Duress Flashcards
(33 cards)
I.A – Duress
Requirements (The Universe Sentinel):
- Illegitimate pressure by D
o Threats of illegal conduct is usually illegitimate
o Threats of lawful conduct are generally legitimate unless immoral or unconscionable when coupled with an illegitimate demand (the more unfair the demand, the more likely illegitimate) - That induced C to enter the contract (degree of causation required varies with type of duress)
- C had no practicable alternative but to submit to the demand (economic duress only)
I.A – Duress
A/ Duress to the person
1/ Pressure
Threat to do violence or to detain the other party or someone in a close relationship, to induce their consent illegitimate pressure (Barton v Armstrong).
Chitty suggests that even threatening to do it to a stranger would be enough if C genuinely believed that submission was the only way to prevent the stranger from being injured.
I.A – Duress
A/ Duress to the person
2/ Causation
- principle
- Barton v Armstrong
Needs only to be a cause of decision to contract, not necessarily the predominant or overwhelming or but-for cause – to enforce the contract, D must show that it had no effect whatsoever on C.
- Barton v Armstrong [1976] AC 104
- Facts: C claimed that he was induced to buy out D’s interest in a company on generous terms by D’s threat to murder C’s family. Trial judge denied relief because C’s main reason to buy out D was to ensure survival of the company.
- Held (PC): allowing the appeal, that C could succeed if D’s threat were merely a reason for the decision, even if he might have done so without the threat.
I.A – Duress
B/ Duress to property
C must show that the threat was a significant cause (Dimskal Shipping).
Dimskal Shipping Co SA v International Transport Workers’ Federation, The Evia Luck [1991] 3 WLR 875, 883
I.A – Duress
C/ Economic duress (threat to breach a contract)
Most significant application = contract modification (threat to break existing contract unless the other party agreed to pay more or accept less for original performance). Originally, consideration meant that this agreement was never enforceable, but Williams v Roffey Brothers… economic duress is left to control the limits of renegotiations.
I.A – Duress
C/ Economic duress (threat to breach a contract)
1/ Causative requirement
Courts take a causation-led approach because pressure will almost by default be illegitimate in that breaching a contract is otherwise unlawful, so that if any such renegotiations are to be upheld, the causation requirement must be more stringent:
I.A – Duress
C/ Economic duress (threat to breach a contract)
1/ Causative requirement
Huyton v Peter Cremer [1999] 1 Lloyd’s Rep 620, 635-639
- Lord Mance: economic duress is less serious than duress to the person or property, justifying a higher causative requirement.
o The basic test is but-for causation (either without the threat the contract would not have been made at all or on different terms).
o C must also show that he had no practicable alternative but to submit, though this is “not an inflexible third essential ingredient”
I.A – Duress
C/ Economic duress (threat to breach a contract)
1/ Causative requirement
*Pao On v Lau Yiu [1980] AC 614
- Lord Scarman: in deciding causation court asks whether the victim (i) protested, (ii) had a practicable alternative like an adequate legal remedy, (iii) was independently advised, and (iv) acted promptly to avoid the renegotiation.
I.A – Duress
C/ Economic duress (threat to breach a contract)
2/ Examples
*Atlas Express Ltd v Kafco [1989] QB 833
- Facts: a carrier company mistakenly under-quoted by half the price, and refused to make the delivery unless D agreed to double payment. D agreed because it was unlikely to be able to find alternative carriers at such short notice and if no delivery was made D would have lost its lucrative contract on which the viability of his business depended economic duress succeeded.
I.A – Duress
C/ Economic duress (threat to breach a contract)
2/ Examples
*Pao On v Lau Yiu [1980] AC 614
- Facts: C refused to proceed with a contract unless D replaced by buy-back agreement with a guarantee by way of indemnity. D agreed in order to avoid delay and loss of public confidence that legal action would attract at a critical time in restructuring, and believed that the risk entailed in the modification was more apparent than real. When the share prices fell, D refused to (i) buy back the shares (alleging that the agreement was ended by the modification) nor (ii) indemnify C (alleging that the modification was voidable for duress).
- Held: no duress, only legitimate commercial pressure (thus upholding agreement to indemnify)
I.A – Duress
D/ Lawful act duress
A lawful act may be illegitimate though it must be at least immoral or unconscionable (Alf Vaughan).
Are legitimate:
- Threats not to contract
- Refusal to waive existing contractual obligations
- A party’s exercise of a right for legitimate purposes
- Threats to sue to enforce an honest, even if mistaken, claim, particularly in a commercial context:
I.A – Duress
*CTN Cash and Carry v Gallaher [1994] 4 All ER 714
- Facts: D delivered C’s orders to the wrong warehouse, and the goods were subsequently stolen before the mistake was rectified. D demanded payment from C, honestly but mistakenly believing they were entitled to do so, and threatened to withdraw C’s future credit facility if C didn’t pay.
- Held (CoA): no duress because D had acted in good faith and was entitled to vary the terms of future contracts with C. Stressed that lawful act duress would not be lightly found in arms-length commercial dealings where certainty is paramount.
