ABSTRACT
It has been said that ‘it is impossible to define, and difficult even to describe, at what point influence becomes, in the eye of the law, undue’: Bank of Scotland v Bennett [1997] 1 FLR 801, p 823, per Mr James Munby QC (sitting as a deputy judge of the High Court). This statement reflects the observation of Lindley LJ, in Allcard v Skinner (1887) 36 Ch D 145 (p 183), that no court has ever attempted to define undue influence. The dividing line, therefore, between permissible forms of persuasion and undue influence is a matter of public policy (Mutual Finance Ltd v John Wetton & Sons Ltd [1937] 2 KB 389, pp 394-95, per Porter J) and whether or not the conduct in question amounts to undue influence will depend, ultimately, on the particular facts of the case. In the words of Lord Nicholls, in Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44 (para 7):
Similarly, Lord Clyde opined that undue influence is ‘something which can be more easily recognised when found than exhaustively analysed in the abstract’: Etridge (No 2) (HL), para 92. As we saw in Chapter 1, cases on undue influence have traditionally been categorised under, broadly, two categories – namely, actual and presumed undue influence. In the words of Cotton LJ, in Allcard v Skinner (1887) 36 Ch D 145 (CA) (p 171):
Further refinement of this twofold classification was made by the Court of Appeal in Bank of Credit and Commerce International SA v Aboody [1992] 4 All ER 955. In that case, Slade LJ (giving the judgment of the court) alluded to the ‘clear distinction’ between: (1) cases in which the court will uphold a plea of undue influence only if it is satisfied that such influence has been affirmatively proved on the evidence (that is, class 1 cases); and (2) cases in which the relationship between the parties will lead the court to presume that undue influence has been exerted unless evidence is adduced proving the contrary (that is, class 2 cases). This second category was capable of further sub-division into cases where the relationship between the parties will
automatically give rise to the presumption (that is, class 2A cases) and those where, on the particular facts, a relationship not falling within the class 2A category may be shown to have become such as to justify the court in applying the presumption (that is, class 2B cases).
