The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After examining the views of several academic commentators, the conclusion is that such an assimilation would do much to rationalise and simplify current English law. If, however, the English courts are reluctant to undertake what is perceived to be essentially a function of Parliament in developing the law, serious thought should be given to rationalising this area of law by means of legislative intervention.'Statutory Unconscionability in the High Court of Australia: The Curious Case of the Anagu People' by Ivan Cheuk Him Sin in (2020) Lloyd’s Maritime and Commercial Law Quarterly comments
‘The lawyer who deals in “unconscionable behavior” is rather like the ornithologist who is content with “small brown bird”‘, so said the late Professor Peter Birks. The conundrum that the concept of unconscionability is of little utility to a lawyer could be ameliorated, it has been suggested, ‘as analogies and comparisons emerged by application of the principles and values underlying the statute’. The upshot is that given the slippery and fluid nature of the notion of ‘unconscionable conduct’, one must be astute to the (statutory) context in which such concept is articulated. Such a context-specific approach guides the court’s inquiry into how consumers’ transactional autonomy should be measured, which in turn directs the court’s readiness to intervene in the relevant business practices which it believes to be ‘unconscionable’. The court’s ability to navigate these troubled waters was put to test in the recent decision of the High Court of Australia Australian Securities and Investments Commission v Kobelt.Kobelt was discussed in 'Doctrine, policy, culture and choice in assessing unconscionable conduct under statute: ASIC v Kobelt' by Paterson, Clare and Bant in (2019) 13(1) Journal of Equity 81-112.
'Equity in Australia and the United Kingdom: dissonance and concordance' by Mark Leeming (Institute of European and Comparative Law Oxford Law Faculty lecture 25 October 2019) comments
This paper falls within the area of “comparative common law” (a concept which includes equity). It touches on four aspects of equitable principle. Speaking generally, some aspects of the first and second (confidential information and liability for knowing assistance in a breach of trust) in the Australian and United Kingdom legal systems have diverged; some aspects of the third and fourth (exceptions to Saunders v Vautier and judicial advice) have converged. How did that come about and what can be learned from it?
Introduction
I am no expert of the law of England and Wales, still less Scotland, but my firm view is that there is utility in considering how different legal systems address quite precise questions at a level of detail. That is not to deny the utility of a more general approach, as is often undertaken in some branches of comparative law. From time to time courts have to resolve controversial questions which are, in a sense, universal. Should advocates enjoy an absolute immunity from suit? Should claims for pure mental harm be permitted? It is certainly useful to know the answers given in other legal systems to such questions, and quite commonly the answers are accessible, because the issues have been determined by ultimate appellate courts. But the devil may lurk in the details: there is often a level of concealed complexity in the answers if divorced from their rationale and historical development. The Australian approaches to advocates' immunity and damages for “nervous shock” or pure mental harm, are quite complex. Most decisions of most courts turn on much more narrowly framed questions. It is to be borne in mind that every time a litigant in an Australian court relies on a decision of a United Kingdom court (which must be hundreds and probably thousands of times each year), one aspect of assessing its persuasive value turns on the extent to which the foreign law has diverged from the Australian law. Sometimes this may not be separately articulated, and sometimes it is instinctive – no one would cite United Kingdom authority on quantum for compensatory damages for personal injury. Instead, citation of foreign law tends to occur in areas where the divergence is less pronounced, and, especially, where statute has not intruded at all, or has occurred in a similar way. But that may make it even harder to determine to what extent such divergence as there has been should detract from the value to be accorded to the decision.
The four topics are chosen, not accidentally, from equity’s exclusive jurisdiction. As James Allsop has recently observed, “Equity and equitable principle have a justification and coherence that is not merely historical and rooted in the organisation of English courts of centuries past. A conception of equity is an inhering part of any civilised system of law and justice.” Those characteristics, which I (echoing, amongst others, Lords Millett and Briggs) have elsewhere sought to defend, suggest that equity ought to provide strong, interesting candidates for comparative analysis. The examples are selected in part with a view to putting to one side the distorting effect of statutes. The purpose is to consider how and why two broadly similar legal systems have converged and diverged in their responses to the same precise questions.
