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Duress Notes

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DURESS

TWO-STAGE TEST

1. Leading HL cases on duress (The Universe Sentinel and The Evia Luck) show that there is a 2 stage test for restitution: a) the pressure/threat was illegitimate. This is an objective inquiry into the quality of the threat; and b) the payment (or rendering of a benefit in kind) was caused by that threat. This is a subjective investigation into the claimant's state of mind

CLEARING UP A FEW BAD VIEWS

1. Relationship to Mistake I. Birks saw duress as being similar to mistake in that they both relate to impaired consent. However, unlike mistake (which only consider's the claimant), duress considers the conduct of the person exerting the duress as well as the effect on the claimant. In other words, as Burrows says, one cannot have 'unilateral duress'

2. Defences that aren't so I. Sometimes suggested that it is a defence to restitution for duress that II.

the claimant paid 'in submission to an honest claim' (Woolwich v IRC) Burrows says that this is vague. Probably best viewed as synonymous with saying that causation has not been satisfied or that a threat to sue is not illegitimate

3. Duress has to be tortious I. Despite what Lord Scarman said in The Universe Sentinel, duress doesn't have to be tortious to constitute duress in the context of unjust II.

enrichment AS CONFIRMED BY Lord Goff in The Evia Luck

1 4. Duress Constitutes Overborne Will I. The person under duress still intends D to have the money. So their will is not overborne. The objection is rather that C does not reach that decision freely but rather under illegitimate pressure

5. Third Parties I. Burrows says that despite no cases confirming this, in principle duress can be invoked against a third party who has not itself exerted the II.

duress This makes it abundantly clear that restitution for duress is not

concerned with reprehensible conduct of D

6. Benefits in Kind I. Cases have only acknowledged so far where duress in relation to II.

money HOWEVER In principle can have duress for benefit in kind. Plus, the fact that D demanded it overcomes subjective devaluation

MAIN HEADS OF ILLEGITIMATE PRESSURE

1. Lord Goff said the categories are not closed.

2. But, these are the ones that have been recognised: a) duress of the person b) duress of goods c) illegitimate threats (other than by a public authority ultra vires) to support a demand for payment above what is statutorily permitted d) economic duress e) illegitimate threats to prosecute or sue or publish information f) illegitimate threats by public authorities made to support ultra vires demands (swallowed up by Woolwich principle though)

CLARIFYING TWO POINTS

1. Implied threat I. Lord Goff in Woolwich Equitable Building Society stated that the 'compulsion may be expressed or implied' SO II. Implied threats do count

2. Causation Test

2

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