Independent Legal Advice in UK Law

Given that there are two innocent parties, each enjoying rights, the earlier right prevails against the later right if the acquirer of the later right knows of the earlier right (actual notice) or would have discovered it had he taken proper steps (constructive notice).

But in my judgment the creditor, in order to avoid being fixed with constructive notice, can reasonably be expected to take steps to bring home to the wife the risk she is running by standing as surety and to advise her to take independent advice.

Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship.

The bank's legal department is not obliged to commit the professional discourtesy of communicating directly with the solicitor's client and tendering such advice itself. Nor is it obliged to inform the solicitor of his professional duties. This will be a fortiori the case when the documents submitted by the bank to the surety's solicitor contain a certificate that she has been advised of the effect of the document and her right to have independent legal advice.

Relying on observations of Lord Justice Dillon in Bank of Baroda v Shah [1988] 3 AER 25, at 29A-E the Judge observed that the bank was entitled to assume that the solicitors would act honestly and give proper advice to Miss Massey. How far the solicitor's advice went was essentially a matter for Miss Massey and Mr Jones. It will be for the solicitor to discuss with the wife (or a surety in an equivalent position) what further advice, if any, she ought to take.

In relation to the first question, the issue is whether the advice actually given was sufficient to rebut the presumption of undue influence. In relation to the second, the issue is different: it is whether, in the light of the facts known to the bank, including the availability of legal advice, any risk of the wife having an equity reasonably appeared to have been dispelled. The second question depends on how the transaction appeared to the bank.

Nevertheless, he understood the underlying premise that he was not entitled to anything if the parties divorced. In essence, he accepted that he was expected to be self-sufficient. His decision to enter into the agreement must therefore affect the award.