BOOK REVIEW

Mark Pawlowski and James Brown, Undue Influence and the FamilyHome, London: Cavendish, 2002, 258 and xxviii pp., Price £65.00 (HB),ISBN: 1859417205

This book by Mark Pawlowski and James Brown is the latest addition to agrowing volume of literature on undue influence and the family home, anarea of English law that has been subject to scrutiny by both feminists andnon-feminists commentators in the past decade. Since the landmark Houseof Lords case of Barclays Bank v. O’Brien,1 there has been the seminalbook by Belinda Fehlberg (1997) and a plethora of articles written on thesubject of undue influence and surety transactions involving the familyhome. This is mainly because, since O’Brien was decided, the conditionsfor establishing, firstly, an equity to set aside the transaction on the basisof the borrower/husband’s undue influence and, secondly, the subsequentattribution of the moral hazard to lenders have become increasingly lender-sympathetic.

At a doctrinal level, there has been much criticism of the doctrineof undue influence,2 especially in relation to presumed undue influencewhere manifest disadvantage is required for raising the presumption. Thisrequirement had to be satisfied by the claimant/wife at two levels fora successful claim against the bank.3 First, in the absence of evidence

1 [1993] 4 All E.R. 417.2 Which the English courts have divided into two classes: actual and presumed undue

influence. Actual undue influence involves situations where there is evidence of such influ-ence having been exerted on the complainant. Presumed undue influence, on the other hand,is sub-divided into two classes. Class 2A involves relationships which automatically giverise to the presumption such as the relationship between parent and child, and solicitor andclient. Class 2B applies to relationships where the automatic presumption does not arisebut where the complainant has reposed trust and confidence in the defendant.

3 Reference is made mainly to the surety wife since, in many of the cases brought beforethe English courts, it was the wife defending the lender’s action for enforcement of thesecurity. However, the O’Brien defence is not confined to wives and may equally apply tohusbands, cohabitants or others in a relationship of trust and confidence with the borrower.More recently, the House of Lords in Royal Bank of Scotland v. Etridge (No. 2) [2001] 4All E.R. 449 have confirmed that the doctrine of notice will apply in all cases where the

Feminist Legal Studies 12: 105–108, 2004.

106 BOOK REVIEW

of actual undue influence, the wife has to show that the transaction wasmanifestly disadvantageous to her so as to raise the presumption of undueinfluence and acquire an equity to set aside the transaction as against thehusband. Secondly, it was necessary to put the bank on notice of the possi-bility of the surety’s equity. The position of the wife was not improved bythe approach taken by the courts in determining whether the lender hastaken reasonable steps to rebut the presumption of undue influence. Casesdecided by the English courts post O’Brien point to a lender-sympatheticapproach, where the burden of discharging the duty to advise the wife wasshifted from the lender to the solicitor, culminating in the rigid approachtaken by the Court of Appeal in respect of the solicitor’s role as advisor inRoyal Bank of Scotland v. Etridge (No. 2).4

This latest addition by Pawlowski and Brown is, nevertheless, to bewelcomed. In the light of the recent House of Lords decision in Etridge(No. 2),5 it provides a timely and detailed examination of both the doctrineof undue influence as well as the reasonable steps requirement, particularlyin relation to independent legal advice. The book provides an excellentcoverage of the doctrine of undue influence in England, its developmentsince O’Brien and the relevant case law. It also exposes the weaknessesof the undue influence doctrine and how the constituents of the doctrine,for both actual and presumed undue influence, would need a completeoverhaul if we were to have a coherent and principle-based doctrine. Inparticular, the authors argue strongly (in Chapters Three and Eight) – andin my opinion, persuasively – for the manifest disadvantage requirement tobe jettisoned. To some extent, this has already been achieved in the casesof actual undue influence, as can be seen from C.I.B.C. Mortgages v. Pitt.6

It is arguable that, since Etridge (No. 2) (H.L.), there has been an erosionof the manifest disadvantage requirement as a prerequisite for both raisingthe presumption of undue influence and for putting the lender on notice.Manifest disadvantage has now been relegated to the role of an evidentialtool rather than as an essential condition.

