‘R’ v HM Attorney General for England and Wales
[2003] UKPC 22, [2003] EMLR 24
Privy Council
Facts:
R former New Zealand SAS soldier during Gulf War.
Commanding officer of the British forces published a book about the war. 2 other members of his patrol subsequently published books with their accounts. Books were adapted into films and shown on TV.
MOD conducted poll on whether this should be allowed. Majority voted that an NDA should be implemented. MOD produced an NDA.
R told that he must sign confidentiality contract to remain in SAS by his superior. Otherwise, he would be demoted, which was usually an act of disciplinary action for being unsuitable for the SAS. This would result in a loss of pay. R alleges that he was told he could not receive legal advice and was not allowed a copy of the contract as it was classified as confidential.
R signed the contract.
A year later, R leaves the army and publishes a memoir in New Zealand. Publisher sends copy of manuscript to UK publisher. Manuscript gets passed onto the MoD.
AG brought proceedings against R for breach of contract, claiming an injunction, damages and an account of profits.
Legal Facts / Procedural History:
High Court of New Zealand – R wins
Court of Appeal of New Zealand – appeal allowed
Legal Issues:
Whether R was unduly influenced or under duress to sign the contract.
Appellant (R) Arguments:
R was forced to sign the confidentiality contract under duress or undue influence. He was under military orders. Therefore, the contract is invalid, and R is free to publish.
It was not the intention of the contract to prevent R from publishing information that was no longer confidential. R did not think the contract would apply to information that was declassified.
Any choice that he was given was not free. He was compelled by the public humiliation of demotion if he did not sign. He had no practical alternative.
Under military law, the MOD could not give an order that R was obliged to follow once he had left service. Therefore, the MOD abused their power in making R sign the contract.
The contract undermines freedom of expression, which is contrary to public policy.
Respondent (AG) Arguments:
R broke the contract that he voluntarily signed.
R was given a choice before signing the contract. The choice put pressure on him, but not unlawful pressure.
Given that R understood the contract and its implications, he was not unfairly exploited.
Judgement (Bingham LJ, Steyn LJ, Hoffmann LJ, Millett LJ and Scott LJ):
Appeal dismissed.
Hoffmann LJ:
Duress:
The threat of demotion was not unlawful as it was at the discretion of the Crown to demote anyone at any time. It is reasonable for the MOD to regard anyone who refuses to sign as unsuitable for the SAS. Just an administrative issue, not a matter of military law. Therefore, not illegitimate threat.
Undue Influence:
Burden of proof is on R. There is a relationship of trust and confidence, but the contract does not call for explanation. R’s claims of duress and undue influence contradict one another. The contract was to prevent the publication of information, regardless of whether it was confidential or not. R should have recognised this. Regrettable that they were not told they could obtain legal advice, but it did not affect R’s judgement and does not make the NDA an exploitation of R.
Unconscionable Bargain:
Since there was no duress or undue influence, the bargain was not unconscionable.
Consideration:
Consideration of the MOD’s forbearance from demotion of R is valid. R remained in the SAS until he wanted to leave, so the consideration is sufficient and the agreement enforceable.
R could have requested to publish the information. If the MOD refused, he could have taken the case to the administrative court to review MOD decisions.
Scott LJ (dissenting):
Disagrees with point on undue influence. R signed without independent legal advice or an opportunity to do so, which the MOD should have provided. Hard to distinguish between orders and requests in the military. R was merely following what he thought to be an order to sign the contract, so was unduly influenced. Would allow the appeal.
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