1. This is an action for libel. The plaintiff and the defendant were joint executors of the will of a lady of the town, Sreematy Kironsoshi Dassee. She left a daughter Shephalika Dassee, who was a minor seven years old at the time of her death in 1934. In 1935 her executors obtained probate of her will. In opening the case, allegations have been made on the one side that the defendant kept the girl in a disorderly quarter of the town, and on the- other side that the plaintiff took her to his own house to get hold of her property. There has been an acrimonious correspondence with regard to this property and both parties have made reckless accusations by letter and in the course of judicial proceedings. Eventually on the application of the defendant the plaintiff was removed from his office of executor. On 29th February 1936 the plaintiff wrote a letter headed 'In the goods of Sreematy Kironsoshi Das-see' to Mr. B. M. Das, the solicitor for the defendant, Dr. P.C. Sen. The letter is couched in intemperate language and in one portion the plaintiff writes:
Regarding your fourth paragraph it is strange that a gentleman of your position and respectability advising me not to be anxious for the girl when you had the full knowledge that the girl is now in a brothel in a most disreputable locality and looked after and cared for by a public woman alleging and pretending that she is her grandmother. I am the last person to be a party to this conspiracy to turn her up as a public woman.
2. The letter concludes with threats to bring the matter before the Commissioner of Police. Mr. B. M. Das replies by a letter No. 2179 of the 4th March addressed to the plaintiff. He starts by acknowledging the letter of the 29th February and says:
I strongly object to the tone of your letter casting aspersions against me personally, as I wrote the letter under express instructions of my client Dr. Sen.
3. He then goes on to use the following expression, on which the plaintiff relies in support of his action for libel:
If anybody has conspired to turn up the girl Shephali as a public woman it is you as you stated in your own affidavit that the said girl was in your custody and you must explain how and why she was sent to a brothel.
4. The actual words complained of are the words 'If anybody has conspired to turn up the girl Shephalika as a public woman it is you'. And by reason of this statement in the letter the plaintiff claims damages not against the attorney who wrote it out but against his client. There is another claim based on a statement in an affidavit. But that plea has been abandoned, and the only question which is before me today is the question whether there is a prima facie case on the pleadings and whether in fact there has been publication of the alleged libel. The following issues were framed:
(1) Did the defendant cause the letter of 4th March 1936, to be written as alleged in para. 2 of the plaint? If so, was the occasion absolutely privileged?
(2) Do the words in the said letter constitute libel?
(3) Was there publication of the letter as alleged or at all? Does such publication, if any, constitute publication in law?
5. The first point which has been stressed on behalf of the defendant is that the letter is written by the attorney in reply to allegations which had been made against him personally and that he is defending himself personally and hitting back in answer to the charge that he was not acting in a manner consonant with his position and respectability. Prom the letters it appears that the plaintiff is writing to the attorney referring to him personally as a gentleman of position and respectability and blaming him for the advice which he had given, and the attorney in the letter complained of writes back objecting to the aspersions which had been cast against him personally; but I am not now concerned with the question whether the attorney was acting within the scope of his authority nor whether his client is in any event responsible for the words he has written. The publication which has been alleged in the plaint, which has been amended, is two-fold. In the first place, it is alleged that the defamatory words were typed and copied into a letter book of the attorney by his clerk, and secondly, that the letter containing the alleged defamatory statements was sent to the plaintiff at his house and that the defendant knew that letters which were sent to the plaintiff were usually opened by his clerk and compounder and that this particular letter was in fact opened by the clerk and compounder. In regard to the first question regarding publication in the defendant's attorney's press copy letter book and to the attorney's clerks, the press copy letter book containing the press copy of this letter has been produced and the defendant has not pleaded to the allegations that the defendant's attorney had the letter typed and copied into his letter book by his clerk. Apart from the implied admission there is no evidence of publication in the attorney's office. The defendant argues that there was no publication and he relies on the case in Osborn v. Boulter & Son (1930) 2 KB 226. The headnote there states:
If a business communication is privileged, as being made on a privileged occasion, the privilege covers all incidents of the transmission and treatment of that communication which are in accordance with the reasonable and usual course of business; and it is in accordance with the reasonable and usual course of business for a business man to dictate his business letters to a typist, even although these letters contain statements defamatory of a third person.
