Disclosure – Misrepresentation – Mortages – Spouses The appellant (W) appealed against a decision ordering her and her former husband (H) to give possession of their house to the respondent lender (F), together with a money judgment, by way of enforcement of a mortgage. H and W lived in their matrimonial home with their children and her mother. H got himself into financial difficulties by overspending on his credit cards. He persuaded W that they needed to remortgage their home to manage his debts. Shortly after they granted a mortgage to F, W found out that H had been having an affair. In due course they divorced, and then H lost his job and was made bankrupt on his own petition. W acquired H’s interest in the house from his trustee in bankruptcy for £1. She found it impossible to maintain the instalments due to F and it started possession proceedings. The judge rejected W’s defences of undue influence and misrepresentation by H, finding that she had made her own choice to participate in the mortgage. It was common ground that F had had constructive notice of any undue influence or misrepresentation that might have been perpetrated by H, so its position would be affected by the outcome. W submitted that the court could, on the judge’s primary facts coupled with her own evidence, decide by inference that by the time of the mortgage H had decided to leave her, and that the mortgage involved three fraudulent misrepresentations, each of which was sufficient on its own to justify the setting aside of the transaction: first, that it was the only way to preserve the house as their home; second, his false promise that he would pay the instalments to F; third, his deliberate concealment of his affair. Held: (1) The starting point was that the judge had been entitled to conclude on the evidence that by the time of the mortgage H had not decided to leave W and his family. As to the first alleged misrepresentation, the court should not interfere with the judge’s conclusion that it had not been shown that H did not honestly believe that the mortgage was the only way of protecting their home from his creditors. (2) As to the second alleged misrepresentation, H’s subsequent track record in staying at the house for another year, even after W found out about his affair, and in paying the instalments due to F during that period, was a sufficient basis for the judge’s conclusion that his promise to W to pay those instalments was not dishonest. (3) H’s concealment of his affair from W did amount to undue influence sufficient to vitiate the mortgage transaction as between them. A finding of undue influence did not depend, as a necessary prerequisite, upon a conclusion that the victim made no decision of her own, or that her will and intention was completely overborne. A conscious exercise of will could nonetheless be vitiated by undue influence, Drew v Daniel  EWCA Civ 507,  2 FCR 365 applied. The first question was whether W reposed a sufficient degree of trust and confidence in H to give rise to an obligation of candour and fairness on his part, Royal Bank of Scotland Plc v Etridge (No2)  UKHL 44, (2002) 2 AC 773 followed. For two reasons, she did. First, she regarded H as being in charge of the family finances, albeit not to an extent that excluded her from any participation in important decisions. It would be wrong to confine a husband’s obligation of candour and fairness when proposing a risky financial transaction to his wife to cases where she meekly followed his directions without question. The purpose of an obligation of candour was that the wife should be able to make an informed decision properly appraised of the relevant circumstances. Second, the specific transaction that H put to W required her to take on trust his sworn promise to pay the instalments due to F. There was therefore both a pre-existing relationship of trust and confidence, and an intensification of it derived from the very basis of the proposed transaction, Thompson v Foy  EWHC 1076 (Ch), (2010) 1 P & CR 16 considered. The second question was whether H’s affair was something which his obligation of fairness and candour towards W required him to disclose in connection with his request that she charge her interest in their home as security for his debts. Given the difficulty of the choice she faced, and that her decision to agree to his request was based on her assumption that he was as committed as she was to their marriage and family life, there was no doubt that his affair should have been disclosed, Royal Bank of Scotland Plc v Chandra  EWHC 105 (Ch) considered. Moreover, his non-disclosure of it was deliberate. Appeal allowed. Jayne Hewett v First Plus Financial Group Plc: CA (Civ Div) (Lords Justice Jacob, Leveson, Mr Justice Briggs): 24 March 2010 Simon Redmayne (instructed by Hatch Brenner (Norwich)) for the appellant; Jeremy Lightfoot (instructed by Eversheds (Cardiff)) for the respondent.
