The first real definition of consideration was made in Currie v Misa1 as: “it may consist either in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by other”.
Initially, consideration was mainly characterised by classical theories, where ruled rigid approaches, the idea of the consensus ad idem (agreement through the meeting of minds), and the freedom to contract were at the basis. Therefore, were allowed the ideas of free trade, possibility to make “bad bargains”, and freedoms of the parties to decide the terms. Subsequently, neo-classical theories have changed these aspects privileging flexible approaches in business practices (as the idea of “practical benefit” established in Williams v Roffey Brothers2) and discouraging unequal bargaining.
Furthermore, in cases such as White v Bluett3 and Thomas v Thomas4 linked with Hamer v Sidway5 and Chappel & Co. v Nestlé6, established principles that consideration must be legally sufficient but not adequate. This aspects apply in a bilateral contract where there is double bargain or exchange, and unilateral contract where there is a single bargain or exchange7.
Consideration may be executory, as the performance of obligations will take place in a future time, and executed. In the latter example, it should be correct to mention the famous leading case of Carlill v Carbolic Smoke Ball8, where there was find the existence of consideration because the promise was made at the same time as the counter-promise, which it supports and after a time will be performed.
Also, consideration must not be past, as the promise must be made before the act. However, there are circumstances recognised where past consideration can be a good consideration for a contract. Indeed, implied promise to pay for the act requested and so the consideration, the performance of the act, is not exactly past in relation to the implied promise9.
Lastly, consideration must move from the promise, which means that the benefit or the detriment have to be, respectively conferred or incurred, by the promise and not by someone else10.
This analysis will focus its attention on the performance of a non-contractual obligation in public duty cases. But more specifically on s. 25 of the Police Act 199611, which regulates the “special police services”. Therefore, when police authority are paid for the service executed.
In Collins v Godefroy12 was established that the performance of an existing non-contractual duty generally cannot itself form good consideration, because the satisfaction of that promise or performance of the relevant act, will not involve any fresh detriment13.
However, when the undertaking is to do more than to which the promise is legally bound, this might be consideration, even though it is an act of the same kind as the subject of an obligation14. This approach was confirmed in Glasbrook Brothers Limited v Glamorgan County Coucil15, where the owner of a colliery promised to pay the police if they provided security during the miners’ strike.
A very important case in this sector was Harris v Sheffield United FC16. Here the Court confirmed the approach adopted in Glasbrook,17 and provided to apply s.25 of the Police Act 1996, holding that if a football club decided to hold matches and requested a police presence, such presence may constitute “special police service”, even though it did not go over what the police felt was necessary to maintain the peace18.
Indeed, a “request” for a police presence could be implied if the police attendance was necessary to enable the club to conduct its matches safely. Therefore, the football club was held liable to pay for the services provided.
However, there will be no implied request for the higher level of provision where the police may think as appropriate, and subsequently the club will be liable only to pay for the services which it was actually requested.19 Principles established in this case were also partially applied in Chief Constable for Greater Manchester v Wigan Athletic AFC Ltd.20
In West Yorkshire Police Authority v Reading Festival21, the legal issue was between: on whether the event planner made a request for a special service, and if the services provided by the police may be qualified as “special police services”, within the meaning of s. 25(1) Police Act 1996. The Court of Appeal held that the promoter of the Reading Festival did not owe to West Yorkshire Police Authority a payment for a special police service, because the police were not able to demonstrate that a request for special services had been established.
Furthermore, the Court of Appeal required an agreement between the police and the promoter as the basis for the charge to be levied by the police.
In Leeds United v Chief Constable West Yorkshire Police22 the issue was whether on the match days, the police had to provide order: within the stadium, in the area immediately outside the stadium, and also in the vicinity of residential streets and public areas beyond the areas controlled by the club.
In the latter case, the Court was asked to decide whether it amounted to “special police services” or not. If not, the club had the right to be repaid.
In this case, it was drawn a line between private use (requested policing then requiring payment) and public policing (for which no payment is required)23.
