The Gazette 1919-20

[MAY, 1919

The Gazette of the Incorporated Law Society of Ireland.

letter on the table of the manager. He showed the letter to the former manager and the other party mentioned in it, with the result that the plaintiff was sued by both for libel. At the trials of these actions the judge directed it was a privileged communication, but the jury having found malice against the defendant (Weld-Blundell), substantial damages were given against him, and in damages and costs he sustained a loss of over £1 ,600. Thereupon he brought an action against Stephens to recover the amount he was compelled to pay. The jury found that it was the duty of the defendant to keep secret the instructions given to him in the letter, that he was guilt}' of negligence .in allowing the contents to be disclosed to the new manager, and assessed damages at £650. Mr. Justice Darling, after argument of the law on the subject, held that there was no implied contract to keep secret the instructions, and that, therefore, there was no breach of duty, and that in any event the plantiff was not entitled to recover damages which would indemnify him for his own tortious act. On Appeal the Court unanimously held that it was the duty of the defendant to keep secret the instructions so given to him. The majority of the Court, however, held that the plaintiff was entitled to nominal damages only and not to damages which would indemnify him for the con– sequences of his own wilful wrong. Scrutton, L. J., delivered a dissenting judgment on the latter point, holding that the plaintiff was entitled to substantial damages. The report of the case will well repay perusal, dealing as it does with the obligation to secrecy of solicitors, accountants and others in respect of communications from their principals. The leading case of Reg. v. Cox and Railton (1884), 14 Q.B.D., 153, which defines the privilege of communications passing between solicitor and client, was referred to in the above case. There is a common notion that all such communications are absolutely privileged, and that not alone should the solicitor not disclose them, but that he can always refuse to do so on the ground of privilege. This is not so. The law, shortly stated, is that there is only privilege to refuse to disclose, and likewise only an obligation to secrecy where there is ' professional 'confidence and professional employment.

The illustration given by Mr.. Justice Stephen puts the matter clearly. If A. proposing to forge a will, says to B., a solicitor, " forge me a will in the name of C.," he asks B. to commit a crime which is not B.'s professional business. If he says, " I am C., and I want you to make my will for me," he reposes no professional confidence in B., but commits a gross fraud upon him. In neither case is the transaction privileged, nor is there the obligation of secrecy. (R. v. Railton. p. 168.) If a client, accused of having committed a crime, makes an admission of his guilt to the solicitor whom he has instructed to defend him, the statement is privileged and dis– closure cannot be enforced ; but if a client consults a solicitor with a view to the com– mission of a crime, he is really making the solicitor an accomplice, and there is no privilege, and the solicitor can be compelled to give evidence of the transaction. Where there is real professional employ– ment and confidence, of course, there is the strictesj: obligation to secrecy, and solicitors have rarely forgotten to observe the Roman poet's admonition : " Commissa tacere Oui nequit ; hie niger est, hunc tu, Romane caveto." . . . . '. .

Calendar of the Incorporated Law Society, 1919.

E Society's Calendar and Law Directory for 1919 can be obtained in the Secretary's Office, price 4s., or by post 4s. 6d.

ALL communications connected with THE GAZETTE (other than advertisements) should be addressed to the Secretary of the Society, Solicitors' Buildings, Four Courts, Dublin,