some evidence of express malice, and that consequently, in the absence of such evidence, there was nothing to leave to the jury. This case, the principle of which has been accepted and followed in a long chain of authorities (a), altered the law (), and it has since then almost invariably been held that the question of privilege and the question of malice are entirely distinct; that the former is in the first place to be decided by the judge on the assumption of good faith on the part of the defendant, and that the latter only is for the jury, and to be proved affirmatively by the plaintiff. The judge, therefore, has not only to rule whether the occasion was privileged, but whether the communication in question had reference to the occasion. With any actual conflict of testimony the jury must of course deal, but, for the rest, the judge has to draw inferences both of law and fact, just as he does in the analogous case of reasonable and probable cause in actions of malicious prosecution. The rule here suggested, however, is one which though practically acted on has never been in terms authoritatively propounded, and it must be said to be still a doubtful matter how far a judge is bound to invite the assistance of the jury in deciding whether a communication is privileged or not. Where defamatory matter had been dispatched by telegram, and the privilege depended upon whether this method of communication was under the circumstances reasonable or not, the question of reasonableness was left at the trial to the jury (c).

It would appear from recent decisions that when once it is ruled that the occasion is privileged and that the matter complained of has reference to the occasion, the only remaining question is whether the occasion was used without malice.

(a) Taylor v. Hawkins, (1851) 16 Q. B. 308; Manby v. Witt, (1856) 18 C. B. 544; Harris v. Thompson, (1853) 13 C. B. 333; Amann v. Damm, (1860) 8 C. B. N. S. 597; Force v. Warren, (1864) 15 C. B. N. S. 806; Whitely v. Adams, (1863) 15 C. B. N. S. 392; Cook v. Wildes, (1855) 5 E. & B. 328; Laughton v. The Bishop of Sodor and Man, (1872) L. R. 4 C. P. 495; Henwood v. Harrison, (1872) L. R. 7 C. P. 606; Jenoure v. Delmege, (1891) A. C.

73. The earlier case of Gardner v.
Slade, (1849) 13 Q. B. 796, was decided
on the same principle.

(b) Per Erle, J., Cook v. Wildes,
(1855) 5 E. & B. 328, at p. 336.

(c) Williamson v. Freer, (1874) L. R. 9 C. P. 393. But probably the judge ought to have himself ruled that the communication was not privileged. See per Lord Esher, M.R., (1891) 1 Q. B. p. 478.

Degree of publicity.

In the headnote of Clark v. Molyneux (a) it is said that statements made on a privileged occasion will be protected even though made without any reasonable ground, provided it does not appear that the defendant acted from any indirect motive. This note, however, is founded on certain dicta in the case, but not on the actual decision, which was not on the question of privilege at all, but on the question of malice (b). But the same principle appears to be affirmed in Pittard v. Oliver (c); and in Neville v. Fine Arts and General Insurance Co. (d) it was decided that where the statement complained of has reference to the privileged occasion and therefore comes within it, the only remaining issue is that of malice, and the only way in which any excess in the statement is material, is as being evidence of malice, of which however it is by no means conclusive. In the last-mentioned case the jury found that the defendants had exceeded the privileged occasion, and it was held that that fact did not entitle the plaintiff to succeed in the absence of a finding of express malice. Where, however, extraneous statements are published which can have no reference to the privileged occasion or the occasion has been wilfully misused (e), it is apprehended that it becomes the duty of the judge to rule that so far as they are concerned the occasion is not privileged. Where a defendant, having received a lawyer's letter written on behalf of the plaintiff, replied in terms of general abuse of the latter, it was held that there was no privilege at all (f). Mere exaggeration of language, however, though it may be evidence of malice, will not destroy privilege (g).

With regard to the publicity given, it has been said that a

(a) (1877) 3 Q. B. D. 237.

(b) And see on this point, Darby v. Ousely, (1856) 1 H. & N. 1.

(c) (1891) 1 Q. B. 474.

(d) (1895) 2 Q. B. 156.

(e) Neville v. Fine Arts, &c., supra ; Hunt v. Great Northern R. Co., (1891) 2 Q. B. 189.

(f) Huntley v. Ward, (1859) 6 C. B. N. S. 514. See also Warren v. Warren, (1834) 1 C. M. & R. 250; Godson v. Home, (1819) 1 B. & B. 7.

(g) Cook v. Wildes, (1855) 5 E. & B.

328; Cowles v. Pott, (1865) 34 L. J. Q. B. 247, which seems to overrule Tuson v. Evans, (1840) 12 A. & E. 733 : see also per Willes, J., Huntley v. Ward, supra. The contrary appears to have been held in Fryer v. Kinnersley, (1863) 15 C. B. N. S. 422, and in Robertson v. McDougal, (1828) 4 Bing. 670, in both of which cases it could hardly be said that the intemperate expressions used were irrevelant to the privileged occasion; but it is submitted that there cases are no longer law.

defendant will not lose his privilege because he goes somewhat beyond the strict necessities of the case. There is authority to show that where an occasion is otherwise privileged it will not lose its character by the fact of the casual presence of one (a), or even of several uninterested bystanders (b), and that such presence is material only on the question of malice. Some doubts. arise as to the exact rule to be deduced from these cases. Of course, if a defendant has practically no opportunity of making his communication except in the presence of uninterested persons, it is just that his privilege should be unaffected. On this principle seems to have been decided the case of Pittard v. Oliver (c). The passage in Toogood v. Spyring (d), which says that the business of life must be carried on, impliedly asserts the same doctrine. In Daries v. Snead, however, no reasonable necessity seems to have existed. As already pointed out, when it has once been ruled that the occasion is privileged the privilege is not necessarily lost because the defendant used the occasion unreasonably, yet there must be a reasonable occasion or exigency() for the question of privilege to arise at all. There is no privilege if a man publishes a libel by postcard, or by a letter which he knows may be opened by the clerk of the addressee (ƒ): but there seems little difference in principle between the case of a clerk or postman and that of a casual bystander. It seems clear that a clergyman may not publish in a pastoral letter matters which he would be privileged in mentioning by way of private advice and admonition to individual parishioners (g).

