted with approval by Lord Nichols in Royal Bank of Scotland v Etridge (No 2) [2001] 4 All ER 449 at 461; note also 481–482, per Lord Hobhouse and 501, per Lord Scott.

95 Royal Bank of Scotland plc v Etridge (No2) [2001] 4 All ER449 at 462, per Lord Nicholls. However, it is still open to wives to claim presumed undue influence by proving a relationship of trust and confidence and manifest disadvantage, but the decision in Etridge will make this more difficult: see Andrews, n 6 above, pp 82–84.

96 For a discussion of the lack of a special legal status for the elderly see L Bonfield ‘Was there a “third age” in the preindustrial English past? Some evidence from the law’ in J Eekelaar and Pearl, D An Aging World: Dilemmas and Challenges for Law and Socia1 Policy (Oxford: Clarendon Press, 1989 Google Scholar) p 37. For a consideration of the rise of age consciousness see L Whitton ‘Ageism: Paternalism and Prejudice’ [1997] 46 De Paul LR 453, pp 458–459.

97 Lewis v Pead (1789)1 Ves Jun 19;30 ER 210. Note also Grahn v Litwin (1911) 4 Sask LR 270 at 278, per Wetmore CJ.

98 Browne, D in Ashburner's Principles of Equity (London: Butterworths, 2nd edn, 1933) p 38 Google Scholar points out that: ‘The presumption of undue influence which arises from the relation of solicitor and client, doctor and patient …was almost unknown in the eighteenth century.’

99 Browne, n 98 above, p 305.

100 Property transactions in favour of children have been considered natural: see generally Frolik (‘The Strange Interplay of Testamentary Capacity and the Doctrine of Undue Influence: Are We Protecting Older Testators or Overriding Individual Preferences?’), n16 above.

101 L Sheridan Fraud in Equity: A Study in English and Irish Law (London: Pitman, 1957) p 96. Another example of this trend was the development of the presumption of advancement which still operates today. Where a purchaser pays the purchase price for an asset but does not acquire the legal interest it is assumed that he or she intended to retain the beneficial interest in the asset and a resulting trust operates in that person's favour. However, the presumption can be rebutted by evidence of the purchaser's contrary intention or by reliance on the presumption of advancement. Where the recipient of the property is a spouse or the child of the purchaser, a presumption of advancement arises to rebut the resulting trust: see Martin, n 26 above, pp 246–249, 255.

102 See eg McGhee, n 26 above, paras 38-14-39-19; Pettit, n 27 above, p 675; Martin, n 26 above, p 830; Beatson, n 26 above, p 280.

103 There were a few cases concerning the evidential presumption of undue influence where age was considered as part of all the circumstances of the case: Cooke v Lamotre (1851) 15 Beav 234; 51 ER 527; 21 LJ Ch 371; Elgie v Campbell (1865)12 Gr132; Symons v Williams [1875] VLR199.

104 See eg Meredith v Lackschewitz-Martin [2002] EWHC1462 (Ch); Davies v Dobson (unreported, 7 July, 2000), Ch D, Geoffrey Vos QC; Brown v Palmer (unreported, 27 October 1997), CA (Civ), Peter Gibson, Millett LJJ, Sir John Balcombe; Forsdike v Forsdike (unreported, 21 February 1997), CA (Civ), Staughton PILL, Mummery LJJ; Love v Love (unreported,11 March, 1999). CA (Civ), Brooke, Chadwick LJJ; Langton v Langton [1995] 2 FLR890; Casimir v Alexander [2001] WTLR 939; Mahoney v Purcell [1996] 3 All ER 61 (father-in-law and son-in-law); Re Coomber; Coomber v Coomber [1911] 1 Ch174; [1911] 1 Ch723.

105 (Unreported, 7 July 2000), Ch D, Geoffrey Vos QC.

106 (Unreported, 7 July 2000), Ch D, at10.

107 (Unreported, 7 July 2000), Ch D, at10.

