BURDEN OF PROOF IN UNDUE INFLUENCE

Burden of proof in undue

influence:
Common law and codes
on collision course
By Disa Sim*
National University of Singapore, Faculty of Law

Abstract. Before the case of Royal Bank of Scotland v Etridge (No. 2), the modern
presumption of undue influence appeared to be a potent one that had to be
rebutted on a balance of probabilities. While it is clear from Etridge that the
House of Lords intended to curtail the force of the presumption, it is difficult
to determine the precise extent to which the presumption retains evidential
significance. This is because the House of Lords failed to indicate whether the
revised presumption was now one of law, casting the evidential burden upon
the alleged dominant party to disprove the finding of undue influence, or simply
one of fact, shifting the tactical burden. This is unfortunate because whether
the alleged dominant party bears the evidential or the tactical burden can
have a decisive effect on the outcome in borderline cases. This debate would be
inconsequential for jurisdictions whose codified evidence laws are based on
the work of Sir James Fitzjames Stephen if not for the fact that some courts
have hitherto erroneously assumed that there is no difference between the
codified and common law presumptions of undue influence. After Etridge, these
jurisdictions can no longer afford to make such an assumption and must grapple
with the interface between the common law presumption and its statutory
counterpart.

he case of Royal Bank of Scotland v Etridge (No. 2)1 presents two interesting

T points of evidence law. First, while it is clear that the House of Lords
intended to limit the scope of the common law presumptions of undue
influence, it is difficult to determine the precise extent to which the presumptions
retain any evidential significance. Secondly, the case has significant implications
for jurisdictions whose codified evidence laws are based on the work of Sir James
Fitzjames Stephen. While some of these jurisdictions appear to have hitherto

* I would like to thank Associate Professor Yeo Tiong Min for his invaluable comments and guidance.
All errors, however, remain mine alone.
1 [2002] 2 AC 773.

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operated on the basis that Stephen’s codification merely reflects the existing
common law presumptions of undue influence, Etridge may have now caused the
common law position to diverge significantly from the statutory one.

This article examines these issues in four parts. It begins with a brief survey of
the basic terminology that is employed in a discussion of the allocation of the
burden and standard of proof. The need for this arises because one of the major
sources of confusion in Etridge was the court’s inconsistent use of evidential
terminology. The article then outlines the modern position on undue influence
before Etridge, before discussing the extent to which Etridge and its progeny have
diverged from that position. Finally, the extent to which the post-Etridge position
differs from Stephen’s statutory codification of the presumption of undue
influence is considered.

1. The burden of proof—basic terminology

When a litigant bears a ‘burden’ in a civil case, this could mean one of three
things. The litigant may bear what is known as the ‘legal’ or ‘persuasive’ burden,
in which case he or she is required to adduce sufficient evidence to convince the
court of the existence (or non-existence) of a fact in issue on at least a balance of
probabilities.2 In a typical case, it is the claimant who bears the legal burden of
making out his or her case.

Alternatively, the litigant may bear only the ‘evidential burden’ or the ‘burden of
production’, which means that he or she need only advance such evidence which
could, if believed, establish his or her contention on a balance of probabilities. He
or she is not required to adduce enough evidence of sufficient weight to convince
the trier of fact that his or her contention is true. While the same party normally
bears both the legal and the evidential burdens, different parties may bear the
two burdens in respect of the same issue in exceptional cases.3 The concept of the
evidential burden is best understood in the context of a jury trial.4 A failure to
discharge the evidential burden will result in the issue being withdrawn from
the jury because the evidence is not sufficient to make the existence (or non-
existence) of the fact in issue a legitimate question in the case. Merely preventing
the issue from being withdrawn, however, would not clinch the case. The jury
must still be convinced of the existence or non-existence of the fact in issue. This is
the task of the person who bears the legal burden. This is why it is sometimes

2 C. Tapper, Cross and Tapper on Evidence, 9th edn (Butterworths: London, 1999) 109.
3 Above n. 2 at 109–10.
4 Above n. 2 at 109.

