R v HM Attorney-General for England and Wales [2003] UKPC 22; [2003] EMLR 24
Court: Privy Council, on appeal from New Zealand | Judgment: 17 March 2003
A former SAS soldier challenged a lifelong confidentiality agreement signed after he was told that refusal would mean leaving the regiment. The Privy Council dismissed his appeal by a majority of four to one. The pressure was legitimate in the circumstances, the agreement was not procured by undue influence, and the Ministry of Defence’s actual forbearance from transferring him provided consideration. Lord Scott dissented on undue influence.
The agreement and the dispute
R was a member of the Bravo Two Zero patrol during the 1991 Gulf War. Subsequent books and films about its experiences caused controversy within the SAS. The Ministry of Defence introduced confidentiality contracts to protect operations and personnel and prevent damaging unauthorised disclosures.
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Members wishing to remain in the SAS had to sign. Otherwise they would be returned to unit: transferred back to the regiment from which they had joined. For R, this meant the Parachute Regiment. Return to unit was normally associated with misconduct or professional unsuitability and involved loss of the SAS’s higher pay and regimental social life.
R signed in October 1996. The undertaking prohibited disclosure of information about the special forces obtained through his membership without prior written authority, and covered statements purporting to make such disclosures. It applied for life and included an obligation to assign rights arising from a breach. The explanatory memorandum warned of injunctions and recovery of profits.
R subsequently decided to leave the Army. He left in March 1997 and returned to New Zealand, where he later arranged to publish his account. The Attorney-General sued in New Zealand for an injunction, damages and an account of profits.
The proceedings below
Salmon J treated the requirement to sign as an unlawful military order extending control over R after he left the service. He found duress and undue influence and dismissed the contractual claim, although he rejected the other challenges to the agreement.
The Court of Appeal disagreed. R had been presented with a choice rather than an order enforceable under military law. It upheld the contract and ordered an account and an assessment of damages. It nevertheless declined, on the unusual facts, to restrain publication by injunction. The Crown did not appeal that refusal; R appealed the orders against him.
Pressure and duress
Lord Hoffmann delivered the majority judgment. Duress required both pressure amounting to compulsion and illegitimacy of that pressure. The Board was prepared to assume that the prospect of return to unit left R with no practical alternative. That did not itself invalidate consent.
Legitimacy depended on both the pressure used and the demand it supported. A threat to do something lawful was not necessarily legitimate: the demand might still be improper. Here, however, the Crown could lawfully transfer R, and the Ministry’s concerns about security and the effectiveness of the special forces were legitimate. It could reasonably regard unwillingness to accept confidentiality as making someone unsuitable for continued service in the SAS.
The majority also rejected the finding that R had received a military command which he was legally obliged to obey. He faced a choice that could be highly pressurised without being an unlawful exercise of military power. Both the threat and the demand were justified in these circumstances.
Undue influence and legal advice
Undue influence concerned the unfair exploitation of a relationship of influence. The existence of influence did not by itself establish its improper use. The majority assumed that military hierarchy, regimental loyalty and R’s admiration for his commanding officer gave the Army influence over him. It nevertheless considered the confidentiality obligation a reasonable requirement for continued SAS service.
The Board accepted the finding that R had not been able to obtain legal advice. It regretted that soldiers were not expressly told that suitable arrangements could be made. But R understood the agreement’s straightforward terms, and the majority did not consider the absence of advice to make this transaction unfair. Advice might have encouraged reflection; that did not establish undue influence.
Lord Scott disagreed. The military culture of obedience, R’s perception that he was being ordered to sign, and the circumstances found by the trial judge raised a presumption of undue influence. In his view, it had not been rebutted. No dishonesty by the officers was necessary. The Ministry should at least have made independent legal advice available before obtaining contractual obligations extending beyond service. He would have allowed the appeal.
Consideration and the remaining challenges
The Ministry could not bind itself by an ordinary contract never to transfer R: that would fetter the Crown’s discretion. But it actually refrained from returning him to unit and allowed him to remain in the SAS. That practical benefit was sufficient consideration, even without a promise to preserve his posting for a fixed period.
The majority also rejected the separate unconscionability challenge. R’s freedom-of-expression argument did not undermine the orders for financial relief. The Court of Appeal’s discretionary refusal of an injunction did not mean that the contract was invalid or that there was an overriding public interest in publication.
The Board did not decide whether the Ministry had unlawfully refused consent to publication: R challenged the contract’s validity, not that decision. It observed that an unreasonable refusal could in principle be challenged by judicial review in England. The agreement itself contained no express or implied term requiring consent not to be unreasonably withheld.
Outcome
R’s appeal was dismissed. The orders for an account and an assessment of damages remained, and the refusal of an injunction was undisturbed. The Attorney-General did not seek costs.
