(per Gopal Sri Ram JCA in The Golf Cheque Book Sdn Bhd v Nilai Springs Bhd

[2006]

Performance of existi ng duty for public duty .

General Rule: Performance of a pre-existi ng public duty is not a good considerati on.  

Collins v Godefroy (1831) 1B & Ad 950

Facts:

The D (Godefroy) had brought acti on against an att orney and caused the P (Collins), to be
subpoenaed to att end and give evidence.  

The D was keen to ensure that the P att ended and so promised to pay him one guinea per
day while he was at court for compensati on for his ti me.  

The P att ended 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 att orney brought acti on against the defendant for the sum amount that he was owed.

Held:

The court held that the agreement where the P should att end court was not supported by
considerati on. As this was because the P was under public duty to att end 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 att end from ti me to
ti me to give his evidence, then a promise to give him any remunerati on for loss of ti me
incurred in such att endance is a promise without considerati on. We think that such a duty
is imposed by law.’

The rule that a duty that is imposed by law is not good considerati on was generally
supported on the basis that it will prevent public offi cials from extorti ng money in return
for performance of their already existi ng legal duti es. Another way to put it is on the
basis that public offi cials (e.g Police) owe a duty to the public by providing them with
protecti on or other services without the need for payment.  
Excepti on 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 suffi cient enough to amount to good
considerati on.  

the fi rst major excepti on to this rule was identi fi ed in Glasbrook Bros v Glamorgan (per
Gopal Sri Ram JCA in The Golf Cheque Book Sdn Bhd v Nilai Springs Bhd [2006]

Conclusion : 

There is no doubt that considerati on has received multi ple criti cisms of it being
replaceable by other doctrines. However, it must be noted that the principles of
considerati on on its own is sti ll 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 stati ng that
performance of existi ng public duty and contractual duty is not good
considerati on sti ll holds true.

1. Performance of an existi ng legal duty, whether a public duty or a contractual

duty owed to the promisor, does not amount to good considerati on. Discuss, with
reference to decided cases, to what extent does this view hold true today.

Introducti on
One of the principles of considerati on is that a promise to perform or the
performance of a pre-existi ng duty, whether public or contractual duty is not
good considerati on. 
Public duty - Duty imposed by law of a public offi cer towards the general public
Contractual duty - Duti es that each party is legally responsible for in a contract
agreement
In terms of public duti es, the promise by an offi cial to act within the scope of his
own duty is not valid considerati on. As for contractual duti es, the promise to
perform a pre-existi ng contractual duty is not considerati on.
Performance of existi ng duty for contractual duty .
General rule: Performance of an existi ng duty by contract will not consti tute
suffi cient considerati on
Sti lk v Myrick [1809] 2 Camp 318
Facts: 
The P (Sti lk) was a sailor on a voyage from London to the Balti c 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 fi nd
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 considerati on on the part of the sailors
The sailors had only done what was contractually agreed  
The dissertati on 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 considerati on

It is menti onable that both Espinasse (public policy) and Campbell(considerati on)
had reported this case but in diff erent views.  
Espinasse: Based the decision on the grounds that public policy should prevent
seamen from demanding extra payment for duti es that they were already
obligated to do.
Campbell: Lack of considerati on 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

 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.
  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."

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. D resigned and entered into a contract (the leaving contract) with C
4. Leaving contract contained the same restrictive term as employment
contract
5. D started working with C’s competitor
6. 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.