UNDUE PRESSURE
(A) THE ESSENCE OF UNDUE PRESSURE
In some circumstances the defendant might threaten the claimant that, unless the claimant contracts with the defendant on particular terms or renegotiates an existing contract or pays the defendant a sum of money which is not due, the defendant will do something which is perfectly lawful. If the claimant wishes to set the transaction aside or recover the money, he or she will generally not be able to rely on duress because the defendant is not threatening to do anything unlawful.[1] A significant exception to this arises where, although the defendant threatens to do something which is lawful, the making of the threat is itself unlawful because it constitutes the crime of blackmail.[2] Such a threat would be sufficient to found a restitutionary claim on the ground of duress. But the defendant will only commit blackmail where the threat involves the making of an unwarranted demand with menaces.[3] If the defendant thinks that there are reasonable grounds for making the demand or that the use of menaces is a proper way of reinforcing the demand, the defendant will not be guilty of blackmail and so the threat will not be unlawful. Where what is being threatened and the threat itself are lawful the claimant should not be able to obtain restitution on the ground of duress but may rely on another ground of restitution instead, namely undue pressure.
Undue pressure was first recognized by Lord Denning MR in Lloyd’s Bank Ltd v Bundy,[4] although it is an expression which has rarely been used by the judiciary.[5] Undue pressure is a ground of restitution which is founded on the principle of compulsion, since it arises where the defendant has obtained a benefit from the claimant as a result of threats, albeit that the threats are lawful. Undue pressure should be distinguished from the ground of undue influence, which is founded on the principle of exploitation rather than compulsion, since undue influence does not involve the defendant obtaining a benefit as a result of making threats.[6] Despite this, the grounds of undue pressure and undue influence are closely related, because they are both equitable doctrines which are triggered because the defendant’s conduct can be characterized as unconscionable.
- [1] Although the concept of ‘lawful act duress’ has now been recognized, so it might be possible to establisheconomic duress in such circumstances. See p 215, above.
- [2] See Thorne v Motor Trade Association [1937] AC 797; Huyton SAv Peter Cremer GmbH [1999] 1 Lloyd’sRep 620.
- [3] Theft Act 1968, s 21. 4 [1975] QB 326, 338.
- [4] 160 It was, however, used by Lord Chelmsford in Williams v Bayley (1866) LR 1 HL 200, 214. See also Lord
- [5] Westbury, 216.
- [6] See Chapter 11.
