Independent Legal Advice in UK Law

Leading Cases
  • Barclays Bank Plc v O'Brien
    • House of Lords
    • 21 Octubre 1993

    In particular, if the party asserting that he takes free of the earlier rights of another knows of certain facts which put him on inquiry as to the possible existence of the rights of that other and he fails to make such inquiry or take such other steps as are reasonable to verify whether such earlier right does or does not exist, he will have constructive notice of the earlier right and take subject to it.

    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.

  • Royal Bank of Scotland Plc v Etridge (No 2); Kenyon-Brown v Desmond Banks & Company (Undue Influence) (No 2); Bank of Scotland v Bennett; UCB Home Loans Corporation Ltd v Moore; National Westminster Bank Plc v Gill; Midland Bank Plc v Wallace; Barclays Bank Plc v Harris; Barclays Bank Plc v Coleman
    • House of Lords
    • 11 Octubre 2001

    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.

    Another consequence of using solicitors is the risk of confusion about what the solicitor's role is to be. The solicitor will normally have been instructed by the bank to act for it. The solicitor will often already be acting for the husband. The solicitor may not be acting for the wife at all, let alone separately and independently from the solicitor's other clients.

  • Midland Bank Plc v Massey
    • Court of Appeal (Civil Division)
    • 18 Marzo 1994

    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.

  • Bank of Baroda v Rayarel and Others
    • Court of Appeal (Civil Division)
    • 13 Enero 1995

    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.

  • Royal Bank of Scotland Plc v Etridge (No 2); Kenyon-Brown v Desmond Banks & Company (Undue Influence) (No 2); Bank of Scotland v Bennett; UCB Home Loans Corporation Ltd v Moore; National Westminster Bank Plc v Gill; Midland Bank Plc v Wallace; Barclays Bank Plc v Harris; Barclays Bank Plc v Coleman
    • Court of Appeal (Civil Division)
    • 21 Diciembre 1999

    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.

See all results
Legislation
  • Employment Rights Act 1996
    • UK Non-devolved
    • 1 de Enero de 1996
    ......advice and consent of the Lords Spiritual and Temporal, ...day. . (5) Legal proceedings by the employer of a worker in ...to arbitration or adjudication by an independent referee or body in. cases where (by reason of an ......
  • Data Protection Act 2018
    • UK Non-devolved
    • 1 de Enero de 2018
    ......advice and consent of the Lords Spiritual and Temporal, ... (a) (a) produces legal effects concerning the data subject, or . (b) ... the Adoption and Children Act 2002 (independent review of determinations). . (2) The bodies ......
  • Investigatory Powers Act 2016
    • UK Non-devolved
    • 1 de Enero de 2016
    ......advice and consent of the Lords Spiritual and Temporal, ... (a) (a) items subject to legal privilege, . (b) (b) any information identifying ... (c) (c) a disclosure made to the Independent Police Complaints Commission for the purposes of ......
  • The Money Laundering Regulations 2007
    • UK Non-devolved
    • 1 de Enero de 2007
    ......legal person, that is not an individual and includes a ... “independent legal professional” has the meaning given by ... who by way of business provides advice about the tax affairs of other persons, when ......
See all results
Books & Journal Articles
  • R v Crown Court at Southwark, ex parte Bowles
    • Núm. 6-2, Abril 1998
    • Journal of Financial Crime
    • 162-164
    The benefits of accountants seeking prompt independent legal advice to protect both themselves and their clients during criminal investigations has been reinforced by the recent House of Lords case...
    ...... of accountants seeking prompt inde-pendent legal advice to protect both themselves and their ...It also highlights how seeking independent spe-cialist legal advice at the outset of a ......
  • The Fair-Dealing Fiduciary Rule: A Comment on Barr v Cassels
    • Núm. , Enero 2019
    • Edinburgh Law Review
    • 89-94
    ...... even though the client received no independent legal advice and her informed consent was ......
  • Barclays Bank v O’Brien Revisited: What a Difference Five Years Can Make
    • Núm. 62-4, Julio 1999
    • The Modern Law Review
    ......, the principal debtor had committed a legal or equitable wrong, such as undue influence or ... primarily urging the surety to take independent legal advice. Lord Browne-Wilkinson’s vision of ......
  • How UK Climate Change Policy Has Been Made Sustainable
    • Núm. 24-3, Septiembre 2015
    • Social & Legal Studies
    UK climate change policy is based on the advice of the Committee on Climate Change established under the Climate Change Act 2008. This Committee is an independent, expert agency established as part...
    ...... . . . . . . . Article . Social & Legal Studies . 2015, Vol. 24(3) 399–418 . ... change policy is based on the advice of the Committee on Climate Change ... Act 2008. This Committee is an independent, ......
See all results
Law Firm Commentaries
  • UK regulator to drop general counsel from accountability
    • LexBlog United Kingdom
    The UK’s Financial Conduct Authority intends to drop plans to hold heads of legal departments at banks and insurance firms responsible for ignoring misconduct because it would hamper lawyers from g...
    ...... intends to drop plans to hold heads of legal departments at banks and insurance firms ... it would hamper lawyers from giving independent legal advice. General counsels will be excluded ......
  • Cautionary Note for Guarantors
    • Mondaq United Kingdom
    ......, that the potential guarantor takes independent legal advice. However not all guarantors seek ......
  • Legal Update: Maxted And Another v Investec Bank Plc [2017]
    • Mondaq UK
    ...... given and each guarantor waived his option to obtain independent legal advice. In December 2016, a formal demand was issued on the ......
  • Can You Enforce All Your Guarantees?
    • Mondaq United Kingdom
    ...... proof that the wife has been independently advised and knew full well the obligations she ... been recommended that they seek independent legal advice? Although seemingly not vital if there are ......
See all results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT