{"id":"court_ctb_1409_5","court":"CTB","case_no":"22-50073","doc_number":1409,"sub_number":5,"doc_type":"ORDER","filed_date":null,"title":"Exhibit 5 [IN THE COURT OF APPEAL] C. A.","summary_zh":null,"summary_en":null,"body_en":"# Exhibit 5\n\n#### [IN THE COURT OF APPEAL] C. A.\n\n### TOURNIER *v.* NATIONAL PROVINCIAL AND UNION *NJ^\\2.* BANK OF ENGLAND. *Dec. \\i. '*\n\n#### *Banking*—*Banker and Customer*—*Implied Contract between*—*Obligation of Secrecy*—*Limitations of.*\n\nIt is an implied term of the contract between a banker and his customer that the banker will not divulge to third persons, without the consent of the customer express or implied, either the state of the customer's account, or any of his transactions with the bank, or any information relating to the customer acquired through the keeping of his account, unless the banker is compelled to do so by order of a Court, or the circumstances give rise to a public duty of disclosure, or the protection of the banker's own interests requires it.\n\nThe plaintiff was a customer of the defendant bank. A cheque •was drawn by another customer of the defendants in favour of the plaintiff, who instead of paying it in to his own account indorsed it to a third person who had an account at another bank. On the return of the cheque to the defendants their manager inquired of the last named bank who the person was to whom it had been paid, and was told it was a bookmaker. That information the defendants disclosed to third persons:—\n\n*Held* (by Bankes and Atkin L.JJ.), that that disclosure constituted a breach of the defendants' duty to the plaintiff, for though the information was acquired not through the plaintiff's account but through that of the drawer of the cheque, it was acquired by the defendants during the currency of the plaintiff's account and in their character as bankers.\n\nBy Scrutton L.J., contra, that although the disclosure was a breach of the defendants' duty to the drawer, it was not a breach of their duty to the plaintiff.\n\nAPPEAL of the plaintiff from a verdict and judgment in favour of the defendants at the trial before Avory J. and a jury.\n\nThe plaintiflE was a customer of the Moorgate Street branch of the defendants' bank, and in March, 1922, his account was overdrawn to the amount of *91. 8s. 6d.* The defendants pressed him to pay off the overdraft, and in April, 1922, he entered into an arrangement with them to pay off *11.* a week commencing on April 17. He paid three instalments, and then ceased to make any further payments. On June 8, 1922, he entered the service of a company called Kenyon & Co. under an agreement for a three months' employment as traveller and\n\n**O**\n\n#### 462 KING'S BENCH DIVISION. [1934]\n\nC. A. salesman. Shortly afterwards a cheque for *451.* was drawn 1923 in his favour by a company called Woldingham Traders, Ld., TOOTNIER who were also customers of the same branch of the defendants' NATIONAL bank, but the plaintiff did not pay that cheque into his accoun t'- The cheque was eventually returned, to the defend-*OT* ants for payment by the London City and Midland Bank. The manager of the defendants' Moorgate Street branch, a Mr. Fennell, then inquired of the London City and Midland Bank who their customer was for whom payment of the cheque had been collected, and was told he was a bookmaker of the name of Lloyd. Mr. Fennell then rang up Kenyon & Co. on the telephone and had a conversation with two directors of that company, a Mr. Wells and a Mr. Kenyon. He asked for the plaintiff's private address, and told them that the plaintiff was indebted to the bank, and that though several letters had been written to him he had not replied. Mr. Fennell, according to his own evidence, added: \" Tournier must be getting money from somewhere or other; I have seen a cheque coming through the bank payable to Tournier and have been informed that one cheque has gone to the credit of a bookmaker's account, and if that is the case he ought to pay the bank off some of his debt.\" In consequence of that communication Kenyon & Co. refused to renew the plaintiff's employment when the three months' agreement expired.\n\n> The plaintiff brought this action (1.) for slander, and (2.) for breach of an implied contract that the defendants would not disclose to third persons the state of the plaintiff's account or any transactions relating thereto. The slander alleged was twofold: it was alleged in para. 2 that Mr. Fennell said over the telephone to Mr. Wells, \" I am afraid that Mr. Tournier is engaged with bookmakers, as we have been able to trace a cheque or cheques passing from Mr. Tournier's account to bookmakers \" ; and in para. 3 that he said to the other director, Mr. Kenyon, \"Tournier's account is overdrawn, and various promises made by him to give the matter his attention have not been fulfilled, cheques passed through Tournier's account were for betting men, and we think that\n\nTournier is betting heavily \" ; the innuendo being that the C. A. plaintiff was an undesirable person to be employed by 1923 Kenyon & Co. and a person not fit to conduct their business TOUBNIEB or to be entrusted with money. At the trial the actual NATIONAL words proved in evidence were slightly different from those PROVINCIAL <sup>r</sup> °*<sup>J</sup> -* AND UNION above set out in the statement of claim, and also from the BANK OF evidence of Mr. Fennell. According to Mr. Wells' evidence *'* the words spoken to him were, \" As we have been able to trace a cheque or cheques to a bookmaker we are afraid he is mixed up with bookmakers.\" Mr. Kenyon said that the words spoken to him were, \" He has made various promises to look into the matter and has not done so, and various cheques going through Tournier's account were going to betting men.\" On the second head of claim, that for breach of an implied contract of secrecy, the obligation claimed was alleged to be an absolute obligation unqualified by any exceptions. It appeared that in the pass books issued by the defendants to their customers, including the pass book of the plaintiff, there was on the first page a statement that \" The officers of the Bank are bound to secrecy as regards the transactions of its customers.\"\n\nAvory J. left the following questions to the jury :—\n\n1. Were the words complained of in para. 2 or para 3 of the statement of claim spoken by Mr. Fennell ? Answer No. The plaintiff's counsel had asked the judge to add to the question the words, \" or words to the like effect,\" but the judge had refused.\n\n2. If so, were such words defamatory of the plaintiff, that is, were they calculated to expose him to hatred, ridicule, or contempt in the mind of a reasonable man ? Answer No. ij\n\n3. Has the plaintiff suffered actual damage by the speaking of such words ? Answer No. On this head the evidence was that business was not brisk and that -Kenyon & Co. would probably have declined to renew the plaintiff's employment in any case.\n\n4. Was Mr. Fennell actuated by malice in speaking the words, that is, was he acting from any indirect motive other than a desire to do his duty ? Answer No.\n\n#### 464 KING'S BENCH DIVISION. **[1924]**\n\nG. A. 5. Was the communication with regard to the plaintiff's 1923 account at the bank made on a reasonable and proper occasion *%* Answer Yes.\n\nNATIONAL 6 BANK OF The plaintiffs appealed. ENGLAND.\n\n- Wha t damages ? None.\n\nPROVINCIAL Judgment was thereupon entered for the defendants. AND UNION ,,..- , ,\n\n> *Sir H. Smith K.C.* and *Pitt* for the appellant. The summing up of the learned judge was defective on both heads of the claim. On the claim for slander he omitted to ask the jury whether the words proved to have been spoken by Fennell were the same in substance as those pleaded in paras. 2 and 3 of the statement of claim, and though in actions for slander it was formerly essential to prove the actual words pleaded, that strict rule has been relaxed, and \" for a long time it has been held to be enough to prove the substance of the words alleged in the declaration\": per Lord Coleridge C.J. in *Harris* v. *Warre.* (1) He refused to ask the jury whether \" words to the like effect \" had been spoken by Fennell, although in *Dalgleish* v. *Lowther* (2) an interrogatory administered to the defendant in an action of slander asking whether he had spoken the words set out in the statement of claim \" or words to that effect\" was held by the Court of Appeal to be a proper interrogatory. On the claim for breach of the implied contract of secrecy also the summing up was defective, as the learned judge asked the jury the question whether the communication with regard to the plaintiff's account was made \" on a reasonable and proper occasion,\" without giving them any direction as to the circumstances in which the occasion would be reasonable or proper. In *Hardy* v. *Veasey* (3) where the plaintiff, a customer of the defendants' bank, alleged in his amended declaration that the defendants had communicated the state of his account to a third person in breach of their implied promise not to disclose it \" except on a reasonable and proper occasion,\" it is true that no direction was given by the trial judge as to\n\n(1) (1879) 4 C. P. D. 125, 128. (2) [1899] 2 Q. B. 590. • (3) (1868) L. R. 3 Ex. 107.\n\nwhat constituted a reasonable and proper occasion, and no C. A. objection was taken by the Court to that omission. But it 1923 was not necessary to do so. The plaintiff had overdrawn his account, and the third person to whom the defendants mentioned the fact was a moneylender from whom they tried to PROVINCIAL \"• , *<sup>J</sup>* AND UNION obtain assistance for the plaintiff, and the only question left BANK OF to the jury was whether the communication to the money- NGLAND lender was officious and unjustifiable, the judge telling them that if it was made with an honest intention of getting such assistance he doubted whether the action was maintainable. The jury having found for the defendants, the only objection taken to the summing up was that the latter statement was a\n\n29\n\nmisdirection. The Court held that it was not. *J. 0. Hurst K.C.* and *Made,* for the respondents. On the claim for slander the judge was right in refusing to add to the question left to the jury the words \" or words to the like effect.\" \" In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used *those* defamatory expressions alleged, which is the fact on which the case depends \" : per Lord Coleridge C.J. in *Harris* v. *Warre.* (1) In that case a statement of claim, which alleged that the defendant had written letters to the chief constable charging the plaintiff with having been concerned in a murder, without setting out the actual contents of the letters, was held bad on demurrer. That case is quite consistent with *Dalgleish* v. *Lowther.* (2) In exhibiting interrogatories a plaintiff may ask: \" Did you use [specific words] or words to that effect ? \" But a very different and much more strict standard is to be applied when it is a matter of correspondence between pleadings and proof. If the plaintiff's counsel intended to treat the words proved to have been spoken by Fennell as material he ought to have asked for an amendment of the claim, but he did not. In *Ecklin* v. *Little* (3) the words alleged in the statement of claim were : \" I hear the plaintiff is a divorced man ; you\n\n(1) 4 C. P. D. 125, 128. (2) [1899] 2 Q. B. 590. (3) (1890) 6 Times L. B. 366. VOL. I. 1924. 2 1 2\n\n-\n\n#### 466 KING'S BENCH DIVISION. [1924]\n\nTOTONIER NATIONAL AND UNION E\n\nC. A. had better inquire.\" The words proved in evidence were 1923 such that the jury might infer that the defendant was assert<sup>m</sup> g as a fact that the plaintiff had been divorced, and not mere ly that she had heard a rumour to that effect from third PROVINCIAL persons. Under those circumstances the Court held that the BANK or plaintiff could not rely on the words proved without an\n\n> With regard to the second head of the plaintiff's claim that .there was a breach of the implied contract of secrecy it is to be observed that it has never yet been decided that the duty not to disclose the state of the customer's account is anything more than a moral one. In *Hardy* v. *Veasey* (1) the Court expressly said that it was not necessary for them to decide whether there was a contract or legal duty not to disclose ; their decision was nothing more than that, if there was such a duty except on a reasonable and proper occasion, the circumstances of the case brought it within the exception. It is clear that a banker is compellable to disclose the state of the customer's account if ordered to do so by a judge : *Loyd v. Freshfield.* (2) It also seems clear that there are other exceptions than compulsion of law. In *Tassell* v. *Cooper* (3), a count which alleged that the plaintiff was a customer of the defendant bank and that it became the duty of the defendants not to disclose the particulars of the plaintiff's account without his authority except to persons presenting for payment cheques or bills drawn or accepted by the plaintiff, \" unless compellable by due course of law so to do,\" was held bad. In *Foster v. Bank of London* (4) the holder of a bill of exchange for 532Z. accepted by the plaintiff payable at the defendants' bank on presenting it for payment was told that the plaintiff's balance was not sufficient to meet it by 104?., whereupon the holder paid in 104J. to the plaintiff's account and obtained payment of the bill. In an action against the bank for disclosing the state of the plaintiff's account Erie C.J. left it as a question of fact to the jury whether there was such a duty, and the\n\n| (1) L. R. 3 Ex. 107. |  |  |  |  |  |  |  | (3) (1850) 9 C. B. 509. |  |\n|----------------------|--|--|--|--|--|--|--|-------------------------|--|\n|----------------------|--|--|--|--|--|--|--|-------------------------|--|\n\n(2) (1826) 2 C. & P. 325. (4) (1862) 3 F. & F. 214.\n\n### 1 K. B. KING'S BENCH DIVISION. 467\n\njury, having found that there was, gave the plaintiff a verdict 0. A. for the amount at which his balance stood before the 104Z. 1923 was paid in, apparently upon the ground that the act of the banker was in fraud of the plaintiff's other creditors : see JTATJ\" per Martin B. in *Hardy* v. *Veasey.* (1) In the present case PROVINCIAL **!..~. n iiii) i** *r* **i • I AND UNION** the plaintiff alleged the banker s duty of non-disclosure BANK OF to be not merely a legal duty, but an absolute one without N0LANI> exceptions. All that Avory J. was called upon to do was to rule whether the duty as pleaded existed, and he was right in ruling that it did not. But even if the duty of nondisclosure is a legal duty, it is subject to the exception that the banker may do what is necessary for the protection of his own interests. Here the defendants were in the position of creditors trying to recover the balance of an overdraft. The state of the plaintiff's account was a matter in which they were interested. Their communication of it was on a privileged occasion, and there was no evidence of malice. The intimation that the plaintiff had been dealing with bookmakers was not a breach of the duty of non-disclosure at all, for it was based on facts which had no connection with his account, but which they had learnt from another source.\n\n*Cur. adv. vult.*\n\nDec. 17. The following written judgments were delivered :— BANKES L.J. In this appeal the plaintiff asks for a new trial on the ground of misdirection by the learned judge. The action was founded on statements alleged to have been made by an acting manager of a branch of the defendant bank. The plaintiff complained that the statements were slanderous, and further that they constituted a breach of the duty owed by the bank to him. The short facts leading up to the action were as follows: The plaintiff was a customer of the Finsbury Pavement branch of the defendant\n\nbank. In April, 1922, his account was overdrawn to a small amount, and on April 8 the plaintiff signed a document agreeing to pay off the debt by weekly instalments of *ll.*\n\n**(1) L. R. 3 Ex. 107.**\n\n**2 1 2 2**\n\n-\n\nN\n\n#### 468 KING'S BENCH DIVISION. [19&4]\n\nC. A. At the time this document was signed the plaintiff was 1923 about to enter the employ of a firm of Kenyon & Co., and o n the document containing the agreement the plaintiff *<sup>V</sup>* NAL wro ^ e their name and address. The plaintiff did not pay the PROVINCIAL weekly instalments as agreed. In July the acting manager **AND UNION . . .** BANK OF oi the branch, by name .bennell, got into telephonic com-NGLAND. mun i c a tion with Kenyon & Co. for the purpose of ascer-BankesL.j. ^ajnjng tn <sup>e</sup> piamtijf<sup>s</sup> private address. The inquiry led to further conversation with two directors of the company, one of the name of Wells, and the other of the name of Kenyon. The plaintiff's complaint in the action was that in thp course of that conversation on the telephone Fennell had told Kenyon that the plaintiff's account was overdrawn, that various promises made by him to give the matter his attention had not been fulfilled, that cheques which passed through his account were for betting men, and that the bank thought that he was betting heavily. To Wells Fennell was alleged to have said that he was afraid that the plaintiff was engaged with bookmakers, as the bank had been able to trace a cheque or cheques passing from the plaintiff's account to bookmakers. The innuendo pleaded was that the words complained of meant and were understood to mean that the plaintiff was an undesirable person to be employed by Messrs. Kenyon & Co., and a person not fit to conduct their business or to be entrusted with money. Wells and Kenyon were called as witnesses for the plaintiff, and they deposed to a conversation with Fennell in the terms alleged in the statement of claim. So far therefore as the plaintiff's evidence was concerned there was no necessity for the judge to ask the jury any question other than the one which he did ask them, namely—whether the words complained of were spoken by Fennell. In order to contradict the plaintiff's version of the conversation Fennell was called for the defendants. His account of the conversation was that he rang up Messrs. Kenyon in order to ascertain what the plaintiff's private address was, and whether he was working on salary or commission. He was asked why he made the inquiry, and he then explained that the\n\n#### 1 K. B. KING'S BENCP DIVISION. 469\n\nplaintiff was indebted to the bank in a small amount, and C. A. that he had not replied to letters. He then went on to say 1923 that the plaintiff must be getting money from some source or other, that he had seen cheques coming through the bank payable to the plaintiff, and that he had made it PROVINCIAL his business to find out where one cheque had gone to, and BANK OF that he had been informed that it had gone to the credit of a bookmaker's account, and that if that was the case he anke3LJ thought that the plaintiff ought to have paid off some of his debt to the bank. It was after and in consequence of this evidence by Fennell that the plaintiff's counsel pressed the learned judge to ask the jury whether the words complained of or words to a like effect had been proved, his object being obviously to obtain a verdict on Fennell's evidence if the jury accepted his version of the conversation in preference to that of Wells and Kenyon. The learned judge refused to adopt this course. The question on this part of the case is whether he was right in so deciding. The strictness of the old rule in reference to variance between proof and pleading in actions of libel and slander has long ago disappeared. It is still necessary to plead the exact language complained of, but proof of language substantially the same as that pleaded is admissible and should be submitted to the jury. Lord Coleridge C.J. states the present rule in *Harris* v. *Warre* (1) as follows: \"I n libel and slander everything may turn on the form of words, and in olden days plaintiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them. For a long time it has been held to be enough to prove the substance of the words alleged in the declaration, but if there was difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used *those* defamatory\n\n(1) 4 C. P. D. 125,128.