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Duress as a tort law defence?
Published online by Cambridge University Press: 27 September 2018
Abstract
This paper addresses a straightforward question: ‘Should tort law recognise a defence of duress?’ Previous scholarship concerning this issue is thin on the ground, and the answers it supplies are demonstrably inadequate. Those who have favoured the development of a duress defence in tort have done so by analogy with criminal law where duress is, of course, well established. The rival school of thought has sought to highlight the fact that excuse defences are out of place in tort and that, therefore, there is no room for duress in tort. This paper rejects both approaches. It accepts that the criminal law is a poor source of analogy, but rejects the idea that duress must be seen as an excuse (and hence the idea that there can be no space for it in tort). It offers a fresh start based on the role of duress within tort law's sibling, the law of contract. It identifies three possible conceptions of duress in contract and then asks whether these conceptions could be used to ground a comparable defence of duress in tort by analogy. It concludes that a plausible case can be made in respect of each conception, but – given that the paper has primarily theoretical ambitions – it stops short of advocating any one conception in particular.
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- Copyright © The Society of Legal Scholars 2018
Footnotes
†
Pour Anne-Claire Goyallon qui plus que quiconque m'a récemment aidé à reconnaître ce qui vaut vraiment la peine d’être appris. Thanks to David Campbell, Peter Chau, John Goldberg, James Goudkamp, Luisna Ho and David Howarth for their helpful comments on various drafts. The usual caveat applies.
References
1 Goudkamp, J Tort Law Defences (Oxford: Hart, 2013) 7Google Scholar.
2 See eg O'Dair, R ‘Justifying an interference with contractual rights’ (1991) 11 OJLS 227CrossRefGoogle Scholar; Murphy, J ‘Rethinking tortious immunity for judicial acts’ (2013) 33 LS 455Google Scholar.
3 See, inter multos alios, Horder, J Excusing Crime (Oxford: Oxford University Press, 2004)Google Scholar and Gardner, J Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar.
4 See eg Goudkamp, J ‘Insanity as a tort defence’ (2011) 31 OJLS 727CrossRefGoogle Scholar.
5 Since the wrongs performed under duress are intentional wrongs, it follows that duress in tort law must be confined to the intentional torts.
6 The sketch offered here adopts the typology in Goudkamp, above n 1. Those with whose work this paper principally engages both acknowledge and do not reject this categorisation (though see also n 39 below).
7 Greenawalt, K ‘The perplexing borders of justification and excuse’ (1984) 84 Columbia LR 1897CrossRefGoogle Scholar, 1897.
8 See eg Ripstein, A Equality, Responsibility and the Law (Cambridge: Cambridge University Press, 1999) 138–139Google Scholar; Goudkamp, above n 1, p 86; Goldberg, above n 12, p 472.
9 Browne v De Luxe Car Services [1941] 1 KB 549 at 552. It is possibly also a denial of the causation element.
10 Edelman, J and Dyer, E ‘A defence of duress in the law of torts?’ in Dyson, A et al. (eds) Defences in Tort (Oxford: Hart, 2015)Google Scholar.
11 The four considerations are enumerated ibid at pp 161–162.
12 JCP Goldberg ‘Tort law's missing excuses’ in Dyson et al, above n 10.
13 (1647) Style 72, 82 ER 539.
14 Goldberg, above n 12, p 58.
15 (1616) Hob 134.
16 (1837) Bing NC 468.
17 Goldberg, above n 12, p 58.
18 (1853) 2 E&B 216.
19 [1892] AC 25.
20 (1647) Style 72, 82 ER 539 at 539.
21 (1620) Cro Jac 567.
22 Waller v Parker 45 Tenn 476 (1878) permitted a duress plea in tort: see further Goudkamp, above n 1, p 89.
23 See Goldberg, above n 12, p 59.
24 For a full defence of the contention that ‘more often than not, the authority of a precedent will diminish rather than ripen with age’, and for details of others – including judges – who support it, see Duxbury, N The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008)CrossRefGoogle Scholar p 63 et seq.
25 It is very possible that Edelman and Dyer, Goldberg and Goudkamp – all of whom treat the case as having said this – have misinterpreted Gilbert v Stone. What Roll J actually said, according to the fuller report of the case was that ‘one cannot justifie a trespass upon another for fear’: (1641) Aleyn 35 at 35. Thus, he may have been saying no more than that duress is no basis upon which to substantiate the well-established defence of justification of trespass.
