Ipsofactoj.com: International Cases [2004] Part 2 Case 4 [PC]


THE PRIVY COUNCIL

Coram

“R”

- vs -

Attorney General for

England & Wales

LORD BINGHAM OF CORNHILL

LORD STEYN

LORD HOFFMANN

LORD MILLETT

LORD SCOTT OF FOSCOTE

17 MARCH 2003


Judgment

Lord Hoffmann

(delivered the majority judgment of the Board)

  1. The appellant, designated in these proceedings as “R”, is a former member of 22 SAS Regiment, among the most celebrated regiments in the British Army. During the Gulf War in 1991 he was a member of patrol B20 (Bravo Two Zero) which was dropped by helicopter behind enemy lines to find Scud missiles and cut communication cables. The patrol was detected and hunted down by Iraqi forces. Three of the eight members died attempting to escape; one succeeded in getting across the Syrian border and the other four (including R) were captured, tortured and interrogated. After the end of the war they were released and returned to England.

  2. At the end of 1992 General Sir Peter de la Billiere, commanding officer of the British forces in the Gulf War and himself a former commanding officer of 22 SAS, wrote a book about the war which included a chapter on the Bravo Two Zero patrol. This appears to have been the first time that a member or former member of SAS had published an account of one of its operations. Until then, the ethos of the regiment had been for its members to preserve total secrecy. In 1993 a member of the patrol, under an assumed name, published a book called Bravo Two Zero which gave his own account of the affair. It sold very well. In 1995 the member who had escaped published his version under the title The One That Got Away. Films were made based on both books and shown on television.

  3. The publication of these books and films caused great concern among the surviving members of the patrol who had not gone into print and the regiment generally. They felt that the writers (as might be expected) presented themselves in the best possible light and (in the case of the second book) unfairly blamed a dead member of the patrol for what went wrong. The films were even worse, portraying incidents that were entirely fictitious. The whole controversy, attended by a glare of commercially motivated publicity, was distasteful and contrary to the traditions of the regiment.

  4. Some members urged the authorities to make some public comment to correct the errors in the books and films. The Ministry of Defence appears to have taken the view that nothing could be done to suppress what had already been published and that it would not be productive to engage in public controversy with the authors. Least said, soonest mended. R was disappointed and angry at this reaction, feeling that the Ministry had failed to support him and the other members of the patrol, living and dead.

  5. There was however a strong feeling in the regiment and among its former members that something should be done to prevent anything similar from happening in the future. The books about Bravo Two Zero had been followed by numerous other accounts of SAS activities, for which the public seemed to have an insatiable appetite. In February 1996 the SAS Regimental Association (to which former and serving members of 22 SAS and other SAS regiments belonged) polled its members on whether they supported a proposal emanating from 22 SAS for all members of the United Kingdom Special Forces (which included the SAS regiments and the Special Boat Service) to sign binding contracts to "prevent unauthorised disclosure". Ninety six point eight percent of the respondents (who were 73% of the membership) said that they did. In May 1996 the Ministry of Defence accepted the recommendation and arrangements were put in hand for contracts to be signed.

  6. In May 1996 R was serving with A Squadron of 22 SAS, taking part in an exercise in the United States. The regimental commanding officer came over and spoke to the squadron. He told them that confidentiality contracts would soon be introduced and that all members who wanted to remain in the regiment would be required to sign one. If they did not, they would be returned to unit ("RTU"). This meant going back to the regiment from which they had joined the SAS; in R's case, the Parachute Regiment, to which he had a formal attachment but in which he had never actually served. Involuntary RTU was normally imposed as a penalty for some disciplinary offence or on grounds of professional unsuitability for the SAS. It involved exclusion from the social life of the regiment and loss of its higher rates of pay. The Ministry of Defence took the view that someone who was unwilling to accept an obligation of confidentiality was unsuitable for the SAS.

