• In the case of R v Attorney General of England and Wales [2003] UKPC 22, a member of the Special Forces appealed arguing he was subject to duress and undue influence when signing a contract including confidential information on service personnel.
  • This contract case questions whether the innocent party was at a disadvantage through this unconscionable bargain.

Facts of the Case

  • Every member of the SAS had to sign a confidentiality agreement by D or they would be returned to their original regiment.
  • C was a member of the Special Forces who fought during the Gulf War. C contended the agreement could not be legally binding because of duress or undue influence applied.
  • C lost in the lower courts where it was held the contract he signed was not aided by consideration. The Court of Appeal held the Attorney General did not order the SAS member to sign.

Issues

  • Whether C under the pressure of being terminated from his position and back to his unit if he did not consent to the contractual obligations constitutes as duress.
  • Whether there is a relationship of undue influence between the commanding officer and the SAS member.
  • Whether the contract had consideration.

Held by Privy Council

  • Appeal dismissed – the contract was legally binding since duress or undue influence do not apply.

Lord Hoffman

Duress

  • The victim was not unwillingly compelled to agree to the contract under factors like military law. The pressure was legitimate because of the Ministry of Defence’s reasonable concerns about public disclosure. Therefore the test of duress fails.

Undue influence and unconscionable bargain

  • D requires this confidentiality obligation although the Armed Services should have been aware of the access to free legal advice.
  • On the facts, the subservient party is not unfairly being exploited by the commanding officer. The influence over the Armed Services is not unfairly obtained.

Consideration

  • D’s forebearance satisfies as consideration for the contract.

Public policy

  • Freedom of expression should not be constrained. The information in the contract may already exist as public knowledge so trade has not been hindered.

Lord Scott of Foscote (Dissenting)

Undue influence

  • The judge put emphasis on the circumstances and nature of the contract giving rise to a relationship of undue influence.
  • Lord Scott compares this to Allcard v Skinner [1887] 36 Ch D 145 because the Armed Services promotes rankings and hierarchy perpetuating a culture where C is compelled to sign the contract. This is the vitiating factorthat the Ministry of Defence imposes on its members.
  • The evidential presumption requires the dominant party to prove the subservient party willingly consented through independent legal advice about contractual obligations – as demonstrated by Royal Bank of Scotland v Etridge (No 2) [2002] 2 A.C. 773. [39]
  • “This background requires, in my opinion, that any contract between a member of the Armed Forces and the Ministry of Defence be looked at very carefully to see whether the benefit conferred by it on the Ministry of Defence was a benefit that the Ministry of Defence was entitled in equity to maintain”. [43]

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