(This post is published to coincide with the attendance of our film lawyers at the 2019 Cannes Film Festival. The post is co-written by our media law consultant David Allen Green and one of our film law specialists Matthew Fox.)
Mary Poppins Returns is a wonderful film, but it is a little harsh on lawyers.
Mr Gooding: We are not plumbers – we’re lawyers.
Ellen the housekeeper: Lawyers? Here’s me, hopin’ you’d prove useful.
Sadly, Mr. Hamilton Gooding and Mr. Templeton Frye, solicitors with the law firm of Gordy, Cordry, Gooding and Frye, visit the the Banks and almost make them cry.
As so often, the lawyers come with bad news.
This post is a legal look at Mary Poppins Returns.
This is done in the playful spirit of immigration lawyer Colin Yeo’s magnificent and informative reviews of the Paddington films (here and here) and the Secret Barrister’s masterful analysis of Legally Blonde.
In other words, this post is not to be taken too seriously: it is to use the medium of a popular film to explain the law.
There is no reason why expositions of the law always have to be dull and earnest.
There is a lot in Mary Poppins Returns to concern the lawyer.
Is Mary Poppins a terrorist?
She certainly trespasses on the parliamentary estate to turn back the time on the tower of Big Ben in a manner which would now get her arrested, if not shot.
Is Mary Poppins a fraudster?
It would appear that by turning back that time she was misleading the bank as to its legal position in respect of its rights on the loan.
Mary Poppins may even be a tortfeasor, as in the Royal Doulton bowl she neglects her duties as a nanny so that a child is placed in peril.
She may even have committed offences under section 1 of the Children and Young Persons Act 1933, if it was in effect at the material time.
Of course, that Mary Poppins has a problematic relationship with the law is no surprise to anyone who recalls the apparent mass homicide in the first film of the other nannies waiting outside 17 Cherry Tree Lane.
But the above legal points are perhaps incidental to the story of the sequel.
The plot of Mary Poppins Returns turns on three legal events: the foreclosure of a loan, the search for a share certificate, and the investment of the tuppence in a trust.
Each of these events is crucial to what happens in the film.
And in looking at these plot devices seriously, we pay a sincere tribute to the film’s screenwriter David Magee (see interviews here and here). His thoughtfulness and research makes the film a pleasure to analyse.
Let us start with the loan, for without the loan there would be no peril, and without peril we would not have the return of Mary Poppins.
The film’s plot begins, as with all good legal thrillers, with two well-dressed lawyers.
They are fixing a “notice of repossession” to the front door of 17 Cherry Tree Lane. They soon explain why.
Mr Gooding: Mr. Banks, you took out a loan with Fidelity Fiduciary Bank last year against the value of your home. […] . Unfortunately, the bank is now demanding you pay back the entire loan in full.
Michael Banks: The entire loan?
Mr Gooding: You have five days. If you are unable to pay in full by Friday at midnight, I’m afraid we will have to repossess your home, and you will have to vacate the premises.
This is not a good Monday morning for Michael Banks.
At this point in the story, it looks like the bank is seeking repossession. A little later, however, we hear the same lawyers describe it as a foreclosure:
Mr Gooding: Mr. Michael Banks, 17 Cherry Tree Lane.
Mr Frye: In foreclosure.
We do not get to see the loan agreement, but here there seems to be an error here.
What is evident is that there is a loan agreement between the bank and Michael Banks, and that loan agreement created a type of security interest in 17 Cherry Tree Lane. If so, this would make what is called a “legal mortgage”. As the loan was taken out “last year” in the Great Depression then we can assume that it was under the Law of Property Act 1925.
In the event of non-payment, the bank would have the remedy of either suing for the amount owed or enforcing its security by various means. One of these means in repossession, another is foreclosure, and there are others. The remedy of “repossession” (the notice on the door and the conversation with Michael Banks) is a different remedy to “foreclosure” (the lawyers’ discussion at the bank).
There appears to be some legal confusion – or more likely, as the screenplay is by an American – terminological confusion (though not as bad an error as confusing an American robin with a British robin, as happened in the original film).
Foreclosure is one of the oldest powers of enforcement but it is now rarely used in practice (at least in England, though it is more common in America), by reason of the fact that the process is controlled by the court rather than the lender, and so can be time-consuming and expensive.
And so if the lender is successful, the result is uncertain because orders for foreclosure can be re-opened by the Court.
If the dastardly Mr Wilkins wants a swift capture of the house, he should therefore be wary of using foreclosure as the method of enforcement by which to do so.
Far more common is repossession, which is a process which can be controlled by the lender. In a repossession case, any funds received from sale or auction which exceed the loan balance would be returned to the borrower; with foreclosure, by contrast, the borrower (here, the Banks family) would have no right to any surplus from the sale.
But even if this was a repossession case, then there would need to be far more than five days, ending on a Friday or otherwise.
An application would first need to be made to the Court, and the lender and the borrower would nowadays have at least 28 days from any order.
So: even if Michael Banks was in breach of the loan agreement enabling the bank to enforce its security in the home, it would be a more painstaking and lengthy process for both him and the bank.
And this means Mr Wilkins would not have so much wicked fun, and the Banks family would not be under such urgent time pressure.
The period for the film would drag on for months not a single week.
Jane Banks: Father left us bank shares! You could use them to pay off the loan!
Once the loan is called in, the next legal problem from the Banks siblings is proving the ownership of their shares in the Dawes, Tomes, Mousley, Grubbs Fidelity Fiduciary Bank.
That there are shares in the bank seems a little odd, as the bank in the first Mary Poppins is presented as a partnership.