  7. In due course R returned to England and was seconded to assist the civilian Security Services (MI5). Towards the end of October 1996 he was summoned to a meeting in London by another SAS member (“ST”), where he found some soldiers reading and signing their confidentiality contracts. R was told that his confidentiality contract was waiting for signature before the adjutant at the regimental headquarters in Hereford and that he should go there as soon as possible. ST told him that he could not read the contract until he received his own copy. R said in evidence that he asked whether he could be able to obtain legal advice on the contract and was told that he could not. ST, on the other hand, said that he did not remember being asked and that if he had been, he would have told R to apply in Hereford. If he had himself thought it necessary to seek legal advice, he would have insisted on being able to do so.

  8. R went to Hereford and met another SAS member ("Z") who had also come to sign the contract. Both announced themselves to the adjutant's chief clerk in his outer office. According to the written evidence of Z, who was not cross-examined, the adjutant asked his clerk to give them the contract and its accompanying explanatory memorandum. They read the documents; Z sitting in a chair and R leaning against a filing cabinet. The adjutant went on with his work. Z says that he understood the documents and was willing to sign. R also signed and they left together. The adjutant also gave evidence and said that he thought (though he could not be certain) that he explained the contract and that R raised no misgivings about signing it. R, on the other hand, said that the adjutant yelled through the door to the clerk to give him and Z the contracts to sign and that they read and signed it in the clerk's outer office. He says that he asked the clerk "whether anyone was allowed to look at [the] contract" and the clerk said no, but that he could ask the adjutant. He decided that this was "a non-starter" because the adjutant was "not known as an easy man" and that, as he wanted to stay in the SAS, there was nothing for it except to sign. He felt that there was no point in raising the question of legal advice with the adjutant. He was not allowed to retain a copy of the contract, which was classified "restricted" before signature, and after signature, when it enabled R to be identified as a member of SAS, was given the higher classification of "confidential". The judge accepted R's version of events, although he seems to have been under the impression that his evidence was supported by Z.

  9. The terms of the contract were straightforward. It read:

    In consideration of my being given a (continued) posting in the United Kingdom Special Forces from 28 October 96 (date) by MOD, I hereby give the following solemn undertaking binding me for the rest of my life:

    (1)

    I will not disclose without express prior authority in writing from MOD any information, document or other article relating to the work of, or in support of, the United Kingdom Special Forces which is, or has been in my possession by virtue of my position as a member of any of those Forces.

    (2)

    I will not make any statement without express prior authority in writing from MOD which purports to be a disclosure of such information as is referred to in paragraph (1) above or is intended to be taken, or might reasonably be taken, by those to whom it is addressed as being such a disclosure.

    (3)

    I will assign to MOD all rights accruing to me and arising out of, or in connection with, any disclosure or statement in breach of paragraph (1) or (2) above.

    (4)

    I will bring immediately to the notice of MOD any occasion on which a person invites me to breach this contract.

  10. The explanatory memorandum, in the familiar form of "Frequently Asked Questions", explained in some detail why the contract was deemed necessary. In answer to the question "What extra rights will contracts give MOD?" it said:

    14.

    The contract prohibits you from making, without specific prior MOD authority, any disclosures in any form about the work of the UKSF, special units, and of sensitive organisations and about those who work in support of them. The MOD will not hesitate to seek an injunction to prevent anyone publishing material in breach of contract.

    15.

    If disclosures are made in breach of contract, the MOD is entitled to initiate proceedings under the contract to remove from you any profits accruing from a breach.

  11. Less than a fortnight later, R changed his mind and decided to apply for premature voluntary release. He was asked by the commanding officer to reflect upon his decision but he renewed his request and left the Army in March 1997. At that time he told the commanding officer that he had no intention of writing about the Gulf War patrol or anything else. R is a New Zealander and went home to New Zealand where he took up civilian employment. In the course of 1998 he decided that he should put his own version of Bravo Two Zero before the public and entered into a contract with a New Zealand publisher. They offered the UK rights to Hodder & Stoughton, who sent a copy of the manuscript to the secretary of the Defence, Press and Broadcasting Advisory Committee. He passed it on to the Ministry of Defence. As a result, the Attorney-General on behalf of the Crown commenced proceedings in the High Court of New Zealand, claiming an injunction to restrain publication, damages and an account of profits.

