FAQs about Litigation & Disputes

UNDUE INFLUENCE

Undue influence consists of influence which goes beyond what is regarded as acceptable. The doctrine of undue influence aims to protect a person from:

  • Oppression or domination (actual undue influence); or
  • The abuse of trust or confidence (presumed undue influence). The two elements that must be present in presumed undue influence are :-
  • relationship of trust and confidence; and
  • the transaction that calls for an explanation

It is very difficult to prove undue influence as it often happens ‘behind closed doors’. The innocent party will often raise a presumption of undue influence.

If the transaction relates to the lender and buyer, it should be considered whether it was not made under undue influence. There can be two situations:

  • The wife providing security for her husband’s business borrowings (Barclays Bank plc v O’Brien) and
  • Wife entering into a joint loan for the joint benefit (CIBC Mortgages plc v Pitt [1994] 1 AC 200)

The lender can take several steps to protect himself which were specified in the cases of Barclays Bank plc v O’Brien and Royal Bank of Scotland plc v Etridge:

  • The lender should speak directly with the wife. She should have her own legal representative who needs to certify to the lender that he explained the meaning of the documents involved and the effect.
  • The wife’s solicitor should be provided with all information needed for proper advice, i.e. the amount of debts

What works are covered by the Party Wall Act  ?

Demolishing or  rebuild a party wall.

  • Increasing the height or thickness of a party wall.
  • Inserting a damp proof coarse (either chemical injection or a physical dpc).
  • Cutting into a party wall to insert load bearing beams.
  • Underpinning of a party wall.
  • Excavations between 3  to 6 metres of a neighbours building which will go beneath the foundations of that neighbours building.