SCRUTTON L.J. This appeal is brought by
a lady who undoubtedly believes that she has a serious grievance. She has
brought several actions, all of which have been dismissed, and has, not
unnaturally, got into a state of mind in which she is unable to appreciate the
full significance of the position. This action she brought against another lady
for libel and slander. It appears that the respondent, the defendant in the
action, lent the appellant money to enable her to purchase and carry on a hotel
in Kensington. Differences arose between them as to what security should be
given for the loan, and as to when and in what circumstances it could be called
in. The respondent consulted her solicitors to obtain their advice, and in order
to discuss the advice given to her she wrote certain letters to them which in
the course of some proceedings ultimately taken against the appellant became
public, and thereupon she brought this action against the respondent for libel,
the libels being written communications from the respondent to her solicitors,
that is, from the client to her solicitors. The question at once arises, on
which there has been some difference of opinion, whether communications from a
client to a solicitor and from solicitor to client are or are not absolutely
privileged. There are a few, not many, cases where untrue communications or
statements which are defamatory are by the law of England treated as absolutely
privileged, so that, although they are untrue, defamatory and malicious, the law
does not allow any action to be brought in reference to them. The reason is that
there are certain relations of life in which
it is so important that persons engaged in them should be able to speak freely
that the law takes the risk of their abusing the occasion and speaking
maliciously as well as untruly, and in order that their duties may be carried on
freely and without fear of any action being brought against them, it says: “We
will treat as absolutely privileged any statement made in the performance of
those duties.” The absolute privilege given to a judge is the most obvious
illustration of this principle. I am at liberty by the law of England in
delivering judgment to be as malicious as I like; the law protects me. Why? I
take this quotation from North C.J. in Barnardiston v. Soame (1674) 6 How St Tr 1063, 1096 : “They who are intrusted to judge, ought to be free from vexation, that
they may determine without fear; the law requires courage in a judge, and
therefore provides security for the support of that courage.” A judge is not
privileged to be malicious or careless, but, as was said by Channell J. in
Bottomley v. Brougham
[1908] 1 KB 584, 587 , he is privileged from inquiry as to whether he is malicious. The
reason is that to expose a judge to the risk of actions from every disappointed
suitor, who is the more ready to allege malice the more ignorant he is, is to
affect his efficiency and freedom as a judge doing a duty to the community. If
the judge were to be exposed to the risk of having his observations made the
subject of inquiry by a common jury he would be seriously hampered in the
performance of his duty. The same absolute privilege applies to counsel. I
suppose there are very few counsel who do not, in the course of their speeches,
make defamatory statements about some one. Those statements are absolutely
privileged, because it is in the interest of the State that counsel should be
able to speak freely without being exposed to the risk of an action at the
instance of a person whose conduct he may have denounced. The same absolute
privilege applies to a witness. A witness going into the witness box and giving
evidence may very easily say something defamatory against some one, and it would
very much hamper his efficiency as a witness if he said to himself: “Here is a
person watching to see whether I say something
malicious, and I must therefore be very careful, because I may be sued by him if
I say something which he alleges is malicious.” In Watson v. M'Ewan
[1905] AC 480 the House of Lords decided that the privilege extends to the statement
of a witness to the solicitor taking his proof. The question then is, does the
privilege extend beyond judges, counsel and witnesses? Does it extend to a
client consulting his or her solicitor and making statements to him for the
purpose of obtaining advice and for the purpose of discussing the advice given —
statements which are untrue but which are made for the purpose of obtaining
advice? Some difference of opinion appears in the reported cases on the question
whether the privilege between solicitor and client is absolute, so that no
inquiry is possible, or whether the privilege is qualified only, in which case
malice on the part of the person making the defamatory statement will defeat the
privilege. It was because of that difference of opinion on the authorities that
when in this particular case the master and judge struck out the plaintiff's
statement of claim as frivolous and vexatious we restored it in order that this
question, which is an important one, might be discussed.
The difficulty arises from the fact that
Darling J., a judge of great experience, in Morgan v. Wallis 33 Times LR 495 expressed the view that privilege as between solicitor and client is
qualified only, and not absolute. There the question arose on an entry in a bill
of costs — an extremely unattractive document to him who receives it, but to
those who are not called upon to pay it is a document full of human interest —
to this effect: “Long attendance on Mr. Edward Morgan and his son-in-law, Mr.
Gilmour, conferring on his position in the company which he said was in a
solvent condition, but his son, Mr. G. E. Morgan, and his son-in-law, Mr. F. E.