  12. By way of defence, R pleaded that he had signed the contract under military orders, that it had been obtained by duress or undue influence, that it was an unconscionable bargain, not supported by consideration, contrary to New Zealand public policy as a restraint of trade and upon its true construction not intended to prohibit the publication of material which was no longer confidential.

  13. The judge (Salmon J) held that R had been ordered to sign, as an exercise of the power of the Crown over members of the services. In his opinion such an order was unlawful because it was an attempt to restrict the civil rights he would ordinarily enjoy after he had left the service. He therefore found that the contract had been obtained by duress, in the form of an unlawful order combined with the threat of return to unit. He also found that the relationship between R and his superior officers gave rise to a presumption of undue influence which, in view of the unlawful nature of the order and the absence of legal advice, had not been rebutted. He rejected the claim that the contract was unconscionable, not supported by consideration, in restraint of trade or as a matter of construction inapplicable to the material proposed to be published. In the result, however, he dismissed the contractual claim.

  14. The Court of Appeal disagreed with the finding that R had been given a military order to sign. He was given the choice of signing or being returned to unit; a choice which put pressure upon him but was not unlawful. It rejected the findings of duress and undue influence and supported the judge's rejection of the other defences. It therefore held that the contract was valid and that R was in breach. As a matter of discretion it refused an injunction to restrain publication but made an order for an account and an assessment of damages. There is no appeal by the Crown against the refusal of an injunction but R appeals against the orders made against him and challenges the rejection by the Court of Appeal of all the grounds upon which he alleges that the contract was invalid. Their Lordships will deal with them in turn.

    DURESS

  15. In Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 400 Lord Scarman said that there were two elements in the wrong of duress. One was pressure amounting to compulsion of the will of the victim and the second was the illegitimacy of the pressure. R says that to offer him the alternative of being returned to unit, which was regarded in the SAS as a public humiliation, was compulsion of his will. It left him no practical alternative. Their Lordships are content to assume that this was the case. But, as Lord Wilberforce and Lord Simon of Glaisdale said in Barton v Armstrong [1976] AC 104, 121:

    in life .... many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate.

  16. The legitimacy of the pressure must be examined from two aspects: first, the nature of the pressure and secondly, the nature of the demand which the pressure is applied to support: see Lord Scarman in the Universe Tankships case, at p 401. Generally speaking, the threat of any form of unlawful action will be regarded as illegitimate. On the other hand, that fact that the threat is lawful does not necessarily make the pressure legitimate. As Lord Atkin said in Thorne v Motor Trade Association [1937] AC 797, 806:

    The ordinary blackmailer normally threatens to do what he has a perfect right to do - namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened .... What he has to justify is not the threat, but the demand of money.

  17. In this case, the threat was lawful. Although return to unit was not ordinarily used except on grounds of delinquency or unsuitability and was perceived by members of the SAS as a severe penalty, there is no doubt that the Crown was entitled at its discretion to transfer any member of the SAS to another unit. Furthermore, the judge found, in para 123:

    The MOD could not be criticised for its motivation in introducing the contracts. They were introduced because of the concerns about the increasing number of unauthorised disclosures by former UKSF personnel and the concern that those disclosures were threatening the security of operations and personnel and were undermining the effectiveness and employability of the UKSF. Those are legitimate concerns for the MOD to have.

  18. It would follow that the MOD was reasonably entitled to regard anyone unwilling to accept the obligation of confidentiality as unsuitable for the SAS. Thus the threat was lawful and the demand supported by the threat could be justified. But the judge held that the demand was unlawful because it exceeded the powers of the Crown over a serviceman under military law. It was an attempt to restrict his freedom of expression after he had left the service and was no longer subject to military discipline.

