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on a privileged occasion and the jury found that thié writer was actuated by malice. At neither trial did the defendant to the action appear. Lowe obtained a verdict for 1,0001. which was subsequently reduced by consent in the Court of Appeal to 3501. Comins obtained a verdict for 5001.

The plaintiff then brought the present action against the defendant to recover as damages the sum which he had to pay as damages and costs in the two actions for libel, amounting withi his own costs to 1,6801., as upou a breach by the defendant, of an implied obligation to keep secret the confidential instructions contained in the letter of May 4, 1915. The case was tried before Darling, J., and a special jury. The learned judge left three questions to the jury: (1) Was it the duty of the defendant to keep secret the letter of May 4, written by the plaintiff to the defendant? (2) Did the defendant neglect his duty in regard to the said letter so that the contents thereof were disclosed or came to the knowledge of Mr. Hirst? (3) Were the actions brought by Lowe and Comins against the plaintiff, and the damages recovered by them, the natural consequence of the proved negligence of the defendant? The jury answered all three questions in the affirmative and assessed the damages at 6501.

[522] Darling, J., on further consideration held that the contract between the parties did not contain any such implied term as that alleged by the plaintiff, and that therefore the defendant had committed no breach of duty towards the plaintiff. The learned judge further held that the plaintiff could not recover damages which would indemnify him for the consequences of his own wrongful act.

Judgment was accordingly given for the defendant.
The plaintiff appealed.

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Langdon, K.C., J. B. Matthews, K.C., and E. F. Lever, for the appellant. The jury have found that it was the duty of the respondent to keep secret the letter of May 4. The first question is whether Darling, J., was right in holding that the law cannot imply such a duty. There can be no doubt that it is the duty of a confidential agent to respect the confidence reposed in him. Robb v. Green (1895] 2 Q. B. 315, 64 L. J. Q. B. N. S. 593, 14

Reports, 580, 73 L. T. N. S. 15, 44 Week. Rep. 25, 59 J. P. 695. An overriding public duty may justify a breach of the confidence, such as the duty to bring a criminal to justice. But it cannot be established that this letter was a criminal libel; and there is no public duty to give information of merely civil injuries. Furthermore, this letter was written on a privileged occasion, and, though two juries have since found that the writer was actuated by malice, there was no such finding at the time when the respondent accepted the mandate it contained. Being written on a privileged occasion it was not prima facie actionable, and the implied promise on the part of the respondent to take reasonable care to keep secret its contents violated no public policy. There is nothing therefore to disturb the finding of the jury that it was his duty to keep the letter secret.

The jury have also found that the respondent neglected this duty, and that the disclosure to Mr. Hirst of the contents of the letter, the actions which followed, and the damages recovered therein, were the natural consequence of the negligence.

The appellant is entitled to judgment for the amount of the verdict.

(523] D. M. Hogg, K.C., and Patrick Hastings, for the respondent. The duty which a confidential agent owes to his principal does not entitle the principal to claim protection from the consequences of his own crimes or malicious torts. The agent is bound to take reasonable care of his principal's documents as a bailee for reward, that is to say, documents handed to him in the usual and proper course of business; but he does not undertake to keep secret the evidence of crimes or wilful wrongs committed by his principal. The relation of a solicitor to his client is more confidential than that of an accountant to his employer, yet the duty of a solicitor not to disclose matter communicated to him in confidence "cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice.” Reg. v. Cox and Railton (1884) 14 Q. B. D. 153, 167. If a confidential communication to an agent discloses a fraud by the principal, no duty towards his principal binds the agent to conceal the fraud.

"There is no confidence as to the disclosure of inequity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose t:) me relating to any fraudulent intention on your part; such a confidence cannot exist." Gartside V. Outram (1856) 26 L. J. Ch. N. S. 113, 114.

The same principle applies if a libel is substituted for a fraud. Saunders v. Seyd and Kelly's Credit Index Co. (1896). 75 L. T. N. S. 193.

Any agreement to keep these libels secret would be against public policy and void. The offenses had been committed; the libels upon Lowe and Comins had been written and published to the respondent; and both causes of action were complete before or when the alleged agreement was made. An agreement to keep secret the evidence of the wrong could not be sued upon. "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Holman v. Johnson (1775) Cowp. pt. 1, pp. 341, 343, 98 Eng. Reprint, 1120, per Lord Mansfield, Ch. J. "If the evidence adduced [524] by the plaintiff proves the illegality the court ought not to assist him." Scott v. Brown, Doering & Co. (1892] 2. Q. B. 724, 728, per Lindley, L.J. "If a plaintiff cannot maintain his cause of action without showing, as a part of such cause of action, that he has been guilty of illegality, then the courts will not assist him in his cause of action.” Id. 734, per, A.L. Smith, L.J.