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said that the only true burden ‘of proof’ is the legal burden and not the evidential
one.5

Finally, the litigant may bear only a ‘tactical’ or ‘provisional’ burden. These terms
refer to the burden resting upon the opponent of an issue after the proponent
has discharged the evidential burden.6 While he or she is not legally obliged to
do so, the opponent must either call evidence or take the risk that the issue will
be found against him or her. These terms ‘merely describe the exigencies of
litigation and do not denote any formal technique of risk allocation’.7

On occasion, the task of a litigant may be assisted by the use of presumptions. A

presumption may be either one of fact or of law. Where a presumption of fact
operates, the court may, as a matter of common sense, draw a certain factual
inference from the existence of a certain state of affairs.8 For example, the court
may presume that ‘if a man refuses to answer a question which he is not compelled
to answer by law, the answer if given would be unfavourable to him’.9 The term
‘presumption’ is something of a misnomer because the inference is drawn as a
matter of logic from the proved facts rather than actually presumed.10 The
successful invocation of a presumption of a fact shifts the tactical burden on to
the opponent to disprove the inference. On the other hand, where presumptions
of law are concerned, the court is duty bound to find the existence of another
fact once the basic fact is proved. If rebuttable, a presumption of law can cast
either an evidential or legal burden upon the opponent to disprove the presumed
fact.11

As will be demonstrated below, Etridge failed to articulate clearly whether the

revised presumption of undue influence was one of law, casting the evidential
burden upon the alleged dominant party to disprove the finding of undue

5 Jayasena v The Queen [1970] AC 618 at 624. Technically, one should not speak in terms of ‘proof’ or
‘disproof’ where the evidential burden is concerned because all the litigant must do is to ‘adduce
such evidence that could establish his or her contention on a balance of probabilities’. Since
this formulation is rather convoluted, this article will use the terms ‘proof’ and ‘disproof’ loosely
to also refer to the obligation of the litigant to discharge the evidential burden.
6 Above n. 2 at 113.
7 A. A. S. Zuckerman, The Principles of Criminal Evidence (Clarendon Press: Oxford, 1989) 109; see also
above n. 2 at 113.
8 Above n. 7 at 112.
9 See e.g. Singapore Evidence Act (Cap 97, 1997 Rev Ed) at s. 116, illustration h; Malaysia Evidence
Act 1950 (Act 56) at s. 114, illustration g; Evidence Ordinance of Ceylon at s. 114, illustration g;
the Indian Evidence Act (Act 1 of 1872) at s. 114, illustration h; the Evidence Act of Burma at s.
114, illustration h; the Evidence Act of Pakistan at s. 114, illustration h. This is subject of course
to the facts of the particular case.
10 M. N. Howard, Phipson on Evidence, 15th edn (Sweet & Maxwell: London, 2000) 4–17.
11 Above n. 2 at 122.

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influence, or simply one of fact, shifting the tactical burden. This is unfortunate
because whether the party bears the evidential or the tactical burden can have a
decisive effect on the outcome in borderline cases. While the failure to discharge
the tactical burden is not necessarily fatal, the failure to discharge the evidential
burden will be. In the former case, the alleged dominant party can still bank on
the possibility that the party claiming undue influence has in fact not adduced
sufficient evidence to establish the existence of undue influence on a balance of
probabilities. A failure to discharge the evidential burden, on the other hand,
means that the alleged dominant party will fail at the outset because he or she
has not adduced enough evidence to even raise the possibility that undue
influence was not exercised.

2. Proving undue influence before Etridge

While the concept of undue influence is not susceptible to precise definition, it

has been described as:

some unfair and improper conduct, some coercion from outside, some
over-reaching, some form of cheating, and generally, though not
always, some personal advantage obtained by a donee placed in some
close and confidential relation to the donor.12

Before Etridge, the courts classified undue inf luence into three categories
according to the modes of proof that the party claiming undue influence could
employ.13

Class 1: Actual undue influence

As its name suggests, the party claiming undue influence was required to adduce
actual proof to convince the fact-finder, at least on a balance of probabilities,
that the alleged dominant party exerted undue influence upon him or her. The
onus was upon him or her to prove that the stronger party had capacity to
influence him or her, that the influence was in fact exercised, that its exercise
was undue, and that the exercise brought about the transaction.14

Class 2: Presumed undue influence

Undue influence, however, could be exerted so insidiously and so subtly that the
party claiming undue influence would be hard-pressed for actual proof of its
exercise. Equity, however, was willing to set aside transactions even when it could

12 Allcard v Skinner [1887] LR 36 ChD 145 at 181.

13 Barclays Bank plc v O’Brien [1994] 1 AC 180 at 189–90.
14 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923 at 967.

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only presume undue inf luence. 15 This was particularly the case when the
impugned transaction was to the manifest disadvantage of the party claiming
undue influence.16 Undue influence was presumed in two situations.

