Question 1:

United Kingdom, for its longest history, did not have an independent Supreme
Court till its establishment in 2009 brought about by the Constitutional Reforms
Act, 2005.1 The highest court in the country before this was the Appellate
Committee of the House of Lords, a body formed within the upper house of the
Parliament. Along with this, there existed the Judicial Committee of the Privy
Council. Both these bodies were headed by the Lord Chancellor of UK who
along with his judicial functions also carried on his duties as a cabinet minister,
speaker in the legislative chamber in the House of Chambers and as head of the
government department for courts and other legislative bodies. All of the latter
roles were of a political nature and thus his exercising roles in both legislature
and executive suggested a lack of independence of the judiciary from the
legislature. Moreover, the twelve Law Lords presiding over the Appellate
Committee of the House of Lords were full members of the House of Lords
(subject to being judicially qualified), who often did their judicial work from the
House of Lords itself. Such a system had a mix of two different wings of the
government- the legislature and the judiciary which ought to have been
independent in the spirit of the rule of law. Such a system had its origins in the
British democratic system where Parliament was the supreme body over all
institutions of the State.

The Judges in the Supreme Court consists of the President, the deputy president
and the justices of the Supreme Court of UK. The Appointment of the judges is
done by the Queen on the advice of the Prime Minister on the recommendation
of the commission. The Constitutional Reform Act, 2005 brought about many
changes in the judicial system. The qualification required for the Supreme Court
Judges is that they must have held a high judicial office for at least 2 years or

1
Maican O, 'Reform Of The United Kingdom Judicial System' (2013) 3 Juridicial Tribune
<http://oaji.net/articles/2017/5275-1511868894.pdf> accessed 24 July 2019
held rights of audience at higher courts for at least 15 years. This makes it
important to note that even a non-judicial person can also become a justice of
the Supreme Court and hence this paves down ways for barristers to become
judges.2

Unlike US, in UK, there is no separate written body of constitutional law to

affirm constitutional rights like separation of powers. Instead, there are
numerous legislations that make up the Constitution and which can be amended
or repealed by the Parliament.3 Although, in practice, it was unlikely for the
Parliament to repeal/ amend any law to the effect of undermining the
independence of the judiciary, but in theory, it was possible and therefore the
old position in UK where the House of Lords was the supreme judicial body for
the country was amended by the Constitutional Reforms Act, 2005 that
transferred almost all the powers of the Privy Council and the House of Lords to
the newly created UK Supreme Court. The Act also changed the manner of
appointment of the 12 Law Lords and the Chief Justice to the UK Supreme
Court.

While earlier the judges to the House of Lords were appointed by the Queen on
the advice of the Lord Chancellor. The appointment of judges to the Court of
Appeal rested with the Prime Minister with prior consultation of the Lord
Chancellor. Section 61 of the Constitutional Reforms Act, 2005 laid down a
new body for the appointment of the justices of the Supreme Court- the
Supreme Court Commission. This body along the Judicial Appointment
Commission which is responsible for appointment of judges to 14 offices
mentioned in the Constitutional Reforms Act, 2005 were given complete
decision making power on the appointment of judges. The reversal of their
choice could only be exercised by the Lord Chancellor under very limited

2
Maican O, 'Reform Of The United Kingdom Judicial System' (2013) 3 Juridicial Tribune
<http://oaji.net/articles/2017/5275-1511868894.pdf> accessed 24 July 2019
3
<https://www.lawteacher.net/free-law-essays/judicial-law/more-diverse-judiciary.php> accessed 27 July 2019
circumstances. This system was put in place to ensure a diverse judiciary where
merit be the sole criterion for selection. Along with this, the justice system was
allotted its own staff, budget and building in order to assert its independence
from other wings of the government. But it has been observed that despite the
measures to make the appointment of judges to the judiciary more independent
and diverse, the higher judiciary lacks the much needed independence. The
appointment of judges is mostly restricted to set of barristers who are the upper
class male members of the society. Such selection takes place as the selection
commission consists of judges who are likely to select those of their own kind.
Instead of considering a candidate on the criterion of his usefulness to the
society, they tend to select people in their own image. Such a judiciary is biased
and favored towards a certain class, ideas and set of opinions and does not
represent the minorities of the society. It is thus more likely to not recognize the
rights of women, ethnic minorities and other sub groups of the society. This
reflects in the fact that most members of the judiciary have zero experience in
public law where majority of cases concern public law these days. In 2011, the
percentage of women in the judiciary was 22.3% while the percentage of
minority ethnic and black Asian judges was only 5.1 %. 4 To counter such a
poorly represented diversity, there have been suggestions on changing the
composition of the appointment commission for judges. While currently, the
recommendation for a candidate is given by twenty-six membered commission
of which twenty members are judges, a new report suggest that the appointment
should rather be made by a nine membered commission comprising of three
senior judges, three parliamentary members and three lay men. It is essential to
draw the example of Canada here which has been successful in ensuring
accountability and representation of its judiciary by redefining its definition of
merit and by holding open parliamentary proceedings where judges are

