Massey v Midland Bank Plc  1 All ER 929;  27 HLR 227
Guarantee agreement; misrepresentation; duties of creditor
Ms Massey owned a house. Her companion (although they did not live together), P, convinced to charge the house as security for an overdraft granted to his business. P fraudulently claimed that he would pay of previous, similar charge over the house that Ms Massey had given him for another – failed – business. The bank informed Ms Massey that she would have to receive independent legal advice before it would agree to the transaction. Eventually, Ms Massey was advised by P’s solicitors, following which she signed the charge. Acting on the solicitor’s assurances that Ms Massey was advised, the bank provided P with the money. P’s new business failed, however. Ms Massey was served with a demand and a summons for possession.
Ms Massey declined to satisfy the bank’s demand, arguing that she was induced by P’s fraudulent misrepresentation and undue influence to sign the charge. She claimed that P’s unlawful act affected the bank. The deputy judge disagreed and found in favour of the bank. Ms Massey appealed.
The Court held that in situation like this (i.e. where a person provides security without benefitting from it), the bank would be “put on inquiry”. However, once the bank is satisfied that the person in question received independent legal advice from a solicitor who had knowledge of the proposed charge, it was no longer under a duty to make further inquiries (unless, it had reasons to believe that the advice given was improper). Thus, the bank in this had taken all reasonable steps to make sure that the charge was obtained in acceptable circumstances and that the person received independent legal advice about the charge. Consequently, no constructive notice of P’s misrepresentation was given to the bank and Ms Massey appeal had to be dismissed.
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