Class 2A: Undue influence presumed from categories of relationships

The law would presume undue influence where the relationship between the
parties was one of solicitor–client,17 parent–child,18 doctor–patient,19 religious
adviser–disciple,20 trustee–cestui que trust,21 and in certain circumstances, fiancé
and fiancée.22 The presumption did not apply, however, as between husband and
wife.23

On closer examination, proof that the relationship fell within one of the
established categories triggered two presumptions: (a) that the stronger party
had capacity to influence the weaker one because of the trust and confidence
that the latter reposed in him or her; and (b) that undue influence had been
exercised within that relationship.

Class 2B: Undue influence presumed from factually established relationships

Unlike the Class 2A situation, the party claiming undue influence was required
to adduce actual proof that his or her relationship with the alleged dominant
party was one of trust and confidence. Proof that the relationship was one of
trust and confidence would trigger only one presumption: that undue influence
had been exercised within the relationship.

While the position with respect to Class 2A was unclear, the party claiming undue
influence in a Class 2B situation was required to demonstrate that the impugned
transaction with the alleged dominant party was ‘manifestly disadvantageous’
to him or her.24 As Nourse LJ put it in Goldsworthy v Brickell:

15 [1887] LR 36 ChD 145 at 183.

16 See below n. 24 and accompanying text.
17 E. R. Hewitt and J. B. Richardson, White and Tudor’s Leading Cases in Equity: With Notes, vol. 1, 9th
edn (Sweet & Maxwell: London, 1928) at 232–4; Wright v Carter [1980] 1 Ch 27.
18 Bainbrigge v Browne (1881) 18 ChD 188; Lancaster Loans Ltd v Black [1934] 1 KB 380.
19 Radcliffe v Price (1902) 18 TLR 466; Mitchell v Homfray (1881) 8 QBD 587; Re CMG [1970] Ch 574.
20 Huguenin v Baseley (1807) 14 Ves Jun 273; Allcard v Skinner [1887] LR 36 ChD 145.
21 Beningfield v Baxter (1886) 12 App Cas 167; Ellis v Barker (1871) Ch App 104.
22 Re Lloyds Bank Ltd [1931] 1 Ch 289. Cf. Zamet v Hyman [1961] 1 WLR 1442.
23 Bank of Montreal v Stuart [1911] AC 120 at 126; Domenco v Domenco and Ignat (1963) 41 DLR (2d) 267.
But see Backhouse v Backhouse [1978] 1 WLR 243.
24 CIBC Mortgages plc v Pitt [1994] 1 AC 200 at 207–10. Many commentators, however, were of the
view that the requirement of ‘manifest disadvantage’ was common to both Classes 2A and 2B.
See e.g. J. Beatson, Anson’s Law of Contract, 27th edn (Oxford University Press: Oxford, 1998) 282–
3; A. Phang, Cheshire, Fifoot and Furmston’s Law of Contract, 2nd Singapore and Malaysian edn
(Butterworths Asia: Singapore, 1998); H. G. Beale (ed.), Chitty on Contracts, vol. 1, 28th edn (London:
Sweet & Maxwell, 1999) 440; P. S. Atiyah, An Introduction to the Law, 5th edn (Clarendon Press:
Oxford, 1995) 279.

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… the presumption is not perfected and remains inoperative until

the party who has ceded the trust and confidence makes a gift so
large, or enters into a transaction so improvident, as not to be
reasonably accounted for on the ground of friendship, relationship,
charity or other ordinary motives on which ordinary men act.
Although influence might have been presumed beforehand, it is only
then that it is presumed to have been undue.25

Two examples of transactions that are manifestly disadvantageous are sales at

undervalues and substantial gifts.26

Before Etridge, it appears that the Class 2 presumptions were ones of law. While it
is not clear, it seems that their effect was to cast the legal burden upon the alleged
dominant party to rebut the presumption of undue influence on a balance of
probabilities.27

3. Proving undue influence after Etridge

The case of Etridge involved eight conjoined appeals. In each case, the appellant
had granted a bank a charge over her property to secure her husband’s
indebtedness. In seven of these cases, the wife resisted the bank’s action for
possession on the ground that it had had notice that her husband had used undue
influence to obtain her agreement. In the eighth appeal, the wife alleged that
her solicitor had failed to give her advice that could have prevented her from
granting the bank a charge under the undue influence of her husband.

Etridge is noteworthy primarily for its pronouncements on the extent of the

solicitor’s duty to advise, as well as the circumstances that put a bank on notice
that the transaction has been procured through undue influence. Four of the

25 [1987] Ch 378 at 401.