  19. The judge's reasoning was that R had signed the contract because he had been ordered to do so. The MOD could not give a serviceman an order which, as a matter of military law, he was obliged to obey after he had left the service and therefore it was an abuse of power for the MOD to try to extend the temporal reach of its orders by ordering the serviceman to sign a contract which could be enforced after he had left.

  20. If R had signed the contract because as a matter of military law he had been obliged to do so, their Lordships would see much force in this reasoning. But they agree with the Court of Appeal that this was not the case. There was no order in the sense of a command which created an obligation to obey under military law. Instead, R was faced with a choice which may have constituted "overwhelming pressure" but was not an exercise by the MOD of its legal powers over him. The legitimacy of the pressure therefore falls to be examined by normal criteria and as neither of the courts in New Zealand considered either the threat to be unlawful or the demand unreasonable, it follows that the contract was not obtained by duress.

    UNDUE INFLUENCE

  21. The subject of undue influence has recently been re-examined in depth by the House of Lords in Royal Bank of Scotland Plc v Etridge (No. 2) [2002] AC 773. Their Lordships summarise the effect of the judgments. Like duress at common law, undue influence is based upon the principle that a transaction to which consent has been obtained by unacceptable means should not be allowed to stand. Undue influence has concentrated in particular upon the unfair exploitation by one party of a relationship which gives him ascendancy or influence over the other.

  22. The burden of proving that consent was obtained by unacceptable means is upon the party who alleges it. Certain relationships - parent and child, trustee and beneficiary, etc - give rise to a presumption that one party had influence over the other. That does not of course in itself involve a presumption that he unfairly exploited his influence. But if the transaction is one which cannot reasonably be explained by the relationship, that will be prima facie evidence of undue influence. Even if the relationship does not fall into one of the established categories, the evidence may show that one party did in fact have influence over the other. In such a case, the nature of the transaction may likewise give rise to a prima facie inference that it was obtained by undue influence. In the absence of contrary evidence, the court will be entitled to find that the burden of proving unfair exploitation of the relationship has been discharged.

  23. The absence of independent legal advice may or may not be a relevant matter according to the circumstances. It is not necessarily an unfair exploitation of a relationship for one party to enter into a transaction with the other without ensuring that he has obtained independent legal advice. On the other hand, the transaction may be such as to give rise to an inference of undue influence even if the induced party was advised by an independent lawyer and understood the legal implications of what he was doing.

  24. In the present case it is said that the military hierarchy, the strong regimental pride which R shared and his personal admiration for his commanding officer created a relationship in which the Army as an institution or the commanding officer as an individual were able to exercise influence over him. Their Lordships are content to assume that this was the case. But the question is whether the nature of the transaction was such as to give rise to an inference that it was obtained by an unfair exploitation of that relationship. Like the Court of Appeal, their Lordships do not think that the confidentiality agreement can be so described. As in the case of duress, their Lordships think that the finding that it was an agreement which anyone who wished to serve or continue serving in the SAS could reasonably have been required to sign is fatal to such a conclusion. The reason why R signed the agreement was because, at the time, he wished to continue to be a member of the SAS. If facing him with such a choice was not illegitimate for the purposes of duress, their Lordships do not think that it could have been an unfair exploitation of a relationship which consisted in his being a member of the SAS. There seems to their Lordships to be some degree of contradiction between R’s claim, in the context of duress, that he signed only because he was threatened with return to his unit and his claim, for the purposes of undue influence, that he signed because of the trust and confidence which he reposed in the Army or his commanding officer.

  25. The question which has troubled their Lordships is the absence of legal advice. The only evidence that R would not have been allowed to obtain such advice was his own testimony, accepted by the judge, of what he was told by his colleague ST in London; not, perhaps, the most authoritative source. R does not say that he asked anyone at Hereford whether he could obtain advice and the commanding officer said in evidence that such a request would have presented no difficulty.