4
'White And Male: Diversity And The Judiciary' (www.guardian.com, 2012)
<https://www.theguardian.com/news/datablog/2012/mar/28/judges-ethnic-sex-diversity-judiciary> accessed 28
July 2019
questioned about their political philosophy.5 This is in contrast to the contrast to
the change bought about by UK’s Constitutional Reforms Act, 2005 where the
legislature was completely severed from the decision making process of judicial
appointment. But as the reforms bought about by the Act have failed to secure
representation and have rather induced a self-propagating oligarchy in the
higher judiciary, it is time when we reconsider the status quo and develop a
system that ensures public accountability of the judges by maximizing
representation of all communities and by securing its ties to the legislature in a
way that protects the system of checks and balances without interfering with
judicial autonomy.6 While parliamentary involvement in the selection of judges
is a sensitive issue that needs much consideration, it is certain that a more
diverse judiciary will increase the faith of the public in the judicial system.

The traditional system of appointing judges created a non-diverse and no

representative judiciary and was therefore indefensible. This statement holds
true because in the traditional system the method of appointing judges was
biased, the judges of the Supreme Court were usually male and white and had a
background from Cambridge University. Therefore there was no diversity, this
meant that the representation from other communities or gender. 7 This resulted
in a union that was biased in its decisions and hence the problems of other
communities could not be felt and administered out of personal experiences and
hence it was indefensible.

6
Melton JT Ginsburg, 'Does De Jure Judicial Independence Really Matter?: A Reevaluation Of Explanations
For Judicial Independence' [2012] SSRN Electronic Journal
7
(www.parliament.uk, 2012) <https://www.parliament.uk/business/committees/committees-a-z/lords-
select/constitution-committee/news/jap-report-publication/> accessed 22 June 2019
Question 2:

The Court in the landmark case of Pao On v Lau Yiu Long (1980)8 remarkably
said that in order to determine duress, there must be present some factor which
in law could be regarded as a coercion of will so as to vitiate consent in order to
constitute duress. Therefore, duress is an illegally exerted pressure on a person
so as to make him do (coerce) something which he is not willing to. In
determining this, it is important to inquire whether or not the person alleged to
be coerced protested at the time of the coercion or whether or not he had an
adequate legal remedy available as an alternative against the duress, whether or
not he was advised independently and whether after entering into a contract
entered under duress, the person alleged to be coerced took steps to avoid the
contract.

There are three types of duress, duress to person, goods and economic duress.
Duress to person can be reflected from the case of Barton v Armstrong (1976),
in which A threatened B, to buy his shares however there was proof that it was
beneficial for the company if A buys shares of B. But the Privy held that even
though it was beneficial for the company, still the coercion will be treated to be
as duress. Duress to goods, can be explained through The Sibeon and The
Sibotre (1976), wherein Justice Kerr stated that if a person is involuntarily
forced to sign an agreement under the fear of his house being burned down or a
photo being damaged which is valuable to him, it will be duress as it is not a
voluntary signing of the agreement. Economic duress can be explained in the
case of Pao On v Lau Yiu Long (1980)9, the defendant refused to enforce a
guarantee agreement between the parties claiming that the said agreement was
not legally enforceable as it lacked a valid consideration which is a prerequisite
for a valid contract and also claimed that the said contract was entered under

8
Pao On v Lau Yiu Long [1980] AC 614
9
Pao On v Lau Yiu Long [1980] AC 614
duress. The Court ruled in favor of the plaintiff and rejected the claims of the
defendant. On the claim of duress, the Court took a view that the said case was
not one of economic duress as the alleged threat to repudiate a previously
existing contract in case the said agreement was not entered into was not an
unfair use of bargaining position by the claimant as it is common in business
transactions for businessmen to negotiate at an arm’s length.10 The Court also
concluded that the agreement was voluntary entered into by the defendant and
that there was no vitiation of his consent even though he was under commercial
pressure to enter into the contract in order to avoid bad publicity of his
company.