6. The Court of Appeal in that case did not follow a previous decision of the Court of Appeal in Pullman v. Hill & Co. (1891) 1 QB 524. In Osborn v. Boulter & Son (1930) 2 KB 226 there was a controversy between the tenant of a public house and the brewers who were supplying him with beer in the course of which there were allegations that he had been watering the beer. The letter complained of is set out in the judgment of Scrutton L. J. on page 230 of the report where the learned L. J. states:
That is, the letter complained of and, unless it la privileged, it is obviously actionable, inasmuch as it alleges that he deliberately watered his beer .... The letter however can give rise to no cause of action unless it was published to some third party.
7. Mr. Sullivan on behalf of the respondents, who had been the original defendants, argued that the matter was decided by the decision of the Court of Appeal in Pullman v. Hill & Co. (1891) 1 QB 524, and the question which arose and which was there decided was whether the privilege, which the Court held there was owing to the occasion on which the communication was made, had been lost by communicating to a staff of clerks the alleged defamatory matter. The Court held following other cases mentioned in the judgment which had been decided in the Court of Appeal, that:
Where there is a duty, whether of perfect or imperfect obligation, as between two persons, which forms the ground of a privileged occasion, the person exercising the privilege is entitled to take-all reasonable means of so doing, and those reasonable means may include the introduction of third persons where that is reasonable and in the ordinary course of business; and if so, it will not destroy the privilege.
8. 'The privilege,' said Fletcher Moulton L. J. in Edmondson v. Birch & Co. (1907) 76 LJ KB 346 (at p. 353),
covers all incidents of the transmission and treatment of that communication which are in accordance with the reasonable and usual course of business.
9. Scrutton L.J. at the conclusion of his judgment said on the facts of that particular case,
that the occasion on which the letter was written was privileged; that the protection was not lost by a communication of the contents to a person who was standing there when the letter was dictated; and that the protection of the privileged occasion was not lost by the dictation of the letter to the typist, that being a reasonable and ordinary method in commercial matters of writing letters even though they may contain defamatory statements.
10. What was held then in Osborn v. Boulter & Son (1930) 2 KB 226 was that the communication was made on a privileged occasion, and that that privilege was not lost by a communication in the ordinary course of business of the so-called defamatory statements because dictating a letter to a typist is a reasonable and ordinary method in commercial matters of writing letters. Learned Counsel for the plaintiff contends that the point which is now before the Court is not a question as to whether privilege was or was not lost, but whether there was in fact publication. In my view, the reasoning of the learned Judges throughout their judgments in Osborn v. Boulter & Son (1930) 2 KB 226 leads to the conclusion that where a communication is made in the ordinary course of business to a typist, there is no publication such as will justify an action for alleged defamatory statements. Further, in my view, the communication in the present case was made on a privileged occasion. It was in reply to serious charges which had been made by the plaintiff, which invited, if they did not compel, a reply. So that as regards the allegation that there was publication to the defendant's attorney's clerk or clerks, I hold that there is no evidence of publication and that no action will lie. The second point then arises, namely whether there was a publication to the compounder of the plaintiff. To support this allegation the compounder and the plaintiff have both given evidence in Court. The plaintiff is a gentleman who holds a homeopathic degree, and his compounder says he has a banking business, a mining business, a medical business, and the business connected with this estate. (The judgment then discussed the evidence and proceeded.) The plaintiff and his compounder pounder created a bad impression in the witness-box and I have no hesitation in disbelieving their evidence. I hold that publication of the alleged libel has not been proved and the suit is dismissed with costs including any reserved costs.