states that if such a requirement existed any disadvantage, provided it was ‘clear and obvious and more than de minimis’ may be small. The message is very clear that Morgan is something of an aberration on this point, proceeding from an unwarranted reliance on a single appeal from India (Poosathurai) and, at an appropriate point, the House of Lords will override it. As Nourse LJ states (at p 399): ‘Although in CIBC Mortgages plc, judicial courtesy no doubt prevented Lord Browne-Wilkinson from saying so, my strong impression is that he thought its introduction into cases of presumed undue influence was no more appropriate than into cases of actual undue influence.’ A further uncertainty arising out of the decision in Morgan is that Lord Scarman does not make it clear which class of undue influence he was dealing with. Subsequently, the Court of Appeal in Bank of Credit & Commerce International SA v Aboody, adopted a threefold classification, namely: • Class 1 Actual undue influence. • Class 2A Presumed undue influence arising out of recognised relationships such as solicitor and client, etc. • Class 2B Presumed undue influence not based on a recognised relationship, but in which there is a relationship of trust and confidence. Lord Scarman at no point indicates which of the relevant categories the respondent in Morgan fell into. Vicarious undue influence

1995 ◽  
pp. 431-431
Keyword(s):  
Undue Influence ◽  
House Of Lords ◽  
Class 1 ◽  
Relationship Of ◽  
Court Of Appeal ◽  
Commerce International

eventually agreed after the husband had applied pressure. A 20 year mortgage with the plaintiffs was arranged for a sum of £150,000, the stated purpose being to pay off the existing mortgage and to buy a holiday home. Documents relating to the mortgage were prepared, which the wife signed without reading them. At no stage was she advised of the content of the documents, nor was she advised to seek independent advice. Accordingly, she was not aware of the amount of the loan. Once the existing mortgage debt was settled, the husband used the remainder of the loan to speculate on the stock market and, in the 1987 stock market crash, he lost a substantial amount, with the result that he could no longer continue to repay mortgage instalments as they became due. The plaintiffs now sought an order for possession of the matrimonial home, which the wife contested on the ground that she had been induced to sign the relevant documents by misrepresentation, duress and undue influence. The trial judge held that there was actual undue influence, but this decision was reversed in the Court of Appeal on the ground that there was no manifest disadvantage to the wife in entering into the mortgage transaction. This decision, in turn, was reversed by the House of Lords on the ground that, in cases of ‘actual undue influence’, there is no requirement of manifest disadvantage, thereby finding in favour of the wife: CIBC Mortgages plc v Pitt [1994] 1 AC 200, p 207

1995 ◽  
pp. 417-419
Keyword(s):  
Stock Market ◽  
Applied Pressure ◽  
Undue Influence ◽  
Trial Judge ◽  
Mortgage Debt ◽  
Stock Market Crash ◽  
House Of Lords ◽  
Holiday Home ◽  
Court Of Appeal ◽  
Stated Purpose

Equitable fraud committed by third parties

Legal Studies ◽  
1995 ◽  
Vol 15 (1) ◽  
pp. 35-46 ◽  
Author(s):  
Graham Battersby
Keyword(s):  
Third Parties ◽  
Undue Influence ◽  
House Of Lords ◽  
Lower Courts ◽  
First Time ◽  
Court Of Appeal

In the twin cases of Barclays Bank Plc v O’Brien and CIBC Mortgages Plc v Pitt the House of Lords consided for the first time an issue which has fresuently troubled the lower courts in recent years. In essence the issue can be boiled down to the following question:Where a debt owed by A to C is guaranteed by B, in what circumstances will the fact that A induced B to make the guarantee by misrepresentation, undue influence or other conduct of which Equity disapproves, render the guarantee voidable by B against C?(This simplified scenario, where A is the principal debtor, C the creditor, and B the guarantor, will be used in much of what follows). The contemporary significance of the question, and the difficulty which it has posed to the courts, are graphically shown by the fact that it has given rise to eleven reported decisions by the Court of Appeal in the last eight years.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Psychiatric injury in breach of a relationship

Legal Studies ◽  
2007 ◽  
Vol 27 (1) ◽  
pp. 26-50 ◽  
Author(s):  
Peter Handford
Keyword(s):  
House Of Lords ◽  
The Usa ◽  
Damage Law ◽  
The Relationship ◽  
Court Of Appeal ◽  
Special Category

The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

scholarly journals Undue Influence in the Context of Medical Treatment

2002 ◽  
Vol 5 (4) ◽  
pp. 305-317 ◽  
Author(s):  
Shaun D. Pattinson
Keyword(s):  
Medical Treatment ◽  
Undue Influence ◽  
Vulnerable Patients ◽  
The Law ◽  
Court Of Appeal

It is argued that the application of the doctrine of undue influence to patient's decisions in the context of medical treatment is ripe for development. The doctrine is capable of providing much needed protection for vulnerable patients if developed along lines suggested by its use in other contexts. Unfortunately, the Court of Appeal has recently missed an opportunity to develop the law in this way and it may be some time before another suitable opportunity is presented to the courts.

Figure 5.7: the institutions of the Council of Europe 5.4.3 Relationship of the Convention with English law The UK has had many cases brought against it by individuals, and its track record in relation to human rights has been demonstrated to be worrying. Between 1975 and 1990, 30 cases were brought against the UK and in 21 of these cases the ECtHR found that the government had violated the ECHR. By 1997, the number of successful applications against the UK had risen to 50. In 1997, when the Labour government came into power one of its election promises was to incorporate these Convention rights into English law. 5.4.3.1 1951–98 As an international treaty the Convention had no force within the English legal system, and Convention rights were not enforceable in English courts. However, the UK government could be taken to the ECtHR by individuals and, as noted above, it was. But, having said that, although the Convention had no force in the English legal system, it was not ignored over the course of almost 50 years between 1951 and 1998. English courts were indeed influenced by the Convention in a range of ways. Judges in the House of Lords stated that they would presume that Parliament

2012 ◽  
pp. 136-136
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Council Of Europe ◽  
International Treaty ◽  
Track Record ◽  
House Of Lords ◽  
English Law ◽  
The Government ◽  
The Uk ◽  
Relationship Of
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