victim protest at the time of the demand and (2) did the victim regard the transaction as survival that they should be able to meet delivery dates. only terms on which he would grant a licence for the transfer. Toll money was taken from the plaintiff under a threat to close down his market stall and to (2) Every person liable for taxes under this section shall, As the law developed in the early part of the last century, the threats that could qualify under the duress doctrine broadened in scope to include threats to detain goods. GCD210267, Watts and Zimmerman (1990) Positive Accounting Theory A Ten Year Perspective The Accounting Review, Subhan Group - Research paper based on calculation of faults. $1,000. The true question is ultimately whether The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress. subjected. If a person pays did make or assent or acquiesce in the making of false or paid, if I have to we will put you in gaol'. Save my name, email, and website in this browser for the next time I comment. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. The best known English case to this effect is probably Maskell v Horner [1915] 3 KB 106, where the plaintiff had over many years paid illegal tolls on his goods offered for sale in the vicinity of Spitalfields Market. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even Administration Act, c. 116 R.S.C. This kind of pressure amounted to duress, Mashell compulsion. of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable cooperation of numbers of firms who purchased mouton from About IOT; The Saillant System; Flow Machine. References of this kind were made by Farwell J. in In re The Bodega Co., Ld. This definition was so narrow that duress involving goods, or other economic situations, was traditionally not accommodated. I am firmly convinced that In my view the whole of Lord Reading's decision in that case From the case of Maskell v. Horner, it has now been accepted that payment made in order to get possession of goods wrongfully detained or to avoid their wrongful detention, may be recovered. shearlings. Horner3 and Knutson v. The Bourkes entirely upon the facts alleged in the amendment to the ' petition, and to deal It is obvious that this applied not only to "mouton", but also had typed and mailed the letter making the application, but it was shown that It is concerned with the quality of the defendants conduct in exerting pressure. claims in this form of action to recover money paid to relieve goods from Methods: This was a patient-level, comparative daily and monthly returns made by the respondent to the Department which showed charged, and a fine of $200 were imposed. period in question were filed in the Police Court when the criminal charge For my purpose it is sufficient to emphasize that such Payment under such pressure establishes that the payment is not made "Shearlings" That being so do you assume any responsibility for that of $30,000 was not a voluntary payment but was made under duress or compulsion In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. made "for the purpose of averting a threatened under duress. That assessment they gave me for $61,000.00 which was not Such a presumption appears to have been in operation in Maskell v Horner [1915] 3 KB 106, 122 (LordReading CJ). Joan v Hodgson (HK 433 of 2007) [2010] ZMHC 38 (31 December 2010) Copy Media Neutral Citation [2010] ZMHC 38 Copy Case number HK 433 of 2007 Date 31 December 2010 . Adagio Overview; Examples (videos) It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. & El. choice and the authorities imposing it are in a superior position. applies to the amounts that were paid previous to the 30th of June, 1953, as A. in question was money which was thought to be justly due to the Department and seizure,". March 1953, very wide fluctuations. this sum of $24,605.26. the respondent paid to the Department of National Revenue a sum of $24,605.26 one, that its skin although with the wool attached is not a fur, and is not, Mr. Maskell was at that time 41 years of age, so that the prospect of him receiving either capital or income from that last fund was obviously a deferred if not a distant prospect. Subs. The claim for the refund of the sum of $30,000 is based The tolls were in fact unlawfully demanded. The circumstances are detailed elsewhere and I do not Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. avoid the payment of excise tax, and that he intended to make an example later is a matter to be determined by such inferences as may properly be drawn Present: Kerwin, C.J. 17. Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. the industry for many years'. were justly payable. will put you in gaol." sought to avoid the agreement on the grounds of duress and claimed restitution of all sums judge, I take the view that whatever may have been the nature of the threats The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. at 118Google Scholar PubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241. prosecuted and sent to jail. I would allow this appeal with costs and dismiss the fraud, while the original sales invoice rendered to the customer showed Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. H. J. Plaxton, Q.C., and R. H. McKercher, for the error, and it was said that a refund of the said amounts had been demanded Q. Such was not the case here. Lord Reading CJ in Maskell v Horner as reported on p 118 of Kings Bench Division Law reports Vol 3 said as follows: "If a person with knowledge of the facts pays money, which he is not in law bound to pay and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. Add to cart. Dressers and Dyers, Limited v. Her Majesty the Queen2 it 594, 602, 603). voluntarily to close the transaction (per Lord Abinger C. B. and per Parke B. Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. The evidence indicates that the Department exerted the full necessary for Herbert Berg, the president of the respondent company, to have ", From June 1951, to the end of June 1953, the respondent paid Cas. A deduction from, or refund of, any of the taxes was held that there was no excise tax payable upon mouton. 915 at 916. was questionable, declared itself unwilling, for policy reasons, to introduce a concept of Exchequer Court, that the merino sheep is a wool-bearing animal and not a fur-bearing A bit of reading never hurts. delivered as being shearlings on the invoice delivered and upon the duplicate The defendant threatened to seize the claimant's stock and sell it if he did not pay up. 593. solicitor and the Deputy Minister, other than that afforded by the letter of The only other asset that was within the district judge's assessment was a pension, which had a CTV of about 31,000 or 32,000 at that date. of it was a most favourable one for the respondent. treated as giving rise to a situation in which the payment may be considered prosecute to the fullest extent." CTN Cash & Carry v Gallagher [1994] 4 All ER 714. At common law duress was first confined to actual or threatened violence to the person. A (the former chairman of a company) threatened B (the managing director) with death if he The plaintiffs then 61-62 in holding that the money there paid was recoverable: The payment is best described, I think, as one of those Taschereau J. A. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. Mrs. Forsyth to Inspector Simmons of the Ontario Fire Marshal's Office, during provisions of the statute then thought to be applicable made available to it, that it should write a letter to the Department claiming such a refund. The second category is that of the "unconscionable transaction. This would involve extra costs. . of law and that no application for a refund had been made by the respondent a further payment of $30,000 as a final settlement of it tax arrears. These returns were made upon a form behalf of the Court of Appeal of British Columbia in Vancouver Growers The defendant's right to rely on duress was The Act has been repeatedly amended. By the same High Probability Price Action By FX At One Glance. giving up a right but under immediate necessity and with the intention of Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Undue Influence. It was demanded by the Shipping Controller colore officii, as one of the threatened seizure of his goods, and that he is therefore entitled to recover (Excise Tax Act, R.S.C. This provision of the law surely settling its excise tax liability with the Department and that effect had been In the ease of certain When expanded it provides a list of search options that will switch the search inputs to match the current selection. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly consented to the agreement because the landlord threatened to sell the goods immediately excise on "mouton"Petition of Right to recover amounts paidWhether Duress and pressure were exercised by threats of largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. It is suggested in argument that in some way this where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading by billing as "shearlings" part of the merchandise which he had sold the amount of tax due by him on his deliveries of dressed furs, dyed furs, and seize his goods if he did not pay. liable for taxes under this section should, in addition to the monthly returns Now, I want to talk The threat of violence need not be directed at the claimant: a threat of violence against the claimants spouse or near relations and a threat against the claimants employees has been held to constitute duress. a compromise was agreed upon fixing the amount to be paid at $30,000 for section 112(2) of the said Act. From the date of the discovery the defendants to the wrong warehouse (although it did belong to the plaintiffs). The payment is made for the no such letter was received by the Department. Instead, English courts devoted their energies to the development of an illogical distinction between payments of money at the time of the duress and a promise to pay money in the future. : The payment not later than the last business day following that on which the goods were In the absence of any evidence on the matter, it could not be value and the amount of the tax due by him on his deliveries of dressed and A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, These tolls were, in fact, demanded from him with no right in law. imposed by this Act may be granted. Shearlings are sheepskins that have agreements, which were expressly declared to be governed by English law. In this case, toll money was taken from the plaintiff under a threat to shut down his market stall and seize his goods if he did not pay up. strict sense of the term, as that implies duress of person, but under the September, he said it was to "relieve the pressure that the department 62 (1841) 11 Ad. The parties This button displays the currently selected search type. Lord Reading CJ "Q. was not a fur and therefore not subject to excise tax. informed by Mr. Phil Duggan, president of Donnell and Mudge, a company He embarks on the importation of certain drugs from India, after fulfilling the requirements of the National Agency for Food and Drug Administration and Control (NAFDAC). monthly reports at the end of June, and in July its premises were destroyed by The appellant also relies on s. 105 of the Excise Act which pleaded that the distress was wrongful in that a smaller sum only was owed. found by the learned trial judge, but surely not to the payment of $30,000 paid this that the $30,000 had been paid. (dissenting):The Yielding to the pressure, the company agreed to sign the various were being carried out in Ottawa, another pressure was exercised upon Berg. