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1. Performance of an existing legal duty, whether a public duty or a contractual duty owed to the promisor, does not amount to good consideration. Discuss, with reference to decided cases, to what extent does this view hold true today.

Introduction One of the principles of consideration is that a promise to perform or the performance of a preexisting duty, whether public or contractual duty is not good consideration. Public duty - Duty imposed by law of a public officer towards the general public Contractual duty - Duties that each party is legally responsible for in a contract agreement In terms of public duties, the promise by an official to act within the scope of his own duty is not valid consideration. As for contractual duties, the promise to perform a pre-existing contractual duty is not consideration.

Performance of existing duty for contractual duty. General rule: Performance of an existing duty by contract will not constitute sufficient consideration Stilk v Myrick [1809] 2 Camp 318 Facts:  The P (Stilk) was a sailor on a voyage from London to the Baltic and back  He was to be paid £5 per month  During the voyage 2 of the 12 crew deserted and the captain was unable to find replacement  He then promised to pay the remainder of the crew more than originally agreed  He did not pay and P sued him to recover the extra payment promised Held:  The captain’s promise to pay more to the other sailors was not enforceable because of a lack of consideration on the part of the sailors  The sailors had only done what was contractually agreed  The dissertation of the 2 sailors of a ship was seen to be a normal circumstance and the sailors did not do anything over and above what was contractually agreed.  Lord Ellenborough: The agreement is void for want of consideration It is mentionable that both Espinasse (public policy) and Campbell(consideration) had reported this case but in different views. Espinasse: Based the decision on the grounds that public policy should prevent seamen from demanding extra payment for duties that they were already obligated to do. Campbell: Lack of consideration is the reason for the decision and there is no reference to duress. Hartley v Ponsonby Held: The crew were entitled to the extra payment promised on the grounds that either they had gone beyond their existing contractual duty or that the voyage had become too dangerous, frustrating the original contract and leaving the crew free to negotiate a new contract. Performance of existing duty for public duty. General Rule: Performance of a pre-existing public duty is not a good consideration.

Collins v Godefroy (1831) 1B & Ad 950 Facts:     

The D (Godefroy) had brought action against an attorney and caused the P (Collins), to be subpoenaed to attend and give evidence. The D was keen to ensure that the P attended and so promised to pay him one guinea per day while he was at court for compensation for his time. The P attended court for six days but was never called to give evidence. The P demanded to be paid of six guineas as per the agreement but was not paid. The attorney brought action against the defendant for the sum amount that he was owed.

Held: 

The court held that the agreement where the P should attend court was not supported by consideration. As this was because the P was under public duty to attend court anyway having been subpoenaed. The law would not allow someone to recover expenses that occurred in the performance of a duty that they were obligated to do by law. Lord Tenterden said: “If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think that such a duty is imposed by law.’

The rule that a duty that is imposed by law is not good consideration was generally supported on the basis that it will prevent public officials from extorting money in return for performance of their already existing legal duties. Another way to put it is on the basis that public officials (e.g Police) owe a duty to the public by providing them with protection or other services without the need for payment.

Exception to the general rule In collins v Godfrey the basic rule applied was that when a party does something by which he is already legally bound to do,it can't be sufficient enough to amount to good consideration. the first major exception to this rule was identified in Glasbrook Bros v Glamorgan County Council,where It will be adequate consideration when what is given is more than required by the existing public duty ,so something extra is added to what the claimant is already bound to do. The extra element is the consideration for the new promise. This principle applies where a performance exceeds a public duty as seen in the case of Glassbrook bros v Glamorgan CC Glassbrook bros v Glamorgan CC [1925] AC 270 Facts:  The defendant was the owner of a colliery who asked the police to provide protection during a miner's strike in the form of a body of officers stationed on the premises

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The police thought that a mobile patrol was sufficient, while the colliery manager wanted stationary guards .It was finally agreed that the police would provide the requested service for a payment of £2,200.

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The defendant refused to pay,arguing that there was no consideration because the provision of protection was a public duty and that the police were merely doing what they were bound to do anyway

Issue 

whether the police authority had provided consideration for Glasbrook Bros' promise to pay.

Held The lords By a majority of 3:2 held that the police were entitled to be paid.The police provided additional officers than required,therefore the police had gone beyond their existing duty and In doing so they provided good consideration. Mr. Justice Bailhache in his judgment said :— "There is an obligation on the police to afford efficient protection, but if an individual asks for special protection in a particular form, for the special protection so asked for in that particular form, the individual must pay."

Position of the principle today - in terms of case law Public duty : Leeds United Football Club v Chief Constable of West Yorkshire Police [2013] Facts WYP had provided special police forces for public order policing and crowd control outside the club premises before and after football matches. Issue  

The issue that arises is whether WYP are entitled to charge the club for their services in the extended footprint ( that is on the land the club does not own) ? ( Note : It has been noted in the case of Glassbrook that a distinction is clearly drawn between police performing their duty to prevent crime/disorder and provide protection and the police doing something else at the request of an individual.)

Judgement  Policing in public areas away from the ground falls within ordinary constabulary duty  It is reasonably anticipated that violence is likely to break out between rival groups of fans during match days  Hence the policing was required to maintain law and order and protect life and property in the public space  A point was made that professional football matches attended by thousands of members of the public are essentially public events  There is no consideration as the policing was done in the scope of the officers duty

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Hence the club need not pay WYP for the services by the police at the extended footprint

Conclusion Hence, the principle of performance of pre-existing public duty is not a good consideration is still applicable.

Contractual duty : WRN Ltd v Ayris [2008] Facts 1. D was an employee at C’s company

2. his employment contract contained post termination restrictive covenants prescribing that which should be done, or not done, principally for a period of six months post termination 3. 4. 5. 6.

D resigned and entered into a contract (the leaving contract) with C Leaving contract contained the same restrictive term as employment contract D started working with C’s competitor C applied for an injunction requiring D to comply with the terms

Issue

D argued that since the leaving contract was unsupported by consideration , it had not given rise to obligations enforceable against him. Judgement  The only consideration passing from the claimant, which could be said to support the leaving contract, was a promise to perform an existing contract  It was well-established in law that such would not constitute consideration  Claim for injunction failed Hence, the principle of performance of pre-existing contractual duty is not a good consideration is still applicable. Conclusion : There is no doubt that consideration has received multiple criticisms of it being replaceable by other doctrines. However, it must be noted that the principles of consideration on its own is still regarded to be important today .It can be seen from the judgements of the recent cases, Leeds

United Football Club v Chief Constable of West Yorkshire Police and WRN Ltd v Ayris that the principal stating that performance of existing public duty and contractual duty is not good consideration still holds true....