This question firstly concerns the issue of consideration:Was there consideration between Brendan and sentry security? Additionally, werethe police simply performing a public duty to be permanently stationed atBrendan’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 byproof of a benefit and/or a detriment.
(2) Lush J defines consideration as ‘avaluable consideration, in the sense of the law, may consist either in someright, interest, profit or benefit accruing to the one party, or someforbearance, detriment loss or responsibility, given, suffered or undertaken bythe other’. The question secondly concerns the issue of economic duress: WasBrendan under economic duress when agreeing to pay more for extra security orpaying the police? (20) Economic duress can be defined as an illegitimate (withoutany commercial or similar justification) economic pressure or threat thatforces a party to contract. The first issue is whether there was consideration betweenBrendan and sentry security in relation to Brendan’s additional charges. Itmust first be considered if this agreement meets the elements of consideration:it must be sufficient, it must move from the promisee, the considerationmustn’t have passed and it need not be economically adequate.
It can be statedthe agreement meets these elements as it is sufficient, it has moved from thepromisee (sentry security), it had not passed as the protestors were stillpresent at the factory, and it had economic value in the essence of increasedsecurity at Brendan’s factory. (13) A promise and bilateral contract can bedefined as ‘an expression of intention that the promisor will conduct himselfin a specified way in the future, If only one of the acts has this characterthe contract is unilateral. If both acts have this character the contract isbilateral.
(3) The legal rule applicable to this is that an alteration promiseto pay more must be supported by fresh consideration to make the agreementenforceable but if the promisor receives a benefit or avoids a detriment thismay constitute as fresh consideration. (4) An alteration promise is defined aswhere a party (or parties) to an existing contract seeks to alter its terms. (5) Following Williams v Roffey Brothers andNicholls (Contractors) Ltd 1991 where Russell L.J stated, “Where a partyundertook to make a payment because by doing so it would gain an advantagearising out of the continuing relationship with the promisee, the new bargainwould not fail for want of consideration”. This entitled the plaintiff to bepaid part of the £10,300 promised for completion of 8 flats.
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This can becontrasted with the case of (6) Stilk v Myrik (1809) in which the ship crewwere not entitled to the extra wages promised by the 2 deserted seamen andcaptain as the crew were already bound to return the ship home safely andtherefore not provided fresh consideration for the extra wages. In relation tothe question it is clear the agreement between Brendan and sentry security forextra security staff to be posted at Brendan’s factory during the protests isan alteration promise to pay more as it is altering the terms of the currentcontract for sentry security to “provide adequate security arrangements for thesite for £3,000 per month” too the price of £4,500 per month. In applying theprinciple from (7) Williams v Roffey Brothers and Nicholls (Contractors) Ltd1991 to the question it will be likely for the court to consider the benefitthat Brendan is receiving from this alteration promise to pay more (protectionof his factory from the protestors) to constitute as fresh and sufficientconsideration.
The second issue is were the police merely performing apublic duty to be permanently stationed at Brendan’s factory or had theyprovided sufficient consideration for the promise? (15) Following GlasbrookBrothers Ltd v Glamorgan County Council 1925 in which the police had providedmore than necessary for their public duty making the promise enforceable, if aparty has gone beyond the scope of the duty imposed by law this amounts tosufficient consideration. The courts will likely consider that the police werepermanently stationed at Brendan’s factory to protect the delivery trucks fromthe protestors when the chief constable deemed it unnecessary as going beyondthe scope of their public duty to protect Brendan’s factory from the violentprotestors. This likely will amount to sufficient consideration in the view ofthe court making the promise enforceable therefore making Brendan liable forthe payment to the police of £1000. The third issue is whether Brendanwas under economic duress when making the agreement for further security withsentry security? For economic duress to be enforceable (8) there must be an illegitimate pressure or threat thatleaves a lack of practical choice for the victim which is a significant causeleading the claimant to enter the contract.
Following (9) DSND Subsea Ltd v Petroleum Geo-Services ASA 2000 inwhich Dyson J stated ‘There must be pressure, (a) whose practical effect isthat there is compulsion on, or lack of practical choice for, the victim (b)which is illegitimate, and (c) which is a significant cause inducing theclaimant to enter into the contract’. (18) This was also stated in a legalarticle by Andrew Howell, Kieran Hamill, Barlow Lyde, Gilbert LLP. (19) JosephChitty defined illegitimate pressure as “illegitimate in the sense of beingwithout any commercial or similar justification.
(10) In DSND Subsea Ltd vPetroleum Geo-Services ASA 2000 Dyson J stated that ‘illegitimate pressuremust be distinguished from the rough and tumble of the pressures of normal commercialbargaining’. It could be argued that Shaun applied an illegitimate pressureupon Brendan by saying he may be forced to withdraw his security staff from thesite if Brendan does not agree to the pay increase as Shaun was threatening tobreak their contract upon this basis (11) (defined in the case of Kolmar Group AG v Traxpo Enterprises Pvt Ltd 2010 byChristopher Clarke J). Despite this it is unlikely that the courts willconsider this to constitute economic duress as Shaun’s threat to break thecontract if the pay increase wasn’t granted was simply to protect sentrysecurity’s staff from the threat the protestors on site posed to them whichincluded violent acts such as the throwing of rocks at delivery trucks.
It canalso be stated that Brendan did not have a lack of practical choice but toaccept to pay the increased fee of £4,500 to sentry security as he had thechoice of calling the police to protect his factory from the protestors ratherthan enter the contract at the time, therefore it is likely for the courts toview that economic duress is not enforceable.We must consider if the doctrine of economic duress isenforceable in the agreement between Brendan and the police. In applying thesame legal principle from the legal issue whether Brendan was under economicduress when making the agreement for further security with sentry security,following DSND Subsea Ltd v Petroleum Geo-Services ASA 2000. (17) Treitaldefines an offer as “an expression of willingness to contract on certain terms,made with the intention that it shall become binding”. The courts would considereconomic duress unenforceable to this issue as Brendan was not faced with anyillegitimate pressure or threat to enter the contract by the police the policesimply 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 ofpressure or a threat.In conclusion, the courts will likely consider there wassufficient consideration between Brendan and sentry security to make the alterationpromise to pay more enforceable as fresh consideration was provided in thebenefit Brendan received making Brendan liable for the additional charges tosentry security.
The courts will likely view that Brendan is liable to pay thecharge of £1000 to the police as the police went beyond the scope of theirpublic duty by being permanently stationed at Brendan’s factory when it wasdeemed by the Chief constable as unnecessary. It is likely the courts will vieweconomic duress as inapplicable in the agreement between Brendan and Shaun asno intentional illegitimate pressure was placed upon Brendan by Shaun tocontract, Shaun was simply protecting his employee’s, furthermore Brendan didhave other practical choices at the time such as calling the police. Economicduress will be considered inapplicable by the courts in Brendan’s agreementwith the police as no illegitimate pressure was placed upon Brendan by thepolice and Brendan had other practical choices at the time such as hiring a newor additional security firm.
It can be stated Brendan has a weak claim toavoiding the additional charges and will likely be found liable for bothfurther charges by the court.
