Lloyd's Maritime and Commercial Law Quarterly
ILLEGITIMATE PRESSURE IN THE LAW OF DURESS
Henry Cooney* and Harry Sanderson†
This article considers the element of illegitimate pressure in a finding that a transaction has been vitiated by duress. A difficult question within the law of obligations concerns when pressure comprising a threat of lawful action is nonetheless illegitimate. This article argues that there are four factors relevant to the legitimacy of otherwise lawful pressure. In doing so, we argue that the “test” for illegitimacy proposed by the Supreme Court in Pakistan International Airlines Corp v Times Travel (UK) Ltd is unsatisfactory. Though we focus on English law, we also consider the law of duress in Australia.
I. INTRODUCTION
The evolution of duress has been described as one of the most exciting developments in modern law.1 Much has changed since the time duress was limited to threats of violence; now a variety of threats can constitute “illegitimate” pressure. One unfortunate consequence of this expansion is that it is no longer clear when pressure is illegitimate. Sometimes the legitimacy of pressure can be determined by an independent standard of lawfulness. These are the easy cases. In other cases, including in most cases of “lawful act duress”, it is difficult to determine how the legitimacy of pressure is assessed. This problem continues to trouble courts and commentators, and the recent decision of the Supreme Court in Pakistan International Airlines Corp v Times Travel (UK) Ltd
2 only
* Adjunct Research Fellow, University of Western Australia; State Solicitor’s Office of Western Australia. We are indebted to Elise Bant and Francis Rose, and the anonymous referee, for the helpful feedback. It has improved this article immensely. Any errors are our own. We welcome comments or criticism at henry.cooney@uwa.edu.au.
† LLM candidate, University of Cambridge.
The following abbreviations are used: Beatson: J Beatson, The Use and Abuse of Unjust Enrichment: Essays on the Law of Restitution (Oxford, 1991);
Birks, Introduction: P Birks, An Introduction to the Law of Restitution, rev edn (Oxford, 1989);
Burrows, Restatement: A Burrows, A Restatement of the English Law of Unjust Enrichment (Oxford, 2012);
Burrows, Restitution: A Burrows, The Law of Restitution, 3rd edn (Oxford, 2011);
Edelman & Bant: J Edelman and E Bant, Unjust Enrichment, 2nd edn (Oxford, 2016);
Enonchong: N Enonchong, Duress, Undue Influence and Unconscionable Dealing, 3rd edn (London, 2018);
Goff & Jones: C Mitchell, P Mitchell and S Watterson (eds), Goff & Jones: The Law of Unjust Enrichment, 9th edn (London, 2016);
Seddon & Bigwood: NC Seddon and RA Bigwood, Cheshire & Fifoot: Law of Contract, 11th Aus edn (London, 2017);
Tamblyn: N Tamblyn, The Law of Duress and Necessity: Crime, Tort, Contract (Abingdon, 2019);
Virgo: G Virgo, The Principles of the Law of Restitution, 3rd edn (Oxford, 2015).
1. Burrows, Restitution, 267.
2. [2021] UKSC 40; [2021] 2 Lloyd’s Rep 234; [2021] 3 WLR 727.
Illegitimate pressure in the law of duress
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