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Duress & Undue Influence - Coggle Diagram

- - - - Barton v Armstrong The threat only has to be a contributing factor. Burden on party exerting pressure to prove it was not a contributing factor
    - - Occidental Worldwide Investment v Skibs A/S Avanti- But for test
    - - DSND Subsea Ltd v Petroleum Geo Services ASA- must be pressure a) which results in lack of practical choice b) which is illegitimate c) which is a significant cause inducing V to enter the contract (but for test)
- - - - Relationships with trust/confidence in eachother of a vulnerable person with dependency on a relationship
        
        Irrebuttable presumption there is a relationship of influence: parent/child, guardian/ward, trustee/beneficiary, solicitor/client, doctor/patient
        
        There is no presumption of a relationship of influence between spouses, this must be proven
      - Specific example: Where husband/wife (business owner) wants spouse to enter an agreement with the effect the spouse's share in the matrimonial home is used as security for a loan to the business owner's business. If spouse places trust and business owner misrepresents this can amount to undue influence, even without overt coercion. However this transaction does not naturally 'require explanation' so unfair advantage must still be proven
        
        Third parties (Barclays Bank v O'Brien)
        
        Where bank/creditor involved, creditor can be put on notice (bank has notice of potential undue influence and must take reasonable steps to ensure spouse has independent legal advice/knows risks)
        
        Creditor put on notice when the transaction is not in financial advantage to the wife and there is a substantial risk in transactions of that kind, that use the wife as surety that the business owner spouse has committed an equitable or legal wrong that gives wife right to set aside the transaction
        
        RBS v Etridge Reasonable steps are: bank need not see the spouse as this will most likely be dealt with by solicitor (unless bank is aware solicitor not advised them properly), creditor must explain situation to the solicitor, if creditor aware spouse may be misled, it must be report this to solicitor
        
        RBS v Etridge shows the same should apply to this situation if non-commercial relationship (not just spouses)
        
        Solicitor position: RBS v Etridge minimum advice should contain: explanation of documents and risks including they could lose the home, seriousness of risk, fact that wife has a choice (if solicitor fails they will be liable under negligence but the bank will not as they advised the solicitor)
      - Burden on person claiming undue influence to prove
    - - Once relationship of influence established, burden on defendant to prove this was not taken advantage of
      - Allcard v Skinner- a small gift is okay (mere existence of influence doesn't make gifts taking advantage) but if the gift is too big to to be not reasonably accounted for ordinary motives like relationship, charity etc then the burden is on the giftor to support reason for gift
      - Even where a party gains independent legal advice, if undue influence is used is may be unlawful so case facts are still taken into consideration