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Dsnd Subsea V. Pgs Notes

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DSND SUBSEA V. PGS FACTS On 3 June 1997, DSND Subsea Ltd ("DSND") entered into a contract ("the Contract") with PGS Offshore Technology AS ("PGS") for the subsea work. The contract was subsequently varied by Heads of Agreement ("HOA") made between the parties on 2 April

1998. Further relevant agreements were concluded between them on 25 September and 9 October 1998. These were the Memorandum of Understanding ("MOU") and Memorandum of Agreement ("MOA") respectively. It is PGS' case that it was induced to enter into the MOU by a misrepresentation made by DSND, and that it entered into this agreement under economic duress. Variations to the main contract through the MOU and MOA: The background to this agreement, concluded on 25 September 1998, was the realisation by both parties by the summer that postinstallation was preferable to pre-installation. Between July and September, they negotiated over the modification of the Contract Price to reflect the cost of post-installation of the risers. A second feature of the discussions was DSND's concern about the installability of the RTIAs: this led to negotiations to vary the indemnify and insurance provisions of the Contract. It will be necessary to examine the course of the negotiations in some detail in relation to the economic duress issue. HOLDING Statement of the Law Applicable The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tanking of Monrovia v ITWF [1983] AC 336, 400B-E, and The Evia Luck
[1992] 2 AC 152, 165G. In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he affirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining. Application to facts

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