It is sometimes said that consideration requiresbenefit and detriment.
The often quoted but not particularly helpful definition,contained in Lush J’s wordings in Currie v Misa1refers these elements: “A valuableconsideration, in the sense of the law, may consist either in some right,interest, profit or benefit accruing to one party some forbearance, detriment,loss or responsibility, given, suffered or undertaken by the other.” In other words, the definition looks at considerationfrom two angles, that is, a benefit to one party and a detriment to other. Secondly , the benefit or detriment must be legallysufficient benefit as opposed to simply a factual benefit or detriment.2This means that the value of consideration that the promisee gives need not beequal to the value of promise that has been made to him by the promisor. Lord Dunedin in Dunlop v Selfridge (1915) definedconsideration as: “An act or forbearance of one party, or the promisethereof, is the price for which the promise of the other is bought, and thepromise thus given for value is enforceable”. However, it is much wider in Section 26 of theContracts Act 1950; the general rule of an agreement without consideration isvoid and is defined in Section 2(d) of the Contracts act 1950 as follows: “When at the desire of the promisor, the promisee orany other person has done or abstained from doing, or does or abstains fromdoing, or promises to do or to abstain from doing, something, such act orabstinence or promise is called a consideration for the promise”. A promise to perform a duty that you are already boundto do under general law does not constitute good consideration, as exercised inCollins v Godefroy 31831.
Here the plaintiff promised to pay Collins, the witness for his attendance togive evidence in court. However, Collins was already bound to give evidence bythe court. Collins had therefore not provided any consideration for Godefroy’spromise.
However, a promise to perform more than you are already bound to gounder general law will constitute good consideration, as proven in GlasbrookBros v Glamorgan County Council 1925. Where the promise is doing something which is a dutyimposed by some public obligation, thereis reluctance to allow this to be used as the basis of a contract. For example,in the case of Collins v Goderfoy4,a promise had been made to pay a witness, who was under an order to attend thecourt. It was held that this problem was unforceable because there was noconsideration for it. This seems to have been on the basis that the duty toattend was a ‘duty imposed by law’. However, if what is promised or done goes beyond theexisting duty imposed by law, then it can be regarded as good consideration.
Thisapplies regardless whatever the nature of the duty might be . This was confirmedin the case of Glasbrook Bros v Glamorgan CC5, where in the course of a strike at a coal mine, the owners of the mine askedthe police to provide protection. The police provided the protection asrequested by the owners for which they proposed to pay and provided the manpower as directed by them although they disputed the level of protectionrequired to keep the peace. At the end of the strike the police submitted aninvoice to cover the extra costs of providing the protection. Subsequently, however,they denied any obligation to pay arguing that the police were under an existingpublic duty to provide protection and keep the peace. The house of lords held that in providing additionalofficers to that required, the police had gone beyond their existing duty. Theywere therefore entitled to payment. Viscount cave LC accepted that if the police were simplytaking steps which they considered necessary to keep the peace, etc.
, membersof the public, who already payed for these police services through taxation,could not be made to pay again. Nevertheless, if , at the request of a memberof the public, the police provided services which went beyond what the policeconsidered necessary, this could provide good consideration for the promise ofa payment. This rule is now generally accepted, so that whereverthe performance of an act goes beyond the performers public duty, it will becapable for providing consideration for a promise. In relation to the police , however, the position isnow dealt with largely by statute.Section 25(1) of the Police Act 1996 states: The chief officer of a police force may provide, atthe request of any person, special police services at any premises or in anylocality in the police area for which the force is maintained, subject to thepayment to the police authority of charges on such scales as may be determinedby that authority.
In Harris v Sheffield Utd FC,6which concerned the provision for policing of football matches, the courtconfirmed the approach taken in Glasbrook. Moreover, in applying thepredecessor to s25 of the Police Act 1996,7the Court of Appeal held that if a football club decided to hold matches andrequested the presence of the police, such presence could constitute ‘specialpolice services’ even though it did not go beyond what the police felt wasnecessary to maintain the peace. A request for police presence could be impliedif police attendance was necessary to enable the club to conduct matchessafely. The football club was therefore held liable to pay for the servicesprovided. If, however, the club disagrees with the police as tothe level of policing required, and specifically asks for a lower level ofattendance, there will be no implied request for the higher level of provision thatthe polices may think is appropriate.