\n\n EN(^ Ain) -\n\n-\n\n#### 470 KING'S BENCH DIVISION. [1924]\n\nC. A. expressions alleged, which is the fact on which the case 1923 depends.\" There can be no question as to the difference in form between the rival accounts of the conversation. Do »• they differ in substance ? Every case must depend upon its PEOVINCIAI. own circumstances, and no rule can be laid down as to what BANK OF constitutes a substantial difference. In my opinion there .ENGLAND. wa s  *^ ^* a substantial difference between the rival accounts conversa t i <sup>o</sup> <sup>n</sup> that Fennell's version ought not to have been submitted to the jury as proof of the plaintiff's pleaded case without an amendment. Even if that view is not correct I do not think that the learned judge was wrong in refusing to add to his question \" or words to the like effect.\" If Fennell's evidence was to be submitted to the jury at all in proof of the plaintiff's case it should have been done by a series of questions which would have made it quite clear to the jury that when they had to consider whether the words were defamatory they must consider that question in reference only to the version of the conversation which they accepted. I do not take the view that there was any material misdirection by the learned judge on this part of the case ; though had the question depended upon whether the ancient definition of what constitutes a slander is sufficiently wide for a case like the present I should have hesitated before saying that it is. As the other members of the Court think that the order for a new trial should include both branches of the claim I do not differ from them, though I do adhere to my view that an amendment is necessary to enable the plaintiff to do what he attempted unsuccessfully to do at the trial.\n\n> The case with regard to the claim for damages for breach of duty raises a very important question, and one on which the learned judge did not, in my opinion, sufficiently direct the jury. The case for the plaintiff as alleged in the statement of claim was that the bank were absolutely pledged to secrecy in regard to the plaintiff's account and business, and all matters incidental thereto, and that it was an implied term of the contract between the plaintiff and the bank that they would not disclose to any one any of the plaintiff's business with the bank or matters arising therefrom, or the nature\n\n#### 1 K. B. KING'S BENCH DIVISION. 471\n\nor state of his account, or any transactions relating thereto. 0. A. The learned judge very properly, in my opinion, ruled against 1923 the existence of any such absolute contract. The matter might have rested there. It did not do so, however, because NAT£,NAII in his summing up the learned judge did give a direction to PBOVINOIAI. the jury on the law on the point, and asked them a question BANK OP with regard to it. The question was this : \"Was the com munication with regard to the plaintiff's account at the bank made on a reasonable and proper occasion ? \" and his direction on this point was as follows : \" Fifthly, I shall have to ask, in view of the other claim for breach of contract, whether the communication of the state of the plaintiff's account at the bank, which was made to his employers, was, under the circumstances, made on a reasonable and proper occasion; that is to say, whether there was a reasonable justification for his making that communication ? I shall hold, as a matter of law, that there is no such absolute contract as Sir Harold Smith has contended for between a banker and his customer. He has contended that there is an absolute contract that the banker shall not under any circumstances disclose the state of a customer's account to another person. I hold, as a matter of law, that there is no such absolute contract. But, if the banker has made that disclosure justifiably, that is to say, if, under the circumstances of the particular case, it was reasonable and proper that he should make the communication, then there is no breach of contract on his part.\" With all respect to the learned judge this is not a sufficient explanation of what is a difficult and hitherto only very partially investigated branch of the law. The judge no doubt took the form of the question from the case of *Hardy* v. *Veasey* (1), in which the judges raised, without deciding them, a number of questions in relation to the duty of banker towards customer not to disclose his affairs, and amongst others the question whether the duty was a legal or only a moral one, and if legal whether it arose out of contract or out of tort. At the present day I think it may be asserted with confidence that the duty is ai\n\n. (1) L. R. 3 Ex. 107.\n\n<sup>N</sup> ^ N D anke8L - •\n\n### .472 KING'S BENCH DIVISION. **[1924]**\n\nC. A. legal one arising out of contract, and that the duty is not 1923 absolute but qualified. It is not possible to frame any TOTONIER exhaustive definition of the duty. The most that can be NATIONAL ^ o n <sup>e</sup> \\*s t o c l assu y the qualification, and to indicate its limits. PROVINCIAL For this purpose the case of *Hardy* v. *Veasey* (1) is of no assist-**AND** UNION<sup>m</sup> , . . . . BANK OF ance. The plaintiff in his amended declaration in that case ENGLAND. Bankcs L.J. set out a promise on the part of the bank not to disclose the state of his banking account except \"on a reasonable and proper occasion.\" To this the defendants pleaded a denial, and leave and licence. The disclosure complained of was made to a moneylender, to whom the defendant's manager applied with a view of obtaining assistance for the plaintiff. The learned judge who tried the action stated that the question for the jury would be \" Whether the communication to the moneylender of the state of the plaintiff's account was an officious and unjustifiable one?\" and he added: \"If it was made with reasonable hope and an honest intention of getting assistance for the plaintiff I should doubt whether the action is maintainable.\" The jury found for the defendants. The discussion in the Court of Exchequer took place upon an application for a new trial, and no decision was given except that there had been no misdirection and no wrong verdict. The plaintiff by his pleading had confined his complaint to a disclosure on some occasion other than a reasonable and proper occasion, and the Chief Baron in his judgment is only referring to the plaintiff's complaint when he uses those words. The question was never raised, whether it was a proper way of ascertaining what the defendants' duty was to ask a question of the jury in that form. Had that question been discussed, I cannot think that the Court would have approved of such a question, partly because it is leaving to the jury a question which is primarily a question for the judge, and partly because it leaves the jury entirely without instruction as to what the circumstances are which they are entitled to take into consideration in arriving at a conclusion as to what is reasonable and what is propel. In my opinion it is necessary in a case like the present to direct the jury what\n\n(1) L. R. 3 Ex. 107.\n\n29\n\nare the limits, and what are the qualifications of the con- C. A. tractual duty of secrecy implied in the relation of banker and 1923 customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads : (a) Where disclosure is under compulsion PROVINCIAL by law ; *(b)* where there is a duty to the public to disclose ; BANK OF (c) where the interests of the bank require disclosure; N<^ *(d)* where the disclosure is made by the express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers' Books Evidence Act. Many instances of the second class might be given. They may be summed up in the language of Lord Finlay in *Weld-Blundell* v. *Stephens* (1), where he speaks of cases where a higher duty than the private duty is involved, as where \" danger to the State or public duty may supersede the duty of the agent to his principal.\" A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorizes a reference to his banker. It is more difficult to state what the limits of the duty are, either as to time or as to the nature of the disclosure. I certainly think that the duty does not cease the moment a customer closes his account. Information gained during the currency of the account remains confidential unless released under. circumstances bringing the case within one of the classes of qualification I have already referred to. Again the confidence is not confined to the actual state of the customer's account. It extends to information derived from the account itself. A more doubtful question, but one vital to this case, is whether the confidence extends to information in reference to the customer and his affairs derived not from the customer's account but from other sources, as, for instance, from the account of another customer of the customer's bank.\n\nIt is very necessary to speak with caution on this question upon which there is no authority. I desire therefore to confine my observations to the facts of this particular case.\n\n(1) [1920] A. C. 956, 965.