It is sometimes said that consideration requires
benefit and detriment. The often quoted but not particularly helpful definition,
contained in Lush J’s wordings in Currie
refers these elements:
consideration, 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 consideration
from two angles, that is, a benefit to one party and a detriment to other.
Secondly , the benefit or detriment must be legally
sufficient benefit as opposed to simply a factual benefit or detriment.2
This means that the value of consideration that the promisee gives need not be
equal to the value of promise that has been made to him by the promisor.
Lord Dunedin in Dunlop v Selfridge (1915) defined
“An act or forbearance of one party, or the promise
thereof, is the price for which the promise of the other is bought, and the
promise thus given for value is enforceable”.
However, it is much wider in Section 26 of the
Contracts Act 1950; the general rule of an agreement without consideration is
void and is defined in Section 2(d) of the Contracts act 1950 as follows:
“When at the desire of the promisor, the promisee or
any other person has done or abstained from doing, or does or abstains from
doing, or promises to do or to abstain from doing, something, such act or
abstinence or promise is called a consideration for the promise”.
A promise to perform a duty that you are already bound
to do under general law does not constitute good consideration, as exercised in
Collins v Godefroy 31831.
Here the plaintiff promised to pay Collins, the witness for his attendance to
give evidence in court. However, Collins was already bound to give evidence by
the court. Collins had therefore not provided any consideration for Godefroy’s
promise. However, a promise to perform more than you are already bound to go
under general law will constitute good consideration, as proven in Glasbrook
Bros v Glamorgan County Council 1925.
Where the promise is doing something which is a duty
imposed by some public obligation, there
is 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 the
court. It was held that this problem was unforceable because there was no
consideration for it. This seems to have been on the basis that the duty to
attend was a ‘duty imposed by law’.
However, if what is promised or done goes beyond the
existing duty imposed by law, then it can be regarded as good consideration. This
applies regardless whatever the nature of the duty might be . This was confirmed
in the case of Glasbrook Bros v Glamorgan CC5
, where in the course of a strike at a coal mine, the owners of the mine asked
the police to provide protection. The police provided the protection as
requested by the owners for which they proposed to pay and provided the man
power as directed by them although they disputed the level of protection
required to keep the peace. At the end of the strike the police submitted an
invoice to cover the extra costs of providing the protection. Subsequently, however,
they denied any obligation to pay arguing that the police were under an existing
public duty to provide protection and keep the peace.
The house of lords held that in providing additional
officers to that required, the police had gone beyond their existing duty. They
were therefore entitled to payment. Viscount cave LC accepted that if the police were simply
taking steps which they considered necessary to keep the peace, etc., members
of 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 member
of the public, the police provided services which went beyond what the police
considered necessary, this could provide good consideration for the promise of
This rule is now generally accepted, so that wherever
the performance of an act goes beyond the performers public duty, it will be
capable for providing consideration for a promise.
In relation to the police , however, the position is
now dealt with largely by statute.
Section 25(1) of the Police Act 1996 states:
The chief officer of a police force may provide, at
the request of any person, special police services at any premises or in any
locality in the police area for which the force is maintained, subject to the
payment to the police authority of charges on such scales as may be determined
by that authority.
In Harris v Sheffield Utd FC,6
which concerned the provision for policing of football matches, the court
confirmed the approach taken in Glasbrook. Moreover, in applying the
predecessor to s25 of the Police Act 1996,7
the Court of Appeal held that if a football club decided to hold matches and
requested the presence of the police, such presence could constitute ‘special
police services’ even though it did not go beyond what the police felt was
necessary to maintain the peace. A request for police presence could be implied
if police attendance was necessary to enable the club to conduct matches
safely. The football club was therefore held liable to pay for the services
If, however, the club disagrees with the police as to
the level of policing required, and specifically asks for a lower level of
attendance, there will be no implied request for the higher level of provision that
the polices may think is appropriate. The club will only be liable to pay for
the services which it actually requested. This was the view of the Court of Appeal
in Chief Constable for Greater Manchester v Wigan Athletic AFC Ltd.8
Consideration was also given to the ‘benefit test’ in
West Yorkshire Police Authority v Reading Festival Ltd.
Very large numbers of police officers were required to be on duty for
the duration of the festival, many of whom would otherwise have been on holiday
or off duty. However, the police
provided traffic management for which they were paid as ‘special police
services’. They also provided officers who were ready to be called on if
necessary and were based within the surrounding community for which they were
not paid. Here it was submitted that officers deployed off site were providing
ordinary police services and not ‘special police services’ as their presence was
not requested for.
In the recent case of Leeds United Football Club Ltd v
The Chief Constable of West Yorkshire Police, Mr Justice Eady held that even if
the need for police services arises from a private event, that policing does
not constitute a special service when it is performed on land that is not
owned, leased or controlled by the event organiser.
The Court of Appeal re-affirmed this in Ipswich Town Football Club v Chief Constable
of Suffolk 2017 EWCA Civ 1484.The dispute here was whether s 25 of the 1996
Act entitles the police to charge the club for special police services provided
on land immediately adjacent to, and outside, Ipswich football stadium.
The club sought to recover SPS payments
it had made to the Suffolk Police for policing on an area of public highway as the
Court of Appeal, overturned Green J’s judgment and remained faithful to its
2013 decision in Leeds United.
It seems, therefore, that the holding of an ‘event’ to
which the public are invited, but which safely be allowed to go ahead without a
police 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 only
doing what they feel is necessary to keep the peace. This clearly applies to
sporting events and entertainments (such as music festivals).
This event is a Private Birthday Party on a private
property for approximately 200 guests which requires the Police Services
between the wee hours of 12:30am and 3:00am to assure that any untoward incident
does not take place if at all more than expected or drunk people show up.
Since the police officers are required to attend on a
private function at a private premises, the services in question amount to
Special Police Services as set out by Neil J in Harris v Sheffield United.
This is an FA Cup match event. The police services
that are required within the stadium amount to Special Police Services as it goes
beyond the existing duty as held within the meaning of section 25(1) of the
Police Act 1966 , and that as the provision of these services has been
expressly or impliedly requested by the club, the police authority is entitled
to make charges. harris
However, the police services required anywhere outside
the stadium that is in the ‘extended footprint’ do not amount to Special Police
Services leeds as attendance of police officers
on these locations is provided in discharge of their ordinary public duty to
prevent crime and prevent life and property for which they are non entitled to incur
charges. The fact that there
is likelihood of actual or imminent violence at private premise harris
might well indicate that the provision of police services at these premises for
law and order purposes is in performance of the general police duty and not
This event is a two day charity concert in the park. The
requirement of Police Services on Monday for dettering any drug dealing or
arresting or process any arrested festival goers comes under Reactive Policing
that is , Police intervention in response to actual or imminent crime or
disorder. Reactive policing is an operational activity , therefore , no charges
can be levied. The Chief executive , Joanna , suggests the use of Police
Services on the less crowded day as well (Sunday). This also comes under
operational 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 a
bank holiday weekend, the police leave for the whole bank holiday weekend has
been cancelled, and officers have been asked to be available to work additional
hours which in turn will be placing an exceptional strain on the resources of
the police.It is, therefore, permissible to
take into consideration the fact that the use of “off-duty” officers
the payment of
overtime. Neil j in harris
LR 10 Ex 153.
2 R. Taylor and D.
Taylor. ,Contract Law (6th Ed OUP,
Oxford 2017) 71.