But if a partnership to begin with, at some point the bank may have converted from a partnership to a company limited by shares. This conversion could have happened by a dedicated Act of Parliament or under the Companies Act.
If under the relevant company legislation, it would be the share register which is the basis of a shareholder’s legal rights – not the holding of a certificate (which only provides prima facie evidence of a person’s title to those shares; or, in other words, evidence which may be superseded by evidence to the contrary).
The certificate, in effect, “certifies” the share ownership set out in the register.
This would mean the missing (that is, destroyed) share register page would be more important at law than the missing certificate.
The film, however, correctly (in our view) avers that producing the certificate would in the circumstances of the film be sufficient to offset the fraud of Mr Wilkins in wrongfully destroying the page of the register. Mr Wilkins and the bank should not be able to rely on their own wrongful behaviour.
But there is another problem.
Michael and Jane Banks would not own the shares at law merely because they possess their father’s share certificate, in the form of a kite or otherwise.
They would also have to demonstrate (rather than just assert) they had inherited the shares (either by their father’s will or otherwise).
Mr Wilkins would be on firmer ground denying that the shares had been transferred to his children, and require proof of the transfer.
(And perhaps the father’s will turns out to be on another kite.)
And even if there is proof of a transfer, the Banks siblings will not be regarded as the legal owners of the shares unless the company had approved and registered the transfer.
That said, equity would (like Mary Poppins) come to their aid, and we would submit that the equitable title in the shares would be transferred even if legal title had not.
Equity is, after all, the Mary Poppins of English law.
At the end the shares in the film do not matter, as something else saves the day.
The saviour is a discretionary trust, a creature of law and equity.
Mr Dawes Junior: There was little boy named Michael who wanted to give his tuppence to a bird lady – but in the end, and after a little persuasion, he decided to give it to his father instead. Michael’s father – your grandfather – gave that tuppence to this bank and he asked us to guard it well. We did just that, and thanks to several quite clever investments – if I do say so myself… [Turning to Michael:] That tuppence has grown into quite a sum!
In the original Mary Poppins, Michael Banks takes tuppence from his money box.
Although he wants to give that tuppence to the lady who feeds the birds, his father insists he takes it to the bank.
Mr Dawes Senior tells the boy that if he invests his tuppence wisely in the bank safe and sound then the tuppence will compound.
His colleagues agree, saying more than once that such an investment would be prudent, thrifty and frugal.
The boy then reluctantly gives the tuppence to the father, who then gives it to Mr Dawes with an instruction.
There’s the tuppence. The wonderful, fateful, Supercalifragilistic- expialidocious tuppence. Guard it well. Good-bye!
The bank thereby becomes the trustee of a discretionary trust settled to the benefit of the Banks children.
But there is a legal concern.
The first film is set in about 1910. The second film is set some twenty or thirty years later.
That is a fairly short period of time to convert an original investment of tuppence to an amount to pay off the security on a house (for an amount which was greater than the annual salary of Michael Banks).
In theory this could be done, but it require an ambitious – even reckless – investment strategy.
Such a “clever” strategy would be contrary to the instruction of “guard it well”, still less in accordance with the explicit and repeated promises of prudence, thrift and frugality.
The bank would be in stark breach of their fiduciary duties.
Fortunately, the high-risk investment strategy paid off on this occasion, but had it gone horribly wrong then this plain breach of duties could have placed the bank in a dreadful predicament, similar to if not worse than (ironically) to the run on the same bank in the first film.
The bank, however, pulls off an investment return as magical as anything done by the nanny to the Banks family.
And the bank has to give the benefit of these profits to the Banks children. Law and equity give them no choice.
(And if it could be shown that ownership of the tuppence had in fact passed to the bird lady before it was handed to Mr Dawes senior, then there would be an argument that she and her heirs would have the benefit of a constructive trust, which would be a rather magical outcome.)
Mary Poppins and the law
The above is written, of course, on the quite false assumption that Mary Poppins is not practically perfect in every way.
What seems to us as examples of terrorism, fraud, neglect, criminality, legal confusions and so on, are all no doubt down to our silly misunderstandings.
(For example, if the Admiral is right about Big Ben being wrong, then all Mary Poppins did was correct the time, and she did not mislead anyone and was not a fraudster.)
The Mary Poppins of the films and of the books never explained her fantastic adventures and exploits. She let the fantasies speak for themselves. And we should probably do the same.
That said, it is a testament to the quality of the writing of the screenplay of Mary Poppins Returns that it provides a solid and worthwhile basis for an explanation of the laws relating to loan securities, share ownership and discretionary trusts.
We can see that the operation of law and equity saves the day for the Banks family just as much as Mary Poppins does.
And that is well worth the fun made at the expense of the lawyers (not plumbers) Mr Gooding and Mr Frye.
The 2d that Michael Banks gives his father, who then gives it to Mr Dawes for the bank to invest isn’t held on a discretionary trust for the benefit of the Banks children. That would be unlikely for an informally declared trust like this. The bank appears to be a bare trustee for Michael, who can call for the trust property to be transferred to him as soon as he is an adult, and then deal with it as he pleases.
I don’t think the words “guard it well” add anything to the ordinary duties and investment powers of a trustee. Both in 1910 and 1940 trustees’ investment powers were limited by law to a very narrow range of ‘safe’ investments. An express trust could confer wider investment powers, as in the 1928 National Fund, created with an aspiration of paying off the National Debt, and which had a remarkably broad investment power, permitting the trustees “to use it in any trade, business or adventure, or in any way in which moneys are for the time being commonly applied by financiers in the City of London” – but still not broad enough to enable the fund to grow anywhere near large enough to pay off the National Debt – hence a forthcoming case brought by the Attorney General to decide what should be done with the Fund.