\n\nND -\n\n#### 474 KING'S BENCH DIVISION. **[1924]**\n\nC. A. The information which the branch manager is said to have 1923 disclosed, and which disclosure is said to have constituted TOTTRNIEB <sup>a</sup> breach of duty, came to the bank in the following manner. V \"\" A cheque was drawn by a customer of the bank on their PBOVINCIAL Moorgate Street branch in favour of the plaintiff. The AND UNION . . BANK OF cheque was paid in to the account of a customer at the ENGLAND. Lon( j <sup>o</sup> <sup>n</sup> City and Midland Bank. When the cheque came to the Moorgate Street branch Mr. Fennell's attention was called to the fact that the plaintiff had not paid the cheque in to his account, and Mr. Fennell then made inquiries of the London City and Midland Bank, the reply to which he is said to have committed a breach of his duty in disclosing. The privilege of non-disclosure to which a client or a customer is entitled may vary according to the exact nature of the relationship between the client or the customer and the person on whom the duty rests. It need not be the same in the case of the counsel, the solicitor, the doctor, and the banker, though the underlying principle may be the same. The case of the banker and his customer appears to me to be one in which the confidential relationship between the parties is very marked. The credit of the customer depends very largely upon the strict observance of that confidence. I cannot think that the duty of non-disclosure is confined to information derived from the customer himself or from his account. To take a simple illustration. A police officer goes to a banker to make an inquiry about a customer of the bank. He goes to the bank, because he knows that the person about whom he wants information is a customer of the bank. The police officer is asked why he wants the information. He replies, because the customer is charged with a series of frauds. Is the banker entitled to publish that information ? Surely not. He acquired the information in his character of banker. So in the present case Mr. Fennell was put upon inquiry by a cheque drawn in the plaintiff's favour upon a customer's account. He acquired the information which he is said to have divulged in his character as the plaintiff's banker. I use the expression \" in the character of banker,\" because I find that expression\n\nused by Gurney B. in the case of *Davies* v. *Waters* (1), in c. A. which the question was raised whether a solicitor had acquired 1923 certain information as attorney for a client or as his trustee. In his judgment Gurney B. says this : \" But the objection JJATIO here goes further; for just an hour before the trial, being PROVINCIAL **o AN D** possessed of the deed, and possessed of it in the character BANK OF of trustee, he takes it to the consultation, and there, in the character of attorney for the defendant, and for the express purpose of informing the minds of the counsel for the defendants, he reads the deed, and by that means acquires his knowledge of its contents. Can it be doubted that this is a knowledge acquired in the character of professional adviser of the party ? If so, it is fit and proper that knowledge so acquired should be held sacred.\" Kolfe B. did not agree with this view of the facts, but I cite the passage because it introduces what is, I think, a convenient indication of the limits of professional or commercial privilege in relation to non-disclosure. In *Taylor* v. *Blacklow* (2) Vaughan J., in speaking of a violation by a solicitor of the professional privilege, speaks of it as a breach of a great moral duty, and he adds that \" the law is never better employed than in enforcing the observance of moral duties.\" In the present case I think that the information obtained by Mr. Fennell as the result of his inquiry of the London City and Midland Bank was covered by the privilege of the customer, and that the bank are liable for any disclosure of that information which may have caused damage to the plaintiff unless the bank can bring the disclosure of the information so derived under one of the classified qualifications I have already referred to.\n\nIt follows from what I have said that in my opinion a direction to the jury in a case such as the present must inform the jury of the nature and limits and qualifications of the duty of the bank as a matter of law, leaving to them only questions for the purpose of ascertaining their view whether the communication complained of was or was not made, and whether it did or did not come within any of the protected occasions to which I have called attention. For these reasons\n\n(1) (1842) 9 M. & W. 608, 613. (2) (1836) 3 Bing. N. C. 235, 249.\n\n **UNION** N<^ AND -\n\n#### 476 KING'S BENCH DIVISION. **[1924]**\n\nC. A. **I** consider that the appeal must be allowed with costs, the 1923 judgment entered for the defendants set aside, and a new TOTJBNIER trial ordered. The costs of the first trial to abide the event o f th e ne w tria L\n\nNAJONAJ. PBOVINCIAL **A N D UNIO N \\_\\_\\_,, . , . . , • . ,**\n\nBANK OF SCRUTTON L.J. This application for a new trial raises ENGLAND. ques^ o n s of some general importance, though I can understand the jury who answered all questions against the plaintiff not taking a favourable view of his case. He had an account with the defendant bank which, in October, 1921, was overdrawn about *81.* He paid nothing in to this account until April, 1922, when, being pressed to pay his debt, he agreed to do so by weekly instalments of a pound. He paid three of these, but not punctually, and in July, 1922, had not paid for some time, his overdraft then being *61.* or so. Under these circumstances the bank manager found that cheques made payable to him were being paid to strangers at another bank, instead of being used to discharge his overdraft. He also found that one of these cheques came to the bank from the account of a betting man. He was naturally annoyed, and in endeavouring to obtain the private address of the plaintiff from his employers, he made statements, the exact terms of which were in dispute, about the state of the plaintiff's account, and the cheque coming from a bookmaker's account. On hearing of this the plaintiff brought an action against the bank (1.) for slander, alleging as special damage the loss of his situation, (2.) for breach of contract to keep his account secret. The two causes of action have different histories and arguments relating to them, and I deal with them separately.\n\nAs to slander, the plaintiff alleged two conversations, one with Wells, to whom Fennell is alleged to have said : \" I am afraid that Mr. Tournier is engaged with bookmakers, as we have been able to trace a cheque or cheques passing from Mr. Tournier's account to bookmakers\" ; the other with Mr. Kenyon, to whom he is alleged to have said : \" Tournier's account is overdrawn, and various promises made by him to give the matter his attention have not been fulfilled, cheques\n\npassed through Tournier's account were for betting men, C. A. and we think tha t Tournier is betting heavily.\" The witnesses 1923 gave evidence substantially as pleaded. The bank manager said he asked the plaintiff's employers for his private address, NAT <sup>J</sup> <sup>O</sup> <sup>N</sup> and whether he was paid by salary or commission, and on being asked why he wanted to know said tha t the plaintiff was slightly overdrawn, and had not answered the bank's letters, and as the manager had seen cheques payable to the ScruttonLJplaintiff coming through another bank account, and found they came from a bookmaker's account, he thought the plaintiff ought to pay up. It will be seen he alleges tha t he said nothing about cheques passing from Tournier's account to bookmakers, or tha t Tournier was betting heavily; he did mention the overdraft, and tha t one cheque payable to Tournier had passed through a bookmaker's account. No application was made by the plaintiff to amend by relying on the words proved by the defendants, but when the judge proposed to ask the jury the question: \" Were the words complained of in paragraph 2, or paragraph 3 of the claim, spoken by Mr. Fennell ? \" counsel asked him to add \" or words to the like effect,\" which the judge refused. The jury found tha t the words alleged in the claim were not spoken. They went on to find tha t they, presumably the words alleged, were not defamatory. On this the judge had directed them tha t defamatory words were words tending to expose the plaintiff to \" hatred, ridicule, and contempt \" in the mind of a reasonable man. I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred, ridicule, or contempt. This misdirection is, however, not raised by the notice of appeal. The jury appear t o have thought tha t to say tha t a man's account was overdrawn, and tha t he betted, was no reasonable cause for \" hatred, ridicule, and contempt \" ; whether they would have thought such words damaging to the reputation of a business man I do not know. The more substantial matter is the refusal of the judge to add the words \" to the like effect,\" and his failure to direct the jury tha t they should\n\nNA **\"**\n\n#### **478** KING'S BENCH DIVISION. **[1924]**\n\nC. A. consider whether the words alleged, or a material and de-1923 famatory part of them, were in substance uttered. There is TOUBNIER n o doubt that precise words must be alleged in the statement ONAL °^ c^ a ^ m > an<^ on ly <sup>a</sup> century ago the most minute variation PROVINCIAL in proof was ground for non-suiting the plaintiff. One who BANK OF complained of the words : \" This is my umbrella, and he ENGLAND. gtol e j t fro m m <sup>y</sup> ^ ^ door » an d prove( i . \" I<sup>t</sup> | <sup>s</sup> my scruttonL.J. um ^r e i2<sup>a</sup> j an( j jj <sup>e</sup> gtoie it from my back door\" was nonsuited in 1819 by the full Court: *Walters* v. *Mace* (1), it being proved that the umbrella was not in the presence of the speaker, so that \" This \" referred to a present umbrella, and \" It \" to an absent one, a different thing. But I think modern practice is, as stated by Lord Coleridge in *Harris* v. *Warre* (2), that it is enough to prove the substance of the words alleged, or I would add, of a material and defamatory part of them. In the case of interrogatories the Court has decided that the defendant may be asked whether he spoke the words \" or words to that effect,\" meaning, according to Sir Francis Jeune, \" anything in substance like them,\" \" words which, though not exactly the same, are to that effect.