Nevertheless there are dicta which accept that a threat can be illegitimate where it threatens lawful action. But this does not mean that any threat, lawful or unlawful, will constitute duress, because the nature of the demand must be balanced against what is threatened and it may require a particularly unconscionable threat of lawful action to tip the scales. While, in principle, it may be accepted that a threat of lawful action can amount to duress, it is clear from the following extract that, in the context of arm’s length dealings between two commercial enterprises, it is unlikely that such a threat will amount to duress, especially where the party making the threat believes that his demand is perfectly valid. In CTN Cash and Carry Ltd v Gallagher Ltd, the plaintiffs operated a

doi:10.4324/9781843141518-168

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Nevertheless there are dicta which accept that a threat can be illegitimate where it threatens lawful action. But this does not mean that any threat, lawful or unlawful, will constitute duress, because the nature of the demand must be balanced against what is threatened and it may require a particularly unconscionable threat of lawful action to tip the scales. While, in principle, it may be accepted that a threat of lawful action can amount to duress, it is clear from the following extract that, in the context of arm’s length dealings between two commercial enterprises, it is unlikely that such a threat will amount to duress, especially where the party making the threat believes that his demand is perfectly valid. In CTN Cash and Carry Ltd v Gallagher Ltd, the plaintiffs operated a

ABSTRACT

CTN Cash and Carry Ltd v Gallagher Ltd [1994] 4 All ER 714, CA, p 717 Steyn LJ: On appeal, the plaintiffs accept that, if the case for duress does not succeed, the claim for repayment must fail. It seems to me not to matter whether the correct analysis of the facts is that an agreement was made that the plaintiffs would pay the sum in question or whether payment is to be regarded simply as a unilateral act of the plaintiffs. In either event, the claim must succeed if the case of duress is made out; if that case is not made out, the claim must fail.