On behalf of Mindy Chen-Wishart:

 

 

 In haste, I have an 'essay crisis' for this pm.

Causation is an interesting issue in undue influence.  BCCI v Aboody decided that although there was actual undue influence, the bank was not tainted because the wife would have done what she was told anyway.  My recollection is that this is now regarded as incorrect because if such causation was required then the more under the influence one is, the less protection would be provided.  Thus, it's been recognised that it is no bar to an undue influence finding that the claimant refuses to get or follow independent advice: since this may merely be evidence of the depth of her lack of emancipation from the defendant's influence.  So, I think Briggs J got it right.

It is true that the bank's following the required procedure would not have turned up the affair and the wife wuld only have been told what she already knows BUT
1. that just points out that the resolution of the issue in Etridge does nothing REALLY to help claimants in such situations- a fact acknowledged by Lord Hobhouse since undue influence is not about lack of knowledge.
2. the bank did not do even the minimum required of it.

Mindy

Mindy Chen-Wishart
Law, Merton College
University of Oxford