Any damages reeovered by the appellant would be an indemnity for the consequences of his wilfulwrong. Such an indemnity the law does not permit. Colburnus. Patmore (1834) 1 Cromp. M. & R. 73, 149 Eng. Reprint, 999, 4 Tyrw. 677, 3 L. J. Exch. N. S. 317; Shackell v. Rosier. (1836) 2 Bing. N. C. 634, 132 Eng. Reprint, 245, 2 Hodges, 17, 3 Scott. 59, 5 L. J. C. P. N. S. 193; W. H. Smith & Son v. Clinton (1908) 99 L. T. N. S. 840; Burrows v. Rhodes [1899] 1 Q. B. 816, 68 L. J. Q. B. N. S. 545, 63 J. P. 532, 48 Week. Rep. 13, 80 L. T. N. S. 591, 15 Times L. R. 286; Leslie v. Reliable Advertising and Addressing Agency (1915) 1 K. B. 652, (1915] W. N. 58, 84 L. J. K. B. N. S. 719, 112 L. T. N. S. 947, 31 Times L. R. 182. Langdon, K.C. in reply.

Cur. adv. vult.

pro tanto

The following written judgments were delivered:

Bankes, L.J.: This is an appeal from a judgment of Darling, J., who held that the action brought by the appellant against the respondent was not maintainable. The circumstances of the case are peculiar, and the point raised is an important one. Prior to the month of May, 1915, the appellant had apparently lost a large sum of money in connection with various undertakings, and in that month the manager of a company known as the Float Electric Company, in which the appellant was largely interested, applied for a further advance of money. This apparently annoyed the appellant, and he then wrote a letter to the respondent dated May 4, 1915, which subsequently became the subject of proceedings for libel against him. The immediate object of the letter was to request the respondent, who was an accountant, and who had been previously employed by the appellant to conduct confidential inquiries for him, to look into the affairs of the Float Electric Company and to see whether there was either "sense or safety in lending any more money or throwing good money after bad.” The letter went on to speak of the previous manager of the [525] company as an ingenious thief, and of other officials of the company as the “rest of the gang." The letter also clearly indicated the writer's opinion that the then manager of the company might prove to be no better than his predecessor. It is obvious from a perusal of the terms of the letter that any person in the position of the respondent must have recognized at once that he was asked to accept a delicate and extremely confidential task; and further that the language in which the writer had expressed himself, even if written on a privileged occasion, was such as would be likely to occasion considerable trouble if it got to the ears of the persons attacked.

That the respondent realized the position was made quite clear by his evidence at the trial. He admitted that it was part of his duty to take care of the letter, and to take reasonable precautions to the best of his ability to protect the appellant's interests. He also admitted that he realized the dangerous nature of the letter, and that there was no necessity for anyone to take the letter to the offices of the Float Electric Company, though it was necessary,

in his opinion, that it should be taken to the bank in order to satisfy the bank manager as to his authority to inspect the company's account there. What in fact happened was that the respondent handed the letter to his partner with instructions to go to the bank and to the company's offices, and to make inquiries; but he gave him no special warning with regard to the letter. The partner was so careless that he dropped the letter in the company's office, where it was found after his departure hy the manager, who communicated the contents of the letter to a Captain Lowe and to a Mr. Comins, two of the persons who were included in the charges contained in the letter. Each of these gentlemen brought an action for libel against the appellant. In neither action did the appellant appear at the trial. In both actions the learned judge ruled that the occasion was privileged, but the jury found that the appellant was actuated by express malice. In the one case the jury awarded 1,0001. damages and in the other 5001. On appeal to this court the verdict in the first case was reduced to 3501. by consent.

The present action was brought by the appellant against the [526] respondent to recover as damages the amount which he had to pay as damages and costs in those two actions which, including his own costs, amount to 1,6801. The appellant's case was that he had employed the respondent in a confidential capacity as his professional adviser, and that it was an implied term of his employment that he should keep secret all communications and instructions received from the appellant, and should not permit such communications and instructions to be disclosed or published to others. The learned judge, after an extremely clear and careful summing up, left three questions to the jury: (1) Was it the duty of the defendant to keep secret the letter of May 4, written by the plaintiff to the defendant? (2) Did the defendant neglect his duty in regard to the said letter so that the contents thereof were disclosed or came to the knowledge of Mr. Hirst? (3) Were the actions brought by Lowe and Comins against the plaintiff, and the damages recovered by them, the natural consequence of the proved negligence of the defendant? The jury answered all three questions in the affirmative and assessed the damages at 6501.

The appellant's case was really founded upon the negligence of the respondent's partner in not taking proper care of the letter,

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