FITZSIMONS v DUNCAN and KEMP & Company, Ltd

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 09 June 1908
• Court: King's Bench Division (Ireland)
• Docket Number: (1907. No. 4594.)
• Date: 09 June 1908

Fitzsimons

and

Duncan and Kemp & Co., Ltd. (1).

K. B. Div.

Appeal

(1907. No. 4594.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1908.

Libel — Privilege — Malice — Evidence of — Principal and agent — Malice of agent, how far affecting principal — Publication — Inquiry agents — Credit of tradesmen — Company furnishing reports as to credit for reward — Condensation of report received from agent.

Held, in the King's Bench Division—(1) that the occasion was privileged; (2) (Boyd, J., dub.) that K. & Co. were liable for the malice of their local correspondent D.; (3) (Johnson, J., diss.) that there was no evidence of publication by D.

Held by the Court of Appeal, that the plaintiff was entitled to judgment against both K. & Co. and D.

Pearson v. Corporation of Dublin ([1907] 2 I. R. 537; [1907] A C. 351) discussed and applied.

This action, which was tried before Dodd, J., and a special jury, at Belfast, on the 17th December, 1907, was brought by James Fitzsimons against Kemp & Co., Limited, and David Duncan, jointly and severally, for libel.

At the date of the publication of the libel the plaintiff was carrying on business as a grocer and provision merchant at Dromore, County Down. The libel was published by Kemp & Co., a firm of mercantile inquiry agents, whose head office was in London, and was contained in a communication sent by them to Simmons, Hay, & Co., clients of theirs, who proposed to enter into dealings with the plaintiff.

Kemp & Co. conducted their business in the following manner:— They divided the United Kingdom into districts, having a central office with a manager in each district; and throughout every district they employed a number of local correspondents, to whom they applied for information concerning any person in the locality about whom they desired information for the purpose of supplying answers to questions sent to them by any of their clients. Any information so obtained was noted in a register, kept for that purpose in the central office of each district, which register was destroyed every fifth year. Kemp & Co. issued to their clients books of printed forms, in the shape of requisitions for a search on their register for any information contained therein concerning the person named in the requisition; they also issued to their clients books of printed inquiry forms at the rate of 1s. for each form. When a client desired information as to the credit or commercial standing and reputation of any person with whom he proposed to have dealings, he filled in a form by writing the name, trade, and address of the person to be inquired about, and the probable amount of credit to be given to such person, adding any special question or remark which he desired to make, and signing the form. The client then sent this form to Kemp & Co., who in turn forwarded it to their manager in the district within which the person named in the form resided. The district manager then sent a series of questions to his correspondent in the locality where the person about whom information was sought resided, or carried on business; and, from the answers or statements made by the local correspondent, the district manager drew up a report which was sent to the client who had asked for it.

These books of “inquiry” and “search” forms were issued to subscribers to Kemp & Co., subject, inter alia, to the following printed conditions:—

1. “It is agreed that all information, printed, written, or verbal, is furnished in confidence for the use of the subscriber only, and is under no circumstances to be divulged by him to a third party, and the subscriber shall be held accountable for any loss or damage arising from the breach or non-observance of this agreement. All information received by the agency is understood to be so received in strict confidence, and the agency cannot, therefore, under any circumstances, divulge the source of any information it receives.”

2. “Subscriptions are received, status inquiry-books, certificates, and search-books furnished, and information given upon the understanding that the agency is not to be held responsible for damages or loss arising from insufficient or inaccurate information furnished to the subscriber, whether by reason of mistake or negligence of the agency, or its servants, agents, or correspondents, or otherwise; and it is expressly agreed between the subscriber and the agency that no proceeding shall be instituted against the agency by reason of any information furnished or omitted to be furnished.”

