(C) USE OF PRESUMPTIONS TO ESTABLISH UNDUE INFLUENCE

(i) The Essential Features of the Evidential Presumption

Sometimes it will not be possible for the claimant to show that he or she was actually unduly influenced to enter into a transaction with the defendant or to transfer a benefit to the defendant. Instead, the circumstances of the case may be such that it will be possible to infer by means of a presumption that the defendant’s influence was abused and this caused the claimant to enter into a contract with the defendant or to transfer a benefit. Restitution is justified in these circumstances, not because the defendant has been proved to have exploited the claimant, but because he or she is presumed to have done so.^[1] Once undue influence is presumed the defendant must seek to rebut the presumption by adducing evidence that undue influence was not the cause of the claimant’s actions.^[2] If the presumption is rebutted, the claimant will not have established undue influence and so restitution will not be awarded.

The presumption of undue influence will only operate when two conditions are satisfied.^[3] First, the claimant must have placed trust and confidence in the defendant in respect of matters such as the management of the claimant’s financial affairs.^[4] Secondly, the transaction must be such that it calls for an explanation. Since the satisfaction of both tests means that the claimant is presumed to have been induced by undue influence to have entered into a transaction or transferred a benefit to the defendant, there is no separate question of causation to be examined. Indeed, it is because it will sometimes be difficult or impossible for the claimant to prove that he or she had been induced to enter into the transaction as a result of undue influence that there is a role for an evidential presumption of undue influence.

• [1] 61 Allcard v Skinner (1887) 36 Ch D 145, 170 (Cotton LJ).
• [2] 62 Royal Bank of Scotland pic v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773, 796 (Lord Nicholls of
• [3] Birkenhead); Turkey v Awadh [2005] EWCA Civ 382, [2005] 2 P and CR 29, [38]-[39] (Chadwick LJ).
• [4] The presumption is not limited to where the defendant manages the claimant’s financial affairs:Thompson v Foy [2009] EWHC 1076 (Ch), [2010] 1 P and CR 16, [114] (Lewison J).