I have had the great advantage of reading in draft
the opinions prepared by each of my noble and learned friends.
The transactions which give rise to these appeals
are commonplace but of great social and economic importance. It is important
that a wife (or anyone in a like position) should not charge her interest in the
matrimonial home to secure the borrowing of her husband (or anyone in a like
position) without fully understanding the nature and effect of the proposed
transaction and that the decision is hers, to agree or not to agree. It is
important that lenders should feel able to advance money, in run-of-the-mill
cases with no abnormal features, on the security of the wife's interest in the
matrimonial home in reasonable confidence that, if appropriate procedures have
been followed in obtaining the security, it will be enforceable if the need for
enforcement arises. The law must afford both parties a measure of protection. It
cannot prescribe a code which will be proof against error, misunderstanding or
mishap. But it can indicate minimum requirements which, if met, will reduce the
risk of error, misunderstanding or mishap to an acceptable level. The paramount
need in this important field is that these minimum requirements should be clear,
simple and practically operable.
My Lords, in my respectful opinion these minimum
requirements are clearly identified in the opinions of my noble and learned
friends Lord Nicholls of Birkenhead and Lord Scott of Foscote. If these
requirements are met the risk that a wife has been misled by her husband as to
the facts of a proposed transaction should be eliminated or virtually so. The
risk that a wife has been overborne or coerced by her husband will not be
eliminated but will be reduced to a level which makes it proper for the lender
to proceed. While the opinions of Lord Nicholls and Lord Scott show some
difference of expression and approach, I do not myself discern any significant
difference of legal principle applicable to these cases, and I agree with both
opinions. But if I am wrong and such differences exist, it is plain that the
opinion of Lord Nicholls commands the unqualified support of all members of the
House.
In agreement with all members of the House, I
would allow the appeals of Mrs Wallace, Mrs Bennett and Desmond Banks & Co
and dismiss those of Mrs Etridge and Mrs Gill, in each case for the reasons
given by Lord Scott. I would allow the appeal of Mrs Harris, bearing in mind
that this is an interlocutory case, for the reasons given by Lord Hobhouse of
Woodborough. I would allow the appeal of Mrs Moore and dismiss that of Mrs
Coleman, in each case for the reasons given by Lord Scott.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
Before your Lordships' House are appeals in eight
cases. Each case arises out of a transaction in which a wife charged her
interest in her home in favour of a bank…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Royal Bank of Scotland v. Etridge (AP)