UNDUE INFLUENCE & UNCONSCIONABLE BARGAINS UNDUE INFLUENCE Constructive Fraud this is a form of unfair and unreasonable mental

tal control or domination Actual UI focus on conduct of stronger party very few cases actually exist of AUI OSiodhachain v OMahony: vulnerable party signed an unfavourable property exchange contract - all night discussion had taken place immediately prior court set is aside for AUI Presumed Undue Influence Key is the relationship between the parties (identified & de facto) Royal Bank of Scotland v Etridge the split of categories is more confusing than it is helpful o Rebutting the Presumption evidence to show an act was spontaneous & independent Re Brocklehurst: Independent advice is best way to rebut the presumption of UI Carroll v Carroll: Son paid solicitor who gave advice this advice was insufficient Requirement - transaction be disadvantageous to weaker party (show benefit?)

UNDUE INFLUENCE & 3RD PARTIES EG husband gets wife to guarantee debts of his company to the bank goes bust UI present? Barclays v OBrien: husband under-explained guarantee judge applied constructive notice principles bank should seek private interview to explain & also suggest independent advice Bank of Nova Scotia: prima facie UI claim was quite weak - wife claimed bank UId her and not her husband court said HoL may be too quick to readily imply UI between a husband and wife Ulster Bank v Fitzgerald Judge favoured OBrien test stressed need for private meetings Etridge (No. 2): banks should insist on independent advice a solicitors letter seems to suffice

UNCONSCIONABLE TRANSACTIONS Grealish v Murphy: Older mentally deficient man gave over his lands to a younger friend and just kept a life estate transaction set aside as an UT Carroll v Carroll: The court must ask whether a grantor, unequal to protecting himself...by reason of his infirmity if so then the transaction may (but not will) be set aside by the court Commercial Bank of Australia v Amadio: One party (parents) had poor English their son got them to secure his business debts the bank was seen to be engaging in a UT and the transaction was set aside as a result (culpability of the son?) o Transaction may be set aside if: Claimant suffers from a special disadvantage Stronger party ought to have known of this disadvantage Disadvantage was conscionably taken advantage of by the stronger party Stronger party cannot prove that the bargain was fair, just and reasonable Louth v Diprose: Woman convinced a man to pay her debts by feigning romantic interest in him the court set aside the transaction and he was able to recover his money from her Hart v OConnor: A lunatic not so found lacked mental capacity sold half his land to a neighbour neighbour had no notice (actual or constructive) of the disadvantage no UT found