When Barclays Bank v. O'Brien was decided in 1993, it was hailed as a landmark for sureties, who may be described as vulnerable. The case provides for a surety transaction to be set aside where it is established that the bank had notice, whether actual or constructive, of the transaction having been procured through some wrongdoing by the debtor, for example undue influence or misrepresentation. In order to avoid being fixed with notice, 0'Brien further states that banks would be required to take "reasonable steps", of which the "independent legal advice" requirement has taken centre stage. The aim of the independent legal advice is to rebut the presumption of undue influence or any other wrongdoing and to ensure that the consent given by the surety is of her independent free will. Cases post-0'Brien, however; reveal the practical difficulties in applying the reasonable steps test and in defining what constitutes adequate "independent legal advice".
展开▼