This book is distinguished from other writings on the subject in thatthe authors have provided a more holistic evaluation of the practicalconsequences of successfully pleading the O’Brien defence. While mostcommentators have critiqued both the weaknesses of the doctrine of undueinfluence and/or the O’Brien test itself, Pawlowski and Brown take the

nature of the relationship between the borrower and the surety is non-commercial in nature.See generally Morris (2003).

4 [1998] 4 All E.R. 705.5 [2001] 4 All E.R. 449.6 [1993] 4 All E.R. 433.

BOOK REVIEW 107

discussion further to its logical conclusion. They provide a detailed assess-ment of issues such as the range of remedies available to the wife (ChapterSix) and the lender (Chapter Seven), after the successful invocation of theO’Brien defence. In Chapter Six, the authors allude to the complexitiesof the remedies available to the claimant, which range from the settingaside of the transaction in toto to the claimant having to make restitutionin integrum in cases where the claimant had received some benefit. Whatis equally illuminating are the ‘backdoor tactics’ that lenders may resortto in situations where the security taken over the family home has beenset aside (Chapter Seven). Here, although the lender’s security may notbe enforced against the wife’s share of the family home, the lender may,for example, as in Alliance & Leicester plc v. Slayford,7 sue the borroweron the covenant to repay with the view to bankrupting the borrower. Thelender may still pursue the sale of the family home through the husband’strustee in bankruptcy obtaining an order for sale under section 14 of theTrusts of Land and Appointment of Trustees Act 1996. In such situations,the wife’s successful use of the O’Brien defence may thus only postponethe inevitable, that is, the sale of the family home. In addition, it will beharder for the wife to oppose the application for an order for sale by thetrustee in bankruptcy since the interests of creditors would prevail save inexceptional circumstances.

Chapter Eight is probably the most thought-provoking chapter in thebook. In that chapter, Pawlowski and Brown conclude by examining thedevelopments that have taken place in relation to the doctrine of uncon-scionability in a range of Commonwealth countries such as Australia, NewZealand and Canada. Greatly influenced by the arguments made by Capper(1998), the authors argue that undue influence and unconscionabilityhave three common features: (a) transactional imbalance; (b) relationalinequality; and (c) unconscionable conduct by the defendant (p. 205). Intheir view, these three aspects may be brought together to provide a single,coherent doctrine of unconscionability. This will enable undue influence,together with other doctrines such as duress and unconscionable dealings,and unconscionability to be assimilated. While I remain to be persuadedof the merits of these arguments, the discussion is nevertheless useful as itfocuses and will help generate further debate on the subject of the doctrineof unconscionability itself and the issue of assimilation in English law.

Given the potential ‘backdoor tactics’ of lenders, the practical realityfor many claimants may seem to end on a pessimistic note, that is, theinevitable loss of the family home. The book, nevertheless, offers manyvaluable insights. Overall, all the chapters in the book provide extremely

7 [2000] E.G.C.S. 113.

108 BOOK REVIEW

useful linkages on the subject, alluding to not only how the doctrine ofundue influence is, and should be, formulated but also to the practicalconsequences for both the claimant and the lender in situations of asuccessful O’Brien defence. These insights are useful for formulatingfurther legal, feminist and non-feminist, discourse on the subject. Besidesstimulating further debate on the future development of doctrines likeundue influence and unconscionability, they can provide a basis for formu-lating better future practices, for example, in the provision of legal advice.Solicitors may be minded to ensure that advice given to bring home therisks of the transaction to the wife will include bringing to her attention thatthe risks of losing her home may remain even after the security is set aside.This may also help to inform the type of information that lenders may berequired to disclose so as to enable adequate advice to be given to the wifein helping her reach an informed decision. Thus, the book provides usefulreading both to students and teachers, feminists and non-feminists.

REFERENCES

Capper, D., “Undue Influence and Unconscionability: A Rationalisation”, Law QuarterlyReview 114 (1998), 479–504.

Fehlberg, B., Sexually Transmitted Debt (Oxford: Clarendon Press/New York: OxfordUniversity Press, 1997).

Morris, D., “Surety Wives in the House of Lords: Time for Solicitors to ‘Get Real’? RoyalBank of Scotland plc v Etridge (No 2)”, Feminist Legal Studies 11 (2003), 57–69.

SIMONE WONG

Eliot CollegeUniversity of Kent

Canterbury CT2 7NSUK

E-mail: s.w.y.wong@kent.ac.uk