Session ID: 2020-09-17:797d8137ff689bdc6896f650 Player ID: videojs-brightcove-player-478345-3909069569001 OK Close Modal DialogCaption Settings DialogBeginning of dialog window. Escape will cancel and close the window.TextColorWhiteBlackRedGreenBlueYellowMagentaCyanTransparencyOpaqueSemi-TransparentBackgroundColorBlackWhiteRedGreenBlueYellowMagentaCyanTransparencyOpaqueSemi-TransparentTransparentWindowColorBlackWhiteRedGreenBlueYellowMagentaCyanTransparencyTransparentSemi-TransparentOpaqueFont Size50%75%100%125%150%175%200%300%400%Text Edge StyleNoneRaisedDepressedUniformDropshadowFont FamilyProportional Sans-SerifMonospace Sans-SerifProportional SerifMonospace SerifCasualScriptSmall CapsDefaultsDoneClose Modal DialogThis is a modal window. This modal can be closed by pressing the Escape key or activating the close button.Courtney Cronin and Riley Blevins discuss what former Auburn commit Tony Bridges means for Ole Miss’ secondary next year, Martinas Rankin’s upcoming decision & Mississippi State parting ways w/ 2015 QB commit Chason Virgil. (Courtney Cronin/TCL). Play VideoPlayMuteCurrent Time 0:00/Duration Time 0:00Loaded: 0%0:00Progress: 0%0:00 Progress: 0%Stream TypeLIVERemaining Time -0:00 Playback Rate1ChaptersChaptersdescriptions off, selectedDescriptionssubtitles off, selectedSubtitlescaptions settings, opens captions settings dialogcaptions off, selectedCaptionsAudio TrackFullscreenThis is a modal window. The Video Cloud video was not found. Error Code: VIDEO_CLOUD_ERR_VIDEO_NOT_FOUND
RICHMOND, Va. | Concerns about electronic cigarettes, including flavors and marketing that could appeal to young people, underscore the need to regulate the fast-growing industry, according to a Congressional report released Monday.The report written by the staff of Illinois Sen. Dick Durbin, Iowa Sen. Tom Harkin, California Rep. Henry Waxman and others highlights several issues including the lack of age restrictions and no uniform warning labels for the battery-powered devices that heat a liquid nicotine solution and create vapor that’s inhaled.While the Food and Drug Administration plans to set marketing and product regulations for electronic cigarettes in the near future, for now, almost anything goes. A 2009 law gave the FDA the power to regulate a number of aspects of tobacco marketing and manufacturing, though it cannot ban nicotine or cigarettes outright. The agency first said it planned to assert authority over e-cigarettes in 2011 but hasn’t yet. The proposed FDA regulation was submitted to the Office of Management and Budget for review in October.“I can’t understand why the FDA is taking this long,” Durbin said in an interview with The Associated Press. “It is clear that the longer they wait, the more young people will be addicted.”The report follows an investigation launched by the congressional delegation in September into the practices of nine e-cigarette makers. The staffs surveyed the companies for information on their marketing practices, steps taken to restrict sales to minors, types of warning labels and touting claims of health benefits or reduced exposure to potentially harmful or addictive substances.Among the findings, the report says six of the companies surveyed spent more than $59 million on advertising and promotion of their e-cigarettes in 2013. Several of the companies reported that their marketing spending more than doubled between 2012 and 2013, and two of the companies’ marketing expenses increased more than 300 percent during that time. Sales of e-cigarettes, which are sold under more than 200 brand names, are estimated to have reached nearly $2 billion in 2013.Durbin said that if the agency “accepts responsibility for this product as they have for tobacco,” it can start establishing standards for sales and marketing.“If they fail to do that, I’m afraid it’s going to continue reach into the ranks of our children,” he said.Harkin, chairman of the Senate Health, Education, Labor and Pensions Committee, echoed those concerns in a statement, urging regulators to stop marketing practices that already are illegal for traditional tobacco products.Michael Felberbaum can be reached at https://www.twitter.com/MLFelberbaum.Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.