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1 Tort
Intimidation and duress by threats
In tort law, duress by threats can take two forms: a cause of action called intimidation, and potentially a defence. We start by considering intimidation. We then turn to the defence.
The two-party tort of intimidation has not enjoyed full-bodied scrutiny. The tendency has been to obscure and confuse it with the three-party tort of causing loss by unlawful means. There are also a number of areas of controversy: which unlawful acts support the plea of intimidation; whether that includes threatened breach of contract, or even threats of lawful acts; and whether there might be a defence of justification. We address all these points in this chapter. But first we must discuss the case law to see if we can at least identify the general shape of the tort of intimidation, and mark it out from the three-party tort of causing loss by unlawful means.
1.1 Intimidation: English case law
In Gilbert v Stone,1 the defendant stood accused of entering a close and taking a gelding. He said that he did this only because he was threatened life and limb by twelve armed men. It was held no defence to trespass that a defendant acts from fear or threats of another, because the victim (the owner of the gelding) cannot sue the duressor, whereas the defendant can.
While Gilbert v Stone is usually taken as authority for the proposition that duress is not a tortious defence, Murphy says it necessarily also recognises that two-party intimidation is a cause of action, in asserting that the defendant can sue the duressor.2
Little attention was given to intimidation until Rookes v Barnard,3 which was a three-party case. Union members A threatened employer B that they would strike, in breach of contract, unless B dismissed non-union employee C, which B did, lawfully. Cās claim against A was made out. Threatening breach of contract was held to be unlawful means sufficient to support a tortious cause of action.
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Lord Devlin approved the definition of intimidation given in Salmond on the Law of Torts. The two-party version was expressed as follows: āit is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to himā. Lord Devlin said that āthe essence of the offence is coercionā. Note too, what should be obvious, that threats can be implicit as well as explicit.4
Then in Morgan v Fry,5 Lord Denning MR gave the following definition, which has been regularly quoted in subsequent cases:
In JT Statford & Son Ltd v Lindley,6 in the Court of Appeal, Lord Denning MR said that a bare threat is not intimidation (though it may, for example, be assault). He said that there must be a threat, coupled with a demand, intended to coerce the threatened party into doing something he was otherwise unwilling to do.7 Salmon LJ said that the essence of intimidation is damage caused by a coercive threat to do some unlawful act.8
In News Group Newspapers Ltd v SOGAT 82,9 the judge said that the tort is not complete unless the person threatened succumbs to the threat and damage is suffered.10 He also said that the threats must be serious and taken seriously. But better language would be: the threats were coercive (rather than serious). The judge also said, quoting from Clerk and Lindsell, that the complainant must be the person whom the accused intended to injure. But, we might note, this requirement of an intention to injure was not mentioned in the previous cases. And an intention to injure, in two-party cases, seems less apposite than an intention to coerce. Also, identifying an intention to injure, in the cases themselves, is sometimes lacking, sometimes forced.
In News Group v SOGAT itself, the accused, who were employees on strike, were threatening, among others, a fellow employee. They engaged in acts which made her feel frightened and unsafe. The judge held that intimidation was made out. He said that their coercive threats were designed to persuade her to cease working for their mutual employer. But, we might note, an intention to persuade her to cease working for their employer is not necessarily the same as an intention to cause her loss. (They might have been content for her to find immediate work, as long as it was elsewhere.)
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In Godwin v Uzoigwe,11 the complainant was treated as a āhousehold drudge and virtually a slaveā.12 She was beaten if she did anything which displeased the accused, and she was forbidden from leaving the house or making friends. Intimidation was made out, and she was awarded Ā£20k.
Dillon LJ, though finding it unnecessary to give a definition of intimidation, did recite the approach of the trial judge: after quoting from Morgan v Fry, the trial judge described the tort as āintentional unlawful coercionā, and as requiring a threat of unlawful conduct with the intention of compelling the other person to obey the accusedās wishes, with that other person in fact coerced so to act. Here the stress is on intention to coerce, not to injure.
Yet Steyn LJ said that the tort of intimidation required that the accused should have acted with the intention of injuring the complainant. He said that, in this case, the accused must have foreseen that their coercive behaviour would be injurious to the complainant, which therefore involved an intentional infliction of harm.
Note that the complainant suffered no out of pocket loss. To use the language of personal injury, she suffered no special damages, only general damages. Other causes of action in that case were assault and breach of contract (the accused had promised her an education). To the extent that intimidation supplemented the money recoverable, or explained it on an alternative basis, the real complaint is injury to her dignity and feelings, as a result of being coerced into a degrading role. It has been recognised in a subsequent case that injury to feelings can sound in intimidation,13 and there is academic support for this position too.14 This also provides the better explanation for News Group v SOGAT: yes, the strikers wanted their colleague to stop working for their employer, but to achieve that, they intended to frighten and torment her, and for that she might recover substantial damages.
Thus, an intention to cause loss, if it is required as an element of two-party intimidation, should be understood not as restricted to financial loss, but also in terms of injury to feelings or dignity. And we can go further still. The intention to coerce is an intention to erode the complainantās autonomy. This too is an intention to harm. At this point, a separate and additional ingredient of an intention to harm is redundant, because it is necessarily contained within the idea of an intention to coerce.
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In D&C Builders v Rees,15 the accused threatened not to pay, in breach of contract, what it owed to the complainant, unless the complainant accepted lesser payment. This the complainant did, because its financial pressures meant it needed to accept any money rather than none at all. The purported settlement agreement was set aside for duress. Lord Denning MR said that intimidation was also made out. The complainant recovered the outstanding amount, seemingly ei...
