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The Gazette of the Incorporated Law Society of Ireland.
[MAY, 1919
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
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4s.
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