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y be

. as a consequence of which the contents of the letter became
known to the persons who subsequently brought actions for libel

against him. The respondent met that case by asserting that he

was under no duty not to disclose the contents of the letter,

because any contract not to do so would be either an illegal con-

tract, or against public policy, and consequently unenforceable;

and upon the further ground that no damages were recoverable

because the damages claimed were the direct result of the appel-

lant's own wrong.

The learned judge decided both points in

favor of the respondent. Upon the first point he says (1918]

2 K. B. 748: “After much consideration I have, however, come

to the conclusion that our law does not, and cannot, imply any

such promise or term as that which the plaintiff alleges, and that

therefore no breach of contract or dereliction of duty was com-

mitted by the defendant.” I am [527] unable to agree with the

view thus expressed by the learned judge. There may no doubt
be cases to which the rule laid down by the learned judge may
applied, as for instance confidential communications to a profes-
sional adviser as to the proposed commission of a crime, or as to

the proposed commission of a civil wrong upon an individual.
| A contract to keep such a communication secret may well be cor

sidered as an illegal contract, and the duty to the public to dis-
elose the criminal or illegal intention may properly be held to
override the private duty to respect and protect the client's confi-
dence. Apart from the special nature of the jurisdiction which
was invoked in the case of Gartside v. Outram (1856) 26 L. J.
Ch. N. S. 113, 3 Jur. N. S. 39, 5 Week. Rep. 35 (a case which
was much relied upon by Mr. Hogg) I think that that case falls
within the class of cases to which I have alluded, and which are
entirely distinct in their nature from the present case, where the
wrong is completed before the communication is disclosed, and
where, as I think, public policy is better served by respecting the
confidence than by abusing it. It needs only to put two instances
to illustrate my meaning. In the one case a patient informs his
doctor that he intends to commit suicide at such and such a place
at such and such a time. In the other case a person who is
charged with attempting to commit suicide tells his solicitor that
he did so attempt and asks him to defend him. A distinction
must also, I think, be drawn between the present case, which,
upon the argument presented to us, must be treated as a case · where a person engaged in a professional capacity volunteers to disclose confidential communications made to him by his client, and cases where a person is compelled by process of law to disclose such communications. No contract would be implied as between a professional man and his client not to disclose communications if required by process of law to do so, whereas a contract might well be implied not to disclose the same communications voluntarily.

Mr. Hogg contended that for the purpose of considering the respondent's duty in the matter, the appellant's letter must be treated as a criminal libel, and the appellant himself as having [528] been guilty of a crime, and that no contract to conceal a crime could be lawful. In the first place I do not agree that a contract not to disclose the fact that a crime has been committed is necessarily either illegal or against public policy, and I need only refer to the instance I have already mentioned of a solicitor employed to defend a prisoner to whom the prisoner admits that he has committed the crime with which he stands charged. In the second place I do not think that the respondent is entitled to treat the appellant as a person who has committed a crime by writing and publishing the libels in question. The parties libeled might possibly have taken criminal proceedings, but they did not do so. They preferred to treat the letter as a civil wrong. If the appellant had been indicted it does not at all follow that he would have been convicted; and unless and until he is convicted he is, in my opinion, just as much entitled to say that he is innocent of the crime of libel as he was entitled to say, up to the time when a jury found that he had been actuated by express malice, that he had committed no civil wrong. Apart altogether from the distinction which I think exists between the present case and a case such as Reg. v. Cox & Railton (1884) 14 Q. B. D. 153, 5 Am Crim. Rep. 140, 54 L. J. Mag. Cas. N. S. 41, 52 L. T. N. S. 25, 33 Week, Rep. 396, 15 Cox, 0. C. 611, 49 J. P. 374, where the question of what communications are covered by the client's privilege was discussed, the passage in the judgment of Stephen, J., 14 Q. B. D. 167, where he speaks of communications criminal in themselves, and which was much relied upon by Mr. Hogg, has, in my opinion, no appli

cation to the present case, where we are not considering any question of a criminal communication in the sense in which Stephen, J., was speaking of such a communication. No direct authority upon this branch of the case appears to exist. In the case of Saunders v. Seyd & Kelly's Credit Index Co. (1896) 75 L. T. N. S. 193, Lindley, L.J., appears to have considered that a contract might lawfully be made not to disclose the contents of a defamatory publication, and contracts of that kind are habitually made between trade societies and their customers with reference to the information supplied as to the credit or antecedents of persons with whom the customers may be concerned in business. It is not [529] suggested that the publication to the respondent caused any special damage to the persons who ultimately brought actions against the appellant. The contract was one which in no sense encouraged the committing of any wrong. On the contrary its effect must necessarily be to reduce any injury resulting from the wrong already done to a minimum, and to render it unlikely that any breach of the peace could result from the wrong having been committed. Under these circumstances I do not myself see any objection to holding that the contract as found by the jury in the present case was neither an illegal contract nor one contrary to public policy.