Where a communication would be privileged if made by a Solicitors. client, it will also be privileged if made by his solicitor acting on his behalf (). Indeed the privilege of the solicitor in such case seems to be even wider than that of his client, for the solicitor will not lose his privilege by reason of his publishing the communication to a type-writing or a copying clerk employed by him (a) Toogood v. Spyring, (1834) 1 C. M. & R. 181.

(b) Daries v. Snead, (1870) L. R. 5 Q. B. 608.

(c) (1891) 1 Q. B. 474.

(d) See below, p. 612.

(e) Toogood v. Spyring, supra, at

p. 194.

(f) Pullman v. Hill, (1891) 1 Q. B. 524; but see Sadgrove v. Hole, (1901) 2 K. B. 1, C. A.

(g) Gilpin v. Fowler, (1854) 9 Ex. 615. (h) Baker v. Carrick, (1894) 1 Q. B. 838.

Mistake.

Charges

against more than one person.

Grounds of privilege.

in the conduct of his correspondence (a), whereas a similar publication by the client to his clerks would not be privileged (b). The ground upon which this distinction has been rested, seems to be that if a solicitor has occasion in the course of his business to write a defamatory letter, it is necessary that he should employ clerks for the purpose, but that if a layman has occasion to write a similar letter it is not necessary for him to employ clerks for the purpose, even though he be a merchant, but he ought to write the letter himself. The distinction does not seem altogether satisfactory (c).

It was formerly supposed that persons who, in seeking redress had applied to the wrong quarter, were protected if their error was a natural and not unreasonable one (d), but in the modern case of Hebditch v. McIlwaine (e), the authorities upon which this doctrine was based were explained away.

It has also been decided that, where there is an imputation against two persons jointly, so that the misconduct charged against one cannot well be explained without introducing the name of the other, if circumstances exist which make the communication privileged as regards one person it will be privileged as regards both. Thus, where the defendant discharged the plaintiff, who was his footman, and also discharged at the same time his cook, and gave to the latter as his reason for so doing that she and the footman had been robbing him, it was held that the statement was privileged as against both (ƒ).

A privileged communication may be made in the discharge of a duty, or in the pursuance of a right, or for both reasons. It may be in the interest of the person to whom it is addressed, or in the interest of the person making it, or in their common interest, or finally in the public interest (g). Under which of these heads

(a) Borsius v. Goblet Frères, (1894) 1 Q. B. 842.

(b) Pullman v. Hill, (1891) 1 Q. B. 524.

(c) It has been held the issue by a joint-stock company of a printed circular containing defamatory matter to their shareholders was privileged, notwithstanding that it involved a publication to the printers: Lawless v. AngloEgyptian Cotton Co., (1869) L. R. 4

Q. B. 262.

(d) Fairman v. Ires, (1822) 5 B. & Ald. 642; Harrison v. Bush, (1855) 5 E. & B. 344.

(e) (1894) 2 Q. B. 54.

(f) Manby v. Witt. (1856) 18 C. B. 544; see Daries v. Snead, (1870) L. R. 5 Q. B. 608.

(4) Communications made in the public interest ought not perhaps to be called privileged, since to make them is

a particular case may fall it is not always easy to determine; indeed, privilege may frequently be put upon more than one ground. A few illustrations are here given without any pretence to an exhaustively accurate classification.

It is to be observed that privilege depends not upon the notion in the defendant's own mind as to his right or duty, but upon the view which the Court takes of what his right or duty in fact was under the circumstances as known to him (a).

is

1. The commonest form of privileged communication is that which is made in the interest of the person to whom it addressed. "Where a person is so situated that it becomes right in the interest of society that he should tell to a third person certain facts" (b), he is privileged in so doing. The facts must be important for the person in question to know; they must be for the guidance and regulation of his conduct (c). If the communication cannot influence conduct there is no privilege. Thus, where the agent of one side in a contested election wrote to the opposing agent, after the close of the poll, accusing a certain voter of bribery, it was held that as the recipient of the letter had no jurisdiction to punish or to inquire into the alleged bribery, and was not invested with authority to institute proceedings in respect of it, and as any duty he might have had with reference to the election was entirely over at the time it reached him, he had no interest or authority in the matter, and there was no legal excuse for the publication (d).

The privilege will depend partly upon the nature of the communication, partly upon the relation in which the parties stand to one another. A defendant may protect himself by showing either that he was in a position of confidence or intimacy with the person to whom he published the matter complained of, or

a general and not a special right. See Merivale v. Carson, (1887) 20 Q. B. D. 275. The distinction, however, is verbal rather than substantial.

(a) "The question is, what is the defendant's duty; not what he thinks to be his duty:" per Byles, J., Whitely v. Adams, (1863) 15 C. B. N. S. p. 412. And see Hebditch v. McIlwaine, (1894) 2 Q. B. 54; Stuart v. Bell, (1891) 2 Q. B.

Interest of whom com

person to

munication made.