\" (3) So'far as the words proved make a materially different allegation, amendment is necessary if that allegation is to be relied on; but in my view the jury should be directed that if they think the defendant used, in substance, the words, or a material and defamatory part of the words complained of, they should say so, and he is liable. I have no doubt that in this case part of the words alleged are materially different from the defendant's admission, but I think the jury should have been directed to consider whether or not part of the defendant's admission was a material and defamatory part of the words complained of. It is obvious, however, that if the claim for slander stood alone the statement about overdraft was justified, and the jury obviously did not think, and might reasonably not think, the statement about one cheque from a bookmaker's account defamatory. On this part of the case, if it stood alone, I should not be disposed\n\n-\n- (2) 4 C. P. D. 125. 2 Q. B. 590.\n\n(1) (1819) 2 B. & Al. 756. (3) *Dalgleish v. Lowther* [1899]\n\n#### 1 K. B. KING'S BENCH DIVISION. 479\n\nto order a new trial, though I think the summing up was c. A. defective. 1923\n\nThe other cause of action is of far more public interest, The plaintifE alleged an absolute contract to be implied that the bank should not disclose the plaintiff's account or matters PBOVINCIAI, *. . ,, .* **, . .** *i .. , ,* **AND UNION** arising therefrom, or any transactions relating thereto, to BANK OF anybody. The judge directed the jury there was no such absolute contract, and I think he was right. There is clearly no privilege to abstain from answering in a Court of justice questions as to a customer's account: *Loyd* v. *Freshfidd* (1), per Abbott C.J.; and the bank can disclose the state of the account by bringing an action to recover overdraft.\n\nThe learned judge left to the jury the question : \" Was the communication with regard to the plaintiff's account at the bank made on a reasonable and proper occasion ? \" I think he took these words from the judgments of Kelly C.B. and Martin B. in *Hardy* v. *Veasey* (2), though in that case the actual question left to the jury was: Was the communication \" an officious and unjustifiable one ? \" But having read them the questions, the learned judge, by some unfortunate oversight, omitted to give the jury any direction as to the standard by which reasonableness and propriety were to be considered; indeed, as the jury had found that the words alleged by the plaintiff were not uttered, it is not clear to what communication the question and answer related.\n\nIt is curious that there is so little authority as to the duty to keep customers' or clients' affairs secret, either by banks, counsel, solicitors or doctors. The absence of authority appears to be greatly to the credit of English professional men, who have given so little excuse for its discussion. As to bankers, there is the ruling of Abbott C.J., already referred to, as to the duty to disclose in the law Courts ; there is the opinion of two judges on demurrer in *Tassell* v. *Cooper* (3) in 1850, that a count that a bank had a duty not to disclose the state of a customer's account showed no cause of action; but here counsel, who was winning on another count,\n\n> (1) 2 C. & P. 325, 329. (2) L. R. 3 Ex. 107. (3) 9 C. B. 509.\n\n EN ^ AND cruttonLJ-\n\n#### 480 KING'S BENCH DIVISION. [1924]\n\n29\n\nC. A. abandoned the count attacked (1) ; there is the fact that 1923 in 1862, in *Foster* v. *Bank of London* (2), Erie C.J. asked the J ur y whether it was the duty of the bank not to disclose to IONAL <sup>a</sup> P erso <sup>n</sup> presenting a bill or cheque the exact state of a cus-PROVINCIAI, tomer's account as contrasted with a statement of \" not BANK OF sufficient assets,\" and on their replying that the duty was ENGLAND.<sup>a</sup> <sup>g</sup> g^^ d sa id \" he knew of no law against that \" ; and scrutton L.J. j^ ^ th <sup>e</sup><sup>j</sup> udgmen t i n 186 <sup>8</sup> ^ *Uardy* V-  *Veosey* (3) of the Court of Exchequer, that if there was a duty not to disclose the state of a customer's account it was subject to an exception in favour of disclosure reasonable and proper in the interests of the customer himself. It is to be noticed that in the last case the Court were under the impression that there was no reported case in which an action had been brought against a solicitor for disclosure of his client's affairs ; they had not been referred to *Taylor* v. *Blacklow* (4), an action for such disclosure, where all the judges recognized such a duty, tracing it back to a passage in Comyn's Digest, tit. \"Action on the Case for Deceit,\" A.5. (5) It might be possible to rest the duty on the express words in the bank's pass book : \" The officers of the bank are bound to secrecy as regards the affairs of its customers,\" though even then exceptions must be introduced by implication. The contract is alleged in the claim as \"implied,\" and according to the decision of this Court in *In re Comptoir Commercial Anversois and Power* (6), implied terms are a question of law for the Court, the jury finding such facts as are necessary or material to enable the Court to judge of the implication. The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker's contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customer except in certain circumstances. This duty\n\n-\n-\n-\n- (1) 9 C. B. 532. (4) 3 Bing. N. C. 235.\n- (2) 3 F. & P. 214. (5) 3 Bing. N. C. 248, 249.\n- (3) L. R. 3 Ex. 107. (6) [1920] 1 K. B. 868.\n\n#### 1 K. B. KING'S BENCH DIVISION. 481\n\nequally applies in certain other confidential relations, such as C. A. counsel or solicitor and client, or doctor and patient. The 1923 circumstances in which disclosure is allowed are sometimes TOTTONIEB difficult to state, especially in the case of a medical man; and I do not propose to do more than indicate the exceptions PROVINCIAL *<sup>1</sup>*  **AND UNION** material to the present case. I think it is clear that the bank BANK OP may disclose the customer's account and affairs to an extent N^ <sup>1</sup> reasonable and proper for its own protection, as in collecting or suing for an overdraft; or to an extent reasonable and proper for carrying on the business of the account, as in giving a reason for declining to honour cheques drawn or bills accepted by the customer, when there are insufficient assets ; or when ordered to answer questions in the law Courts; or to prevent frauds or crimes. I doubt whether it is sufficient excuse for disclosure, in the absence of the customer's consent, that it was in the interests of the customer, where the customer can be consulted in reasonable time and his consent or dissent obtained. I think also, in accordance with wellknown authorities on the duties and privileges of legal advisers, that the implied legal duty towards the customer to keep secret his affairs does not apply to knowledge which the bank acquires before the relation of banker and customer was in contemplation, or after it ceased; or to knowledge derived from other sources during the continuance of the relation. For instance, the banker hears from an entirely independent source that one of its customers has speculative dealings in oil, may it disclose that fact to another of its customers also interested in oil ? As we have only to imply terms which the parties must necessarily have contemplated, how can it be said that it is a necessary term that the bank shall not talk about the customer at all, though the subject matter of its conversation is not derived from its dealings with the customer ? This position would be the same as prevails in the case of legal advisers, as stated in Taylor on Evidence (1), and supported by the cases of *Broion* v. *Foster* (2); *Oriffith* v. *Davies* (3), as to which see per Alderson B.\n\n**(1) 11th ed., §** 930, heads 2 to 5. (2) (1857) 26 **L. J.** (Ex.) **249. (3) (1833) 5 B. & Ad. 602. VOL. I. 1924. 2 K 2**\n\n\" 5 -\n\n#### 482 KING'S BENCH DIVISION. [1924]\n\n*V ' NAXJ* cus t ° m e r o <sup>r</sup>\n\nc. A. in *Dairies* v. *Waters* (1); *Lewis* v. *Pennington.* (2) It appears 1923 to me, therefore, that we cannot imply an obligation to keep secret information about a customer derived not from that hi<sup>s</sup> account, but from the account of another PROVINCIAL customer. The second customer may complain, but not the BANK OF first. It is not possible to apply this rule to the facts of the ENGLAND. p resen ^ cas e g 0 a <sup>g</sup> fco aVoid a new trial, for we do not know crutton i. wna t wor( <sup>j</sup> s Were spoken, or how any statement about cheques for betting was mixed up with statements about overdraft. I hold therefore that if the bank knows something about customer A., through customer B.'s account, his duty not to disclose is one owing to customer B. and not to customer A.\n\n> None of these matters, or standards by which the propriety of disclosure should be judged, were explained to the jury, and it is obvious that some of them were very material to the facts of this case. What, if anything, was known or suspected about betting was known through the account of another customer, but the suggestion, if made, that the overdraft was due to betting, might be considered by the jury as the disclosure of the plaintiff's account, or might not. I think a new trial should be ordered of this issue, which is an important one ; and as the treatment of the issue as to slander was not very satisfactory, I think the new trial should extend to the whole action, and I therefore do not comment further on the facts of the case. The plaintiff must have the costs of the appeal, and those of the first hearing should abide the event of the second hearing. The plaintiff must consider whether he should apply to amend.