108 [2000] 2 All ER (Comm) 221.

109 [2000] 2 All ER (Comm) 221 at 224.

110 In Forsdike v Forsdike (unreported, 21 February 1997), CA (Civ), Staughton PILL, Mummery LJJ, the court held that despite the age of the father and the early onset of dementia, he was still a dominant personality and that the son did not exercise influence over him.

111 [1985] 2 All ER 281.

112 [1985] 2 All ER 281 at 287–288.

113 (Unreported, 11 March, 1999), CA(Civ), Brooke, Chadwick LJJ.

114 (Unreported, 11 March, 1999), CA(Civ), at 3.

115 (Unreported, 11 March, 1999), CA(Civ), at 3.

116 (Unreported, 11 March, 1999), CA(Civ), at 3.

117 Hudjiconsruntinou v Charulurnbous (unreported, 12 November 1993), Ch D, C Rimer QC, Deputy Judge, at 24.

118 Eg in Hunnu v McCreevy (unreported, 30 July 1993), QBD, Murray LJ.

119 [1978] 1 Ch 14.

120 [1978] 1 Ch 14 at 36–37, per Lawton LJ, 47–49, per Bridge LJ.

121 In Forsdike v Forsdike (unreported, 21 February 1997), CA (Civ), Staughton PILL, Mummery LJJ the court found that the elder acted independently, despite the fact that at the time of the transaction he was 87 years old and he was physically frail; and that at the time of the trial he was suffering early dementia. Several witnesses testified that he had been a forceful and strong-willed individual.

122 [2002] EWHC 1462 (Ch).

123 Note also Hammond v Osborn (unreported, 27 June 2002), CA, Ward and Keeneand LJJ and Sir Martin Nourse.

124 (Unreported, 19 April 2000). Ch D, Rimer J.

125 (Unreported, 19 April 2000), Ch D, at 42. See also Farquhar v Boyd (unreported, 14 March, 1997), Ch D, Campbell J.

126 In addition, there have been several cases where the misrepresentations made to the elders have further sustained a finding of undue influence. This has been particularly in third-party guarantee cases: see eg Wright v Cherrytree Finance Ltd [2001] 2 All ER (Comm) 877; Greene King plc v Stanley [2001] EWCA Civ 1966.

127 [1987] 1 Ch 378.

128 [1987] 1 Ch 378 at 401 and 404.

129 [1999] Lloyd's Rep PN 496.

130 [1999] Lloyd's Rep PN 496 at 513.

131 [1999] Lloyd's Rep PN 496 at 513.

132 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 461, per Lord Nicholls.

133 Glanville v Glanville [2002] EWHC 1271 (Ch).

134 Meredith v Lackschewitz-Martin [2002] EWHC 1462 (Ch); Greene King plc v Stanley [2001] EWCA Civ 1966; Davies v Dobson (unreported, 7 July 2000). Ch D, Geoffrey Vos QC.

135 See eg Bank of Credit & Commerce International SA v Aboody [1990] 1 QB 923; Royal Bank of Scotland plc v Etridge (No 2) [2001] 3 WLR 1021.

136 See eg Langton v Langton [1995] 2 FLR 890; note also Cheese v Thomas [1994] 1 WLR139.

137 See eg Re Coomber: Coomber v Coomber [1911] 1 Ch174; [1911] 1 Ch 723; Re Craig Deceased [1971] 1 Ch 95.

138 (Unreported, 7 July 2000), Ch D, Geoffrey Vos QC.

139 (Unreported, 7 July 2000), Ch D, at 10, quoting Ungoed Thomas J in Re Craig Deceased [1971] 1 Ch 95 at 104.

140 See eg Re Morris (deceased); Special Trustees for the Great Ormond Street Hospital for Children v Rushin (unreported,19 April 2000), Ch D, Rimer J; Farquhar v Boyd (unreported,14 March 1997), Ch D, Campbell J; Love v Love (unreported,11 March 1999), CA (Civ) Chadwick LJ; Langton v Lungton [1995] 2 FLR 890.