In this situation, it was established that the public duty imposed to the police did not extend to providing protection on public land in the vicinity of the land owned and controlled by the Club. Nevertheless, the appeal was dismissed as the West Yorkshire Police were not charged as “special police services” within s.25 of the Police Act 1996, for the cost of the public order and crowd control beyond the immediate vicinity of the land owned by the club.
A partial dispute between the two parties continued even in 2014, when the Football club claimed against West Yorkshire Police £800,000 for what happened two years before24.
Lastly, another case that should be taken into account is Ipswich Town Football Club v Chief Constable of Suffolk Constabulary,25 where the dispute between the parties concerned whether s.25 of the Police Act 1996 entitles the police to charge the Club for “special police services” provided on land immediately adjacent to, and outside, the stadium.
Differently from Leeds, the Court of Appeal held that the most important factor to analyse was not if the place where the services were provided was private or public land. Here the Court focused its attention on the police duty to maintain law and order, and that football matches are always public events where police had to exercise their public function, even on the public land immediately adjacent to the stadium.
Therefore, although there were stewards in that area, the Court held that they did not have the primary responsibility to maintain public order, and that only the police can exercise its control over the Traffic Control Order (TCO) area, even to eject drunken or disruptive fans.
Part. 2 – Analysis of the three events
In the first twenty-one private birthday, it could be found an implied request of a police service by the parents of the celebrated to guarantee order and serenity at the party. This request will necessarily amount to a “special police service”.
This consideration is reached on the basis of the precedents Glasbrook Brothers26 and Harris27, where first of all was highlighted the existence of consideration in circumstances where the police will perform a higher service in terms of duty, and also because this duty has been performed during a festival period as the Bank Holiday. This latter aspect has to take into consideration, because of the greater efforts that the police has to carry out during the period.
Moreover, in Glasbrook28 the Court of Appeal provided to outline the premises for a “special police service” regulated by s.25 of the Police Act 1996 which amount as private. Indeed, the party scenario in question is part of the several examples provided by the Court of Appeal, such as wedding, athletic or boxing context and so on.
It should be also considered the fact that the guests expected were around 200, but a possible announce on social networks may increase it to an unqualifiable number. Nevertheless, in a case where a high level of provision has to be provided by the police, the parents of the celebrated will never have to pay for it, as this does not amount to an implied request.
Also, it will not amount to an implied request even the use of “off-duty” officers. Element that will not increase the payment of overtime.
In the second event, there are no doubts about the idea that the policing deploy requested by the hometown club within the stadium, will amount to “special police services”.
However, the club will not be obliged to pay as “special police service” the policing in the area immediately adjacent to the stadium. This because the decision adopted by the Court of Appeal in Leeds29 has been recently changed by the same Court in Ipswich Town Football Club Co Ltd30, where it was held that the attention should not be focused on the idea between private and public land.
Indeed, the fact that the police in this event has the control of traffic (even qualifiable as a TCO), it does not exclude the police from the duty to protect the Main Streets and residencies immediately adjacent to the stadium area. The Court has to consider football matches as public events, and subsequently exercise public functions when they are on a public land. Therefore, the club will not be liable to pay this service.
Focusing on the aspect that there may be other problems between Blackwater FC supporters and hooligans from other clubs, this does not amount in any case to a “special police services” in charge to the Club. This decision was justified in Leeds31 by the Court of Appeal, which held that: “the provision of protection at the station benefits not only the club and its customers but many other members of the public as well”. Therefore, the protection is subjected to a limitation in these cases.
Nevertheless, the request from the Association about more additional officers to protect the integrity of the local pubs due to the past bad reputation of the Blackwater FC hooligans, will not amount as ordinary police service. It will amount as “special police service” because the police can show that there was an express request from the Association protected by s.25 of Police Act 1996 and by s.15 of Police Act 1964,32 outlined in Harris33.
In the last event, the attention should be focused first of all on the aspect related to the agreement between the Chief Executive Joanna and the Chief Constable. Mrs Joanna was worried about the problem of drug dealing on Monday, and specifically asked for a small mobile station that could quickly sort out eventual problems related to it.
However, the Chief Constable did not guarantee the presence of it, and even though she gave some clothes offices to fight the problem, it does not seem that they had a deal at all.
