Duress Case Summaries

DURESS TO THE PERSON

Barton v Armstrong [1976] AC 104

A (the former chairman of a company) threatened B (the managing director) with death if he did not agree to purchase A’s shares in the company. There was some evidence that B thought the proposed agreement was a satisfactory business arrangement both from his own point of view and that of the company. B executed a deed on behalf of the company carrying out the agreement. He sought a declaration that the deed was executed under duress and was void.

The Privy Council held that if A’s threats were “a” reason for B’s executing the deed he was entitled to relief even though he might well have entered into the contract if A had uttered no threats to induce him to do so.

The onus was on A to prove that the threats he made contributed nothing to B’s decision to sign.

DURESS TO GOODS

Skeate v Beale (1840) 11 Ad&El 983

A tenant who was threatened with the levying of distress by his landlord in respect of rent owed, promised to pay part immediately and the balance within one month. When the tenant failed to pay the balance, as agreed, the landlord brought an action for the balance. The tenant pleaded that the distress was wrongful in that a smaller sum only was owed. He had consented to the agreement because the landlord threatened to sell the goods immediately unless the agreement was made. This plea of duress was rejected.

Maskell v Horner [1915] 3 KB 106

Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. These tolls were, in fact, demanded from him with no right in law. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made over a considerable period of time. Lord Reading CJ stated that if a person pays money, which he is not bound to pay, under a compulsion of urgent and pressing necessity or of seizure, he can recover it as money had and received under the law of restitution.

It was held that there was a wider restitutionary rule that money paid to avoid goods being seized or to obtain their release could be recovered. Further, it was held that in the present case there was a compulsory agreement to enter into, whereas in Skeate the agreement was entered into voluntarily.

NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v Horner is hard to follow, and it has been pointed out that the peculiar result would follow that although an agreement to pay money under duress of goods is enforceable, sums paid in pursuance of such an agreement by the coerced can be recovered in an action for money had and received under the law of restitution.

The Sibeon and The Sibotre [1976] 1 Lloyd’s Rep 293

Kerr J stated: “if I should be compelled to sign a lease or some other contract for a nominal but legally sufficient consideration under an imminent threat of having my house burnt down or a valuable picture slashed through without any threat of physical violence to anyone, I do not think that the law would uphold the agreement… The true question is ultimately whether or not the agreement in question is to be regarded as having been concluded voluntarily.”

ECONOMIC DURESS

The Sibeon and The Sibotre [1976] (above)

The charterers of two ships renegotiated the rates of hire after a threat by them that they would go bankrupt and cease to trade if payments under the contract of hire were not lowered. Since they also represented that they had no substantial assets, this would have left the owners with no effective legal remedy. The owners would have had to lay up the vessels and would then have been unable to meet mortgages and charges – a fact known by the charterers. The threats themselves were false in that there was no question of the charterers being bankrupted by high rates of hire.

Kerr J rejected the earlier confines of duress. But, he said, in a contractual situation commercial pressure is not enough to prove economic duress. The court must, he said, be satisfied that the consent of the other party was overborne by compulsion so as to deprive him of his free consent and agreement. This would depend on the facts in each case. He considered that two questions had to be asked before the test could be satisfied: (1) did the victim protest at the time of the demand and (2) did the victim regard the transaction as closed or did he intend to repudiate the new agreement? Kerr J considered that the owners would have been entitled to set aside the renegotiated rates on the ground of economic duress, but that on the present facts their will and consent had not been ‘overborne’ by what was ordinary commercial pressures.

The Atlantic Baron [1979] QB 705

The builders of a ship demanded a 10% increase on the contract price from the owners largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. The owners paid the increased rate demanded from them, although they protested that there was no legal basis on which the demand could be made. The owners were commercially compelled to pay since, at the time of the threat, they were negotiating a very lucrative contract for the charter of the ship being built.

Mocatta J decided that this constituted economic duress. The illegitimate pressure exerted by the building company was their threat to break the construction contract. Where a threat to break a contract had led to a further contract, that contract, even though it was made for good consideration, was voidable by reason of economic duress. However, the right to have the contract set aside could be lost by affirmation. The plaintiffs had delayed in reclaiming the extra 10% until eight months later, after the delivery of a second ship.

This delay deafeated the plaintiff’s claim for the rescission of the contract to pay the extra 10%.

Pao On v Lau Yiu Long [1980] AC 614

The plaintiff had threatened not to proceed with a contract for the sale of shares, unless the other side agreed to a renegotiation of certain subsidiary arrangements. Anxious to complete the main agreement, but knowing that they could claim specific performance of it, the defendant, wishing to avoid litigation, agreed. When the plaintiff later tried to enforce these arrangements the defendant claimed that they had been extracted by duress, and were therefore voidable. The Privy Council held that the plaintiff was entitled to succeed.

On the facts, the defendant considered the matter thoroughly, chose to avoid litigation and formed the opinion that there was no risk in the subsidiary arrangements. In short, there was commercial pressure, but no coercion.

Lord Scarman agreed with the observations of Kerr J in The Sibeon and The Sibotre that in a contractual situation, commercial pressure is not enough.

There must be present some factor ‘which could be regarded as a coercion of his will so as to vitiate his consent’. In determining whether there was a coercion of will such that there was no true consent, it is material to enquire: whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are relevant in determining whether he acted voluntarily or not.

B&S Contractors v Victor Green Publications [1984] ICR 419

A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, less than a week before the exhibition was due to open, that the contract would be cancelled unless the client paid an additional sum to meet claims which were being made against the contractor by his workforce. The consequence of not having the stands erected in time would have been disastrous for the client in that it would have gravely damaged his reputation and might have exposed him to heavy claims for damages from exhibitors to whom space on the stands had been let. In these circumstances it was held that the payment had been made under duress and that the client was entitled to recover it back.

The Alev [1989] 1 Lloyd’s Rep 138

The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills of lading to carry the cargo. This would involve extra costs. They therefore negotiated with the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in port. This agreement was secured through threats, including a statement that unless the defendants paid the extra costs they would not get their cargo. When the ship was in port and had commenced unloading the defendants ignored the agreement and arrested the ship. They pleaded duress to any breach of contract and claimed damages.

It was held that the agreement clearly fell within the principles of economic duress. During their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit to themselves, such a threat would be unlawful. The defendant’s right to rely on duress was therefore established and the contract was voidable on the ground of duress.

REMEDIES

Morgan v Fry [1968] 2 QB 710

Lord Denning MR defined the tort of intimidation as follows:

“The essential ingredients are these: there must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstances the person damnified by the compliance can sue for intimidation.”

D&C Builders v Rees [1966] 2 QB 617

In this case (which has been previously considered in relation to promissory estoppel), Lord Denning equated the undue pressure brought to bear on the plaintiffs with the tort of intimidation. His Lordship refused to exercise estoppel because of the wife’s inequitable actions since she knew the builders needed the money.