141 Investors Compensation Scheme Limited v West Bromwich Building Society [1999] Lloyd's Rep PN 496; Mahoney v Purnell [1996] 3 All ER 41.

142 See eg Glanville v Glanville [2000] EWHC1271 (Ch); Meredith v Luckschewitz-Martin [2002] EWHC1462 (Ch); Greene King plc v Stanley [2001] EWCA Civ 1966.

143 [1985] AC 686 at 704, per Lord Scarman.

144 In the light of the interface between undue influence and misrepresentation, it is likely that evidence of a misrepresentation would indicate that the transaction was not explicable by the exercise of a free and independence judgment: note Wright v Cherrytree Finance Ltd [2001] 2 All ER (Comm) 877; Greene King plc v Stanley [2001] EWCA Civ 1966.

145 See eg Davies v Dobson (unreported, 7 July 2000), Ch D, Geoffrey Vos QC; Brown v Palmer (unreported, 27 October 1997), CA (Civ), Peter Gibson, Millett LJJ, Sir John Balcombe; Love v Love (unreported,11 March 1999).CA (Civ), Brooke, Chadwick LJJ; Langton v Langton [1995] 2 FLR 890; Casimir v Alexander [2001] WTLR 939.

146 Hughes v MacPherson (unreported, 17 March 1999), CA (Civ) Sir Richard Scott VC, Thorpe, Judge LJJ; Bunco Exterior Internacional SA v Thomas [1997] 1 WLR 221; Investors Compensation Scheme Limited v West Bromwich Building Society [1999] Lloyd's Rep PN 496.

147 Note Virgo, n 26 above, p 261.

148 Virgo, n 26 above, p 262.

149 (Unreported, 7 July 2000), Ch D, Geoffrey Vos QC.

150 (Unreported, 19 April 2000). Ch D, Rimer J.

151 (Unreported, 19 April 2000). Ch D, at [189]; see also Farquhar v Boyd (unreported, 14 March 1997), Ch D, Campbell J; Hughes v MacPherson (unreported,17March 1999), CA (Civ), Sir Richard Scott VC, Thorpe, Judge LJJ.

152 This will be considered below in Part 4. Note eg in Greene King plc v Stanley [2001] EWCA Civ 1966; Wright v Cherrytree Finance Ltd [2001] 2 All ER (Comm) 877.

153 Re Craig Deceased [1971] 1 Ch 95.

154 (Unreported, 11 March 1999), CA (Civ), Chadwick LJ.

155 [1995] 2 FLR 890.

156 [1995] 2 FLR 890 at 905.

157 [1994] 1 All ER 35.

158 [1994] 1 All ER 35 at 38–39. For comments the notion of manifest disadvantage in this case see also M Chen-Wishart ‘Loss Sharing: Undue Influence and Manifest Disadvantage’ (1994) 110 LQR173 at174; Cretney, n 2 above, pp 8–9.

159 Note also Casimisr v Alexander [2001] WTLR 939 where the court found that the elderly mother's gift of property to a daughter who had cared for her for many years was explicable on the basis of the daughter's dutiful service.

160 There was the decision of the Court of Appeal in Lloyds Bank v Bundy [1975] 1 QB 326 where an elderly man guaranteed the liabilities of his son's company. The court held that the guarantee and charge could be set aside because the elder had been a long-standing customer of the bank and there was a relationship confidence or reliance between them. When the bank obtained the execution of the documents, there was a conflict of interest and the court considered that it was able to set the transaction aside. However, the case is limited to situations where there is a direct relationship between the financial institution and the surety. In most cases involving elders, there is no pre-existing relationship between the elder and the financial institution.

161 [1985] 2 All ER 281.

162 [1985] 2 All ER 281 at 287–288, per Brandon and Brightman LJJ.

163 [1986] 1 QB 1184.

164 [1986] 1 QB 1184 at 1195–1196, per Oliver LJ.