26 [2002] 2 AC 773 at [26]. In Etridge, however, Lord Nicholls opined that the concept of ‘manifest
disadvantage’ should be discarded in favour of an approach that asked whether the transaction
could be ‘reasonably accounted for on the ground of friendship, relationship, charity or other
ordinary motives’. See ibid. at [28–29].
27 Above n. 12; Poosathurai v Kannappa Chettiar (1919) LR 47 IA 1 at 3 (‘It must be established that the
person in a position of domination has used that position to obtain unfair advantage for himself,
and so to cause injury to the person relying upon his authority or aid. Where the relation of
influence, as above set forth, has been established, and the second thing is also made clear,
namely, that the bargain is with the “influencer”, and in itself unconscionable then the person in
a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of
establishing affirmatively that no domination was practised so as to bring about the transaction, but that
the grantor of the deed was scrupulously kept separately advised in the independence of a free
agent’ (emphasis supplied)). Lord Scarman cited Poosathurai with approval in National Westminster
Bank plc v Morgan [1985] AC 686 at 706. See also J. Beatson, Anson’s Law of Contract, 27th edn
(Oxford University Press: Oxford, 1998) 287.

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Law Lords, Lord Nicholls, Lord Hobhouse, Lord Clyde and Lord Scott, however,
also took the opportunity to reconceptualise the presumption of capacity to
influence within Class 2A, as well as the presumption common to both Classes
2A and 2B that undue influence was exercised. The fifth Law Lord, Lord Bingham,
was content to express his agreement with Lord Nicholls’ pronouncements on
the extent to which a lender bank was responsible for ensuring that the surety
had not been misled by the borrower.

The presumption of capacity to influence

The common law position remained unchanged, if only because the House of
Lords was split on whether the presumption retained its status as a presumption
of law or whether it was only one of fact shifting the tactical burden.

Lord Nicholls28 and Lord Hobhouse29 were clearly in favour of retaining this
presumption as one of law, with Lord Nicholls going so far as to say that this
presumption was irrebuttable.30 Lord Clyde31 and Lord Scott,32 on the other hand,
were of the opinion that the legal burden was always on the claimant to prove
that the defendant had capacity to influence him. Class 2A was only useful in
identifying particular relationships where the law would be more inclined to
draw an inference of undue influence.33 This approach is consistent with a
presumption of fact.

The presumption that undue influence was exercised within the relationship
It is clear that none of the four Law Lords conceived this presumption as reversing
the legal burden of proof.34 However, it is not clear whether their reformulated
versions were presumptions of law reversing the evidential burden or merely
presumptions of fact reversing the tactical burden.

The analogy with res ipsa loquitur

Three of the Law Lords tried to clarify their position by drawing an analogy
between their reformulations and the principle of res ipsa loquitur.35 It is submitted,
however, that the analogy with res ipsa loquitur confuses rather than elucidates.
An analogy with the common law principle of res ipsa loquitur is ineffectual because

28 [2002] 2 AC 773 at [18].

29 Ibid. at [104].
30 Ibid. at [18].
31 Ibid. at [93].
32 Ibid. at [154].
33 Ibid. at [93], per Lord Clyde; at [161], per Lord Scott.
34 Ibid. at [13], per Lord Nicholls; at [93], per Lord Clyde; at [106–107], per Lord Hobhouse; at [161], per
Lord Scott.
35 Ibid. at [16], per Lord Nicholls; at [107], per Lord Hobhouse; at [161], per Lord Scott.

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English law is unclear over whether the principle casts the legal36 or merely the
evidential or tactical burden37 upon the party accused of negligence to disprove
negligence. In contrast, their Lordships were all of the view that the presumption
of undue influence did not place the legal burden on the alleged dominant party
to disprove the allegation.

Leading commentators,38 however, assume that the modern English position on

res ipsa loquitur is represented by a Privy Council case on appeal from Hong Kong,
Ng Chun-Pui v Lee Chuen Tat.39 If their Lordships had indeed meant to refer to the
Privy Council’s position in Ng Chun-Pui v Lee Chuen Tat, this would have merely
restated rather than resolved the problem. While the Privy Council made it clear
that the principle of res ipsa loquitur did not impose the legal burden on the party
accused of negligence to disprove negligence, it was not clear whether the burden
that was cast upon the party was an evidential or a tactical one. It is thus necessary
to scrutinise each of the four judgments in Etridge more carefully to discern what
is left of the presumption of undue influence.