26 Edelman and Dyer, above n 10, p 162.
27 See n 5 above.
28 Edelman and Dyer, above n 10, p 165.
29 I accept arguendo the assumption made by Edelman and Dyer that it is tort law rather than the criminal law that ought to change. But one could just as easily invert the ‘logic’ and argue that the criminal law should abandon the duress defence in order to align itself with tort.
30 Goldberg, above n 12, p 59.
31 JCP Goldberg ‘Inexcusable wrongs’ (2015) 103 California L Rev 467 at 500–505.
32 Ibid, at 501.
33 Ibid, at 503, emphasis added.
34 Goldberg's work on civil recourse theory is voluminous. But a sufficient account of his general position can be found in Goldberg, JCP and Zipursky, BC ‘Torts as wrongs’ (2010) 88 Tex L Rev 917Google Scholar.
35 Cf Cane, P ‘Mens rea in tort law’ (2000) 20 OJLS 533CrossRefGoogle Scholar.
36 A similar argument, couched in terms of retributive justice, is marshalled in Goudkamp, J ‘Defences in tort and crime’ in Dyson, M (ed) Unravelling Tort and Crime (Cambridge: Cambridge University Press, 2014) p 225Google Scholar.
37 See eg the long line of cases stemming from Hedley Byrne v Heller [1964] AC 465.
38 There is, admittedly, fleeting acknowledgement of the idea that duress may, very occasionally, function as a denial or a justification (Goldberg, above n 31, at 475–476). But Goldberg sees such cases as being very rare.
39 They recommend an approach that is ‘independent of the terminology of excuse and justification’ and which treats duress ‘as a privilege’: Edelman and Dyer, above n 10, p 181.
40 Goudkamp, above n 36, p 208.
41 Among the differences highlighted by Goudkamp are: (1) the respective rules on self-defence are very different; (2) criminal law alone contains partial defences which exonerate D from one crime but permit conviction for another; (3) criminal law embraces a defence of private necessity whereas tort law seems not to do so; (4) the rules on who can raise a defence differ as between crime and tort.
42 Goudkamp, above n 36, p 230. This amounts to a slightly clearer iteration of the point made by Goldberg that the interests of two parties are at stake in tort cases (unlike in criminal law where D is the only individual whose interests are in play).
43 A possible rejoinder here is that it may be harder for C to trace the threat-maker than it is than to sue D. However, tort law's rules are overwhelmingly designed to pinpoint the right person to sue, and not simply the easiest. (One possible exception is the vicarious liability principle.)
44 [1912] 1 KB 496.
45 Ibid, at 503 and 504–505 per Vaughan Williams and Buckley LJJ.
46 Goldberg, above n 12, p 61 (emphasis added). This interpretation draws on a single, slightly unclear passage in the judgment of Kennedy LJ.
47 109 Minn 465. The decision, though rejected in some US jurisdictions, is nonetheless endorsed in the Restatement (Second) of Torts § 197. As to why private necessity may never be a tort defence, see Goudkamp, above n 36, pp 212–213.
48 Gilbert v Stone received a nod of approval in the dissenting judgment of Blackstone J in Scott v Shepherd (1773) 2 Black W 892 at 896, while the decision in Cope v Sharpe (No 2) was approved, but only obiter, by Lord Goff in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 74.
49 See eg G Virgo ‘Justifying necessity as defence in tort law’ in Dyson et al, above n 10. Cf Goldberg, above n 12; Goudkamp, above n 36, p 215.
50 Recall the point made earlier (above, n 25) that Gilbert v Stone may in fact have nothing whatever to do with excuses in tort.
51 Goudkamp, above n 1, p 76.
52 For a summary of, and engagement with, these authors’ arguments, see Goudkamp, above n 36, pp 224–231.
53 Ibid, p 231. Carving out such exceptions is no easy matter, however. If there is general resistance to excuses in tort law, there would be a burden to explain why particular excuses should cut against the grain and be recognised.
54 Goldberg, above n 12, p 509.
55 Birks, P ‘The concept of a civil wrong’ in Owen, DG (ed) Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1997)Google Scholar.
56 For the general argument that it is hard to pin down quite what a defence is within the law of contract, see Barker, K ‘What is a contractual defence (and does it matter)?’ in Dyson, A et al. (eds) Defences in Contract (Oxford: Hart, 2017)Google Scholar.
57 Smith, S Contract Theory (Oxford: Oxford University Press, 2004)Google Scholar ch 9.
58 Goldberg, above n 31, at 170.
59 Smith, above n 57, p 331.
60 [1993] 1 AC 336 at 384 per Lord Diplock. See also Atiyah, PS ‘Economic duress and the overborne will’ (1982) 98 LQR 197Google Scholar.