\n\n> ATKIN L.J. This is an action brought by the plaintiff against the defendant bank in respect of words spoken by the manager of a branch of the bank. The plaintiff alleges as causes of action : (A) slander ; (B) breach of an implied contract not to divulge information concerning the plaintiff's transactions with the bank. The second point involves a question of considerable public importance, and I propose to consider it first.\n\n(1) 9 M. & W. 608, 611. (2) (1860) 29 L. J. (Ch.) 670.\n\nI n *Joachimson* v. *Swiss Bank Corporation* (1) this Court had c. A. to consider what were the terms of the contract made between 1923 banker and customer in the ordinary course of business when a current account is opened by the bank. All the NATIONAL members of the Court were of opinion that the contract included several implied terms, some of which were then stated, so far as was necessary for the determination of that case, which turned upon the necessity of a demand before the customer could sue the bank for the amount of his credit balance. It is now necessary to consider whether there is any, and if so what, implied term as to an obligation of secrecy on the part of the bank. The question of what terms are to be implied in a contract is a question of law : *In re Comptoir Commercial Anversois and Power* (2) ; and the rules by which the Court should be guided are contained in passages from the judgments of Lord Esher in *Hamlyn* v. *Wood* (3), and of Lord Watson in *Dahl* v. *Nelson, Donkin & Co.* (4), cited by Bankes L.J. (5) The principle is stated by Scrutton L.J. in words substantially to the same effect (6): \" The Court,\" he says, \" and not the jury, are the tribunal to find such a term; they ought not to imply a term merely because it would be a reasonable term to include if the parties had thought about the matter, or because one party, if he had thought about the matter, would not have made the contract unless the term was included; it must be such a necessary term that both parties must have intended that it should be a term of the contract, and have only not expressed it because its necessity was so obvious that it was taken for granted.\" Is there any term as to secrecy to be implied from the relation of banker and customer ? I have myself no doubt that there is. Assuming that the test is rather stricter than Lord \"Watson would require, and is not merely what the parties, as fair and reasonable men, would presumably have agreed upon, but what the Court considers they must necessarily\n\n- (1) [1921] 3 K. B. 110. (4) (1881) 6 App. Cas. 38.\n- (2) [1920] 1 K. B. 868. (5) [1920] 1 K. B. at pp. 886-7.\n- (3) [1891] 2 Q. B. 488. (6) Ibid, at pp. 899-900.\n\t- 2 K 2 2\n\n AtkinLJ -\n\nNATIONAL\n\n#### 484 KING'S BENCH DIVISION. **[1924]**\n\nC. A. have agreed upon, it appears to me that some term as to 1923 secrecy must be implied. The bank find it necessary to bind tneir servants to secrecy; they communicate this fact to all ..T \"• their customers in their pass-book, and I am satisfied that if X PROVINCIAL they had been asked whethei they were under an obligation BANK OF as to secrecy by a prospective customer, without hesitation ENGLAND.<sup>t</sup> <sup>j</sup> i e <sup>y</sup> *wou\\^* say y<sup>e</sup> <sup>s</sup> The facts in this case as to the course <sup>Q</sup>£ business of this bank do not appear to be in any degree unusual in general banking business. I come to the conclusion that one of the implied terms of the contract is that the bank enter into a qualified obligation with their customer to abstain from disclosing information as to his affairs without his consent. I am confirmed in this conclusion by the admission of counsel for the bank that they do, in fact, consider themselves under a legal obligation to maintain secrecy. Such an obligation could only arise under a contractual term.\n\n> The important point, and one which presents difficulties, is as to the extent of the obligation. The plaintiff's pleading alleged the obligation in wide terms as absolute and unconditional. The learned judge, as I think quite rightly, ruled that there was no such absolute duty, and the trial then proceeded without further amendment of the pleadings on the footing that the plaintiff relied on a breach of the true contract, whatever it was. The learned judge directed the jury : \" If the banker has made the disclosure justifiably, that is to say, if, undor the circumstances of the particular case, it was reasonable and proper that he should make the communication, then there is no breach of contract on his part.\" Without any further direction he left to the jury the question: \" Was the communication with regard to the plaintiff's account at the bank made on a reasonable and proper occasion ? \" The direction and question appear to follow the direction to the jury given by Byles J. in *Hardy* v. *Veasey* (1), affirmed by the Court of Exchequer. I think that the decision in that case was based on the fact that the formula approved was that adopted by the plaintiff's counsel\n\n> > (1) L. R. 3 Ex. 107.\n\nin his pleading, and accepted by him as representing the c. A. true issue to be left to the jury. In fact, however, to leave 1923 to the jury what is \" justifiable \" or \" proper \" is merely to tell them that the bank may not divulge information except on occasions when they may divulge it, and that of what those PEOVINCIAX **• 1 mi • AN <sup>D</sup>** occasions are the jury are the judges. This appears to me to BANK OF treat as fact what is matter of law, and to afford no guidance to the jury, leaving the rights and duties as between customer AtklnLJ'and banker to vary with the individual views of juries in each case.\n\n29\n\nThe first question is: To what information does the obligation of secrecy extend ? It clearly goes beyond the state of the account, that is, whether there is a debit or a credit balance, and the amount of the balance. It must extend at least to all the transactions that go through the account, and to the securities, if any, given in respect of the account; and in respect of such matters it must, I think, extend beyond the period when the account is closed, or ceases to be an active account. It seems to me inconceivable that either party would contemplate that once the customer had closed his account the bank was to be at liberty to divulge as it pleased the particular transactions which it had conducted for the customer while he was such. I further think that the obligation extends to information obtained from other sources than the customer's actual account, if the occasion upon which the information was obtained arose out of the banking relations of the bank and its customers for example, with a view to assisting the bank in conducting the customer's business, or in coming to decisions as to its treatment of its customers. Here, again, counsel for the bank admitted that the bank treated themselves as under such an obligation, and this, I think, would be in accordance with ordinary banking practice. In this case, however, I should not extend the obligation to information as to the customer obtained after he had ceased to be customer. Speaking for myself, I find little assistance from considering the implications that have been found by the Courts to arise from contracts in other occupations and\n\n **UNION**\n\n#### 486 KING'S BENCH DIVISION. **[1924J**\n\n29\n\nC. A. professions, such as those of solicitors or doctors. The 1923 limitation of the implied term must vary with the special circumstances peculiar to each class of occupation. On the NATIONAL other hand, it seems to me clear that there must be important PROVINCIAL limitations upon the obligation of the bank not to divulge AND UNION . BANK or such information as I have mentioned. It is plain that ' there is no privilege from disclosure enforced in the course of legal proceedings. But the bank is entitled to secure itself in respect of liabilities it incurs to the customer, or the customer to it, and in respect of liabilities to third parties in respect of the transactions it conducts for or with the customer. It is difficult to hit upon a formula which will define the maximum of the obligation which must necessarily be implied. But I think it safe to say that the obligation not to disclose information such as I have mentioned is subject to the qualification that the bank have the right to disclose such information when, and to the extent to which it is reasonably necessary for the protection of the bank's interests, either as against their customer or as against third parties in respect of transactions of the bank for or with their customer, or for protecting the bank, or persons interested, or the public, against fraud or crime. I have already stated the obligation as an obligation not to disclose without the customer's consent. It is an implied term, and may, therefore, be varied by express agreement. In any case the consent may be express or implied, and to the extent to which it is given the bank will be justified in acting. A common example of such consent would be where a customer gives a banker's reference. T^ie extent to which he authorizes information to be given on such a reference must be a question to be determined on the facts of each case. I do not desire to express any final opinion on the practice of bankers to give one another information as to the affairs of their respective customers, except to say it appears to me that if it is justified it must be upon the basis of an implied consent of the customer.\n\n> As to the rest of the case based on slander, I think that this issue must also be submitted for a new trial. I do not\n\n#### 1 K. B. KING'S BENCH DIVISION. 