“In Pakistan International Airlines Corp v Times Travel (UK) Ltd [2021] UKSC 40; [2021] 3 WLR 727, the Supreme Court confirmed the existence of lawful act duress, but narrowed its scope to certain cases of ‘morally reprehensible’ or ‘unconscionable’ conduct (at [2] per Lord Hodge, with whom Lord Reed, Lord Lloyd-Jones and Lord Kitchin agreed). Lord Burrows, in the minority, preferred to focus on ‘bad faith demands’ (at [136(v)]). There is force in the criticisms made by Lord Burrows as to the uncertainty in Lord Hodge’s test, but also in the same criticism made in the other direction (at [133] and [55] respectively). Despite a clear statement from all the Justices that lawful act duress should be successful only in ‘rare exceptional cases’ (at [99] per Lord Burrows, also Lord Hodge at [30]), the test for identifying such cases remains far from straightforward. Given that in commercial law certainty matters so much, it is suggested that Times Travel represents a missed opportunity to place the law on a more stable footing by confining duress to unlawful acts and threats …”
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William Day, ‘Duress and uncertainty’ (2022) 138 Law Quarterly Review (April issue) 194.
First posted 2022-03-02 10:00:02
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