But I would reply that the analytical framework set out by Lord Nicholls, and the way in which presumed UI cases are pled, are important. Of course, in practice all the relevant evidence is going to be argued over by the parties in one way or another, and the judge is going to have to take a view on what he thinks really happened.

But what worries me is that Lord Nicholls places great emphasis on the whereabouts of the burden of proof, envisages that once a claimant has fulfilled his two initial requirements, she can sit back and make the defendant disprove UI, but appears to build into his second (manifest disadvantage) requirement the expectation that the claimant must prove UI in order to demonstrate that the transaction was manifestly disadvantageous to her.

If this is right, then the burden of proof won't be switched to the defendant until the court has decided the central issue in the claimant's favour, and put this issue beyond disproof. This follows from the fact that before the burden of proof switches to the defendant, the claimant must first of all have discharged the initial burden of proof which lies on her to prove that she was unduly influenced, and once the claimant has persuaded a court of this, the defendant can't disprove UI without getting the court to contradict itself.

Charles

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Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465
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