Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Mon, 1 Jul 2002 13:33:00 +0100 |
| Re: |
Hammond v Osborn |
Members of the group may be interested to read Hammond
v Osborn, a presumed undue influence case which for once has nothing to
do with wives' guarantees. The case is available on-line at:
http://www2.bailii.org/~jury/cases/EW/EWCA_Civ_2002_885.html
The defendant Mrs Osborn was made a gift of some £300,000
by an elderly neighbour which the CA ordered her to return on the ground
that she had failed to rebut a presumption of UI. Of particular interest,
in light of the HL's frequent loose references in Etridge to the 'wrongfulness'
of defendants' behaviour in UI cases, is Sir Martin Nourse's statement
at para 32 that:
Even if it is correct to say that Mrs
Osborn's conduct was unimpeachable and that there was nothing sinister
in it, that would be no answer to an application of the presumption. As
Cotton LJ said in Allcard v Skinner (see para 1 above), the court does
not interfere on the ground that any wrongful act has in fact been committed
by the donee but on the ground of public policy, which requires it to
be affirmatively established that the donor's trust and confidence in
the donee has not been betrayed or abused On the same theme, Ward LJ said at para 61 that:
I am quite prepared to accept Mrs Osborn
was not guilty of any reprehensible conduct but I am satisfied that she
has failed to discharge the burden of proof which lay upon her.
Charles
___________________________________________ tel: 020 7848 2290
Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS
fax: 020 7848 2465
___________________________________________
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