(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was said to have threatened the appellant with death.
Held: The House considered the elements necessary to establish a defence of duress to a claim in tort.
Lord Cross said: ‘The scope of common law duress was very limited and at a comparatively early date equity began to grant relief in cases where the disposition in question had been procured by the exercise of pressure which the Chancellor considered to be illegitimate – although it did not amount to common law duress. ‘ and ‘there is an obvious analogy between setting aside a disposition for duress or undue influence and setting it aside for fraud.’
By way of analogy, he considered the treatment of contributing causes in fraud cases: ‘If it were established that Barton did not allow the representation to affect his judgment then he could not make it a ground for relief. . . If on the other hand Barton relied on the misrepresentation Armstrong could not have defeated his claim to relief by showing that there were other more weighty causes which contributed to his decision . . for in this field the court does not allow an examination into the relative importance of contributing causes . . ‘
Lord Wilberforce (dissenting) said: ‘The basis of the plaintiff’s claim is, thus, that though there was apparent consent there was no true consent to the agreement; that the agreement was not voluntary. This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained-advice, persuasion, influence, inducement, representation, commercial pressure-the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion.’
Judges:
Lord Wilberforce, Lord Cross and Lord Simon of Glaisdale
Citations:
[1976] AC 104, [1973] UKPC 2, [1973] UKPC 27
Links:
Jurisdiction:
Australia
Citing:
Appeal from – Barton v Armstrong 1969
(Supreme Court of New South Wales) The claimant sought damages alleging assault by the making of telephone calls.
Held: Threats made over the telephone were capable of amounting to an assault. Taylor J: ‘Mr. Staff’s first and second . .
Cited by:
Cited – R v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Contract
Updated: 27 June 2022; Ref: scu.220489