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1. Pressure from threats of lawful action should never be described as illegitimate, because there is nothing illegitimate about abiding by the law. Critically discuss.
Introduce your answer by identifying that this is about the more recent area of lawful act duress and explain the basic scenario and resulting remedy along with your approach of critically discussing the developments in turn.
Start the main body with basic explanation of what duress is in the contract context and the requirements for it (R v Attorney-General of England and Wales [2003]). This puts the issue of illegitimacy in context.
Explain illegitimacy as satisfied from unlawful acts (citing cases) and that there has been uncertainty over the extent to which threats of lawful action can be illegitimate.
Address the significance of the demand using the comment from Lord Scarman in Universe Tankships of Monrovia v International Transport Workers Federation [1983].
As a key case, detail CTN Cash and Carry v Gallaher [1994] and the approach of Steyn LJ. On this explain the point made by Professor Birks as a basis to criticise lawful act duress but also to justify it. Also, explain the distinction made by Steyn LJ.
Expand on the application of the CTN with reference to later cases like Progress Bulk Carriers v Tube City [2012] and the comments made.
Now, explain the significance of the comments from Times Travel (UK) Ltd v PakistanInternational Airlines [2019] and the role of good faith even if the demand is objectively reasonable. Criticise the commercial /non-commercial distinction and the potential for uncertainty.
Now, contrast this with the approach represented by Leggatt LJ in Al Nehayan v Kent [2018].
Criticise the uncertainty from the different language used and also refer to the opinions from the further reading.
You can now contrast the approach to commercial contracts with those outside the commercial context using R v Attorney-General. Explore the difference and comment on it. Explain the basis for the difference.
Finally, conclude with a direct reference to the question indicating that the recognition of such duress is necessary and is possible, but a cautious approach has been adopted particularly in the non-commercial context.
2. The victim having no practical alternative is a more sensible and clear requirement than ‘compulsion of the will’. Critically discuss.
Introduce your answer by explaining this requirement in the wider duress context and how this second requirement has been subject to a lot of development. You will need to explain these key developments to critically discuss the comment.
Explain how with duress to the person, the threat just needs to be ‘a’ reason for entering the contract (Barton v Armstrong [1976]) and the context of duress of goods.
Now explain what is meant by economic duress and the distinction from ordinary commercial pressure along with the ‘overborn will’ requirement from Pao On v Lau Yiu Long [1980].
Criticise the requirement of an ‘overborn will’ and refer to the opinion such as that of Professor Atiyah. Explain how the requirement was rejected in The Universe Tankships case [1983] and the comments from The Evia Luck [1993].
At this stage, detail the ‘no practical alternative’ and causation context. Consider Atlas Express Ltd v Kafco [1989]; the point from B & S Contracts and Designs v Victor Green publications [1984] as well as the relevant point from The Evia Luck. Criticise the variation and uncertainty.
Summarise the explanation by Mance J in Huyton SA v Peter Cremer [1999]. This leads to the expression of the test by Dyson J in DSND Subsea Ltd v Petroleum Geo-Services [2000]. Again, criticise the variation and uncertainty.
It is useful to summarise the significance of the explanation by Christopher Clarke J in Kolmar Group v Traxpo Enterprises Pty [2010] and Leggett LJ in Al Nehayan v Kent [2018] as a means to put the previous developments in context.
Finally conclude with direct reference to the question. It is clear that the requirement is well established as the causal factor but its meaning or requirements have varied considerably. The courts have recognised such compulsion can exist even without the no practical alternative’ element showing that as a single requirement, it is too restrictive. Ultimately the criticism of ‘compulsion of will’ is from the uncertainty but it helps to know that it has a variable standard based on the level of wrongdoing.
3. Relu is the owner of a successful gym and operates his business in rented property owned by Ella’s company. Having seen the success of Relu’s gym, Ella demands a 30% increase in the rental payments, and in return she offers to provide free wifi in the building. When Relu refuses, Ella threatens to end the tenancy by relying on a term in their agreement that allows her to terminate with 30 days’ notice. Relu reluctantly agrees because there are no alternative premises in the area for his business to continue. Advise Relu.
Introduce your answer by explaining that the agreed variation is contractual since there is consideration in return for allowing the it. It means the issue raised is whether the contract can be rescinded for economic duress and that the requirements will be explained and applied in turn.
Commence the main body with the basic requirements for duress from R v Attorney-General of England and Wales [2003].
Address the fact that economic duress developed more recently in cases such as The Siboen and The Sibotre [1976] and The Atlantic Baron [1979] as an extension of the traditional notion of duress along with the difficult balance to be made.
Apply it to the context of the scenario- Relu would rely on economic duress to rescind the variation but his case is different to these earlier cases because the threat was of lawful action.
Address the point by Lord Scarman in Universe Tankships of Monrovia v International Transport Workers Federation [1983] on the significance of the threat. Expand on this with the key case of CTN Cash and Carry v Gallaher [1994]; the approach of Steyn LJ and its interpretation in Progress Bulk Carriers v Tube City [2012].
Explain the role of good faith even if the demand is objectively reasonable from Times Travel (UK) Ltd v Pakistan International Airlines [2019] and Leggatt LJ in Al Nehayan v Kent [2018].
Apply it to the threat by Ella. This might well be illegitimate and can be distinguished from the facts of CTN based on the reason for relying on the term for the threat. Proceed on the basis that even if it is illegitimate, it must also amount to a compulsion of will.
Explain what is needed to meet the compulsion requirement using the approach Huyton SA v Peter Cremer [1999] and the guidance Kolmar Group v Traxpo Enterprises Pty [2010]. Explain the ‘but for test’ and the role of having no practical alternative as evidence of compulsion, as well as the victim protesting. It is useful to mention the approach of Al Nehayan v Kent too.
Apply these factors to the scenario. They appear to be satisfied.
Finally conclude on the possibility of the variation being rescinded for lawful act economic duress. It will depend on the legitimacy of the threat but on the facts, Relu might well appear to have enough to establish that the threat was illegitimate but it is important to appreciate that in commercial contracts the threshold to satisfy on this is very high.