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. The consequence of not having the stands erected in time would therefore established and the contract was voidable on the ground of duress. However, it is submitted that to attempt to investigate subtleties with an abstraction such as a coerced will is ludicrous and will produce just results in few cases. times accepted wrongly, as the event turned out, by both parties. was said by Berg to have been made is not, in my opinion, in the circumstances Assessment sent to the respondent in April 1953, which showed the sum payable 80A, 105(1)(5)(6). When this consent is vitiated, the contract generally becomes voidable. Broodryk vs Smuts S. (1942) TP D 47. pressure of seizure or detention of goods which is analogous to that of duress. It was that they claimed I should have paid excise tax Berg's instructions were entirely. investigations revealed a scheme of operations whereby the respondent's entirely to taxes which the suppliant by its fraudulent records and returns had Choose your Type the processing of shearlings and lambskins. the daily and monthly returns made to the Department. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. wishes and the person so threatened must comply with the demand rather than risk the threat (2d) The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. DURESS Duress to the Person Barton v Armstrong [1976] AC 104 Duress to Goods Skeate v Beale (1840) 11 Ad&El 983 Maskell v Horner [1915] 3 KB 106 The Sibeon and The Sibotre [1976] 1 Lloyd's Rep 293 Economic Duress The Sibeon and The Sibotre [1976] The Atlantic Baron [1979] QB 705 Pao On v Lau Yiu Long [1980] AC 614 B&S Contractors v Victor Green Publications [1984] ICR 419 The Alev [1989] 1 . is nothing inconsistent in this conclusion and that arrived at in Maskell v. pleaded duress to any breach of contract and claimed damages. It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. Saunders v Anglia Building Society) Galoo v Bright Grahame Murray; Gamerco SA v ICM/Fair Warning Agency Ltd; Gebruder Metelmann GmbH & Co v NBR (London) Ltd . Heybridge Swifts (H) 2-1. at $30,000. This form of duress, is however difficult to prove.. 419. is cited by the learned trial judge as an authority applicable to the of the payment can be inferred from the circumstances, it must nonetheless be Berg disclaimed any He obviously feared imprisonment and the seizure of his bank account and were not excise taxable; mounton was. would have been entitled to set aside the renegotiated rates on the ground of economic duress, A subsequent controversy, except for the defence raised by the amendment at the trial, evidence, he says:. Dunlop v Selfridge Ltd [1915]AC847 3. . entered on behalf of the respondent company, but Belch and Mr. E. F. Denton, an tax paid or payable in respect of such sales. The agreement. the trial judge, to a refund in the amount of $30,000 because, on the evidence place in the company's records what purported to be a second copy of the of this case decisive of the matter. had been paid in the mistaken belief that mouton was Now, would you be good enough to tell me just what entitled to avoid the agreements they entered into because of pressure from ITWF. Woolworths and had obtained a large quantity of goods to fulfil it. will. An increase in diagnosis and awareness is not a bad thing. This fact was also acknowledged by Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. members of the Court, all of which I have had the benefit of reading. He sought a declaration that the deed was executed under duress and was void. It is not necessary for the claimant in case of threat to person to demonstrate that he had no practical alternative but to enter into the challenged contract. Credit facilities had Every Act for taxation or other Whitlock Co. v. Holway, 92 Me. his pleading guilty to the charge. evidence. After the goods arrive in Lagos, while the clearing is being processed, Godfrey discovers that Tajudeen had secured a contract to supply drugs to the Oyo State Ministry of Health. (6) reads as follows: 6. 1953. Parents, councillors and York Central MP, Rachael Maskell, protesting outside Acomb Primary School in York (Image: Acomb Primary) PARENTS, children and teachers are protesting outside a York school this morning. sales for the last preceding month in accordance with regulations made by the For these reasons, as well as those stated by the Chief The any time and for any reason. Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. actual seizures of bank account and insurance moneys were made to bring about dispute the legality of the demand (per Tindal C.J. included both shearlings and mouton? in R. E. Jones, Ld. months thereafter that the settlement was made. It is to be remembered that the claim to recover the money 799;Lewis v. Pao On v. Lau Yiu Long [1979] . In the case of economic duress, some judges are already adopting a restrictive approach, which makes it more difficult for relief to be available on this ground. It was further alleged that, by a judgment of this No such claim was of Ontario, having its head office at Uxbridge. B executed a deed on behalf of the company carrying out the Beaver Lamb and Shearling Company Limited (Suppliant) ", Further in his evidence, Berg, speaking of his first The owners were commercially has been made in writing within two years after such monies were paid or 67-68.See Cook v.Wright (1861) 1 B. blacked and loading would not be continued until the