I.A – Duress
Is illegitimate:
Akai Holdings Ltd (Liquidators) v Ting [2010] UKPC 21
- Facts: D (former chairman of C) failed to assist the liquidators in their investigation of C’s affairs, resorting to a “long process of evasion”, forgeries, provision of false evidence to defeat the liquidator’s proposed scheme. D agreed to withdraw his opposition to the scheme in exchange for the liquidators agreeing not to pursue any claims against him arising out of or in connection with the company.
- Held (PC): economic duress can include unconscionable though lawful action for improper motive, that D’s opposition was not in good faith but unconscionable and for an improper motive, and that the liquidators had no reasonable or practical alternative but to make the deal.
I.A – Duress
Is illegitimate:
*The Universe Sentinel [1983] 1 AC 366
- Lord Scarman: blackmail may often involve threats to do what is lawful (ex. report criminal conduct). So in many cases what one has to justify is not the threat but the demand.
I.B – Aggressive commercial practices (consumers)
*Consumer Protection from Unfair Trading Regulations 2008 reg. 7 (aggressive commercial practices) Part 4A (Consumer Protection (Amendment) Regulations 2014 reg.3) (right to redress in aggressive commercial practices)
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
Concerns the exploitation of a relationship of influence to obtain an undue advantage. It is about D’s reprehensible conduct in inducing C’s agreement to the transaction (Royal Bank of Scotland v Etridge (no. 2)).
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
Allcard v Skinner (1887) 36 Ch 145
- Facts: a young novice nun took a vow of poverty, chastity and obedience, and gave all of her worldly possessions to the Mother Superior. She left the convent and sought the return of her gifts.
- Held: presumed undue influence (though the Mother Superior was acquitted of any active exploitation in that she didn’t act selfishly and for her own interests), because objectively, the parties’ relationship and the resulting improvidence of the transaction to the novice, was such that the Mother Superior failed to do all that she should have to protect the novice’s interests.
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
A – Burden of proof
1/ Traditional categories
- Class I – Actual undue influence
- Class II – Presumed undue influence (creating a rebuttable presumption)
o Class II.A – Specified relationships where the influence is automatically presumed
o Class II.B – relationships outside Class IIA where the influence must be proved
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
A – Burden of proof
2/ Restatement in Etridge
HL said that not too much should be made of the distinction between traditional categories, which didn’t reflect the different bases for intervention, but were merely different ways of proving one category of undue influence.
The burden of proof lies on the claimant throughout – either (i) actually proving or (ii) with the benefit of an evidential inference that remains unrebutted.
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
B – Actual undue influence
Dispenses C from having to show a (i) relationship of influence between the parties and (ii) manifest disadvantage:
CIBC Mortgages plc v Pitt [1994] AC 200
- Actual undue influence is a species of fraud, so that manifest disadvantage to C is unnecessary because a man guilty of fraud cannot argue that the transaction was beneficial to the person defrauded.
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
C – Presumed undue influence
This is not a legal presumption but merely an evidential inference which means that it merely shifts the evidential onus on D to displace the evidential inference; the burden of proof is not reversed (Lord Nicholls, Etridge).
The inference is not that D has exerted undue pressure, but that D preferred their own interests and failed to safeguard C’s – the question is whether C has reposed sufficient trust and confidence in the other such that the other owes the former an obligation of candour and protection that he failed to observe. The answer depends on the nature of the relationship and the fairness of the transaction (Lord Nicholls, Etridge).
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
C.1/ Relationship of influence
1/ Automatic presumption of Relationship of influence (Class II.A)
Certain kinds of relationship create an irrebuttable legal presumption of the existence of a relationship of influence (≠evidential presumption of undue influence if the relationship of influence is coupled with a suspicious transaction).
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
C.1/ Relationship of influence
2/ Proved relationship of influence (Class II.B)
- Usually an element of exclusivity with an expectation that D would give conscientious advice in C’s interest, where D knows of and has participated in the relationship (ex. by encouraging or acquiescing in C’s reliance).
- No need for blind, unquestioning trust or a dominating influence – enough that in past dealings C generally reposed trust and confidence in D, examples –
o Great-uncle and great-nephew (Cheese v Thomas)
o Junior employee and employer (Credit Lyonnais v Burch) - Unfairness of the transaction provides strong evidence of a relationship of influence:
II - Undue Influence and non-commercial guarantees
II.A – Undue influence
C.1/ Relationship of influence
2/ Proved relationship of influence (Class II.B)
Credit Lyonnais v Burch [1997] 1 All ER 144
- Facts: a junior employee gave a personal guarantee and unlimited charge on her flat to secure her employer’s existing debt, though there was little direct evidence of a potentially exploitative relationship of influence.
- Millett LJ: the mere fact that a transaction is improvident or manifestly disadvantageous to one party is not sufficient to give rise to a presumption, but if the relationship is one easily capable of developing into a relationship of trust and confidence, then the nature of the transaction may be sufficient to justify that such a development has taken place (especially if the transaction is very extravagantly improvident).