Dissension among the ranks

Lord Clyde, Lord Hobhouse and Lord Scott all expressed agreement with Lord
Nicholls,40 who delivered the leading judgment. A closer examination of their
judgments, however, reveals that the three Law Lords understand the presumption
that undue influence had been exercised in a way that is fundamentally different
from the understanding of Lord Nicholls.

At one end of the spectrum, Lord Nicholls appeared ambivalent over discarding
the Class 2B presumption completely as a presumption of law. Lord Nicholls started
off by underlining the basic principle that ‘he who asserts that a wrong has been
committed must prove it’. 41 Whether the party claiming undue influence
succeeded depended on whether he or she adduced sufficient evidence to persuade
the court to draw the necessary inferences:

The evidence required to discharge the burden of proof depends on

the nature of the alleged undue influence, the personality of the

36 Henderson v Henry E. Jenkins & Sons [1970] AC 282; Moore v R. Fox & Sons [1956] 1 QB 596; Ward v Tesco
Stores Ltd [1976]1 WLR 810.
37 Ballard v North British Railway Co. 1923 SC (HL) 43 at 54; Colvilles Ltd v Devine [1969] 1 WLR 475 at
479; Lloyde v West Midlands Gas Board [1971] 1 WLR 749 at 755.
38 See e.g. M. A. Jones, Textbook on Torts, 7th edn (Blackstone Press: London, 2000) 198; A. M. Dugdale
(ed.), Clerk & Lindsell on Torts, 18th edn (Sweet & Maxwell: London, 2000) 412; B. S. Markesinis and
S. F. Deakin, Tort Law, 4th edn (Clarendon Press: Oxford, 1999) 172.
39 [1988] RTR 298.
40 [2002] 2 AC 773 at [91], per Lord Clyde; at [100], per Lord Hobhouse; at [191], per Lord Scott.
41 Ibid. at [13].

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parties, their relationship, the extent to which the transaction cannot

readily be accounted for by the ordinary motives of ordinary persons
in that relationship, and all the circumstances of the case.42

Elsewhere in his judgment, however, Lord Nicholls’ language was more

reminiscent of a presumption of law reversing the evidential burden, rather than
a presumption of fact. Whether sufficient evidence has been adduced to trigger a
presumption of fact is a question of common sense and logic, not of law. Yet, Lord
Nicholls articulated the triggering conditions for a presumption of undue
influence in formulaic rather than discretionary terms:

there are two prerequisites to the evidential shift in the burden of

proof from the complainant to the other party. First, that the
complainant reposed trust and confidence in the other party, or the
other party acquired ascendancy over the complainant. Second, that
the transaction is not readily explicable by the relationship of the
parties.43

Upon proof of the two prerequisites, the law44 reverses the burden of proof and
casts the evidential burden45 upon the defendant to rebut the finding of undue
influence. While the term ‘evidential burden’ has sometimes been used to also
refer to the ‘tactical burden’,46 it is submitted that this was not so in Lord Nicholls’
case. His reliance on a formulaic approach couched in mandatory terms, as well
as his opinion that it was the law, rather than logic, that reversed the burden of
proof, is more consistent with a presumption of law, rather than one of fact.

At the other end of the spectrum, Lord Clyde saw no utility in subdividing undue
influence into actual and presumed undue influence.47 Whether the claimant
succeeded turned on whether he or she succeeded in discharging his or her legal
burden of proof:

At the end of the day, after trial there will either be proof of undue
influence or that proof will fail and it will be found that there was
no undue influence. In the former case, whatever the relationship of
the parties and however the influence was exerted, there will be found

42 Ibid.
43 Ibid. at [21], cf. at [14].
44 Ibid. at [24].
45 Ibid. at [14], [16].
46 See e.g. Halsbury’s Laws of Singapore (Butterworths Asia: Singapore, 1998) at 476.
47 [2002] 2 AC 773 at [92].

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to be an actual case of undue influence. In the latter there will be

none.48

Although Lord Hobhouse49 and Lord Scott50 at times both used language more
reminiscent of a presumption of law, they appeared, on balance, to view the
burden that is cast upon the defendant to be merely a tactical one. Like Lord
Clyde, Lord Hobhouse was in favour of abandoning the language of presumptions
and treating the matter as simply one of evidence and proof:

