[1976] 1 Lloyd's Rep 293
Queen's Bench
Kerr J
Duress
... [Counsel] [f]irst... submitted that English law only knows duress to the person and duress to goods, and that a case like the present falls into neither category, with the result that this defence must fail in limine. Secondly, he submitted that although money paid under duress to goods is recoverable, a contract can only be set aside for duress to the person but not in any other case of duress. He said that in every case in which a party enters into a contract otherwise than under duress to the person, any payment or forbearance pursuant to such contract is regarded as voluntary, whatever may have been the nature or degree of compulsion, short of violence to the person, which may have caused him to enter into the contract. He relied mainly on a line of authority in which Skeate v Beale is the leading case.
I do not think that English law is as limited as submitted by [Counsel]... For instance, if I should be compelled to sign a lease or some other contract for a nominal but legally sufficient consideration under an imminent threat of having my house burnt down or a valuable picture slashed, though without any threat of physical violence to anyone, I do not think that the law would uphold the agreement. I think that a plea of coercion or compulsion would be available in such cases. The latter is the term used in a line of Australian cases of strong persuasive authority to which I was referred... These judgements also state that the degree of compulsion or duress is not necessarily limited to cases of threats to the person or duress in relation to goods. Further, I think that there are indications in Skeate v Beale itself and in other cases that the true question is ultimately whether or not the agreement in question is to be regarded as having been concluded voluntarily; but it does not follow that every agreement concluded under some form of compulsion is ipso facto to be regarded as voluntary with the solitary exception of cases involving duress to the person. In Wakefield v Newton Lord Denman referred to cases such as Skeate v Beale as
... hat class where the parties have come to a voluntary settlement of their concerns, and have chosen to pay what is found due.
In Kaufman v Gerson the Court of Appeal refused to enforce a written contract signed by the defendant which was valid under French law because the consideration for the defendant's promise to pay sums of money to the plaintiff had been that the plaintiff would not prosecute the defendant's husband in France, he having apparently committed a criminal offence under French law. The reason for the refusal to enforce the contract was duress or coercion. The Judge at first instance held the contract to be enforceable because there was no threat of physical violence. But this was reversed unanimously, and Sir Richard Henn Collins, MR, significantly asked: 'What does it matter what particular form of coercion is used as long as the will is coerced?' The same approach is strongly supported by the judgements of Lord Denning, MR, and Lord Justice Danckwerts in D & C Builders Ltd v Rees [who held] ... that there was no 'true accord' because (in the words of Lord Denning) 'no person can insist on a settlement procured by intimidation'. It is true that in that case, and in all the three Australian cases, it was held that there had been no consideration for the settlement which the Courts reopened. But I do not think that it would have made any difference if the defendants in these cases had also insisted on some purely nominal but legally sufficient consideration. If the contract is void the consideration would be recoverable in quasi-contract; if it is voidable equity could rescind the contract and order the return of the consideration...
But even assuming, as I think, that our law is open to further development in relation to contracts concluded under some form of compulsion not amounting to duress to the person, the Court must in every case at least be satisfied that the consent of the other party was overborne by compulsion so as to deprive him of any animus contrahendi. This would depend on the facts of each case. One relevant factor would be whether the party relying on duress made any protest at the time or shortly thereafter. Another would be to consider whether or not he treated the settlement as closing the transaction in question and as binding upon him, or whether he made it clear that he regarded the position as still open. All these considerations are mentioned in the Australian judgements, and the question whether or not there was any intention to close the transaction is also referred to in the judgements of Lord Reading, CJ, and Lord Justice Buckley in Maskell v Horner...