487\n\nthink tha t it is a sufficient direction to a jury on what is c. A. meant by \" defamatory\" to say, without more, tha t it 1923 means : Were the words calculated to expose the plaintiff to hatred, ridicule, or contempt, in the mind of a reasonable \" \"• *x* NATIONAL man ? The formula is well known to lawyers, but it is PROVINCIAL obvious that suggestions might be made very injurious to a BANK OF man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt—for example, AtkinLJ'an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt. Speaking for myself, I also think that it is undesirable where an issue of privilege is raised to leave a question of express malice to be decided by the jury before the judge has ruled whether the occasion is privileged. The judge has to determine, not only whether the occasion is privileged, but whether the defendant has gone beyond the privilege which the occasion creates: *Adam* v. *Ward.* (1) In the words of Lord Loreburn : \" All this is for the judge alone, and the question of malice, which is for the jury, cannot arise till the judge has ruled on the whole question of privilege.\" In many cases, and I think this is one, the jury cannot form a correct opinion as to what is express malice until the judge has ruled whether the circumstances exist, as to legal or social duty and so forth, on which the legal privilege depends ; and if the occasion is not privileged, or has been, in fact, exceeded, the question of express malice is irrelevant; and I think it is a disadvantage to the administration of justice that questions should be asked of the jury unnecessarily when the final decision may appear to conflict with their answers. It is also, I think, clear that the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect. Whether this be done by amending the pleading, by framing the question to the jury so as to raise the point, or by directing the jury that the words pleaded would be proved by proof of words substantially to the same\n\n(1) [1917] A. C. 309, 321.\n\n EKGLAKP -\n\n#### 488 KING'S BENCH DIVISION. **[1924]**\n\nC A. effect, seems to me immaterial. No slander of any com-1923 plexity could ever be proved if the ipsissima verba of the TotjKNiBR pleading had to be established. There appears to me to be NATIONAL am P^<sup>e</sup> authority in well established every day practice, and PROVINCIAL i <sup>n</sup> the decisions upon the form of interrogatories in such **AND UNION** BANK OF cases, to support the view that 1 am expressing.\n\n. NGLAND. j, <sup>o</sup> <sup>r</sup> ^ <sup>e</sup> above reasons, without expressing an opinion upon the points raised between the parties at the trial, I come to the opinion that this appeal must be allowed, and a new trial ordered.\n\n*Appeal allowed.*\n\nSolicitor for the appellant: *J. B. Cort Baihurst.* Solicitors for the respondents : *Wilde, Wigston & Sapte.*\n\nJ. P. C.\n\n*Dec.* 14, 21.\n\n#### 1923 PRATT *v.* PATRICK AND OTHERS.\n\n#### [1923. P. 2588.]\n\n*Negligence*—*Motor Car*—*Negligent driving by Friend of Owner*—*Retention of Control by Owner*—*Owner's Liability for Injury caused to third Person in Car.*\n\nThe defendant was in his motor car, with him, on his invitation, being two friends E. and P. E. drove the car and, owing to his negligence, it collided with another vehicle, and P. sustained injuries from which he died. P.'s widow sued the defendant under Lord Campbell's Act for damages:—\n\n*Held,* that as the defendant was in the car, and there was no evidence that he had abandoned his right of control, he was liable notwithstanding that by a casual delegation he had entrusted its actual physical management and mechanical control to E.\n\n*Samson* v. *Aitchison* [1912] A. C. 844 applied.\n\nFURTHER, consideration by Acton J. of action tried at Birmingham Assizes.\n\nThe plaintiff sued under Lord Campbell's Act on behalf of herself and her four infant children for damages resulting from the death of her husband in the following circumstances : On May 17, 1923, the defendant Patrick was being driven in","body_zh":"证物5\n\n［Court of Appeal（上诉法院）］上诉法院\nTournier（图尔尼埃）诉 National Provincial and Union Bank of England（英格兰国民省级和联合银行）。Dec. 11.\n\n银行业务——银行家与客户——双方之间的默示合同——保密义务——其限制。\n\n银行家与其客户之间的合同中有一项默示条款，即除非经客户明示或默示同意，银行家不得向第三人披露客户账户状况、客户与银行之间的任何交易，或银行家因保管该账户而获得的与该客户有关的任何信息；但法院命令强制其披露、情形产生公共披露义务，或为保护银行家自身利益而有必要披露的，不在此限。\n\n原告是被告银行的客户。被告的另一名客户开具了一张以原告为收款人的支票；原告没有将其存入自己的账户，而是将其背书转让给一名在另一家银行设有账户的第三人。该支票退回被告处后，被告的经理向上述另一家银行询问支票款项支付给了谁，并被告知该人为一名赛马博彩经纪人。被告将该信息披露给了第三人：—\n\n裁定（Bankes（班克斯）和Atkin（阿特金）上诉法官）：该项披露构成被告对原告所负义务的违反，因为尽管该信息并非通过原告账户而是通过支票出票人的账户获得，但被告是在原告账户存续期间并以银行家身份获得该信息的。\n\nScrutton（斯克拉顿）上诉法官持相反意见，认为尽管该披露违反了被告对出票人所负的义务，但并未违反其对原告所负的义务。\n\n原告就Avory J.（埃弗里法官）和陪审团审理时作出的有利于被告的裁决及判决提起上诉。\n\n原告是被告银行Moorgate Street（穆尔盖特街）支行的客户。1922年3月，其账户透支额为£91. 8s. 6d.。被告催促其清偿透支款；1922年4月，他与被告达成安排，自April 17起每周偿还£1.。他支付了三期款项，随后不再作任何付款。June 8, 1922，他根据一项为期三个月、担任推销员及销售员的雇佣协议，进入一家名为Kenyon & Co.（肯扬公司）的公司任职。不久后，一家名为Woldingham Traders, Ld.（沃尔丁厄姆贸易有限公司）的公司开具了一张以其为收款人的£451.支票；该公司也是被告同一支行的客户，但原告未将该支票存入其账户。该支票最终由London City and Midland Bank（伦敦市和米德兰银行）退回被告处付款。被告Moorgate Street支行的经理Fennell（芬内尔）先生随后向London City and Midland Bank询问，其代为收取该支票款项的客户是谁，并被告知该人是一名名为Lloyd（劳埃德）的赛马博彩经纪人。Fennell先生随后致电Kenyon & Co.，并与该公司的两名董事Wells（韦尔斯）先生和Kenyon（肯扬）先生交谈。他询问原告的私人住址，并告知他们原告欠银行款项，且尽管已向其写过数封信，他仍未回复。根据Fennell先生本人的证词，他还说：“图尔尼埃一定从某处获得了钱；我见到一张应付给图尔尼埃的支票经过本行，并获悉有一张支票已记入一名赛马博彩经纪人的账户贷方；若果真如此，他就应当用其中一部分钱清偿对银行的债务。”由于该项沟通，Kenyon & Co.在三个月协议期满时拒绝续聘原告。\n\n原告提起本诉：（1）请求就诽谤获得救济；以及（2）主张被告违反一项默示合同，即被告不会向第三人披露原告账户状况或与该账户有关的任何交易。所称诽谤包括两项：第2段称，Fennell先生在电话中对Wells先生说：“我担心Tournier先生与赛马博彩经纪人有来往，因为我们已能够追查到一张或数张从Tournier先生账户转给赛马博彩经纪人的支票”；第3段称，他对另一名董事Kenyon先生说：“Tournier的账户已透支，他曾多次承诺会处理此事，但均未兑现；经过Tournier账户的支票是给博彩人士的，我们认为Tournier正在进行大量投注”；其隐含意思是，原告不适宜受Kenyon & Co.雇用，且不适合经营其业务或受托管理金钱。审理中，经证据证明实际说出的措辞，与诉状中上述第2段和第3段所载措辞，以及Fennell先生的证词，均略有不同。根据Wells先生的证词，对他说的措辞是：“由于我们已能够追查到一张或数张给一名赛马博彩经纪人的支票，我们担心他与赛马博彩经纪人有牵连。”Kenyon先生说，对他说的措辞是：“他曾多次承诺会调查此事，但没有这样做；经过Tournier账户的各种支票都是给博彩人士的。”就第二项请求，即违反默示保密合同的请求而言，所主张的义务被称为一项不受任何例外限制的绝对义务。据悉，被告向其客户发出的存折，包括原告的存折，第一页载有如下声明：“本行职员就其客户交易负有保密义务。”\n\nAvory法官向陪审团提出了下列问题：—\n\n1. Fennell先生是否说过诉状第2段或第3段所称的措辞？答：否。原告律师曾请求法官在问题中加入“或具有类似意思的措辞”，但法官拒绝了。\n\n2. 如是，该等措辞是否构成对原告的诽谤，即该等措辞是否足以使理性之人在心理上对其产生仇恨、嘲笑或蔑视？答：否。\n\n3. 原告是否因说出该等措辞而遭受实际损害？答：否。就此问题，证据表明业务并不兴旺，而且Kenyon & Co.无论如何都很可能会拒绝续聘原告。\n\n4. Fennell先生说出该等措辞时是否出于恶意，即其是否出于履行职责意愿以外的任何间接动机行事？答：否。\n\n5. 关于原告在银行账户的沟通是否是在合理且适当的场合作出？答：是。\n\n6. 损害赔偿额为何？无。\n\n原告提起上诉。\n\n据此作出有利于被告的判决。\n\nSir H. Smith K.C.（H. Smith爵士御用大律师）和Pitt（皮特）代表上诉人出庭。审判法官对陪审团的总结指示在两项请求上均有缺陷。就诽谤请求而言，他没有询问陪审团，经证明由Fennell说出的措辞是否在实质上与诉状第2段和第3段所主张的措辞相同；尽管在诽谤诉讼中，过去必须证明所主张的实际措辞，但该严格规则已经放宽，“长期以来一直认为，证明诉状所称措辞的实质内容已属足够”：Coleridge（科尔里奇）首席大法官在Harris（哈里斯） v. Warre（沃尔）案中如是说。(1) 他拒绝询问陪审团Fennell是否说过“具有类似意思的措辞”，尽管在Dalgleish（达尔格利什） v. Lowther（洛瑟）案中，诽谤诉讼中向被告提出的一项质询，询问其是否说过诉状所载措辞“或具有该等意思的措辞”，被上诉法院认定为适当质询。(2) 就违反默示保密合同的请求而言，总结指示亦有缺陷，因为审判法官向陪审团提出的问题是，有关原告账户的沟通是否是在“合理且适当的场合”作出，却没有向他们说明在何种情形下该场合将属合理或适当。在Hardy（哈迪） v. Veasey（维西）案中，(3) 原告作为被告银行的客户，在其经修订的诉状中称，被告向第三人披露其账户状况，违反了其不予披露的默示承诺，“但在合理且适当的场合除外”；诚然，审判法官并未就何谓合理且适当的场合作出指示，上诉法院也未对该遗漏提出异议。但当时并无必要这样做。原告已透支其账户，而被告向其提及该事实的第三人是一名放贷人；被告试图从该人处为原告取得帮助，留给陪审团的唯一问题是，对该放贷人的沟通是否多事且无正当理由。法官告知陪审团，若该沟通是出于诚实意图以取得该等帮助，他怀疑该诉讼是否能够成立。陪审团既已作出有利于被告的裁决，对总结指示提出的唯一异议是后一陈述构成错误指示。法院认为并非如此。J. O. Hurst K.C.（J. O. 赫斯特御用大律师）和Made（梅德）代表被上诉人出庭。就诽谤请求而言，法官拒绝在提交陪审团的问题中加入“或具有类似意思的措辞”是正确的。“在文字诽谤和口头诽谤案件中，被控诉的确切措辞就是诉讼所依据的事实。构成案件依据的，并不是被告使用了诽谤性表述这一事实，而是其使用了所主张的那些诽谤性表述这一事实”：Coleridge首席大法官在Harris v. Warre案中如是说。(1) 在该案中，诉状称被告曾致函警察总监，指控原告涉入一宗谋杀案，但未列出信函的实际内容；该诉状经法律抗辩后被认定为不当。该案与Dalgleish v. Lowther案完全一致。(2) 在提出质询时，原告可以问：“你是否使用过［具体措辞］或具有该等意思的措辞？”但当问题涉及诉状与证据之间的一致性时，应适用截然不同且严格得多的标准。若原告律师有意将经证明由Fennell说出的措辞视为重要事项，他本应请求修改诉状，但他没有这样做。在Ecklin（埃克林） v. Little（利特尔）案中，(3) 诉状所称措辞是：“我听说原告是离过婚的人；你最好查问一下。”经证据证明的措辞足以使陪审团推断，被告是在断言原告已离婚这一事实，而非仅仅说她从第三人处听说了这样的传闻。在此情形下，法院认为原告未经作出一项……\n\n关于原告请求的第二项理由，即存在违反默示保密合同的情形，应当注意的是，迄今尚未裁定不得披露客户账户状况的义务是否不仅仅是一项道德义务。在 Hardy v. Veasey（哈迪诉维西）(1) 一案中，法院明确表示，无须裁定是否存在不得披露的合同义务或法律义务；该案裁定仅仅是，即使存在此种义务，除非在合理且适当的情形下，该案情形亦属于该例外。显然，如法官命令，银行须被强制披露客户账户状况：Loyd v. Freshfield（劳埃德诉弗雷什菲尔德）(2)。同样显然的是，除法律强制外还存在其他例外。在 Tassell v. Cooper（塔塞尔诉库珀）(3) 一案中，一项罪名项主张原告系被告银行的客户，并主张被告有义务，未经原告授权，不得披露原告账户的详情，但向提示付款由原告开具或承兑的支票或票据之人披露者除外，“除非依法定正当程序被强制如此行事”，该罪名项被裁定不成立。在 Foster v. Bank of London（福斯特诉伦敦银行）(4) 一案中，一张金额为 532l.、由原告承兑并于被告银行付款的汇票持有人提示付款时，被告告知其原告余额不足以支付该汇票，尚差 104l.；随后，该持有人向原告账户存入 104l.，并取得该汇票的付款。在针对银行披露原告账户状况的诉讼中，Erie C.J. 将是否存在该项义务作为事实问题交由陪审团裁定，而陪审团认定该义务存在，并就原告在存入该 104l. 前的余额金额作出有利于原告的裁决，显然理由是银行的行为构成对原告其他债权人的欺诈：见 Hardy v. Veasey（哈迪诉维西）(1) 一案中 Martin B. 法官的意见。在本案中，原告主张银行的不披露义务不仅是一项法律义务，而且是一项不附任何例外的绝对义务。Avory J. 所须裁定的仅是经如此主张的义务是否存在，而其裁定该义务不存在是正确的。但即使不披露义务是一项法律义务，它亦受如下例外限制：银行可以采取保护其自身利益所必需的行动。在本案中，被告处于试图收回透支余额的债权人地位。原告账户状况是与其有关的事项。其对该情况的传达发生于特权场合，且没有恶意证据。关于原告一直与博彩公司交易的暗示，根本不构成违反不披露义务，因为该暗示基于与其账户无关、而是被告从另一来源得知的事实。\n\n(1) L. R. 3 Ex. 107.　(3) (1850) 9 C. B. 509.\n\n(2) (1826) 2 C. & P. 325. (4) (1862) 3 F. & F. 214.\n\n1 K. B. 王座法庭。467\n\n保留判决。\n\n12月17日。作出如下书面判决书：—\n\nBANKES L.J.（班克斯上诉法院法官）在本次上诉中，原告以学识渊博的法官作出错误指示为由，请求重新审判。本案依据被指称由被告银行某分行的代理经理作出的陈述提起。原告主张该等陈述具有诽谤性，并进一步主张其构成违反银行对其负有的义务。引致本案的简要事实如下：原告系被告银行 Finsbury Pavement branch（芬斯伯里人行道分行）的客户。1922年4月，其账户小额透支；4月8日，原告签署了一份文件，同意以每周 1l. 的分期付款偿还债务。\n\n(1) L. R. 3 Ex. 107.\n\n1 K. B. 王座法庭。468\n\nC. A. 在签署该文件时，原告即将受雇于 Kenyon & Co.（肯扬公司），且原告在载有该协议的文件上写下了该公司的名称和地址。原告未按约支付每周分期付款。7月，该分行名为 Fennell（芬内尔）的代理经理为查明原告的私人住址，与 Kenyon & Co.（肯扬公司）取得电话联系。该询问引致与该公司两名董事的进一步交谈，一人为 Wells（韦尔斯），另一人为 Kenyon（肯扬）。原告在本案中主张，在电话交谈过程中，Fennell 曾告知 Kenyon，原告账户已透支，其曾作出的将关注该事项的各种承诺均未履行，通过其账户的支票系为博彩人员开具，且银行认为其正在大量博彩。据称，Fennell 曾向 Wells 表示，他担心原告与博彩公司有往来，因为银行能够追查到一张或数张支票自原告账户转至博彩公司。所主张的隐含含义是，被投诉的言辞意指且被理解为原告是不宜由 Kenyon & Co.（肯扬公司）雇用的人，并且是不适合经营其业务或受托保管款项的人。Wells 和 Kenyon 被传唤为原告证人，并就与 Fennell 的交谈作证，其内容与起诉状所主张者一致。因此，就原告的证据而言，法官无须向陪审团提出其实际提出的问题以外的任何问题，即——被投诉的言辞是否由 Fennell 说出。为反驳原告关于该交谈的说法，被告传唤 Fennell 出庭作证。他对该交谈的叙述是，他致电 Kenyon & Co.（肯扬公司）是为了查明原告的私人住址，以及原告是领取薪金还是佣金。他被问及为何作出该询问，随后他解释称，原告小额欠付银行款项，且未回复信函。接着他表示，原告必定从某一来源取得金钱，他见到有应付原告的支票通过银行，且他特意查明一张支票的去向，并获告知该支票已存入一名博彩公司的账户；若情况如此，他认为原告本应偿还其对银行的部分债务。