TITLE OF ASSIGNMENT: Assessment 2

COURSE CODE: LAW2810

COURSE TITLE: Equitable Remedies

By submitting this declaration, you are confirming that the work you are submitting is

original and does not contain any plagiarised material. I confirm that this assignment is my

own work, and that the work of other persons has been fully acknowledged.

STUDENT ID: 400004541

DATE: 29/03/2021
Question 1
Jude v Jude

Legal Opinion:

Issue Whether Vandyke Jude has a good chance of success in appealing to the Privy

Council in relation to the Court of Appeal’s finding that he unduly influenced his father in

relation to the transfer of certain interests in land (Instruments No. 6670/2007 and

4224/2008).

The facts are accepted as given.

In order to offer an opinion as to whether the Court of Appeal was right in its

determination that Vandyke and Diane had failed to discharge the burden of proving that their

father had received independent advice before transferring the properties it is necessary to

consider the doctrines of agency and undue influence; for when the ailing Mr. Austin invited

his estranged son to return to the island to help in sorting out his business affairs the

presumption at law is that he was acting as his agent. It is immaterial that Vandyke made

certain stipulations including placing another sibling in the transaction to prevent him from

having to deal directly with Austin. Diane, by that Power of Attorney was also his agent.

Neither court in my view, gave sufficient treatment to the law of Agency.

The Law of Agency imposes several duties on the agent. Primarily, the agent must not

allow the possibility of personal interest to conflict with the interest of his principal without

disclosing that possibility to the Principal. If there is a breach of this duty, the principal may

set aside the contract so affected and claim any profit which might have been made by the

agent. As authority for the above statement, I submit the case of McPherson v. Watt(1877)

where a solicitor used his brother as a nominee to purchase property which he was engaged to
sell. It was held that, since the Solicitor had allowed a conflict of interest to arise, the sale

could be set aside. It was immaterial that a fair price was offered for the property.1

The agent also owes a duty of good faith and obedience to the Principal. He must not

buy or sell from his own principal without full disclosure, nor must he secretly act for both

sides. There must be no undisclosed ‘conflict of interest.” In the case of Armstrong v

Jackson (1917), a stockbroker was engaged to buy certain shares for his principal. The

stockbroker held some of such shares for himself and, without disclosing this transferred his

own shares to his principal. It was held that the principal could rescind the contract, and

recover what he had paid for the shares.2

From the facts of the case, and Vandyke’s own evidence; Austin wanted his portion of

the lands from the partition to be transferred to his company. Vandyke as agent, and in breach

of his duty of obedience, disagreed. Diane as Attorney, in breach of her Principal’s

instructions transferred the lands to Vandyke. Further, not only was Vandyke dealing with his

father’s land holdings viz-a-viz his dispute with Monplaisir, Vandyke was also purchasing

land personally from the said Monplaisir. This clearly places Vandyke in the position where

he can be said to be in clear breach of his duty to Austin since the question would be whether

he placed the interest of his father above any perceived benefits he would have obtained in

his personal dealings with Monplaisir. As McPherson’s case above showed even if the price

was fair, the transaction was already tainted and can be set aside. I opine that there are no

redeeming facts on which one can conclude otherwise. I am of the view that the minimum

standard that Vandyke ought to reach would necessitate him disclosing to his father that he

1
McPherson v. Watt [1877] UKHL 208

2
Armstrong v Jackson [1917] 2 KB 822
was in fact interested in or buying land from Monplaisir and insist on Austin getting

independent legal advice.

Under the equitable doctrine of undue influence, a remedy is provided where

contracts or transactions have been entered into as a result of improper pressure. This usually

occurs due to a relationship between the parties where one can be said to be in a dominant

position over the other. The presumption of undue influence can only be rebutted by proof

that the other party had independent legal advice or used his own free will. While similar to

duress, the key differing factor is that duress is based on a threat whilst undue influence will

be based on a relationship that has been exploited. Lord Browne-Wilkinson identified two

distinct classes of undue influence in Barclays Bank Plc v O’Brien [1994] 1 AC 180, Actual

undue influence and Presumed undue influence the latter which can be categorized as

 2A-Protected undue – pre-determined presumptions as to relationships which will

give rise to a presumed influence

 2B- Other cases – relationships in which influence can be presumed, but is not

automatically done so.3

The judgment showed that the court considered the position as laid down in Barclays

Bank Plc. In relation to category 2A, protected relationship, there is no burden on the

claimant to prove that the relationship was one that gives rise to presumed influence, but

virtue of the relationship this is already proven. Thus, the claimant must simply prove that

that party exploited the nature of this relationship. In category 2B; only if the relationship is

one where influence cannot be proven will the claimant have to provide evidence that the

relationship was one where influence arose. Following, the courts will assess whether the

conduct amounts to undue influence.

3
Barclays Bank Plc v O’Brien [1994] 1 AC 180
 In my respectful submission, the Trial judge’s assertion in Gardiner v. Gomez that

“there must be positive proof of coercion overpowering the volition of the Testator … the

plea of undue influence ought never to be put forward unless the person who pleads it have

reasonable grounds to support it”4, is against the weight of decisions in a number of cases e.g.

