The absence of advice is not necessarily fatal, since the influence of the other party may be weak, or there may be some other reason, independent of the influence, which has persuaded a person to make a contract, but it is by far the most likely way of indicating that the ‘influential’ party had in fact (despite the influence) acted freely and independently. Since Barclays Bank v O’Brien, the courts have on several occasions been faced with the task of deciding whether independent, informed advice had been received by a female partner so as to discharge the burden on the third party. For example, in Massey v Midland Bank, the bank had advised the

doi:10.4324/9781843141518-177

Chapter

No Image Available

Chapter

The absence of advice is not necessarily fatal, since the influence of the other party may be weak, or there may be some other reason, independent of the influence, which has persuaded a person to make a contract, but it is by far the most likely way of indicating that the ‘influential’ party had in fact (despite the influence) acted freely and independently. Since Barclays Bank v O’Brien, the courts have on several occasions been faced with the task of deciding whether independent, informed advice had been received by a female partner so as to discharge the burden on the third party. For example, in Massey v Midland Bank, the bank had advised the

ABSTRACT

Massey v Midland Bank plc [1995] 1 All ER 929, CA, p 934 Steyn LJ: The guidance offered by Lord Browne-Wilkinson in Barclays Bank plc v O’Brien postdates the transaction. Lord Browne-Wilkinson made clear in giving the guidance that it was to operate prospectively. On the other hand, since the pre-existing principles offered, if anything, a lesser protection to wives (and others) circumstanced as Miss Massey was, it will be convenient to examine her case in the light of that guidance. I would respectfully put that guidance in context by two observations. First, the guidance was clearly not intended to be exhaustive, as indeed the facts of the present case demonstrate. Secondly, the guidance was intended to strike a fair balance between the need to protect wives (and others in a like position) whose judgmental capacity was impaired and the need to avoid unnecessary impediments to using the matrimonial home as security. The guidance ought therefore not to be mechanically applied. The relief is after all equitable relief. It is the substance that matters. if, as far as the creditor is concerned, the objective of independent advice for the wife (or somebody in a like position) is realised, the fact that there was not an interview between a representative of the creditor and the surety,unattended by the debtor, ought not by itself to be fatal to the creditor’s case. In the present case Mr Dixon did not see Miss Massey alone. That was not good practice. But fortunately she did receive independent legal advice. I would therefore hold that in this case the bank complied with the substance of the guidance.