ABSTRACT
Although in Barclays Bank plc v O’Brien [1993] 4 All ER 417 (HL), Lord BrowneWilkinson suggested that the bank itself was obliged to warn the wife at a private meeting (not attended by the husband) of the extent of her liability, the risks involved and the need to take independent legal advice, more recent case law, as we have seen, has placed greater emphasis on the role of the solicitor in advising the wife of the effects of the transaction. In Massey v Midland Bank plc [1995] 1 All ER 929 (CA), p 934, for example, Steyn LJ concluded that the O’Brien ‘guidance ought not to be mechanically applied’. In Royal Bank of Scotland v Etridge (No 2) [1998] 4 All ER 705, the Court of Appeal concluded that it was enough if the bank has urged the wife to obtain independent legal advice before entering into the transaction, especially if the solicitor provides confirmation that: (1) he has explained the transaction to her; and (2) that she appeared to understand it. This accords with current lending practice and shifts the burden of advising the wife away from the lender in favour of the solicitor acting on her behalf. Most recently, the House of Lords, in Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, has acknowledged that Lord Browne-Wilkinson’s requirement of a private meeting was not intended to be prescriptive, accepting that lenders have been reluctant to assume the responsibility of advising the wife at such a meeting.
