However, despite further valiant efforts by Lord Denning to develop these principles, the ‘genie’ was put firmly back in the bottle by the House of Lords in: National Westminster Bank plc v Morgan [1985] AC 686, p 707 : The classical rule book understanding of duress is that it is a variety of procedural unfairness which prevents a valid agreement from being reached, due largely to the ‘overborne will’ theory, which emerges from some of the case extracts below. But, arguably, where a person is faced with a threat amounting to common law duress, his consent is real, albeit that he had made

doi:10.4324/9781843141518-162

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ABSTRACT

National Westminster Bank plc v Morgan [1985] AC 686, p 707 Lord Scarman: Lord Denning MR believed that the doctrine of undue influence could be subsumed under a general principle that English courts will grant relief where there has been ‘inequality of bargaining power’. He deliberately avoided reference to the will of one party being dominated or overcome by another. The majority of the court did not follow him; they based their decision on the orthodox view of the doctrine as expounded in Allcard v Skinner (1887) 36 Ch D 145. The opinion of the Master of the Rolls, therefore, was not the ground of the court’s decision, which was to be found in the view of the majority, for whom Sir Eric Sachs delivered the leading judgment.