  26. On this evidence the New Zealand courts made a finding that R had not been able to obtain legal advice which their Lordships of course accept. In any event they think it a matter for regret that members of SAS were not told explicitly that arrangements could be made for them to obtain legal advice. They recognise the security problems which would have had to have been overcome; R could not, for example, have consulted an outside solicitor without disclosing that he was a member of the SAS. Nevertheless, as the commanding officer said, suitable arrangements could have been made and it would have avoided suspicion and recrimination to make this known.

  27. The legal question, however, is whether failing to provide an opportunity for obtaining legal advice made the transaction one in which the MOD had unfairly exploited its influence over R. Here it is important to note that R does not allege that he did not understand the implications of what he was being asked to do. The contract was in simple terms and the explanatory memorandum even plainer. He does say that he had originally thought that it would only prevent publication of matter which remained confidential. However, a moment's thought would have told him that this would not have prevented the publications to which he and other members of the SAS most objected, namely The One That Got Away and the film which followed. In any case, when he saw the actual contract he knew what it meant.

  28. In these circumstances, their Lordships do not think that the absence of legal advice affected the fairness of the transaction. The most that R can say is that a lawyer might have advised him to reflect upon the matter and, as in fact he changed his mind within a fairly short time after signing, that might have led to his not signing at all. But that is a decision which he could have made without a lawyer's advice.

    UNCONSCIONABLE BARGAIN

  29. If the transaction was not such as to give rise to an inference that it had been unfairly obtained by a party in a position to influence the other, it must follow that the transaction cannot be independently attacked as unconscionable.

    CONSIDERATION

  30. The classic definition of consideration is that of Sir Frederick Pollock, cited by Lord Dunedin in Dunlop Pneumatic Tyre Co v Selfridge & Co Ltd [1915] AC 847, 855:

    An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.

  31. In the present case the price for which R's promise was bought was the forbearance of the MOD to exercise its power to return him to unit. It could not be a promise that he would not be returned to unit, because, as their Lordships have already observed, the Crown was entitled to move him to another regiment and could not fetter its discretion by a contract having effect in private law. Whether there were any circumstances in which it could have created a legitimate expectation giving rise to rights against the Crown in public law is a matter which their Lordships need not discuss. But the actual forbearance was in their Lordships' opinion sufficient consideration to support the contract. In Alliance Bank Ltd v Broom (1864) 2 Dr & Sm 289, 292 the bank demanded security for its loan in circumstances in which, as Sir Richard Kindersley V-C said, it would otherwise have enforced payment. It made no promise not to demand payment but:

    the [bank] did in effect give, and the defendant received, the benefit of some degree of forbearance; not, indeed, for any definite time, but, at all events, some extent of forbearance.

  32. The authority of this case has never been doubted and their Lordships think that its principle adequately covers the present case. If R had refused outright to sign the contract, he would have been returned to unit. As it was, the MOD forbore from exercising its power to do so; R remained in the SAS, a valued soldier, and when he said that he wanted to leave, the commanding officer asked him to reflect before eventually consenting. This practical benefit to R was a sufficient act of forbearance to make his promise enforceable.

    PUBLIC POLICY

  33. Mr. Templeton, junior counsel for R, advanced an argument which, so far as their Lordships can tell, was not put to the judge or the Court of Appeal. He said that it was inconsistent for the Court of Appeal to have refused an injunction but to have awarded damages and an account of profits. If freedom of expression was a good reason for not enforcing R's promise of confidentiality, it should also have struck down any promise which might inhibit the exercise of his freedom of expression, such as the prospect of having to pay damages or receiving no reward for his labours in writing the book. Any form of restraint on free expression should be contrary to public policy in the same way as a restraint on trade.