165 There has been debate about the juridical origins of O'Brien: see M Chen-Wishart’ The O'Brien Principle and Substantive Unfairness' (1997) 56 CLJ 60; cf the Australian approach: M Brown ‘Suretyship and Marriage: Notice and Unconscionability’ [2000] RLR152. For a discussion of the nature and scope of the doctrine of notice see eg Lawson, n 2 above, pp 284–286; J Cartwright ‘Taking Stock of O'Brien’ [1999] RLR1; E O’ Dell’ Restitution, Coercion by a Third Party, and the Proper Role of Notice (1997) 56 CLJ 71.

166 [1994] 1 AC 180 at 196. Although beyond the scope of this paper, it is important to note that the House of Lords in O'Brien indicated the fact that the husband's misrepresentations concerning the nature and scope of the guarantee was also evidence of abuse of the marital relationship of trust and confidence.

167 [1994] 1 AC 180 at 198.

168 [1994] 1 AC 180 at199.

169 [1994] 1 AC 180 at 198.

170 [1994] 1 AC180at198.

171 GMAC Commercial Credit Development Ltd v Sandhu [2001] EWCA Civ1209 at [30]; State Bank of India v Soni (unreported, 17 February 1997), CA (Civ), Sir Stephen Brown (P), Hobhouse, Ward LJJ.

172 Wright v Cherrytree Finance Ltd [2001] 2 All ER 877; Portman Building Sociefy v Dusangh [2000] 2 All ER 221; National Westminster Bank Plc v Amin (unreported, 9 December 1998), CA (Civ), Mummery and Clarke LJJ; UCB Bank Plc v Sharif [1997] EWCA Civ 1421; Bunco Exterior Internacional SA v Thomas [1997] 1 WLR 221.

173 Portman Building Society v Dusangh [2000] 2 All ER (Comm) 221 at 228, per Simon Brown LJ and 233, per Ward LJ.

174 [2000] 2 All ER (Comm) 221 at 228, per Simon Brown LJ and 234, per Ward LJ.

175 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 466–467, per Lord Nicholls; Thompson, n 6 above, at188; note generally R Hooley ‘Taking security after O'Brien’ [1995] LMCLQ 346.

176 S Wong’ Revisiting Barclays Bank v O'Brien and Independent Legal Advice for Sureties' [2002] JBL 439, pp 439–440; M Draper “‘Undue Influence”: A Review’ [1999] Conv 176. It was found that only a small percentage of banks held a private meeting with the guarantor: see Pawlowski and Greer, n 2 above. In relation to elders, courts have held that where the elder had received independent advice the institution was entitled to assume that it was adequate: Portman Building Society v Dusangh [2000] 2 All ER (Comm) 221 at 228–229, per Simon Brown LJ, 234, per Ward LJ; and could rely on a solicitor's certificate: National Westminster Bank Plc v Amin (unreported, 9 December 1998), CA (Civ), Mummery and Clarke LJJ; UCB Bank Plc v Sharzf [1997] EWCA Civ1421. In one case the advice from a bank manager was deemed sufficient to relieve the institution from any further obligations: State Bank of India v Soni (unreported, 17 February 1997), CA (Civ), Sir Stephen Brown P, Hobhouse, Ward LJJ.

177 For further academic comment on Etridge see Oldham, n 6 above; Thompson, n 6 above; Bigwood, n 41 above; Capper, n 75 above.

178 Despite some difference in emphasis and approach amongst the judgments of the House of Lords, it appears that the judgment of Lord Nicholls represents best the general approach of the court: see Royal Bank of Scotland plc v Etridge (No2) [2001] 4 All ER 449 at 456, per Lord Bingham, 477, per Lord Clyde, 480, per Lord Hobhouse. It has been pointed out that Lord Nicholls' speech is the major one and ought to be followed: Thompson, n 6 above, at 178.

179 Although the court referred to banks, it is likely that the decision will apply to financial institutions generally: D O'Sullivan ‘Developing O'Brien’ (2002) 118 LQR 337, p 350.

