Barclays Bank v O’Brien [1993]

Although great injustice remains for women in economic matters, the improvement in women’s legal and financial status in the 25 years since O’Brien has done a great deal to strengthen their position in respect of home ownership.

Sarah Greer

Mrs O’Brien agreed to additional borrowing secured upon their jointly owned family home to provide funds for a struggling company in which her husband had an interest. In due course, the company failed and the Bank sought to recover its debt.

This situation was far from uncommon: in the eight years before O’Brien, the same issue had been before the appellate courts no fewer than 11 times. In each case, women had been persuaded, misled or compelled to agree to risk losing their family home – for most families, the major and sometimes only asset – by acquiescing to their husband’s request for further borrowing from a lender, secured upon their home.

In Barclays Bank v O’Brien the House of Lords formulated an approach which, although far from perfect, provided some clarity for women and lenders about how the court would approach a situation where undue influence or misrepresentation by the husband had induced the woman to agree to the additional borrowing.

The full version of this landmark is written by Sarah Greer.

 

Learn More

Housing Act 1980 http://www.legislation.gov.uk/ukpga/1980/51/pdfs/ukpga_19800051_en.pdf

Nation Wide Housing Index (January 2017) http://www.nationwide.co.uk/~/media/MainSite/documents/about/house-price-index/2017/Jan_2017.pdf

Richard Colwell, ‘Major Performance of British Banks 1970-1990’ (Bank of England) http://www.bankofengland.co.uk/archive/Documents/historicpubs/qb/1991/qb91q4508515.pdf

Royal Bank of Scotland v Etridge (No. 2) [2001] UKHL 44 http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/2001/44.html&query=(royal)+AND+(bank)+AND+(of)+AND+(scotland)+AND+(v)+AND+(etridge)