I consider that the so-called class 2B presumption should not be

adopted. It is not a useful forensic tool. The wife or other person
alleging that the relevant agreement or charge is not enforceable
must prove her case. She can do this by proving that she was the
victim of an equitable wrong. This wrong may be an overt wrong,
such as oppression; or it may be the failure to perform an equitable
duty, such as a failure by one in whom trust and confidence is reposed
not to abuse that trust by failing to deal fairly with her and have
proper regard to her interests. Although the general burden of proof is,
and remains, upon her, she can discharge that burden of proof by establishing
a sufficient prima facie case to justify a decision in her favour on the balance
of probabilities, the court drawing appropriate inferences from the primary
facts proved. Evidentially the opposite party will then be faced with the necessity
to adduce evidence sufficient to displace that conclusion. (emphasis
supplied)51

Unlike Lord Nicholls, Lord Hobhouse treated the nature of the relationship and
the nature of impugned transaction as merely evidential material from which
the court could draw an inference of undue influence.52

While Lord Scott retained the language of presumptions, he ultimately appeared

to regard the presumption that undue influence had been exercised as only one
of fact:

48 Ibid. at [93].
49 Ibid. at [107]: ‘Provided it is remembered that the burden is an evidential one, the comparison
with the operation of the doctrine res ipsa loquitur is useful’ (emphasis added).
50 Ibid. at [161]: ‘Unless the defendant introduces evidence to counteract the inference of undue
influence that the complainant’s evidence justifies, the complainant will succeed’ (emphasis
added). If the presumption is really one of fact, it is not possible to pronounce that the
complainant will succeed without examining the weight of presumption that is raised on a case
by case basis.
51 Ibid. at [93].
52 Ibid. at [104]. See also ibid. at [155], per Lord Scott.

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[T]he class 2 presumption is an evidential rebuttable presumption. It

shifts the onus from the party who is alleging undue influence to
the party who is denying it … [T]he weight of the presumption will
vary from case to case and will depend both on the particular nature
of the relationship and on the particular nature of the impugned
transaction … [T]he type and weight of evidence needed to rebut the
presumption will obviously depend upon the weight of the
presumption itself.53

In effect, what the majority did in Etridge was to reconceptualise Class 2B cases as
cases involving actual proof of undue influence and eradicate the need to retain
Class 2B as an independent category. Its approach was a step back from previous
judicial sentiment that a pro-claimant orientation was necessary to protect
persons from the exercise of undue influence under circumstances which render
proof of it very difficult.54 By placing the responsibility squarely on the party
claiming undue influence to adduce adequate proof of undue influence, the
majority tilted the balance in favour of upholding transactions and elected to
take the risk that genuine victims of undue influence may not receive redress
because of the difficulties of proof.

Disturbingly, Lord Clyde, Lord Scott and Lord Hobhouse may not have realised
that their decisions would have this effect, especially since they did not perceive
themselves as differing significantly from Lord Nicholls.

In the aftermath of Etridge

Case law subsequent to Etridge has done nothing to resolve the confusion over
the status of both the presumption of the capacity to influence, as well as the
presumption that undue influence had been exercised within the relationship.
The most significant judicial interpretation of Etridge to date comes from the
Privy Council in R v Attorney-General for England and Wales (on appeal from New
Zealand).55 In this case, the appellant alleged, inter alia, that the Crown had
procured his agreement to a confidentiality agreement through undue influence.
In a 4 to 1 decision, the Privy Council held that the Crown was not guilty of
undue influence. Both the majority and minority relied on Etridge for the law,
but were split over the effect of the judgments. Lord Scott, who had also sat in
the Etridge case, delivered the dissenting judgment.

53 See ibid. at [153].

54 [1887] LR 36 ChD 145 at 183.
55 [2003] UKPC 22.

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Delivering the majority judgment, Lord Hoffmann described the presumption

that undue influence had indeed been exercised as one of fact:

The burden of proving that consent was obtained by unacceptable

means is upon the party who alleges it. Certain relationships—parent
and child, trustee and beneficiary, etc—give rise to a presumption
that one party had influence over the other. That does not of course
in itself involve a presumption that he unfairly exploited his
influence. But if the transaction is one which cannot reasonably be
explained by the relationship, that will be prima facie evidence of
undue influence. Even if the relationship does not fall into one of
the established categories, the evidence may show that one party did
in fact have influence over the other. In such a case, the nature of the
transaction may likewise give rise to a prima facie inference that it
was obtained by undue influence. In the absence of contrary evidence,
the court will be entitled to find that the burden of proving unfair
exploitation of the relationship has been discharged.56

Significantly, Lord Hoffmann held in the last sentence of this passage that the
court was entitled to find that undue influence has been made out, not that the
court would so find. The fact that the claimant can still fail to establish undue
influence on a balance of probabilities even when the defendant has not adduced
any evidence to the contrary can only mean that the defendant bears no more
than the tactical burden to rebut the claimant’s case.