180 See eg O'Sullivan, n179 above. pp 347–349.

181 Royal Bank of Scotland plc v Etridge (No 2) [2001] 4 All ER 449 at 465, per Lord Nicholls. A bank of financial institution is put ‘on inquiry’ where a wife as director or secretary of her husband's company becomes a surety for the debts of the company. In contrast, a bank or financial institution is not put ‘on inquiry’ where money is advanced to the husband and the wife jointly: at 466, per Lord Nicholls.

182 [2001] 4 All ER 449 at 466–468, per Lord Nicholls.

183 [2001] 4 All ER 449 at 471–472, per Lord Nicholls.

184 [2001] 4 All ER 449 at 469, per Lord Nicholls; cf Royal Bank of Scotland plc v Etridge (No 2) [1998] 4 All ER 705 at 715.

185 [2001] 4 All ER 449 at 462, 473474, per Lord Nicholls.

186 [2001] 4 All ER 449 at 503–504, per Lord Scott.

187 [2001] 4 All ER 449 at 471–472, per Lord Nicholls.

188 [2001] 4 All ER 449 at 476, per Lord Nicholls.

189 [2001] 4 All ER 449 at 475. For a similar observation see State Bank of India v Soni (unreported, 17 February 1997), CA (Civ), Sir Stephen Brown P, Hobhouse, Ward LJJ, at 6. The reverse situation to which Lord Nicholls referred where a parent exercises influence over a child has been well recognised in the law as early as the eighteenth century and there were many nineteenth-century cases: see Sheridan, n101 above, p 93 n 7. Most transactions obtained by a parent from a child who was not free of the parent's control attracted the presumption. However, an exception to this approach was the family arrangement which was an agreement for securing the peace and honour of the family, preventing litigation or preserving family property: Sheridan, n101above, p 94. There have been different views about when the presumption will cease to operate. On one view it applies basically to children who have not reached the age of majority; while other cases suggest that the presumption ceases when the child is emancipated from the parent's control: M Cope Duress, Undue Influence and Unconscientious Bargains (Sydney: The Law Book Company Ltd, 1985) paras 170–171.

190 See eg Greene King plc v Stanley [2001] EWCA Civ 1966; Wright v Cherrytree Finance Ltd [2001] All ER (Comm) 877; National Westminster Bank Plc v Amin (unreported, 9 December 1998), CA (Civ), Mummery and Clarke LJJ; UCB Bank Plc v Sharif [1997] EWCA Civ 1421; State Bank of India v Soni (unreported,17 February 1997), CA (Civ), Sir Stephen Brown P, Hobhouse, Ward ljj; nottingham building society v colman (unreported, 26 May 1994), CA (Civ), Farquharson, Simon Brown LJJ; Avon Finance Co Ltd v Bridger [1985] 2 All ER 281; Coldunell Ltd v Gallon [1986] 1 QB 1184; Lloyds Bank Ltd v Bundy [1971] 1 QB 326.

191 [1997] 1 WLR 221.

192 [1997] 1 All ER 144.

193 [1997] 1 All ER 144 at 150–152, per Nourse LJ, 154–155, per Millett LJ.

194 [2001] 2 All ER (Comm) 877.

195 [2001] 2 All ER (Comm) 877 at [29].

196 [2001] EWCA Civ 1966.

197 [2001] EWCA Civ 1966 at [106].

198 Compare the independent advice in Portman Building Society v Dusangh [2000] 2 All ER 221; National Westminster Bank Plc v Amin (unreported, 9 December 1998), CA (Civ), Mummery and Clarke LJJ; UCB Bank Plc v Sharif [1997] EWCA Civ1421; State Bank of India v Soni (unreported,17 February 1997), CA (Civ), Sir Stephen Brown P, Hobhouse, Ward LJJ; Nottingham Building Society v Colman (unreported, 26 May 1994), CA (Civ), Farquharson, Simon Brown LJJ.

