O'Brien and its Legacy: Principle, Equity and Certainly?

Abstract

Barclays Bank p.l.c. v, O'Brien1CIBC Mortgages p.l.c.v. Pitt2presented the House of Lords with an opportunity to consider when a creditor should be prevented from eforcing a transaction against a person who entered int it as a result of the undue influence or misreprentation of another. Lord Browne-Wilkinson's declared objective was to restate the law on this point “in a form which is principled, reflects the current requirements of society and provides as much certainty as possible”.3 Whether he achieved these three aims is a question on which commentators disagree. According to one, his Lordship proved himself “a master of the judicial art”4 by achieving all three.5 Another has argued that his judgments “may give rise to as much confusion as this difficult area has already witnessed”6 and that, in his efforts to attain the second of his goals, he overlooked the first and the third.

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