I pass now to consider the second question dealt with by Darling, J., which, in my opinion, is the more difficult of the two. It is this: Assuming the appellant to have a right of action against the respondent, is he entitled to recover the special damages which he claims? It is stating the proposition much too broadly to say that under no circumstances can a man recover damages for his own wrong or damages by way of an indemnity for the consequences of his own wrong. A motor-car accident policy commonly includes what are known as third party risks, and this is a familiar instance where such an indemnity is provided for. A man by his careless driving runs over and kills a person walking along the road. That person's wife and family claim and recover damages under Lord Campbell's Act. The risk is covered by the policy, and the driver of the motor car claims and is entitled to be indemnified. Trinder, Anderson & Co. v. Thames & Mersey Marine Insurance Co. (1898] 2 Q. B. 114, 8 Asp. Mar. L. Cas. 373, 3 Com. Cas. 123, 67 L. J. Q. B. N. S. 666, 78

L. T. N. S. 485, 14 Times L. R. 386, 46 Week. Rep. 561, is an express authority to the above effect in the case of a marine insurance policy. The cases of Crage v. Fry, (1903) 67 J. P. 240, 1 L. G. R. 253; Cointat v. Myham (1913] 2 K. B. 220, 82 L. J. K. B. 551, 108 L. T. N. S. 556, 77 J. P. 217, 29 Times L. R. 387, 11 L. G. R. 760; and 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, are all instances of cases negativing the existence of any such general rule.

We are not in this case considering, as I have already pointed out, the consequences of the commission of a crime, or any claim for an indemnity against the consequences of the commission of a crime, as was the case in Leslie v. Reliable [530] 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. I do not desire to express any opinion as to whether a person can ever be heard to claim an indemnity against the consequences of a wilful and deliberate wrong committed by himself. Kennedy, J., in the passage of his judgment in Burrows v. Rhodes [1899] 1 Q. B. 828, 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, was apparently of opinion that he could not. I desire to confine my judgment to the facts of this particular case. I do not think that I am at liberty to form my own opinion as to the appellant's conduct in the matter, or as to his motive in writing the letter which was the subject-matter of the actions brought against him, or as to whether the persons who brought those actions, or anyone who knew the appellant, attached any real importance to what he said. Two juries have found that the appellant, in writing the letter complained of, was actuated by express malice. There is, of course, the possibility that the juries may have been induced so to find on some ground short of a wilful and deliberate intention to injure. The case of Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892] 1 Q. B. 431, 61 L. J. Q. B. N. S. 409, 66 L. T. N. S. 513, 40 Week. Rep. 450, 56 J. P. 404, is an instance where the Court of Appeal considered that à jury had so found. In that case the verdict of the jury was supported upon the ground that they might have come to the conclusion that the defendant in that case had allowed himself

to be influenced by gross and unreasoning prejudice te such an extent as to make aspersions upon other people recklessly as to whether they were true or false. I do not think that I am at liberty to form any opinion of my own as to the grounds upon which the juries acted. I must take the verdicts as I find them. In the eye of the law those verdiets at the least carry this conclusion with them, namely, that even if the appellant was not actuated by a deliberate intention to injure the persons referred to in his letter, he was, to use Lord Esher's language in Royal Aquarium and Summer and Winter Garden Society v. Parkinson, abusing the occasion, and not using it for any legitimate purpose. Under these circumstances I do not think that the appellant can shelter himself under the [531] protection which the law allows to confidential communications. Upon the findings of the jury he clearly overstepped the limits of that protection, and I cannot see any sufficient reason why he should not come within the rule of law as laid down by Kennedy, J., to which I have already referred, and which is, I think, in accordance with the reasoning which led to the result arrived at in the recent case of Neville v. London Express Newspaper (1919] A. C. 368, 88 L. J. K. B. N. S. 282, 120 L. T. N. S. 299, (1919] W. N. 21, 35 Times L. R. 167, 63 Sol. Jo. 213, in the House of Lords. I think, therefore, that the learned judge was right in saying that the appellant cannot recover any portion of the special damages which he claimed, which are in substance in the nature of an indemnity against the consequences of his own wilful and deliberate wrongdoing, but, as he has proved a cause of action in contract, he is entitled, in my opinion, to a judgment for nominal damages, but under the circumstances, without costs.

I think the cross appeal fails. The only ground relied upon was that the damages were excessive. It was said that the appellant acted unreasonably in not appearing at either trial, and that had he done so the damages would not have been so large, and, further, that he ought to have accepted the offers of compromise. In my opinion there was no ground for interfering with the verdict on any of the grounds relied on.

The result will be that the appeal will be allowed, and the cross appeal dismissed, but without costs of the appeals on either

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