The foregoing conditions were incorporated in the receipts for inquiry-books and search-books; and each subscriber to whom such books were furnished was required to sign the receipt. Each inquiry form and request for a search contained a printed undertaking on the part of the subscriber, similar in terms to that in condition 2, supra. All answers and reports sent by Kemp & Co. to their clients had a printed heading, stating that the information must be regarded as “strictly private and confidential,” and was furnished upon terms similar to those contained in condition 2, supra. At the date when the libel was published, the defendant Duncan was the local correspondent of Kemp & Co. at the town of Dromore, which was included in the district of Belfast, where Kemp & Co. had a central office, with one Avery as manager. In 1901, Duncan was appointed by Kemp & Co. their regular correspondent at Dromore, Kemp & Co. agreeing to pay him a fee of fourpence for each inquiry sent to him. The position of Duncan was described in an affidavit made by Avery in relation to this action as “their” (i.e. Kemp & Co's.) “agent in Dromore.” Early in 1906, Duncan had furnished to Kemp & Co. a report on the standing and prospects of the plaintiff, the information being sought at the request of J. H. Lepper, a client of Kemp & Co., residing in Belfast. This report was as follows:—

“There is a James Fitzsimons in Meetinghouse Street, Dromore, who has commenced, or is about to commence, business there. He commenced life as a shop-assistant. He left that when his father died, who was a man fairly well off, and went into business with a Mr. A. Sherrard in the egg trade. Whatever money he had he invested it in the business; and, after some time, Sherrard finding his business not improving with him, owing as he alleged to Fitzsimons' dishonesty, the partnership was dissolved. Proceedings having been taken, Sherrard was obliged to pay him something to get rid of him. Subsequently he went into partnership with a Mr. Martin in the same business, trading as ‘County Down Egg Company.’ This only lasted nine months, and they went behind over £100, and Martin went to his farm in the country. Fitzsimons, since about a year, has done little or nothing. Martin alleged he deceived him; and I am told the creditors on the other side of the water have not been paid, and that proceedings are about to be taken; at what stage the partnership has arrived I cannot say.

“As to Fitzsimons himself, he is one of a family four of whom have been sent to Downpatrick Asylum, two of whom died there quite young, and he himself would seem to be tainted.

“One of his brothers died in the asylum six months ago, and his estate is in Court; this brother received something. There are some tenements in Meetinghouse Street, which it is said he receives rent from, although he is not the owner. He may have some money, but not much, as he had a wife and three children to keep, and has made nothing for years—since the time he left Sherrard.

“He has taken a house in Meetinghouse Street from Mr. M'Master at £20 a year, has van and horse, and is commencing grocery and egg business on his own account. That business won't last long, as he is a most deceptive, sneaking fellow, who cannot be believed, and with no business capacity. If credit is given at present, I believe it will be perhaps right enough; but, as I have said, he will not succeed, and, considering the confused state of his family and father's estate, he requires to be carefully watched.

“I have given you as many facts as possible, and you can use your own judgment.”

A report, based on the foregoing, was drawn up by Avery; and on February 14th, 1906, sent by him to J. H. Lepper, the client who had asked for it. Avery's report consisted of a summary of Duncan's statements, but did not contain the allegation that the plaintiff was tainted with insanity, nor was the phrase “a most deceptive, sneaking fellow” used.

Early in 1907, Messrs. Simmons, Hay, & Co., a firm of tea merchants in London, sent to Kemp & Co. a “request” for “registered information only” concerning the plaintiff; and received from them the following reply:—

“Search only. The information on our books bears date February, 1906, and is to the following effect:— This man's chances of success are very remote, and a careful watch should be kept over the account.”

On February 7th, 1907, Simmons, Hay, & Co. sent to Kemp & Co. an “inquiry form,” in which they stated the “probable amount of credit” as £30, and asked for an inquiry as regards the plaintiff's position, adding the following “remarks”:— “We have a report that this man has considerable property in the town—his financial standing is good—is a first-class grocer. Please report again.”

Avery thereupon sent a series of questions to Duncan relative to the plaintiff, which, with Duncan's answers thereto, took the following form:—

“Strictly private and confidential. Very urgent. Name.—James Fitzsimons. Trade.—Grocer. Address.—Meetinghouse Street, Dromore. Probable amount of trade credit.—£30. Has this man's affairs been settled in Court yet?—This man's affairs, or rather the affairs of his father, have been settled in Court long since; also a brother's, who died in Downpatrick Asylum. Has his trade increased?—Quite the contrary. Is he the owner...