2 South West Building & Construction SOUTH WEST


May 2012


BUILDING & CONSTRUCTION


Tavistock Newspapers Ltd, 14 Brook Street, Tavistock, Devon, PL19 0HE. Tel: 01822 613666 Fax: 01822 618222


INSIDE THIS ISSUE


■ Knowles - Page 4 ■ Tor Multimix - Page 8 ■ Lighthouse Club - Page 11 ■ Spotlight on Cornwall - Page 16 ■ Environment topics - Page 22 ■ Just Joinery - Page 25 ■ Focus on Exeter - Page 27 ■ Welding and fabrication - Page 30 CIC column - returns next month


CAPTION FOR FRONT PAGE PICTURES: News and information from the businesses and organisations on the front cover is featured in this issue of South West Building & Construction magazine.


Quote of the month


‘


Sometimes I think I am Superwoman and can do it all - Pop singer Madonna


STEPHEN HOMER


Signing under duress


Stephen Homer, a former chairman of the CIC South West (Devon & Cornwall), highlights a recent case.


THE High Court has ruled that unethical behaviour by one party could be seen as illegitimate pressure upon another party, who are forced to enter into a contract as a result.


How you can contact us


EDITORIAL Editor: Paul White


Main contributor: Andrew Townsend Paul White Communications


PO Box 40, Callington, PL18 9WB ADVERTISING:


Judith Jewell Tel/Fax 01837 658941 E-mail judithjewell@btinternet.com


MAILING LIST


If you have a change for our mailing list Tel 01822 615007 Fax 01822 618971


E-mail swbmail@internet-today.co.uk ’


It is a well-established legal principle that when a party is forced to enter into a contract by way of duress, the contract is voidable provided that the forced party acts promptly to have the contract set aside. Duress is a product of illegitimate pressure by one party upon another, and is relevant when it causes the formation of a contract. A recognised form of duress is ‘economic duress’. With no absolute test to identify when illegitimate pressure is being exerted, as opposed to what can be considered as the ‘rough and tumble of the pressures of normal commercial bargaining’, the accepted starting point before this case was one of whether the illegitimate pressure resulted from or involved an unlawful act or threat of an unlawful act. A court will also consider:


1. Did the forcing party act in good or bad faith 2. How bad their behaviour was 3. Whether the party subject to the duress had any realistic practical alternative but to submit to the pressure.


The recent case of Progress Bulk


Carriers Ltd v Tube City IMS LLC, considers this subject.


In the case, the claimant


chartered a ship from the defendant to transport goods to a buyer. Problems arose and, eventually, the claimant faced catastrophic losses if the goods were not shipped and with no other option, under protest, signed a contract as the defendant requested to waive its right to recover its losses.


The court held that the claimant’s agreement was obtained by way of illegitimate pressure or economic duress. The court therefore decided that the contract was void and the claimant’s losses recoverable.


This decision is potentially


relevant to the construction industry. Disparities in size, financial position and commercial bargaining power are all important factors to be considered when parties believe they are being forced, or could be forcing another party, into an agreement by way of what could be viewed as unfair pressure. When negotiating, parties should be mindful of what could be considered unethical conduct, such as misleading behaviour, or extreme demands. Any party feeling forced into such an agreement should only do so under protest, reserving all rights (where possible) and seek to avoid the agreement as soon as it can. If you have any questions arising from this article, I can be contacted via email at s.homer@ashfords.co.uk. You can also follow on Twitter: @Ashfords_Build


South West Building & Construction Magazine


The magazine is now available to read on the world wide web


Visit: www.tavistock-today.co.uk and click on Special Publications


to view the magazine on line. Tel: Judith on 01837 658941 Email: judithjewell@btinternet.com


DISCLAIMER: The CIC SW will not accept any responsibility for any loss occasional to any person acting or refraining from action as a result of the material included in this publication.


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