Saunders (Executrix of the Estate of Rose Maud Gallie Deceased) v Anglia Building Society (Formerly Known as Northampton Town and County Building Society)
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Hodson,Viscount Dilhorne,Lord Wilberforce,Lord Pearson |
| Judgment Date | 16 December 1970 |
| Judgment citation (vLex) | [1970] UKHL J1216-1 |
| Date | 16 December 1970 |
| Court | House of Lords |
[1970] UKHL J1216-1
House of Lords
Lord Reid
Lord Hodson
Viscount Dilhorne
Lord Wilberforce
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Saunders (Executrix of the estate of Rose Maud Gallie deceased) against Anglia Building Society (formerly known as Northampton Town and County Building Society), that the Committee had heard Counsel, as well on Wednesday the 8th, as on Thursday the 9th, Monday the 13th, Tuesday the 14th and Wednesday the 15th, days of April last, upon the Petition and Appeal of Rose Maud Gallie (Widow), (Assisted Person) (since deceased) of 12 Dunkeld Road, Dagenham, in the London Borough of Barking, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 25th of February 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet, (which said Appeal, upon the death of the said Rose Maud Gallie (Widow), was, in pursuance of an Order of this House, of the 16th of July 1970, revived in the name of Evelyn Saunders (Executrix of the estate of Rose Maud Gallie deceased)); as also upon the Case of Anglia Building Society (formerly known as Northampton Town and County Building Society), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Petition and Appeal be, and the same is hereby, dismissed this House.
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 25th day of February 1969, complained of in the said Appeal, be, and the same is hereby, Affirmed: And it is further Ordered, That the Costs of the Respondents in this House, in so far as they are not covered by their security, be paid out of the Legal Aid Fund: And it is also further Ordered, That the Costs of the Appellant in this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960.
My Lords,
I am in general agreement with the speech of my noble and learned friend, Lord Pearson. In my opinion this appeal must fail however one states the law. The existing law seems to me to be in a state of some confusion. I do not think it is possible to reconcile all the decisions, let alone all the reasons given for them. In view of some general observations made in the Court of Appeal I think that it is desirable to try to extract from the authorities the principles on which most of them are based. When we are trying to do that my experience has been that there are dangers in there being only one speech in this House. Then statements in it have often tended to be treated as definitions and it is not the function of a Court or of this House to frame definitions: some latitude should be left for future developments. The true ratio of a decision generally appears more clearly from a comparison of two or more statements in different words which are intended to supplement each other.
The plea of non est factum obviously applies when the person sought to be held liable did not in fact sign the document. But at least since the sixteenth century it has also been held to apply in certain cases so as to enable a person who in fact signed a document to say that it is not his deed. Obviously any such extension must be kept within narrow limits if it is not to shake the confidence of those who habitually and rightly rely on signatures when there is no obvious reason to doubt their validity. Originally this extension appears to have been made in favour of those who were unable to read owing to blindness or illiteracy and who therefore had to trust someone to tell them what they were signing. I think it must also apply in favour of those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity.
But that does not excuse them from taking such precautions as they reasonably can. The matter generally arises where an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity. So there must be a heavy burden of proof on the person who seeks to invoke this remedy. He must prove all the circumstances necessary to justify its being granted to him, and that necessarily involves his proving that he took all reasonable precautions in the circumstances. I do not say that the remedy can never be available to a man of full capacity. But that could only be in very exceptional circumstances: certainly not where his reason for not scrutinising the document before signing it was that he was too busy or too lazy. In general I do not think he can be heard to say that he signed in reliance on someone he trusted. But, particularly when he was led to believe that the document which he signed was not one which affected his legal rights, there may be cases where this plea can properly be applied in favour of a man of full capacity.
The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any enquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.
Further the plea cannot be available to a person whose mistake was really a mistake as to the legal effect of the document, whether that was his own mistake or that of his adviser. That has always been the law and in this branch of the law at least I see no reason for any change.
We find in many of the authorities statements that a man's deed is not his deed if his mind does not go with his pen. But that is far too wide. It would cover cases where the man had taken no precautions at all, and there was no ground for his belief that he was signing something different from that which in fact he signed. I think that it is the wrong approach to start from that wide statement and then whittle it down by excluding cases where the remedy will not be granted. It is for the person who seeks the remedy to shew that he should have it.
Finally there is the question to what extent or in what way must there be a difference between that which in fact he signed and that which he believed he was signing. In an endeavour to keep the plea within bounds there have been many attempts to lay down a dividing line. But any dividing line suggested has been difficult to apply in practice and has sometimes led to unreasonable results. In particular I do not think that the modern division between the character and the contents of a document is at all satisfactory. Some of the older authorities suggest a more flexible test so that one can take all factors into consideration. There was a period when here as elsewhere in the law hard and fast dividing lines were sought, but I think that experience has shewn that often they do not produce certainty but do produce unreasonable results.
I think that in the older authorities difference in practical result was more important than difference in legal character. If a man thinks he is signing a document which will cost him £10 and the actual document would cost him £1,000 it could not be right to deny him this remedy simply because the legal character of the two was the same. It is true that we must then deal with questions of degree but that is a familiar task for the Courts and I would not expect it to give rise to a flood of litigation.
There must I think be a radical difference between what he signed and what he thought he was signing—or one could use the words "fundamental" or "serious" or "very substantial". But what amounts to a radical difference will depend on all the circumstances. If he thinks he is giving property to A whereas the document gives it to B the difference may often be of vital importance, but in the circumstances of the present case I do not think that it is. I think that it must be left to the Courts to determine in each case in light of all the facts whether there was or was not a sufficiently great difference. The plea non est factum is in sense illogical when applied to a case where the man in fact signed the deed. But it is none the worse for that if applied in a reasonable way.
I would dismiss this appeal.
My Lords,
On the 25th June, 1962, the Appellant executed an assignment of her leasehold interest in 12, Dunkeld Road, Dagenham to one Lee, the first defendant in the action.
Her case is that her intention was to give the house to her nephew Walter William Parkin upon condition...
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