Allard v. Skinner(1887); Daniel v Drew [2005] the approach of the courts in relation to

both categories of presumed undue influence was confirmed. The claimant does not have to

prove that the undue influence left them with no choice, all that needs to be proven is that

they exerted some influence over them, enough so that the transaction was not the exercise of

their independent free will.5 Further, the case of Lawrence v. St. Vincent Bank (2020) the

position was accurately stated “in cases of class 2B presumed undue influence, the

Complainant will succeed in setting aside the impugned transaction by proof that he or she

reposed trust and confidence in the wrong doer without having to prove that the wrongdoer

exerted actual undue influence or otherwise abused such trust and confidence in relation to

the transaction.”6

In the case of National Commercial Bank (Jamaica)Ltd v. Hew and Ors the court

took the view that ‘the touchstone for whether an intention was produced through and

exercise of undue influence is whether “the consent thus procured ought not fairly to be

treated as the expression of person’s free will.’7

On the facts, it is reasonable to infer that Austin reposed significant trust and

confidence in Vandyke since he had directed Vandyke to guide Diane on how to transact his

affairs. From the evidence, it is also true that Vandyke exercised a significant amount of

control over what Austin was or was not allowed to do as contained in the several pre-

4
Gardiner v. Gomez 2017
5
Daniel v Drew [2005] EWCA Civ 507
6
Lawrence v. St. Vincent Bank (2020)
7
National Commercial Bank (Jamaica)Ltd v. Hew and Ors PC 30 Jun 2003
conditions he stipulated for him to assist Austin; and by his own evidence where he disagreed

with Austin, he substituted his position for that of his father. Whichever category the

relationship between Austin and Vandyke and Diane fell, the question still remains; do the

facts give rise to either the existence of a protected relationship, or a relationship in which

evidence could prove that one party exerted influence on the other?

1. If so, could the transaction be shown to be one that could not be explained by ordinary

motives, therefore suggesting some kind of undue influence resulted in the

transaction.

2. Can the defendant rebut the presumption by establishing there was no abuse of trust?

As per the Privy Council in the National Commercial Bank (Jamaica) (supra)

I submit that based on the multiplicity of the facts before the court, there was enough

evidence to ground the presumption of undue Influence and to shift the burden of proof to

cause both Vandyke and Diane to prove e.g., that the transfers of the 13 parcels of land at

Marigot, 2 months before the death of Austin could be explained by the ordinary nature of the

transaction with no improper motive. It had long been established on their own evidence

before the court that they had long since cease to take instructions from Austin, with Diane

acting more and more like Vandyke’s rubber stamp as opposed to the Attorney for Austin.

Again, Diane and Vandyke could have rebutted the presumption by retaining

independent counsel to act on his behalf. In Howard v Howard-Lawson [2012] the claimant

sought and received independent legal advice in relation to signing some deeds. The courts

concluded due to this independent advice, the undue influence would not be the key factor

and influence in entering the transaction, meaning a claim for undue influence would not be

actionable.8 However, receiving independent advice may not always be conclusive. The facts

of each case will need to be assessed to consider whether the undue influence was still the
8
Howard v Howard-Lawson [2012] EWHC 3258
inducing factor or whether the independent advice was significant in this regard. In any event,

Austin was without the benefit of the same while the majority of the evidence showed that

Vandyke was very interested in ensuring that the majority of the benefits fell into his basket.

The Court of Appeal was right to set aside all the transactions as both Diane and

Vandyke’s breach of agency tainted the entire process.

Question 2

1. The percentage of elderly persons in Barbados sixty-five and older is 16.9%.

www.populationof.net/barbados/

2. The life expectancy for males in Barbados in 77.6 years and the life expectancy for

women is 80.1.

3. Yes, there are laws in Barbados which relates to unethical banking practices eg. Anti-

Money Laundering and the Financing of Terrorism Act 2011-23.

4. The monthly instalments on a mortgage of $70,000 for 15 years at 8% is 669.00$

5. No, I still begging for lunch money!

6. I do not have a retirement plan as yet but my streams of income will take care of me

7. 1. On a scale of 1-10 my diet is at 5.

8. In 20 years if God does not return I see myself successful in the field of cybersecurity

with at least 3 additional streams of income.

9. My understanding of undue influence could be improved but the general principles

are reasonably clear to me.

10. I believe my writing skills is a work in progress, it will continue to improve over time.

11. However, I believe that I could apply some case and concepts more efficiently in my

analysis.

12. An elderly person is not under a duty to leave their money to their relatives.
 13. It would be wise for an elderly person to save something and lay foundation for their

children or grandchildren so they could have a start at a secure future.

14. The lawyer of an elderly person preparing a will has a duty to; ensure the individual

has the mental capacity to make a will, make sure the person is not being pressured by

a third parties and to exercise due care and skill when drafting the will and when in

doubt as to the person’s capacity insist on a medical evaluation and ask the doctor to

witness the will if possible.

Question 3

While working on this question I was drawn to consider the biblical injunction which

says that “a wise man leaves an inheritance for his children’s children”… (Proverbs

13:22) and my parent often repeated phrase that “God bless the man that has his

own!”

I am of the view that greater care must be taken to tie up one’s assets, settle business

dealings, make wills when one is “healthy and ale” rather than waiting until one is in

the departure lounge. It was clear to me that Mr. Austin was a man of significant

business acumen, with an acquisitive nature when you consider his land holdings.

Yet, in his winter years, his son held him over a barrel and would have made off with

most of what he had acquired, and to the disadvantage of other family members but

for the intervention of the court. It is also difficult to gauge what “your favorite”

child will do with your instructions, as it appears that everybody has a price. So it is

important to put things in writing.

It seems to me that the older one gets and the more ill, the easier it is to bend to other

people will. It may make sense to give to your children what you have for them while
you are alive, leaving enough to live on and spend the rest on yourself, enjoy some of

what you work hard to achieve. We have to learn to strike a balance. People get so

busy planning for tomorrow, they neglect to live for today, to pursue happiness,

peace, contentment then before you know it, your time is up; you are in the departure

lounge, leaving it all behind!