On the facts of R v Attorney-General for England and Wales, the majority adjudged
that the appellant had not adduced enough evidence to even raise the inference
of undue influence.

In his dissenting judgment, Lord Scott appeared to resile from his earlier position
that the presumption that undue influence had been exercised was only one of
fact and described it in terms more reminiscent of a presumption of law:

It is well established that the relationship between parties to a

contract, coupled with the nature of the contract and, sometimes,
the circumstances in which consent to it by one party was obtained
by the other, may give rise to a presumption that the consent of the
former was obtained by undue influence. The presumption is an
evidential presumption requiring the dominant party, seeking to enforce the

56 Ibid. at [22].

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contract, to introduce some additional evidence to show that the consent to

the contract of the subservient party was a true consent fairly obtained (see
Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773). The most effective
way in which in most cases the presumption can be rebutted is by
showing that the subservient party received independent legal advice
about the contract and its implications. (emphasis supplied)57

Tellingly, Lord Scott proceeded to hark back to the pro-claimant sentiment that
prevailed before Etridge and cited the following passage from Allcard v Skinner
with approval:58

[The courts] have not shrunk from setting aside gifts made to persons
in a position to exercise undue influence over the donors, although
there has been no proof of the actual exercise of such influence; and the
courts have done this on the avowed ground of the necessity of going to
this length in order to protect persons from the exercise of such
influence under circumstances which render proof of it impossible.59

On the facts, Lord Scott adjudged that the appellant had adduced enough evidence
to raise the inference of undue influence and would have allowed the appeal on
the basis that the respondent had not produced any evidence to rebut the
presumption. While it may be possible to rationalise this on the basis that the
respondent had failed to discharge its tactical burden, it is submitted that Lord
Scott’s approach is more consistent with the concept of an evidential burden
because under his approach, the appellant would have succeeded without having
to prove that the respondent had in fact exercised undue influence.

4. The position under Stephen’s code

The evidence laws of India, Pakistan, Bangladesh, Myanmar, Sri Lanka, Singapore
and Malaysia were codified based on the work of Sir James Fitzjames Stephen,
who failed to convince the English to adopt the same. The presumption of undue
influence is encapsulated in the following section:

Proof of good fait h in tr

faith ansactions where one party is in relation
transactions
of activ
activee conf idence
confidence
Where there is a question as to the good faith of a transaction between
parties, one of whom stands to the other in a position of active

57 Ibid. at [9].
58 Ibid. at [40].
59 [1887] LR 36 ChD 145 at 183.

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confidence, the burden of proving the good faith of the transaction

is on the party who is in a position of active confidence.

Illustrations
(a) The good faith of a sale by a client to an attorney is in question in
a suit brought by the client. The burden of proving the good faith of
the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in
question in a suit brought by the son. The burden of proving the
good faith of the transaction is on the father. 60

Despite the fact that the proper way to interpret a code is to read the statute on
its terms without any preconceived notion that it embodies the pre-existing
common law,61 the tendency of the Singapore and Malaysian courts, at least, has
been to assume that this section simply restates the common law presumption of
undue influence.62

Read literally, however, the section is significantly more pro-claimant than even
the pre-Etridge position. Unlike the common law, the section does not require the
party claiming undue influence to prove that the transaction was manifestly
disadvantageous before it will reverse the burden of proof. Neither does the section
only assist parties who allege undue influence. Provided a relationship of ‘active
confidence’ can be established, the section is broad enough to apply to cases of
duress, unconscionability, fraud or unilateral mistake.

After Etridge, the divergence from the common law position has grown even wider.
As discussed earlier, the common law presumption of undue influence casts, at
most, the evidential burden upon the alleged dominant party to disprove undue
influence. In contrast, the statutory presumption casts the legal burden upon
the party to prove the good faith of the transaction on a balance of probabilities.
This is because it has been held that the term ‘proof’ wherever it appears in the
evidence codes must refer to the legal burden of proof. The Privy Council in Jayasena
v The Queen rejected the contention that the term ‘proof’ could also refer to the
evidential burden on the ground that ‘it is misleading to call it a burden of proof
… when it can be discharged by the production of evidence that falls short of

60 See e.g. Singapore Evidence Act (Cap 97, 1997 Rev Ed) at s. 113; Malaysia Evidence Act 1950 (Act
56) at s. 111; Evidence Ordinance of Ceylon at s. 111; the Indian Evidence Act (Act No. I of 1872) at
s. 111; the Evidence Act of Burma at s. 111; the Evidence Act of Pakistan at s. 111.
61 Bank of England v Vagliano (1891) AC 107.
62 See e.g. Lai Kwee Lan v Ng Yew Lay [1989] SLR 863; Rosli bin Darus v Mansor @Harun bin Hj Saad [2001]
4 MLJ 206.

