R v Attorney General of England and Wales
Privy Council (New Zealand)
Citations:  UKPC 22;  EMLR 24.
The defendant was a former soldier who served in the Gulf war. During that time, he had been captured by Iraqi forces and tortured. The war ended and the defendant was released. His commanding officer and two other members of his unit published memoirs of the events. These were later made into films. Most soldiers in the regiment thought that this was contrary to the culture of secrecy expected of each other. They lobbied the Ministry of Defence for a system of unauthorised disclosure contracts. The Ministry of Defence agreed.
The defendant was told that if he wanted to remain in the regiment, he must sign one of these confidentiality agreements. If he did not, he would would be ‘returned to unit’ (‘RTU’). Soldiers perceived involuntary RTU as a punishment for a disciplinary offence, since it resulted in less pay and social exclusion. The defendant asked whether he could seek legal advice, but was told by a colleague that he could not. This was not actually true, but commanding officers never made it clear.
The defendant signed the contract. Two years later, the defendant wanted to publish memoirs of his own. When he took steps towards doing so, the Attorney General sued the defendant for breach of contract. The defendant alleged that he had only signed because he was ordered to, making the contract voidable for duress or undue influence. He also alleged that the agreement lacked consideration, or was void for public policy reasons.
- Was the confidentiality agreement voidable for duress?
- Was the confidentiality agreement voidable for undue influence?
- Was there any other reason the contract was unenforceable?
The Privy Council held that the confidentiality agreement was enforceable. Duress did not apply, because the threat of RTU was lawful and legitimate. The Ministry of Defence had a valid reason to demand confidentiality. They also had a legitimate concern that anyone who refused was not appropriate for the regiment. There was insufficient evidence that the defendant was given any order which created an obligation to obey under military law.
Undue influence was also inapplicable. Assuming that the defendant’s commanding officers had influence over him, the nature of the contract did not give rise to an inference that the relationship was being unfairly exploited. Everyone who wished to join the regiment had to sign the agreement, and that the defendant understood the contract. Since there was no presumption of undue influence at play, the fact that the defendant had not received legal advice, while regrettable, did not make the transaction unfair.
Meanwhile, the contract could not be impugned for lack of consideration. The defendant provided consideration by signing the agreement and giving up his disclosure rights. The Ministry provided consideration by allowing him to return to the regiment. There was no reason to hold the contract contrary to public policy. The public interest in upholding confidentiality agreements was not outweighed by the public interest in the information the defendant sought to communicate to the public.
This Case is Authority For…
Duress requires illegitimate pressure which amounts to a ‘compulsion of the will’. The legitimacy of pressure depends on factors such as the nature of the pressure and the demand. The threat of criminal or tortious action is usually illegitimate, but lawful pressure can be illegitimate in some cases.
Undue influence requires ‘unfair exploitation by one party of a relationship which gives him ascendancy or influence over the other.’ There is a presumption of undue influence which arises in two cases:
- Where the parties have a special relationship (such as parents and children);
- Where the parties have an actual relationship of trust and confidence.
If this presumption is established, the burden shifts to the party relying on the agreement to prove the absence of unfair exploitation.
Unless duress or undue influence applies, a contract is not voidable simply because it is an ‘unconscionable bargain’. This is not a separate doctrine by which contracts can be invalidated.
Lord Scott dissented on the issue of undue influence. He thought that the presumption of influence should arise based on the fact that militaries are arranged into strict hierarchies that teach unquestioning obedience to commanders. In this sense, he thought the facts were analogous to those in Allcard v Skinner (1887) 36 Ch D 145.