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ARTICLE · 15 NOVEMBER 1998

RBS v Etridge - O'Brien again

Hammonds
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United KingdomAntitrust/Competition Law
On 31st July the Court of Appeal delivered judgment in the case of Royal Bank of Scotland v Etridge (No.2) and other appeals which unfortunately was not reported until the end of November. The Court of Appeal took the opportunity to review the case law since the House of Lords decision in Barclays Bank plc v O'Brien and to try and weld that case law into a coherent set of rules for lenders and their advisors to follow. As is typical in these cases the wife had charged her share of the matrimonial home as security for her husband's business debts to the bank. The Court of Appeal set down the following principles

  • If the wife receives legal advice it does not matter who paid the lawyer or gave the instructions to the lawyer, the bank is "ordinarily" not put on inquiry and entitled to assume that the lawyer gave the wife appropriate advice. The wife will not be entitled to have the security set aside as against the bank but could still sue her lawyer for negligent advice.

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