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proof’.63 This is ironic because there is no evidence that Stephen intended the
term ‘proof’ to be used synonymously with the legal burden of proof.64 Indeed,
his commentary on the statutory presumption of bad faith is consistent with
both the concepts of the tactical and legal burdens.65

Assuming, however, that Jayasena is correct, Etridge is a classic illustration of how

the ‘common law is malleable to an extent that a code is not’.66 While the common
law can respond to shifts in substantive policy, a code cannot unless it is amended.
Before Etridge, the courts were happy to interpret the phrase ‘active confidence’
widely ‘in order that the law may be really protective’.67 As long as the common
law and the code both adopted a pro-claimant stance and imposed the legal burden
on the alleged dominant party to establish the bona fides of the transaction, it
may have made little difference to the courts whether it adopted the common
law or the statutory position.

Now that the law has arguably resiled from a pro-claimant stance to require the
alleged dominant party to discharge only an evidential burden, the courts can
no longer afford to be quite as nonchalant. For the first time, the courts will be
forced to grapple with the interplay between the common law position on undue
influence and its statutory counterpart.68

A pro-Etridge court cannot simply follow the current common law position when
its freedom of action is circumscribed by a statutory regime that purportedly
only recognises the legal burden. Neither can a court that is determined to align
itself with the current common law position do so by reading the statutory
presumption narrowly to confine its reach to only abuse of confidence cases,69
where a common law legal presumption still exists. That would be inconsistent
with both the natural meaning of the provision, as well as Stephen’s stated

63 [1970] AC 618 at 624. Cf. Ramakrishnan s/o Ramayan v PP [1998] 3 SLR 645 at para. 33; Public Prosecutor
v Chong Siew Chin [2002] 1 SLR 117 at paras. 34–35.
64 As M. Hor, ‘The Burden of Proof of Criminal Justice’ (1992) 4 SacLJ (Pt II) 267 at 276 points out,
Stephen used the term burden to refer to either the legal, evidential or tactical burden in A
Digest of the Law of Evidence.
65 Sir James Fitzjames Stephen, A Digest of the Law of Evidence, 12th edn (Sir Harry Lushington Stephen
and Lewis Frederick Sturge (eds), Macmillan: London, 1936) at 131.
66 [1970] AC 618 at 625.
67 Benoy v Santi 40 CWN 45; Rosli bin Darus v Mansor @Harun bin Hj Saad [2001] 4 MLJ 206 at 217; Khaw
Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457 at 592; S. Sarkar and V. R. Manohar, Sarkar’s Law of
Evidence in India, Pakistan, Bangladesh, Burma and Ceylon, vol. 2 (Wadhwa & Co.: Agra, 1993) 1467.
68 Disappointingly, in the latest reported case on undue influence in Singapore, the High Court
did not recognise that Etridge had broken new ground: see Standard Chartered Bank v Uniden Systems
(S) Pte Ltd [2003] 2 SLR 385.
69 The law requires those in a fiduciary position who enter into transactions with those to whom
they owe fiduciary duties to establish affirmatively that the transaction was a fair one: see e.g.
Demerara Bauxite Co. Ltd v Hubbard [1923] AC 673; Moody v Cox [1917] 2 Ch 71.

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intention that the concept of ‘active confidence’ should receive a flexible

interpretation.70 Further, as illustration (b) itself demonstrates, the section was
not intended to apply only to fiduciaries.

Conclusion

The common law and statutory position on the presumption of undue influence
is an interesting study in contrasts. Whether the presumption should be retained
and, if so, what its juristic formulation should be, are ultimately policy questions
that are best answered by reference to the substantive objectives that the doctrine
of undue influence is designed to achieve. Despite being given the opportunity,
the House of Lords and the Privy Council have failed to draw an explicit link
between the substantive policies of the doctrine of undue influence and the
evidential rules designed to advance them. It is perhaps because the courts were
so reluctant to confront the issue that the discussion on the points of evidence
was so muddled. On the other hand, the statutory position is comparatively clearer
and more certain. However, it is precisely because the statutory position is fixed
that the courts are not able to develop the law of evidence in tandem with changes
in substantive policy.

70 Above n. 65.

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