From Law wiki, the wiki for law research

Full Text

Summary

The relationship between a military serviceman and his commanding officer does not create the presumption of undue influence in UK contract law.

Abstract

After exposure of details of the "Bravo Two Zero" mission during the first Gulf War through books written by members of the mission, the MoD decided that all SAS servicemen would have to sign what was effectively a lifelong Non-Disclosure Agreement in order to remain as part of the service.

"R", a serving member of the SAS, signed the NDA contract, but resigned two weeks later, returned to his native New Zealand, and subsequently decided to make his account of B20 into a book. The MoD went to the High court of New Zealand seeking injunction, costs and damages. R submitted 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," [12].

Salmon J at first instance held that R had been ordered to sign the contract, and that such an order was unlawful as, "it was an attempt to restrict the civil rights he would ordinarily enjoy after he had left the service," [13] combined with the threat of a "return to unit" ("RTU"), a way of removing a person from the SAS which, "was normally imposed as a penalty for some disciplinary offence or on grounds of professional unsuitability," [6] and would amount to a, "public humiliation," [15].

The Court of Appeal reversed the decision, rejecting all of R's submissions. The case was referred to the UK Privy Council.

Judgment

Held, by a four to one majority (Lord Scott of Foscote dissenting) upholding the decision of the High court of New Zealand, that:

• the MoD's motivation for requiring SAS to submit to the new contract was reasonable;
  
• while R may have been subject to "overwhelming pressure", he was still presented with a choice, and the MoD had not coersed his will;
  
• since it would be reasonable for any service member wishing to remain in the SAS to make the same choice as made by R, the choice was neither influenced unduly nor unconscionable;
  
• the MoD had forborn from returning R to his unit, which constituted their good consideration (following Alliance Bank Ltd v Broom (1864) 2 Dr & Sm 289).

Lord Scott dissented on the basis of the facts found by the trial judge at first instance, particularly that R had signed the contract under orders, had not been allowed to examine it beforehand, and had not been permitted to show it to a legal advisor. Given the strength of military hierarchies, he found the distinction between "military orders" and orders which were, "couched as requests or as recommendations," to be, "entirely artificial," [41].