  34. This is an interesting if novel submission which may one day require closer attention. On the facts of the present case, however, it does not arise. The Court of Appeal made it clear that in its opinion the contract was valid and should be specifically enforced. But it considered that "the particular and most unusual combination of circumstances" justified a discretionary decision not to grant an injunction: see Tipping J, at para 111. It is therefore clear that the Court of Appeal, although unwilling on the facts to prevent publication, saw no positive public interest in the information being communicated to the public which was sufficient to outweigh the public interest in holding R to the other promises which he had made.

  35. The argument that the contract did not as a matter of construction prevent publication of the material in question has not been pursued and their Lordships think that it was always hopeless.

  36. It is to be noted that neither the New Zealand courts nor their Lordships were invited to consider whether the MOD had acted unlawfully in refusing consent to publication. The whole basis of R’s case has been a challenge to the validity of the contract and not to the way it has been performed. There is no contractual proviso that consent is not to be unreasonably refused; nor do their Lordships think that one could be implied. Nevertheless, an unreasonable refusal of consent by the MOD could have been challenged as a matter of public law and the appropriate tribunal for such a challenge would have been the court having jurisdiction to grant judicial review of decisions of the MOD, namely, the administrative court in England. The principles upon which that jurisdiction should be exercised were recently discussed in R v Shayler [2002] 2 WLR 754. Of course the considerations which the MOD are entitled to take into account in deciding whether to give consent under the confidentiality agreement are different from those which it may take into account under the Official Secrets Act 1989. As the history of this matter shows, the agreement was intended to prevent the disclosures which would not necessarily be in themselves damaging to the public interest and might even be as to matters already in the public domain. It had the broader object of preventing public controversy which might be damaging to the efficiency of the Special Forces. The United Kingdom Parliament has also taken the view that information about the Special Forces is in a special category: see section 23(1) and (3)(d) of the Freedom of Information Act 2000, which declares information relating to the special forces to be “exempt information”, excluded from the general right to information under section 1(1)(b). But their Lordships think that the jurisdiction could in principle have been invoked if R had chosen to do so.

  37. As it is, their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The Attorney-General does not ask for costs.

    Lord Scott of Foscote

    (dissenting)

  38. I am in general in complete and respectful agreement with the opinion of the Board which has been delivered by Lord Hoffmann. To my regret, however, I find that there is one issue in the case on which I am unable to agree. The issue is that of undue influence.

  39. It is well established that the relationship between parties to a contract, coupled with the nature of the contract and, sometimes, the circumstances in which consent to it by one party was obtained by the other, may give rise to a presumption that the consent of the former was obtained by undue influence. The presumption is an evidential presumption requiring the dominant party, seeking to enforce the contract, to introduce some additional evidence to show that the consent to the contract of the subservient party was a true consent fairly obtained (see Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773). The most effective way in which in most cases the presumption can be rebutted is by showing that the subservient party received independent legal advice about the contract and its implications. In the present case, it is the relationship between appellant and the Ministry of Defence, the circumstances in which the appellant signed the contract, as found by the trial judge, and the fact that he signed it without any legal advice and without any real opportunity of obtaining any, that has caused me concern.

  40. Allcard v Skinner (1887) 36 Ch D 145 is a classic case where the relationship between donor and donee gave rise to the presumption. The donor, having gone through the grades of novice and postulant, was a nun in an order which required its members to make over their assets to the order. The donor, in obedience to this rule, made over her assets to the lady superior of her convent in trust for the order. Later, having left the order, she claimed her assets back. The court expressed the principles to be applied in terms which seem to me relevant to the present case. Cotton LJ said (p 171):

    .... the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.

    Lindley LJ said:

    In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.

    And (at p 183):

    [The courts] have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible.

    Bowen LJ thought that the gifts had to be set aside (at p 190)

    unless it is shewn that the donor, at the time of making the gift, was allowed full and free opportunity for counsel and advice outside – the means of considering his or her worldly position and exercising an independent will about it.

    He went on (at p 190):

    This is not a limitation placed on the action of the donor; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play.

