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judge following (Smyth

v.

Streatfeild 1930) 3-K.B.

764 entered judgement and ordered costs of both

trials against the defendant. The three committee

members and

the assistant secretary

appealed.

Denning M. R. intimated that it was a mistake to

suppose that on a joint publication the malice of one

defendant affected his co-defendant. Each defendant

was answerable separately as well as jointly, for the

joint publication; and each was entitled to his

several defence. If the plaintiff sought to rely on

malice to aggravate damages, or to rebut a defence

of qualified privilege, or to cause a comment other–

wise fair or to become unfair he must prove malice

against each person with whom he charged it. A

defendant was only affected by express malice if he

himself was actuated by it; or if his servant or agent

concerned in the publication was actuated by malice

in the course of his employment. Three members

of the committee and the assistant secretary of the

Club were entitled to rely on the defence of qualified

privilege. There was no malice on their part such as

to defeat the privilege. (Egder

v.

Davies and Others,

Solicitors Journal

Qist July, 1964).

Solicitor—Negligence

THE plaintiff, an assignee under an under-lease of

certain premises, instructed the defendant solicitors

to negotiate the purchase of the head lease and its

resale to G. Both the plaintiff and R. who acted as

her agent, told S, a member of the defendant firm,

that the plaintiff would not purchase unless an

immediate resale could be effected since she did not

wish to redevelop the premises in accordance with

the terms of the head lease. By September, 1961, S

had negotiated a price of £7,500 subject to contract

on the purchase, and a price of £10,800 on the resale.

R. had agreed to accept a commission of £300 from

G. if the deal went through, but did not disclose

that fact to the plaintiff. On i6th October, 1961, S

inadvertently sent to the head lessors the draft

contract between the plaintiff and G in mistake for

that between them and the plaintiff. The head lessors

thus became aware of the profit of £3,300 the

plaintiff hoped to make and therefore demanded an

increased price of £9,000. To that the plaintiff had to

agree and contracts were exchanged in December,

1961. G paid a deposit of £900 to the head lessors

but failed to complete. After notices to complete had

been served by the head lessors on the plaintiff, and

by the plaintiff on G, a new date was fixed, but G

again defaulted and the plaintiff did not provide,

and was not asked by the defendants to provide the

necessary money to complete the purchase. The

whole transaction therefore fell through and the

plaintiff sued the defendants alleging negligence and

claiming £1,500 damages.

Melford Stevenson, J., said that it was conceded

by counsel for the defendants that they were in

breach of their duty of care but contended that that

had not caused the plaintiff any significant damage

since, by failing herself to provide the necessary

funds, she had brought the damage upon herself.

His lordship was satisfied that the plaintiff not only

understood that a notice to complete meant that the

money had to be produced but also, by a visit to

her bankers, had placed herself in a position to do

so should she so desire, but that she had not disclosed

this fact to the defendants, in the belief that G

would complete at the last moment.

He was

satisfied that the plaintiff had maintained the attitude

that she would not complete unless there was an

immediate resale. Accordingly the defendants were

not negligent in failing to obtain from the plaintiff

sufficient money to complete, as was alleged. Nor

did they fail to advise her properly. No doubt they

were negligent in sending the wrong draft contract,

but any loss the plaintiff had suffered flowed from

her own unwillingness to complete. There would

be nominal damages of 40.;. and no order as to costs.

Judgement accordingly. (Frank

v.

Seifert, Sedley

Solicitors Journal—

26th June, 1964 page 523).

Director's Defence Costs paid by Company—whether

Taxable

THE House of Lords has upheld a decision of the

Court of Appeal which restored the original assess–

ment of the Special Commissioners who had held

that the amount of £641 spent by the Company for a

director's defence at his trial for causing the death of a

pedestrian by reckless or dangerous driving was

spent for his benefit and was chargeable to income

tax under Schedule E. This case was reported in the

Gazette for April, 1963, at page 94 and again in the

Gazette for July 1963 at page 28.

Lord Reid delivering the judgement of the Court

said that the facts made it clear that the company did

incur expense in the provision of a legal defence for

their director and that that was a benefit within the

meaning of s. 161 (i) of the Income Tax Act, 1952.

It had been argued that the expense had been

incurred solely for the purpose of protecting the

company's interests. That might be so. But it could

not be doubted that in fact it was a benefit to R. If it

had not been provided by the company hewould have

had to pay for his own defence or take the risk that

lack of a proper defence might lead to his being

convicted and sent to prison. No one suggested

that he could have obtained legal aid. His lordship

could find nothing in the Act to support an argument

that a benefit in fact provided by the company

ceased to be a benefit within the section if it was

proved that the company's sole motive was to