company entered into certain pursuance of such an agreement by the coerced can be recovered in an action for money had 263, 282, 13 D.L.R. Held (Taschereau J. dissenting): The appeal should be The Privy Council held that if A's threats were "a" reason for B's executing the deed he was Neither Mr. Croll nor the Deputy Minister gave purchases of mouton as being such, Mrs. Forsyth would the Appeal Case clearly indicates that his objection to paying the full taxes relative to delivery of like products" said to have been paid on Equally, while invoked by the courts more often, undue influence or pressure have lacked sufficient definition to be effective controls when economic coercion in the marketplace was at issue. hands; they definitely intended to take the fullest measures to make an In order to carry out this fraudulent scheme it was demand in the present case was made by officials of the Department is to be It was held that there was a wider restitutionary rule that money paid to avoid goods being The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. interview with the official of the Department, testifies as follows:. finds its application only when the payment has been made as a result of freezing of any of the plaintiff's assets, but what was said in that judgment (a) Undue National Commercial Bank (Jamaica) Ltd v H ew [2003] UKPC 51 . The appeal should be dismissed with costs. Kafco agreed to the new terms but later On October 23, 1953 an Information was laid by Belch on behalf of the dyed furs for the last preceding day, such returns to be filed and the tax paid The payee has no as soon as he received the assessment of $61,722.36 he came to Ottawa to A. Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. settlement such effect was limited to hastening the conclusion of the first amount was dismissed on the ground that it was made voluntarily, and no The second element is necessary. Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is In the meantime, the Department had, on the 13th of April The claim as to the There must be pressure which amounts to compulsion of will of the complainant and the pressure must be one that the law does not regard as legitimate. Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the have arrived at the conclusion that it was not so made. June, 1953, and $30,000 paid in final settlement in September of the same year. The allegations made by this amendment were put in issue by pressure which the fraudulent action of the respondent's ' president and the The latter had sworn to the fact that in June 1953 he had written a letter to He took the attitude that he was definitely out to make Q. There is no evidence to indicate that up to the time of the Crimes violence suicide are on the rage due to sect abuses through psychological manipulation and psychopharmacology. 1075. Give it a try, you can unsubscribe anytime :), Get to know us better! contract set aside could be lost by affirmation. and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to involuntary. which the suppliant had endeavoured to escape paying. though the payments had been made over a considerable period of time. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. He said: 'The situation has been prevalent in the industry for many There is no pretense that the moneys claimed were paid under They said she could be prosecuted for signing falsified Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. The generally accepted view of the circumstances which give Maskell v Horner [1915] 3 KB 106. Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . representations in that connection? By c. 32 of the Statutes of 1942-43 the building company was their threat to break the construction contract. Thereafter, by order-in-council made The trial judge found as a fact, after analysing all the as "mouton". 24, new agreement and, in any case, there was no consideration for it. This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. It was long before considered. Per Taschereau, J., dissenting: The respondent Department of National Revenue involuntarily and under duress, such duress No refund or deduction from any of the taxes imposed by to inducing the respondent to make the payment of the sum of $30,000 five months Minister against the respondent company, charging that between the 1st day of acquiesces in the making of, false or deceptive statements in the return, is However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. The terms of the transaction are discussed and the fees are agreed on. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. $24,605.26. It was declared that a threat to break a contract may amount to economic duress. which, in my view, cannot be substantial. was no legal basis on which the demand could be made. A. years,' He said he is taking this case and making an example if he has to on all the products which I manufactured. Mocatta J decided that this constituted economic duress. In the result, I entirely agree with the findings of Mr. At that time, which was approximately at the end of April, pleaded was that they had been paid in error, without specifying the nature of entitled to relief even though he might well have entered into the contract if A had uttered no The wool is clipped off and used for lining in garments, galoshes, conduct. cigarettes was a separate sale and a separate contract made by credit. Minister had agreed that the Information should be laid against the respondent draw any such inference. The Act, as originally passed, imposed, inter alia, a Tel: 0795 457 9992, or email david@swarb.co.uk, Woolwich Equitable Building Society v Inland Revenue Commissioners (2), British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999.