Hewett v First Plus Financial Group Plc
Court of Appeal
Citations:  EWCA Civ 312;  2 FLR 177;  2 P & CR 22.
The appellant jointly owned her home with her husband. She agreed with the respondent to a charge on the property to re-finance her husband’s debts. The appellant later learned that her husband was having a long term affair, and divorced him. In the meantime, the husband became insolvent and the respondent began possession proceedings on the house.
The appellant sought to have the charge set aside for undue influence. She alleged that her husband had told her the charge was the ‘only way’ to keep the property and had promised to keep up the repayments. She also relied on the fact that he was concealing an affair at the time. If she had known this, she would not have agreed to the charge. However, she admitted that she was not oppressed, bullied or coerced by her husband.
- Was the charge voidable for undue influence?
The Court of Appeal held in favour of the appellant. The husband had been truthful in his statement that the charge was the only way to keep the property, and had done his best to keep up with repayments. These statements did not amount to undue influence.
However, the husband’s decision to hide the affair from his wife amounted to undue influence. The appellant reposed trust and confidence in him, putting him in charge of the family’s financial affairs. From this, the husband was fixed with a duty of candour and fairness. He had not complied with this duty in a way which impaired the appellant’s ability to make an informed decision.
This Case is Authority For…
To show undue influence, it is not necessary to show that the victim’s will was completely overborne or that she was unable to make a decision for herself.
Briggs J noted that a duty of candour and fairness between spouses does not arise automatically. The claimant must show that they had a relationship of trust and confidence with the spouse for the duty to arise.