The club will only be liable to pay forthe services which it actually requested. This was the view of the Court of Appealin Chief Constable for Greater Manchester v Wigan Athletic AFC Ltd.8 Consideration was also given to the ‘benefit test’ inWest Yorkshire Police Authority v Reading Festival Ltd.
Very large numbers of police officers were required to be on duty forthe duration of the festival, many of whom would otherwise have been on holidayor off duty. However, the policeprovided traffic management for which they were paid as ‘special policeservices’. They also provided officers who were ready to be called on ifnecessary and were based within the surrounding community for which they werenot paid. Here it was submitted that officers deployed off site were providingordinary police services and not ‘special police services’ as their presence wasnot requested for. In the recent case of Leeds United Football Club Ltd vThe Chief Constable of West Yorkshire Police, Mr Justice Eady held that even ifthe need for police services arises from a private event, that policing doesnot constitute a special service when it is performed on land that is notowned, leased or controlled by the event organiser. The Court of Appeal re-affirmed this in Ipswich Town Football Club v Chief Constableof Suffolk 2017 EWCA Civ 1484.The dispute here was whether s 25 of the 1996Act entitles the police to charge the club for special police services providedon land immediately adjacent to, and outside, Ipswich football stadium.
The club sought to recover SPS paymentsit had made to the Suffolk Police for policing on an area of public highway as theCourt of Appeal, overturned Green J’s judgment and remained faithful to its2013 decision in Leeds United. It seems, therefore, that the holding of an ‘event’ towhich the public are invited, but which safely be allowed to go ahead without apolice presence, will lay the organizers open to paying for ‘special services’.To that extent, the position has gone beyond that which applied in Glasbrook,in that under the statute police can receive payment even though they are onlydoing what they feel is necessary to keep the peace. This clearly applies tosporting events and entertainments (such as music festivals). EVENT 1 This event is a Private Birthday Party on a privateproperty for approximately 200 guests which requires the Police Servicesbetween the wee hours of 12:30am and 3:00am to assure that any untoward incidentdoes not take place if at all more than expected or drunk people show up.
Since the police officers are required to attend on aprivate function at a private premises, the services in question amount toSpecial Police Services as set out by Neil J in Harris v Sheffield United. EVENT 2This is an FA Cup match event. The police servicesthat are required within the stadium amount to Special Police Services as it goesbeyond the existing duty as held within the meaning of section 25(1) of thePolice Act 1966 , and that as the provision of these services has beenexpressly or impliedly requested by the club, the police authority is entitledto make charges. harris However, the police services required anywhere outsidethe stadium that is in the ‘extended footprint’ do not amount to Special PoliceServices leeds as attendance of police officerson these locations is provided in discharge of their ordinary public duty toprevent crime and prevent life and property for which they are non entitled to incurcharges.
The fact that thereis likelihood of actual or imminent violence at private premise harris smight well indicate that the provision of police services at these premises forlaw and order purposes is in performance of the general police duty and notSPS. EVENT 3This event is a two day charity concert in the park. Therequirement of Police Services on Monday for dettering any drug dealing orarresting or process any arrested festival goers comes under Reactive Policingthat is , Police intervention in response to actual or imminent crime ordisorder. Reactive policing is an operational activity , therefore , no chargescan be levied. The Chief executive , Joanna , suggests the use of PoliceServices on the less crowded day as well (Sunday). This also comes underoperational activity as Preventative policing on Public land will, prima facie,be part of the operational duty. However, since all these events are taking place on abank holiday weekend, the police leave for the whole bank holiday weekend hasbeen cancelled, and officers have been asked to be available to work additionalhours which in turn will be placing an exceptional strain on the resources ofthe police.It is, therefore, permissible totake into consideration the fact that the use of “off-duty” officersmight increase the payment ofovertime.
Neil j in harris 1 (1875)LR 10 Ex 153.2 R. Taylor and D.
Taylor. ,Contract Law (6th Ed OUP,Oxford 2017) 71.3 4 5 6 7 8