61 For this iteration of basic responsibility and details of, and engagement with, others that are practically identical, see Lucy, W Philosophy of Private Law (Oxford: Oxford University Press, 2007)Google Scholar ch 3.
62 In saying this I adopt Goudkamp's definition of a defence as being any rule of law ‘that relieves the defendant of liability even though all the elements [necessary to ground an action] are present’: Goudkamp, above n 1, p 7.
63 Duress is of greatly diminished modern usage since most commercial contracts are made, not by actual persons, but by legal persons. It is plainly nonsense to talk of putting a gun to the head of a company. At the same time, however, it is fair to observe that, much as they may enjoy lesser usage these days, the cases that set out the duress rationale are still authorities in the strict sense.
64 The Universe Sentinel [1993] 1 AC 336 at 384 per Lord Diplock.
65 Southport Corporation v Esso Petroleum Ltd [1956] AC 218 at 242.
66 Anon ‘Duress of a third person as grounds for rescission of a legal transaction’ (1930) 5 Columbia L Rev 714 at 720. There are, so far as I could detect, no reported English cases of this three-party variety.
67 Cresswell v Potter [1978] 1 WLR 255 at 260 per Megarry J.
68 That D's act might be regarded as justified in general terms is, strictly, neither here nor there. D's having acted commendably merely shows that he acted in a way that was right in the eyes of the world. But as Vincent, above n 47, illustrates, it is possible to act in a way that is simultaneously right (in the eyes of the world) yet wrong (vis-à-vis the victim's rights).
69 See eg Edelman and Dyer, above n 10, p 179.
70 Greenawalt, above n 7, at 1912. Though Greenawalt's example is designed to explain the criminal law, the same point can be made regarding tort law (albeit in the latter context one would have to factor into the calculus not just Fred's wrongdoing and the lives of the potential murder victims but also the rights of the diamond owner).
71 Cf Goldberg above n 31, at 480 who seems to entertain the idea that only the defence of self-defence could be considered either a justification or an excuse depending on whether the lesser of two evils principle was in play.
72 Posner, RA ‘Blackmail, privacy and freedom of contract’ (1993) 141 U Penn LR 1817Google Scholar at 1820–1821.
73 Note that although the idea of a public policy defence has been used by Goudkamp, he employs the term in a slightly more conservative way: see Goudkamp, above n 1, p 76.
74 It could be argued that freedom of contract is an essential aspect of contract formation and that, insofar as duress denudes a contract of this, a plea of duress can be raised as a denial. The argument fails, however, because a denial serves to place in question the idea that a valid contract ever existed. This line of thought was shown to be untenable above.
75 One caveat here is that this account will not appeal to everyone, drawn, as it is, from the law and economics canon.
76 He asserts unequivocally that ‘duress is a true excuse doctrine’: Smith, above n 57, p 318. Yet he overlooks the fact that excuses look to the reasons given by D for his impugned conduct whereas a defence based on the law's concern not to allow wrongdoers to profit by their own wrongdoing looks primarily to C's unlawful conduct.
77 Smith, above n 57, p 321. What this explanation of duress in contract fails to capture, however, is the small group of cases in which C seeks to take advantage of a threat made to D by a third party. Here, D's plea of duress is not designed to deny C the prospect of profiting from his own wrongdoing. It is an interesting question how best to explain such cases, but it is one for another day.
78 See eg Weinrib, below n 82, ch 1; Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar ch 14.
79 See Goudkamp, J and Murphy, J ‘Tort statutes and tort theories’ (2015) 131 LQR 133Google Scholar; id ‘The failure of universal theories of tort law’ (2016) 22 Legal Theory 47.
80 African Strategic Investment (Holdings) Ltd v Main [2011] EWHC 2223 (Ch) at [47] per Barnard Livesey QC.
81 See Neyers, J ‘A theory of vicarious liability’ (2005) 43 Alberta L Rev 1Google Scholar at 6–7; Atiyah, PS Vicarious Liability in the Law of Torts (London: Butterworths, 1967) p 22Google Scholar.
82 For one version of this argument, see Weinrib, EJ The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar ch 1.
83 I remain conscious of the fact that there are many ways in which tort and contract come apart; so I claim no more than a strong prima facie case for analogical development based on the commonalities adverted to earlier.
84 A Westlaw search revealed six such cases reported in 2017 alone. See eg R v Aghayere [2017] EWCA Crim 692 and R v Babiak [2017] EWCA Crim 160.
85 For a similar (undefended) view that the courts could make the change, see Edelman and Dyer, above n 10, p 182.