The Gazette 1964/67

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