Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Tue, 16 Oct 2001 12:54:02 -0400 |
| Re: |
First thoughts on RBS v Etridge |
I have not had a chance to look at it yet beyond a skim.
Lord N's approach sounds not wholly dissimilar from that of Wilson J in
Goodman Estate v Geffen. She did not say, in terms, you had to show a
transaction which calls for explanation; but she said you had to show
md if the transaction was in the form of a bargain between arm's length
parties, but that you did not if the transaction was effectively a gift
(in that case, it was a donative trust).
As to this question,
But authorities aside, I have a problem
with Lord Nicholls' formulation. If we start by defining a manifestly
disadvantageous transaction as a transaction which a claimant would
not enter unless undue influence is practised upon her, and we require
a claimant to show that she has entered such a transaction before we
will switch the burden of proof, and ask the defendant to disprove undue
influence, then what can a defendant say in the event that the court
decides that a claimant has proved manifest disadvantage? By definition,
the court must have accepted already that she was unduly influenced
and the case is over.
I would have thought independent legal advice or something
analogous would be one response which might work? If the only evidence
so far is as to (a) the nature of the relationship (b) the nature of the
transaction, then what is missing (& what I think he is leaving room for)
is evidence as to the actual circumstances under which it was entered
into (in particular the actual independence or otherwise of the plaintiff's
judgment at that time). Everything else is just generating a presumption
on that issue isn't it?
Charles replied
I thought of this, and should have
mentioned it in my original message. Wouldn't the court expect to be
told whether or not she was independently advised BEFORE deciding whether
the transaction was one into which she would not have entered unless
unduly influenced - certainly I would expect defence counsel to be jumping
up and down saying that she was independently advised BEFORE the court
decided the manifest disadvantage point. And this gets us back to my
original problem.
To which I would say, increasingly feeling out on a limb
as I have hardly looked at, perhaps he is expressing himself in terms
of the analytical framework & in terms of what must be pled, rather than
in terms of how the issue would actually present itself to the trial judge.
Charles also said
There is also another issue here, viz
what the provision of independent advice is supposed to prove - Lord
Hobhouse seems to think that it proves that the claimant wasn't unduly
influenced, but Lord Scott thinks otherwise, and surely Lord Scott is
more realistic. Explaining that a transaction is to my disadvantage
is not going to change my mind about doing it if I am already so in
love with/under the thumb of my intended donee that I WANT to do something
for them that is to my disadvantage.
I think a 3d party bank needs to prove either that there
was no ui, OR that if there was, it neither knew nor ought to have known
about it, & I suppose independent legal advice is relevant to both of
those issues in different ways.
I also think that the speech of Lord Scott in relation
to the cases that went to trial is very important (see eg para 219), like
the judgment of Sopinka J. in Goodman v Geffen, on the relationship between
the presumption and that which is presumed, and the role of the trial
judge where there is evidence as to whether or nor there was undue influence
in the actual transaction.
L
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