Chandler, took advantage of his blindness and illness to withhold information
from him, and he could not get his dividend on the preference shares; and he
complained that his daughters, Mrs. Gilmour, Mrs. Hall and Miss Morgan, on whose
behalf he also instructed me, had received no dividend since June, 1912, on their preference
shares, and he insisted that Mr. G. E. Morgan was applying the company's money
for his own ends, and it was believed that at the bottom of the difficulties was
Mr. Wilmshurst, who was the auditor of the company, and whom he distrusted.” I
do not know whether there was any necessity for the solicitor to set out as he
did the long conversation; it would have been quite sufficient to say, “Long
interview with you in which you explained your difficulties, 13/4.” But the
solicitor having set out the details of the interview, an action for libel was
brought against him by Mr. G. E. Morgan and Mr. Wilmshurst. Darling J. expressed
the view that the position of solicitor and client only gave rise to a
qualified, and not an absolute, privilege, and that it was competent therefore
to investigate the question of malice. In the result Morgan and Wilmshurst did
not take very much by their action, for each recovered one farthing damages
only. On the other hand, there is the very high authority of Lord Herschell in
Browne v. Dunn 6 The Reports, 67, 72 , where he said: “It seems to me that when communications pass between a
solicitor and those who he reasonably believes will desire to retain him, and to
whom he makes a communication in relation to that, and who do retain him, the
whole of those communications leading up to the retainer and relevant to it, and
having that and nothing else in view, are privileged communications, that the
whole occasion is throughout privileged. There is no authority, so far as I
know, to the contrary, and it seems to me that to lay down any other doctrine
would be very gravely contrary to the public interest.” Lord Bowen in the same
case said this 6 The Reports, 80 : “I myself have no doubt at all, in the absence of authority, that if a
solicitor has reason to believe that his services may be required by a possible
client who does afterwards retain him, what passes between the solicitor and the
client on the subject of the retainer, and relevant to the retainer, is covered
by professional privilege,” and he added: “There is another and more serious
point, a point of law, which I desire to keep open so far as my opinion is
concerned. I very much doubt whether, when a professional
relation is created between a solicitor and client, and communications pass
between the solicitor and the client with reference to the prosecution of a
third person, or with reference to proceedings being taken against him, the fact
that the solicitor is animated by malice in what he says of the third person
would render him liable to an action, provided he does not say anything which is
outside what is relevant to the communications which he is making as solicitor
to his client. I very much doubt whether malice destroys that kind of privilege,
unless it is shown that what passed was not germane to the occasion.” It was not
necessary for Lord Bowen to decide the point, but the inclination of his opinion
was obviously in favour of the view that in such a case there was absolute
privilege, provided the communication was relevant. One can imagine what Lord
Bowen probably had in mind. Suppose a client, who has quarrelled with the
builder who is building a house for him, goes to his solicitor to discuss the
position, and in the course of the interview he makes statements regarding the
builder which are untrue. Those statements would, in Lord Bowen's opinion, be
absolutely privileged. But suppose in the middle of the conversation the client,
being of a gossipy nature, says, “Have you heard that Jones has run off with
Mrs. Brown?” that would not be relevant to the discussion. I can quite
understand therefore that in certain circumstances a jury may be asked whether
the particular communication was relevant to the discussion between the
solicitor and client, and in the case I have just put I can imagine that the
jury would say that it was not relevant. The eminent judge — Fraser J. — whose
loss we all deplore, who spent his life in actions for libel, expressed the
opinion in his work, Law of Libel and Slander, 6th ed., pp. 189, 190, that the
view suggested by Lord Bowen, and, as I think, entertained also by Lord
Herschell, that the privilege between solicitor and client is absolute, was
right, and that the decision of Darling J. in Morgan v. Wallis 33 Times LR 495 was erroneous and should not be followed. If then the privilege between
solicitor and client as to relevant communications is absolute, was there in
this case any evidence to leave to the jury that the communications were not
relevant? What was being discussed between the respondent and her solicitors was
whether the loan granted to the appellant should be called in, at what time and
on what terms. Obviously the position of the debtor is most relevant to that
discussion when the debtor is distrusted by the client. All the defamatory
statements appear to relate to the character of the debtor and as to the
redemption of the loan. In these circumstances it would be idle to ask a jury
whether these communications were relevant to the matters being discussed
between the respondent and her solicitors — namely, on what terms the loan
should be called in. The appellant says the statements were untrue; they may be,
but privilege is only designed to shelter untrue statements. This is a case of
absolute, not qualified, privilege, and there was no ground for leaving to the
jury the question whether the statements complained of were relevant. Swift J.
was right in the view he took, and the appeal must be dismissed.
