This this agreement meets the elements of consideration:

This question firstly concerns the issue of consideration:
Was there consideration between Brendan and sentry security? Additionally, were
the police simply performing a public duty to be permanently stationed at
Brendan’s factory or had they provided sufficient consideration for the promise?
An enforceable agreement must have consideration to make it legally binding. (1)
Traditional analysis has usually considered the existence of consideration by
proof of a benefit and/or a detriment. (2) Lush J defines consideration as ‘a
valuable consideration, in the sense of the law, may consist either in some
right, interest, profit or benefit accruing to the one party, or some
forbearance, detriment loss or responsibility, given, suffered or undertaken by
the other’. The question secondly concerns the issue of economic duress: Was
Brendan under economic duress when agreeing to pay more for extra security or
paying the police? (20) Economic duress can be defined as an illegitimate (without
any commercial or similar justification) economic pressure or threat that
forces a party to contract.

The first issue is whether there was consideration between
Brendan and sentry security in relation to Brendan’s additional charges. It
must first be considered if this agreement meets the elements of consideration:
it must be sufficient, it must move from the promisee, the consideration
mustn’t have passed and it need not be economically adequate. It can be stated
the agreement meets these elements as it is sufficient, it has moved from the
promisee (sentry security), it had not passed as the protestors were still
present at the factory, and it had economic value in the essence of increased
security at Brendan’s factory. (13) A promise and bilateral contract can be
defined as ‘an expression of intention that the promisor will conduct himself
in a specified way in the future, If only one of the acts has this character
the contract is unilateral. If both acts have this character the contract is
bilateral. (3) The legal rule applicable to this is that an alteration promise
to pay more must be supported by fresh consideration to make the agreement
enforceable but if the promisor receives a benefit or avoids a detriment this
may constitute as fresh consideration. (4) An alteration promise is defined as
where a party (or parties) to an existing contract seeks to alter its terms.  (5) Following Williams v Roffey Brothers and
Nicholls (Contractors) Ltd 1991 where Russell L.J stated, “Where a party
undertook to make a payment because by doing so it would gain an advantage
arising out of the continuing relationship with the promisee, the new bargain
would not fail for want of consideration”. This entitled the plaintiff to be
paid part of the £10,300 promised for completion of 8 flats. This can be
contrasted with the case of (6) Stilk v Myrik (1809) in which the ship crew
were not entitled to the extra wages promised by the 2 deserted seamen and
captain as the crew were already bound to return the ship home safely and
therefore not provided fresh consideration for the extra wages. In relation to
the question it is clear the agreement between Brendan and sentry security for
extra security staff to be posted at Brendan’s factory during the protests is
an alteration promise to pay more as it is altering the terms of the current
contract for sentry security to “provide adequate security arrangements for the
site for £3,000 per month” too the price of £4,500 per month. In applying the
principle from (7) Williams v Roffey Brothers and Nicholls (Contractors) Ltd
1991 to the question it will be likely for the court to consider the benefit
that Brendan is receiving from this alteration promise to pay more (protection
of his factory from the protestors) to constitute as fresh and sufficient
consideration.

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The second issue is were the police merely performing a
public duty to be permanently stationed at Brendan’s factory or had they
provided sufficient consideration for the promise? (15) Following Glasbrook
Brothers Ltd v Glamorgan County Council 1925 in which the police had provided
more than necessary for their public duty making the promise enforceable, if a
party has gone beyond the scope of the duty imposed by law this amounts to
sufficient consideration. The courts will likely consider that the police were
permanently stationed at Brendan’s factory to protect the delivery trucks from
the protestors when the chief constable deemed it unnecessary as going beyond
the scope of their public duty to protect Brendan’s factory from the violent
protestors. This likely will amount to sufficient consideration in the view of
the court making the promise enforceable therefore making Brendan liable for
the payment to the police of £1000.

 

The third issue is whether Brendan
was under economic duress when making the agreement for further security with
sentry security? For economic duress to be enforceable (8) there must be an illegitimate pressure or threat that
leaves a lack of practical choice for the victim which is a significant cause
leading the claimant to enter the contract. Following (9) DSND Subsea Ltd v Petroleum Geo-Services ASA 2000 in
which Dyson J stated ‘There must be pressure, (a) whose practical effect is
that there is compulsion on, or lack of practical choice for, the victim (b)
which is illegitimate, and (c) which is a significant cause inducing the
claimant to enter into the contract’. (18) This was also stated in a legal
article by Andrew Howell, Kieran Hamill, Barlow Lyde, Gilbert LLP. (19) Joseph
Chitty defined illegitimate pressure as “illegitimate in the sense of being
without any commercial or similar justification. (10) In DSND Subsea Ltd v
Petroleum Geo-Services ASA 2000 Dyson J stated that ‘illegitimate pressure
must be distinguished from the rough and tumble of the pressures of normal commercial
bargaining’. It could be argued that Shaun applied an illegitimate pressure
upon Brendan by saying he may be forced to withdraw his security staff from the
site if Brendan does not agree to the pay increase as Shaun was threatening to
break their contract upon this basis (11) (defined in the case of Kolmar Group AG v Traxpo Enterprises Pvt Ltd 2010 by
Christopher Clarke J). Despite this it is unlikely that the courts will
consider this to constitute economic duress as Shaun’s threat to break the
contract if the pay increase wasn’t granted was simply to protect sentry
security’s staff from the threat the protestors on site posed to them which
included violent acts such as the throwing of rocks at delivery trucks. It can
also be stated that Brendan did not have a lack of practical choice but to
accept to pay the increased fee of £4,500 to sentry security as he had the
choice of calling the police to protect his factory from the protestors rather
than enter the contract at the time, therefore it is likely for the courts to
view that economic duress is not enforceable.

We must consider if the doctrine of economic duress is
enforceable in the agreement between Brendan and the police. In applying the
same legal principle from the legal issue whether Brendan was under economic
duress when making the agreement for further security with sentry security,
following DSND Subsea Ltd v Petroleum Geo-Services ASA 2000. (17) Treital
defines an offer as “an expression of willingness to contract on certain terms,
made with the intention that it shall become binding”. The courts would consider
economic duress unenforceable to this issue as Brendan was not faced with any
illegitimate pressure or threat to enter the contract by the police the police
simply only agreed to enter the agreement when Brendan made the offer of £1000,
this would likely be considered as accepting an offer rather than the use of
pressure or a threat.

In conclusion, the courts will likely consider there was
sufficient consideration between Brendan and sentry security to make the alteration
promise to pay more enforceable as fresh consideration was provided in the
benefit Brendan received making Brendan liable for the additional charges to
sentry security. The courts will likely view that Brendan is liable to pay the
charge of £1000 to the police as the police went beyond the scope of their
public duty by being permanently stationed at Brendan’s factory when it was
deemed by the Chief constable as unnecessary. It is likely the courts will view
economic duress as inapplicable in the agreement between Brendan and Shaun as
no intentional illegitimate pressure was placed upon Brendan by Shaun to
contract, Shaun was simply protecting his employee’s, furthermore Brendan did
have other practical choices at the time such as calling the police. Economic
duress will be considered inapplicable by the courts in Brendan’s agreement
with the police as no illegitimate pressure was placed upon Brendan by the
police and Brendan had other practical choices at the time such as hiring a new
or additional security firm. It can be stated Brendan has a weak claim to
avoiding the additional charges and will likely be found liable for both
further charges by the court.