199 [2001] 4 All ER 449 at 471–472, per Lord Nicholls.

200 [2001] EWCA Civ 1966.

201 [2001] EWCA Civ 1966 at [107].

202 [2001] EWCA Civ 1966 at [15], [115]-[116].

203 The kinds of cases highlighted in Part 3 above.

204 See eg Brown v Palmer (unreported, 27 October 1997), CA (Civ), Peter Gibson, Millett LJJ, Sir John Balcombe.

205 See eg Davies v Dobson (unreported, 7 July 2000), Ch D, Geoffrey Vos QC.

206 [2002] EWCA Civ 885.

207 For a consideration of these sorts of matters see Wong, n176 above; Draper, n 176 above.

208 [2002] EWHC 1271 (Ch).

209 [2002] EWHC 1271 at [63].

210 McGhee, n 26 above, para 38-09; Mahoney v Purnell [ 19961 3 All ER 61 at 86, per May J. In relation to guarantees note Barclays Bank plc v 0 'Brien [ 19941 1 AC 180 at 195.

211 Beatson, n 26 above, p 284.

212 Re Morris (deceased), Special Trustees for Great Ormond Street Hospital for Children v Rushin (unreported, 19 April 2000), Ch D, Rimer J; Clarke v Prus (unreported, 8 March 1995), Ch D, Knox J; Hammond v Osborn [2002] EWCA Civ 885; Farquhar v Boyd (unreported, 14 March 1997). Ch D, Campbell J; Langton v Langton [1995] 2 FLR 890; Re Craig Deceased [1971] 1 Ch 95.

213 In relation to contracts if guarantee from which the elder clearly obtained no benefit see Greene King plc v Stanley [2001] EWCA Civ 1966; Wright v Cherrytree Finance Ltd [2001] 2 All ER (Comm) 877. In Avon Finance Co Ltd v Bridger [1985] 2 All ER 281 the court held that the guarantee was unenforceable. Note also Goldsworthy v Brickell [1987] 1 Ch 378 where a tenancy agreement was set aside.

214 There has not been the same debate about whether there can be partial or total rescission which has arisen in cases where wives have guaranteed the liabilities of husbands: see TSB v Camfield [1995] 1 WLR 430; L Proksch’ Rescission on Terms' [1996] RLR 71; Hudson, n 2 above, pp 612–614; O'Sullivan, n 2 above, pp 65–68.

215 O'Sullivan v Management Agency and Music Ltd [1985] QB 428; Beatson, n 26 above, p 284; Pearce and Stevens, n 25 above, p 76; Lord Goff of Chieveley and Jones, n 33 above, pp 365–366.

216 Hughes v MacPherson (unreported,17 March 1999), CA (Civ), Sir Richard Scott VC, Thorpe, Judge LJJ; Investors Compensation Scheme Ltd v West Bromwich Building Society [1999] Lloyds Rep PN 496.

217 Cheese v Thomas [1994] 1 All ER 35; and note the facts in Love v Love (unreported, 11 March, 1999). CA (Civ), Brooke, Chadwick LJJ.

218 Investors Compensation Scheme Limited v West Bromwich Building Society [1999] Lloyds Rep PN 496; note also Hughes v MacPherson (unreported, 17 March 1999). CA (Civ), Sir Richard Scott VC, Thorpe, Judge LJJ.

219 Cheese v Thomas [1994] 1 All ER 35; note also Chen-Wishart, n 158 above.

220 Mahoney v Purnell [1996] 3 All ER 61 at 8691. There has been considerable debate about whether such monetary relief is restitutionary or damages: see P Birks ‘Unjust Factors and Wrongs: Pecuniary Restitution for Undue Influence’ [1997] RLR 72; Virgo, n 26 above, p 282; Lord Goff of Chieveley and Jones, n 33 above, pp 368–369; J Heydon ‘Equitable Compensation for Undue Influence’ (1997)113 LQR 8.

221 [2002] EWCA Civ 885.