R v Attorney General for England and Wales [2003]

"R" v Attorney General for England and Wales [2003] UKPC 22, a New Zealand contract law matter was heard by the Privy Council, acting as the final court of appeal in New Zealand rather than as part of the UK judiciary. The case primarily dealt with issues of duress and undue influence.

The facts of the case involved "R," a Special Air Service soldier of the Bravo Two Zero patrol, who, following the Gulf War, was instructed to sign a confidentiality agreement under the threat of demotion. Compliance with this directive was framed as an ultimatum. Upon returning to New Zealand, R secured a publishing contract for his memoirs, detailing his experiences in the Gulf War.

In response to the New Zealand Court of Appeal's decision, which denied an injunction but allowed for an account of profits and an assessment of damages for breach of contract, R appealed to the Privy Council. He argued that he had signed the contract under duress due to the threat of demotion and that the contract was tainted by undue influence, given the position of the Ministry of Defence (MOD) in relation to him.

The Privy Council, in its advice, rejected the claim of duress. Lord Hoffmann, delivering the judgment, stated that there was no illegitimate pressure amounting to compulsion of R's will. The test for duress involves both the presence of pressure and the illegitimacy of that pressure. Lord Hoffmann highlighted that while the threat of unlawful action is generally considered illegitimate, the lawfulness of a threat does not automatically render the pressure legitimate. The case of Thorne v Motor Trade Association [1937] was cited to emphasise that even lawful threats, such as those of revealing compromising information, may not be deemed legitimate.

Furthermore, the court examined whether a type of relationship between the Crown and the Ministry of Defence existed, triggering the presumption of undue influence. While the court acknowledged the existence of such a relationship in law, it held that, for the presumption of undue influence to arise, there must be a transaction requiring explanation. In this case, the court determined that the transaction, involving the signing of the confidentiality agreement, did not necessitate further explanation and, therefore, the presumption of undue influence was not applicable.

In summary, the Privy Council advised that the contract was not avoidable due to duress, as there was no illegitimate pressure, and the presumption of undue influence did not arise because the transaction did not require explanation in the context of the Crown-Ministry of Defence relationship.
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