The above position taken by the Court was in line with the earlier stand taken
by the Privy Council in the case of Barton v Armstrong (1976) 11 where the
Court ruled that the pressure used to enter into a contract must be of a kind that
is not legitimate in order to establish duress and that such a pressure must be a
reason for entering into the contract even though there maybe other reasons for
entering into the contract. In early cases, the Court regarded a threat as a duress
only when it was made on a person and not on his goods, as held in the case of
12
Skeate v Beal (1840). This position of the Court was swiped by the English
Courts from 1976 onwards when the concept of inequality of bargaining power
saw the light of the day, for instance, in Llyods Banks v. Bundi (1975)13 by the
remarkable Lord Denning. Subsequently, the English judges developed the
concept of economic duress which was upheld in the above mentioned cases of
Barton v Armstrong (1976)14 and Pao On v Lau Yiu Long (1980).15 The

10
Phang A, 'Whither Economic Duress? Reflections On Two Recent Cases' (1990) 53 The Modern Law Review
11
Barton v Armstrong [1973] UKPC 27
12
Skeate v Beale [1840] 11 Ad & El 983
13
Lloyds Bank Ltd v Bundy [1975] QB 326
14
Barton v Armstrong [1973] UKPC 27
15
Pao On v Lau Yiu Long [1980] AC 614
doctrine of economic duress was mostly applied in the cases where the act to
force a party to enter into a contract was wrongful in itself but nevertheless the
English Courts did stretch the doctrine while applying it in cases like Burmah
Oil Limited v Bank of England (1980)16 but the question of whether a mere
threat of breach of contract would establish duress or not has not been answered
by the Courts. Although, the liberal times have approved of a wider
interpretation of the term “economic duress”, the concept suffers from some
inconsistencies of commercial law which have been highlighted now and again
by professors and judges.17 They argue that the concept of economic duress is
internally inconsistent because the victim of economic duress does choose to
submit to duress. The Court does not determine duress on the conclusion of
absence of choice. Rather, a case of economic duress is established when the
Court concludes that the alternatives available to the victim were inadequate.
Another argument in support of this inconsistency is that a contract under duress
is not void in itself but is voidable by the victim. Such an inconsistency has
been observed by the Court in Universe Tankships (1982).18 They further argue
that although in most cases the act amounting to duress will be unlawful in
itself, there maybe cases where such an act is not unlawful in itself. In such
cases, the illegitimacy of the pressure used to induce a person to enter into
contract shall only be established on the basis of the nature of the demand made
(whether it is a bargain, negotiation or threat etc.), the same being stated by the
Court in Thorne v MTA (1937).19 In such cases, the uncertainty of bargain made
during a commercial negotiation may fall heavy on one party if the Court
decides to rule against the said party.20 The reliance on the sole factor of the

16
U.K., Burmah Oil Co. Ltd. v. Bank of England, [1980] AC 1090
17
Ceil C, 'Contractual Free Will: Doctrines Of Economic Duress & Undue Influence' [2015] SSRN Electronic
Journal
18
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1982] 2 All ER 67
19
Thorne v Motor Trade Association [1937] AC 797 House of Lords
nature of the demand also makes economic duress open to interpretation as a
tort as it meets all factors that are necessary to establish a tort action. Such an
interpretation may make the said party prone to several actions for an action the
validity of which maybe ambiguous to them at the least, if not questionable. The
position of law with respect to the doctrine of economic duress is often
criticized as being a countervailing factor to free market stability and thus seen
against economics which should be the supreme law for the judiciary. Although,
the doctrine of economic duress recognizes the concept of inequality of
bargaining power and thus performs a very important social function by
bringing about social justice and labor reforms. Another interesting position was
taken by the Court in the case of Universe Tankships (1982)21 that in cases of
industrial relations, a case of economic duress cannot be made when such
duress arises in the course of a trade dispute between the parties, even when it
meets all other elements of the economic duress.

REFERENCES

Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1982] 2

All ER 67

Thorne v Motor Trade Association [1937] AC 797 House of Lords

Ceil C, 'Contractual Free Will: Doctrines Of Economic Duress & Undue Influence' [2015]
SSRN Electronic Journal

Skeate v Beale [1840] 11 Ad & El 983

Lloyds Bank Ltd v Bundy [1975] QB 326

Barton v Armstrong [1973] UKPC 27

Pao On v Lau Yiu Long [1980] AC 614

U.K., Burmah Oil Co. Ltd. v. Bank of England, [1980] AC 1090

Phang A, 'Whither Economic Duress? Reflections On Two Recent Cases' (1990) 53 The
Modern Law Review

21
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1982] 2 All ER 67
Melton JT Ginsburg, 'Does De Jure Judicial Independence Really Matter?: A Reevaluation
Of Explanations For Judicial Independence' [2012] SSRN Electronic Journal

(www.parliament.uk, 2012) <https://www.parliament.uk/business/committees/committees-a-

z/lords-select/constitution-committee/news/jap-report-publication/> accessed 22 June 2019

<https://www.lawteacher.net/free-law-essays/judicial-law/more-diverse-judiciary.php>
accessed 27 July 2019

'White And Male: Diversity And The Judiciary' (www.guardian.com, 2012)

<https://www.theguardian.com/news/datablog/2012/mar/28/judges-ethnic-sex-diversity-
judiciary> accessed 28 July 2019