  41. Are these principles ones that should be applied to the contract in the present case? I think they are. The appellant was not, of course, an unworldly man in a secluded religious order. He was a soldier in a highly trained and efficient fighting unit. The essence of efficiency in a military unit is obedience to orders. The Armed Services operate on a hierarchical basis. Each rank looks to the rank or ranks above for direction and, having received that direction, is expected to comply with it. It is, in my opinion, entirely artificial to draw sharp distinctions between orders from senior officers that are military orders breach of which will be an offence under military law and may attract court martial sanctions and “orders” from senior officers couched as requests or as recommendations. It has become a music-hall joke for a sergeant-major to say to the troops under him “I want three volunteers; you, you and you”. The hierarchical culture of the Armed Services and the deference and obedience to senior officers, both commissioned and non-commissioned, which is part of that culture are the essential background to the circumstances in which the appellant was asked to sign the contract in the present case.

  42. It is to be borne in mind that members of Her Majesty’s Armed Services do not, unlike ordinary employees, enter into contracts with their employers. They are engaged and can be dismissed under the Royal Prerogative. It is their agreement to serve, not any contract, that subjects them to military discipline and military law. The Board was told by counsel for the Attorney-General that there had been no other example of members of a unit of the Armed Services being asked to enter into a contract with the Ministry of Defence.

  43. This background requires, in my opinion, that any contract between a member of the Armed Forces and the Ministry of Defence be looked at very carefully to see whether the benefit conferred by it on the Ministry of Defence was a benefit that the Ministry of Defence was entitled in equity to maintain.

  44. The circumstances in which the contract in the present case came to be signed by the appellant were the subject of evidence at trial and the trial judge, Salmon J, formed a number of important conclusions:

    1. The judge concluded that the appellant signed because he had been ordered to do so. An analysis of the “order” that disqualifies it from constituting a military order and regards it, no doubt correctly, merely as a recommendation or a direction is, in my opinion, of no more than marginal significance if the possibility of undue influence is being considered. What is important is how the appellant regarded it. The appellant regarded it as an order.

    2. The judge found that “the defendant was not told the terms of the contract before signing [and] was not offered any legal advice” (para 39).

    3. He found, also, that the appellant was not permitted to show the contract to a legal adviser (para 139). The weight of this finding is not diminished by evidence from the senior officer in command of the Regiment to the effect that soldiers would have been permitted to show the contract to approved legal advisers if they had asked. What is important is the perception of the appellant, and, as to that, Salmon J’s finding stands.

  45. In my opinion, the relationship between the appellant and his senior officers and the circumstances, as found by the judge, in which the contract came to be signed by the appellant produced a classic “relationship” case in which undue influence should be presumed. No evidence was introduced to rebut that presumption. Legal advice was not available to the appellant. As in Allcard v Skinner, where no suggestion of fraud or indeed any impropriety was made against the lady superior to whom the plaintiff had transferred her assets, no such suggestion has been, or could be, made against any of the appellant’s senior officers who play a part in the story. It is the relationship, produced by the background to which I have referred, between a soldier and that part of the Armed Services of which he is a member, that introduces the potentially vitiating element into the contract. If the Ministry of Defence wants to impose contractual obligations on soldiers by which they will be bound when they leave the service, it must, in my opinion, at the least make available to them independent legal advice. Fairness, in my view, requires it and I think the law requires it. In this case it was not done. I would have allowed the appeal


Cases

Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366; Barton v Armstrong [1976] AC 104; Thorne v Motor Trade Association [1937] AC 797; Royal Bank of Scotland Plc v Etridge (No. 2) [2002] AC 773; Dunlop Pneumatic Tyre Co v Selfridge & Co Ltd [1915] AC 847; Alliance Bank Ltd v Broom (1864) 2 Dr & Sm 289; R v Shayler [2002] 2 WLR 754; Allcard v Skinner (1887) 36 Ch D 145


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