In West Yorkshire Police Authority34 the nature of the agreement assumed a strong importance. Indeed, without a strong demonstration of a contract between the Chief Executive and Chief Constable, there is officially no meeting of mind between the parties.
Furthermore, it could be added the aspect found in Chief Constable of the Greater Manchester,35 where police cannot defend itself stating that Joanna made an implied request for a special police service under s.25 of the Police Act 1996. She had to pay only the policing services provided for what she expressly made a request.
Therefore, whether the police is not able to prove that they have provided a “special police service” exactly requested by Joanna, the Chief Executive will not be obliged to pay for it.
Lastly, in considering again the case West Yorkshire Police Authority36, it can also be said that there was even a difference between the service provided off site and on site. Joanna is not bound to pay “a special police service” for a work that the police has done outside the event, as the Court of Appeal held that it amounts to ordinary service.
Part. 3 Conclusion
Arrived at the conclusion of this three events analysis, it is possible to say foremost that the interpretation of s.25 Police Act 1996 is an argument in full evolution, as it has been subjected to different approaches and several changes in the last thirty years.
However, it might be an idea to provide a more specific regulation of the Act to make all the interpretations and the future overcomes, fluent and coherent.
Moreover, the idea to reform the Act or create new statutory, may be useful in terms to protect the rights that the parties will claim in front of the Courts.
In considering the first event, for instance, it might be an idea to provide a specific list of all the circumstances, where holding a public event cannot safely be allowed to go ahead without the police presence. Indeed, there are several doubts about political rallies, even though Balcombe DJ stated that the political events fell into another category37.
In the second event, the approach adopted by the Court in Ipswich38 can be shared, as the police, regardless the characteristics of the events, should almost always have the duty to protect the law and maintain the order.
Moreover, it might be an opinion to try to clarify all the circumstances and the places where police can intervene. Although the United Kingdom has a strong Case Law tradition, having a clear statutory that permits to have a clearer interpretation of the circumstances, may be useful for the future.
Also, report the exact distance in km where police do not have the duty to intervene during big public and sports event.
Lastly, in considering the third event, it should be put more in evidence the aspect of the agreement between the parties for a “special police services”. Both of the parties have the rights to say what they want, not want and prepared to pay for. Therefore, without a meeting of minds between private parties and the police, there is no possibility to prove the provision of a “special police services”.
1 (1875) LR 10 Ex 153
2 1989 EWCA Civ. 5
3 (1853) 23 LJ Ex 36
4 (1842) 2 QB 851; 114 ER 330
5 124 N.Y. 538, 27 N.E. 256
6 1960 AC 87
7 Richard D Taylor and Damian Taylor, Contract Law (6th edn, 2017) Page 73
8 1892 2 QB 484 (QBD)
9 Taylor (n.7) 77
10 Ibid. Page
11 Police Act 1996 s. 25
12 (1891) 1 B & Ald 950; 120 ER 241
13 Taylor (n.7) 78
14 William Reynell Anson and others, Anson’s Law Of Contract (29th edn, University Press 2010). Page 105
15 1925 AC 270
16 1987 3 W.L.R. 305
17 Glasbrook (n.16)
18 Richard Stone and James Devenney, The Modern Law Of Contract (10th edn, 2013) Page 106
19 Ibid. 106
20 2007 EWHC 3095
21 2006 1 WLR 2005
22 2012 EWHC 2113
23 Neil Andrews, Contract Law (2nd edn, 2015) Page 123
24 ‘Police ‘Owe’ Leeds United £800,000′ (BBC News, 2018)
25 2017 EWHC Civ 1484
26 Glasbrook (n.16)
27 Harris (n.17)
28 Glasbrook (n.16)
29 Leeds (n.23)
30 Ipswich (n.26)
31 Leeds (n.22)
32 Police Act 1964 s 15
33 Harris (n.17)
34 West Yorkshire Police Authority (n.22)
35 Chief Constable of the Greater Manchester (n.20)
36 West Yorkshire Police Authority (n.22)
37 Stone (n.18) 106
38 Ipswich (n.26)