ABSTRACT
In the landmark cases of Barclays Bank plc v O’Brien [1994] 1 AC 180 and Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, the House of Lords clarified the circumstances in which a lender will be put on inquiry as to the circumstances giving rise to a presumption of undue influence and, if it is, the steps it should reasonably take to satisfy itself that the wife’s consent to act as surety was properly obtained. The so called ‘O’Brien defence’, as we have seen, has enabled many wives to resile from the mortgage transaction in circumstances where the lender has failed to rebut the presumption of undue influence by proof that the charge was executed as a result of her free will, usually as a result of her having received independent legal advice.