正是在 Fennell 作出该项证据后，原告律师敦促学识渊博的法官向陪审团询问，被投诉的言辞或具有类似效果的言辞是否已经证明；其目的显然是，如果陪审团接受 Fennell 对该交谈的说法而非 Wells 和 Kenyon 的说法，即可根据 Fennell 的证据取得裁决。学识渊博的法官拒绝采取该做法。就本案这一部分而言，问题是其如此裁定是否正确。关于诽谤诉讼中证明与诉状之间不一致的旧规则之严格性早已消失。仍有必要主张被投诉的确切措辞，但实质上与所主张措辞相同的语言可以采纳作为证据，并应提交陪审团。Lord Coleridge C.J.（科尔里奇首席大法官）在 Harris v. Warre（哈里斯诉沃尔）(1) 一案中如下陈述现行规则：“在文字诽谤和口头诽谤案件中，一切均可能取决于措辞形式；在旧时，原告经常因起诉状中列出的文字诽谤或口头诽谤措辞与证明之间存在细微甚至不重要的不一致而败诉。长期以来，已认定证明起诉状所主张言辞的实质内容即已足够；但如所主张言辞与已证明言辞在形式和实质上均有差异，被告即有权胜诉。在文字诽谤和口头诽谤案件中，被投诉的确切言辞即为诉讼赖以成立的事实。并非被告使用诽谤性表述这一事实，而是其使用了所主张的那些诽谤性表述这一事实，才是案件所依赖的事实。”\n\n(1) 4 C. P. D. 125,128.\n\n1 K. B. 王座法庭。470\n\nC. A. 对于两种相互对立的交谈叙述在形式上的差异，并无疑问。它们在实质上是否不同？每个案件均须取决于其自身情况，且无法就何者构成实质性差异制定规则。我认为，两种相互对立的交谈叙述之间存在如此实质性的差异，以至于未经修改，Fennell 的说法不应作为证明原告所主张案件的证据提交陪审团。即使该观点不正确，我也不认为学识渊博的法官拒绝在其问题中增加“或具有类似效果的言辞”是错误的。如要将 Fennell 的证据作为证明原告案件的证据提交陪审团，则应通过一系列问题进行，以使陪审团清楚明白，当其须考虑言辞是否具有诽谤性时，必须仅就其所接受的交谈说法考虑该问题。我不认为学识渊博的法官在本案这一部分作出了任何实质性错误指示；尽管如果问题取决于何者构成口头诽谤的古老定义是否足以涵盖本案这类情形，我会在断言其足够宽泛之前有所犹豫。由于法院其他成员认为重新审判命令应包括请求的两个部分，我并不与其意见相左，尽管我仍坚持认为，为使原告能够做其在审判中曾试图但未能做到之事，有必要进行修改。\n\n关于因违反义务而请求损害赔偿的案件提出了一个非常重要的问题，而且我认为，学识渊博的法官未就此向陪审团作出充分指示。原告在起诉状中主张的案件是，银行就原告账户和业务及与此相关的一切事项绝对承担保密义务，并且原告与银行之间合同的一项默示条款是，银行不得向任何人披露原告与银行之间的任何业务或由此产生的事项，或其性质\n\n或其账户状况，或与之有关的任何交易。上诉法院。依我之见，审理法官作出了非常恰当的裁定，否定存在任何此类绝对合同。事情本可至此为止。然而，并非如此，因为审理法官在其向陪审团作总结陈词时，确实就该问题的法律向陪审团作出指示，并就此向其提出问题。该问题如下：“关于原告在该银行的账户的传达，是否是在合理且适当的情形下作出的？”其就此问题作出的指示如下：“第五，鉴于另一项违约主张，我必须询问，向原告的雇主传达其在该银行账户状况一事，在当时情形下是否是在合理且适当的场合作出的；亦即，作出该项传达是否具有合理正当理由？作为法律问题，我将裁定，银行家与其客户之间并不存在如Sir Harold Smith（哈罗德·史密斯爵士）所主张的此种绝对合同。他主张，存在一项绝对合同，即银行家在任何情况下均不得向他人披露客户账户的状况。作为法律问题，我认定不存在此种绝对合同。但是，如银行家作出该项披露具有正当理由，亦即，如在该个案的情形下，其作出该项传达是合理且适当的，则其并未违约。”恕我对审理法官表示敬意，这不足以说明这一困难且迄今仅获极为有限探究的法律领域。法官无疑是从Hardy v. Veasey（哈迪诉维西）(1)一案中采用了该问题的表述；该案中的法官提出但未裁定若干有关银行家对客户负有不披露其事务之义务的问题，其中包括该义务是法律义务还是仅为道德义务，以及如属法律义务，其是源于合同还是侵权。在今日，我认为可以有把握地断言，该义务是源于合同的法律义务，且该义务并非绝对，而是附有限制的。\n\n(1) L. R. 3 Ex. 107.\n\n472 王座法院庭。[1924]\n\n上诉法院。无法对该义务作出任何穷尽性的定义。至多只能对其限制加以分类，并说明其界限。为此目的，Hardy v. Veasey（哈迪诉维西）(1)一案并无助益。该案原告在其修正后的诉状中称，银行曾承诺除“在合理且适当的场合”外，不披露其银行账户的状况。对此，被告提出否认以及许可和授权的抗辩。被诉的披露系向一名放款人作出；被告的经理曾向该放款人寻求协助原告。审理该诉讼的法官表示，交由陪审团的问题将是：“向该放款人传达原告账户状况，是否属擅自且无正当理由之举？”他又补充道：“如该传达是出于以合理希望和诚实意图为原告获得协助，我怀疑该诉讼是否可以成立。”陪审团裁决被告胜诉。财政法院的讨论是在申请重新审判时进行的，除认定不存在错误指示或错误裁决外，未作出其他裁定。原告通过其诉辩，已将其主张限于在并非合理且适当场合所作的披露；首席男爵在其判决中使用这些措辞时，仅是在指称原告的主张。从未有人提出，向陪审团以该种形式提出问题，是否为确定被告义务的适当方式。若该问题曾经讨论，我不认为法院会认可此类问题，部分原因在于其将一个主要应由法官裁定的问题留给陪审团，部分原因在于其完全未向陪审团说明，在得出何为合理、何为适当的结论时，陪审团有权考虑哪些情形。\n\n(1) L. R. 3 Ex. 107.\n\n依我之见，在本案此类案件中，有必要向陪审团指示银行家与客户关系中默示的合同保密义务之界限及限制。对此似无权威判例。依原则，我认为这些限制可分为四类：(a) 披露系受法律强制；(b) 对公众负有披露义务；(c) 银行利益要求披露；(d) 披露经客户明示或默示同意。第一类的例子是遵从Bankers' Books Evidence Act（《银行账簿证据法》）项下命令的义务。第二类可举出许多例子。可用Lord Finlay（芬利勋爵）在Weld-Blundell v. Stephens（韦尔德—布伦德尔诉斯蒂芬斯）(1)一案中的措辞概括，他谈及涉及高于私人义务之义务的案件，例如“对国家的危险或公共义务可能取代代理人对本人的义务”。第三类的一个简单例子是，银行发出传票要求支付透支款，并在传票正面载明透支金额。最后一类的常见例子是，客户授权向其银行家征询资信证明。无论就时间或披露性质而言，均更难说明该义务的界限。我当然认为，该义务不会在客户关闭其账户的瞬间终止。在账户存续期间获得的信息仍属保密，除非在使案件属于我已提及的某一限制类别的情形下解除保密。再者，该保密义务并不限于客户账户的实际状况，也延及由该账户本身取得的信息。一个较有疑义、但对本案至关重要的问题是，该保密义务是否延及有关客户及其事务的信息；该信息并非来自客户账户，而是来自其他来源，例如来自该客户所开户银行另一客户的账户。\n\n对此无权威判例的问题，极有必要审慎措辞。因此，我希望将我的意见限于本案的具体事实。\n\n(1) [1920] A. C. 956, 965.\n\n474 王座法院庭。[1924]\n\n上诉法院。据称由分行经理披露、且据称该披露构成违反义务的信息，系以如下方式传至银行。一名银行客户在其Moorgate Street（穆尔盖特街）分行开具一张以原告为受款人的支票。该支票被存入London City and Midland Bank（伦敦城市及米德兰银行）一名客户的账户。该支票送达穆尔盖特街分行时，Mr. Fennell（芬内尔先生）注意到原告并未将该支票存入其账户，随后芬内尔先生向伦敦城市及米德兰银行查询；据称他因披露该银行的答复而违反其义务。客户有权享有的不披露特权，可能随客户与负有该义务者之间关系的确切性质而异。在大律师、事务律师、医生及银行家的情形中，该特权未必相同，尽管其基本原则可能一致。银行家与其客户的情形，在我看来，是当事人之间保密关系极为显著的一种情形。客户的信誉在很大程度上取决于对该保密义务的严格遵守。我不能认为，不披露义务仅限于来自客户本人或其账户的信息。举一个简单例子。一名警察前往银行家处，就该银行的一名客户进行查询。他前往该银行，是因为他知道其欲取得信息之人是该银行的客户。警察被问及为何需要该信息。他答复称，因为该客户被控犯有一系列欺诈行为。银行家有权公布该信息吗？当然没有。他是以银行家的身份取得该信息的。因此，在本案中，芬内尔先生因一张从客户账户开具、以原告为受款人的支票而开始查询。他是以原告银行家的身份取得据称已被其泄露的信息。我使用“以银行家的身份”这一表述，是因为我发现Gurney B.（格尼男爵）在Davies v. Waters（戴维斯诉沃特斯）(1)一案中使用该表述；该案提出的问题是，某事务律师是作为客户的律师还是作为其受托人取得某些信息。\n\n上诉法院。在该案判决中，格尼男爵称：“但是，此处的异议更进一步；因为在审判前仅一小时，他持有该契据，并且是以受托人的身份持有该契据，却将其带到会商中；在那里，他以被告律师的身份，并为告知被告大律师的明确目的，宣读该契据，并由此取得对其内容的了解。难道可以怀疑，这是以该当事人专业顾问的身份取得的知识吗？如是，则如此取得的知识应被视为神圣不可泄露，是适当的。”Rolfe B.（罗尔夫男爵）不同意对事实的这一看法，但我引用该段文字，是因为它引入了我认为可便利地表明专业或商业不披露特权界限的标准。在Taylor v. Blacklow（泰勒诉布莱克洛）(2)一案中，Vaughan J.（沃恩法官）谈及事务律师违反专业特权时，称其为违反重大道德义务，并补充称，“法律再没有比强制遵守道德义务时更为妥善地被运用的了。”在本案中，我认为，芬内尔先生因向伦敦城市及米德兰银行查询而获得的信息，受客户特权保护；银行应就其对该信息所作、可能对原告造成损害的任何披露承担责任，除非银行能够将如此取得的信息披露归入我已提及的某一分类限制。\n\n由我所述可知，我认为，在本案此类案件中，对陪审团的指示必须作为法律问题告知陪审团银行义务的性质、界限及限制，仅留给陪审团为确定其观点而设的问题，即被诉传达是否作出，以及该传达是否属于我已指出的任何受保护场合。基于这些理由，\n\n(1) (1842) 9 M. & W. 608, 613. (2) (1836) 3 Bing. N. C. 235, 249.\n\n476 王座法院庭。[1924]\n\n上诉法院。我认为应准许上诉，撤销为被告作出的判决书，并命令重新审判，诉讼费用由被告承担。第一次审判的费用应视重新审判的结果而定。\n\nScrutton L.J. 本次申请重新审判提出了若干具有普遍重要性的疑问，尽管我可以理解，对原告所提全部问题均作出不利于原告回答的陪审团并未对其案件持有利看法。原告在被告银行设有账户，该账户于 October, 1921 透支约 £81。他直至 April, 1922 才向该账户存入任何款项；当时被催促偿还债务，他同意以每周 £1 的分期付款方式偿还。他支付了其中三期，但均不准时；至 July, 1922，他已有一段时间未付款，其透支额当时约为 £61。在此情形下，银行经理发现，本应支付给原告的支票被支付给另一家银行的陌生人，而非用于清偿其透支款。他还发现，其中一张支票来自一名赌徒的账户。他自然感到恼怒，并且在试图从原告雇主处取得原告私人住址时，就原告账户状况以及该支票来自博彩公司账户一事作出陈述；该等陈述的确切措辞存在争议。原告得知此事后，对该银行提起诉讼：（1.）诽谤，主张其失去职位构成特别损害；（2.）违反对其账户保密的合同义务。这两项诉因具有不同的沿革和相关论证，我将分别处理。\n\n关于诽谤，原告主张有两次谈话：一次是与 Wells（韦尔斯）的谈话，据称 Fennell（芬内尔）对其说：“我担心 Tournier（图尼尔）先生与博彩公司有牵连，因为我们能够追查到一张或数张支票从 Tournier 先生的账户流转至博彩公司”；另一次是与 Kenyon（肯扬）先生的谈话，据称他对其说：“Tournier 的账户已透支，他曾多次承诺会关注此事，但均未履行；经由 Tournier 账户流转的支票是为赌徒开具的，我们认为 Tournier 正在大量赌博。”证人的证言实质上与诉状中的主张一致。银行经理称，他曾向原告雇主询问原告的私人住址，以及原告是领取薪金还是佣金；当被问及为何想知道这些时，他称原告略有透支，且未答复银行的信函；又因该经理见到支付给原告的支票经由另一银行账户流转，并发现该支票来自博彩公司账户，他认为原告应当还清欠款。可以看出，他主张自己并未说过支票从 Tournier 的账户流转至博彩公司，或 Tournier 正在大量赌博；他确实提及了透支，以及一张支付给 Tournier 的支票曾经由博彩公司账户流转。原告未申请修改诉状以依赖被告证明的措辞；但当法官拟向陪审团提出下列问题时：“诉状第 2 段或第 3 段所投诉的措辞，是否由 Fennell 先生说出？”原告律师要求其加上“或具有类似含义的措辞”，法官拒绝了该请求。陪审团认定，诉状中主张的措辞并未被说出。随后，他们认定该等措辞——推定为所主张的措辞——不具有诽谤性。对此，法官曾指示他们，诽谤性措辞是指在理性人心目中倾向于使原告遭受“仇恨、嘲笑和蔑视”的措辞。我本人认为，这一古老表述并不足以适用于所有案件，因为某些措辞可能损害一个人作为商人的声誉，而无人会将此与仇恨、嘲笑或蔑视联系起来。然而，上诉通知并未提出这一错误指示。陪审团似乎认为，说某人的账户透支且其赌博，并非导致“仇恨、嘲笑和蔑视”的合理原因；他们是否会认为此类措辞损害商人的声誉，我不得而知。更实质的问题是，法官拒绝加入“具有类似含义的措辞”，以及未指示陪审团应当考虑所主张的措辞，或其具有实质性且诽谤性的部分，是否实质上已被说出。\n\n民事上诉法院，1923\n\n478 王座法院分庭。 [1924]\n\n毫无疑问，必须在诉状中主张确切措辞；仅仅一个世纪以前，证明中的最细微差异都会成为驳回原告诉讼的理由。某人投诉下列措辞：“这是我的雨伞，他从我的后门偷走了它”，而证明的措辞是：“这是我的雨伞，他从我的后门偷走了它”，在 1819 年被全体法院驳回诉讼：Walters v. Mace (1)。原因是经证明该雨伞不在说话人面前，因而“This”指的是在场的雨伞，而“It”指的是不在场的雨伞，两者并非同一事物。然而，我认为现代惯例正如 Lord Coleridge（科尔里奇勋爵）在 Harris v. Warre (2) 中所述，只须证明所主张措辞的实质内容；或者我还要补充，只须证明其具有实质性且诽谤性的部分。在书面质询案件中，法院已裁定，可以询问被告是否说过该等措辞“或具有该等效果的措辞”；按照 Sir Francis Jeune（弗朗西斯·朱恩爵士）的解释，这意味着“任何在实质上类似于该等措辞的内容”，“虽不完全相同但具有该等效果的措辞”。(3) 就证明的措辞构成实质不同指控的范围而言，如拟依赖该指控，则须予修改；但依我之见，应指示陪审团：如其认为被告实质上使用了所投诉的措辞，或该等措辞中具有实质性且诽谤性的部分，即应作出如此认定，而被告应承担责任。我毫不怀疑，本案中所主张措辞的一部分与被告承认的内容存在实质差异；但我认为，应当指示陪审团考虑被告承认内容的一部分，是否为所投诉措辞中具有实质性且诽谤性的部分。然而，显而易见的是，若诽谤请求单独存在，有关透支的陈述已有正当理由；陪审团显然并不认为、且也可合理地不认为，有关一张来自博彩公司账户的支票的陈述具有诽谤性。若本案仅涉及这一部分，我虽认为法官总结指示存在缺陷，但不会倾向于命令重新审判。\n\n(2) 4 C. P. D. 125. 2 Q. B. 590.\n\n(1) (1819) 2 B. & Al. 756. (3) Dalgleish v. Lowther [1899] 1 K. B.\n\n王座法院分庭。479\n\n我认为法官的总结指示存在缺陷。\n\n民事上诉法院，1923\n\n另一项诉因具有远为重大的公共利益。原告主张，应推定存在一项绝对合同，即银行不得向任何人披露原告的账户、由此产生的事项或与之有关的任何交易。法官指示陪审团，不存在此种绝对合同，我认为他是正确的。银行显然并不享有拒绝在法院就客户账户问题作答的特权：Loyd v. Freshfidd (1)，Abbott C.J.（阿博特首席大法官）的意见；银行也可通过提起诉讼追收透支款，披露账户状况。\n\n尊敬的法官向陪审团提出的问题是：“就原告在银行的账户所作的沟通，是否是在合理且适当的场合所作出？”我认为，他是从 Kelly C.B.（凯利首席法官）和 Martin B.（马丁法官）在 Hardy v. Veasey (2) 中的判决中采用了这些措辞，尽管该案实际交由陪审团的问题是：该沟通是否“多管闲事且无正当理由”？但在向陪审团宣读这些问题后，尊敬的法官因某种不幸的疏忽，未向陪审团作出任何指示，说明应依何种标准判断合理性和适当性；实际上，由于陪审团已认定原告主张的措辞并未说出，尚不清楚该问题及其回答所涉及的是何种沟通。\n\n令人奇怪的是，关于银行、出庭律师、事务律师或医生对客户或委托人事务保密的义务，权威判例竟如此之少。判例的缺乏似乎极大地反映了英国专业人士的信誉，因为他们极少给予讨论该问题的理由。就银行家而言，已有前述 Abbott C.J. 关于在法院披露义务的裁定；1850 年在 Tassell v. Cooper (3) 中，两名法官在抗辩裁定中曾表示，主张银行有义务不披露客户账户状况的罪名项并未显示诉因；但在该案中，于另一罪名项胜诉的律师放弃了受到攻击的罪名项，(1)；1862 年，在 Foster v. Bank of London (2) 中，Erie C.J.（厄里首席大法官）曾询问陪审团，银行是否负有义务，不向出示汇票或支票的人披露客户账户的确切状况，而只作出“资金不足”的陈述；陪审团答称负有该义务后，他说“我不知道有任何法律禁止这样做”；并且，在 1868 年财政法院于 Uardy V- Veosey (3) 作出的判决中，认为如存在不披露客户账户状况的义务，则该义务须受一项例外限制，即为客户本人利益而作出合理且适当披露的情形。应当注意，在最后一案中，法院认为没有任何已报道的案件是针对事务律师披露其委托人事务而提起诉讼；法院未获援引 Taylor v. Blacklow (4)，该案即为针对该等披露所提起的诉讼，其中所有法官均承认存在此种义务，并将其追溯至 Comyn's Digest 中题为“Action on the Case for Deceit”的 A.5. 段落。(5) 或许可将该义务建立在银行存折中的明文表述上：“银行职员就客户事务负有保密义务”，尽管即使如此，也必须通过默示引入例外。诉状中将该合同主张为“默示”，且依本院在 In re Comptoir Commercial Anversois and Power (6) 中的裁决，默示条款属于法院应判断的法律问题；陪审团应认定使法院能够判断该默示所必需或重要的事实。法院仅会默示加入当事人在订立合同时必然已预想的条款。将该原则适用于法官获准具有的生活常识，我毫不怀疑，银行家与其客户的合同中存在一项默示条款，即银行家不得披露其客户的账户或与之有关的交易，但特定情形除外。该义务\n\n(1) 2 C. & P. 325, 329. (2) L. R. 3 Ex. 107. (3) 9 C. B. 509.\n\n王座法院分庭。480 [1924]\n\n民事上诉法院，1923\n\n(1) 9 C. B. 532. (4) 3 Bing. N. C. 235.\n\n(2) 3 F. & P. 214. (5) 3 Bing. N. C. 248, 249.\n\n(3) L. R. 3 Ex. 107. (6) [1920] 1 K. B. 868.\n\n王座法院分庭。481\n\n英格兰\n\n同样适用于某些其他保密关系，例如大律师或事务律师与委托人之间，或者医生与病人之间。允许披露的情形有时难以界定，尤其是在医生的情形；我不拟作更多阐述，仅指出与本案有关的例外。我认为显然，银行可以在为保护自身利益而属合理且适当的范围内披露客户的账户和事务，例如追收或就透支提起诉讼；或者在经营该账户而属合理且适当的范围内披露，例如在资产不足时，就拒绝兑付客户开立的支票或拒绝承兑客户开出的汇票说明理由；或者在法院命令其回答问题时；或者为防止欺诈或犯罪时。在客户能够于合理时间内被征询并取得其同意或反对意见的情况下，如无客户同意，仅以披露符合客户利益为由，我怀疑是否足以构成披露的正当理由。我还认为，依照关于法律顾问职责和特权的公认权威观点，对客户事务保密的默示法律义务，不适用于银行在银行与客户关系被设想之前获得的知识，或在该关系终止后获得的知识；亦不适用于在该关系持续期间从其他来源取得的知识。例如，银行从完全独立的来源得知其一名客户从事石油投机交易，它是否可以向其另一名同样对石油感兴趣的客户披露该事实？既然我们只须默示纳入当事人必然会设想的条款，那么，如何能说银行不得谈论客户的任何事情是必要条款，尽管其谈话的主题并非源自其与该客户的交易？此立场与适用于法律顾问的立场相同，如 Taylor on Evidence（泰勒《证据法》）(1) 所述，并获 Brown v. Foster（布朗诉福斯特）(2)；Griffith v. Davies（格里菲思诉戴维斯）(3) 等案件支持，关于后案，参见 Alderson B.（奥尔德森法官）的意见。\n\n(1) 11th ed., § 930, heads 2 to 5. (2) (1857) 26 L. J. (Ex.) 249. (3) (1833) 5 B. & Ad. 602. VOL. I. 1924. 2 K 2\n\n482 王座法庭。[1924]\n\n上诉法院\n1923\nTournier（图尼耶）\n诉\nNational Provincial and Union Bank of England（英格兰国民省级及联合银行）\nScrutton L.J.（斯克拉顿上诉法官）\n\n在 Davies v. Waters（戴维斯诉沃特斯）(1)；Lewis v. Pennington（刘易斯诉彭宁顿）(2) 中也是如此。因此，我认为，我们不能默示一项义务，要求对并非源自该客户账户、而是源自另一客户账户的有关某客户的信息保密。第二名客户可以提出异议，但第一名客户不能。为避免重新审理，不能将该规则适用于本案事实，因为我们不知道说了什么话，也不知道任何关于投注支票的陈述如何与关于透支的陈述混杂在一起。因此，我认定，如银行通过客户 B. 的账户获悉客户 A. 的某些情况，其不披露的义务是对客户 B. 所负，而非对客户 A. 所负。\n\n这些事项以及判断披露是否适当的标准，均未向陪审团说明，而显然其中部分事项与本案事实十分相关。有关投注的任何已知或怀疑情况，均系通过另一客户的账户获悉；但是，如曾作出透支系因投注所致的暗示，陪审团可能会将其视为披露原告的账户情况，也可能不会。我认为，应就此重要争点命令重新审理；鉴于对诽谤争点的处理亦不甚令人满意，我认为重新审理应扩及整个诉讼，因此我不再进一步评论本案事实。原告应获得上诉费用，第一次审理的费用应视第二次审理的结果而定。原告必须考虑是否应申请修改。\n\nATKIN L.J.（阿特金上诉法官）：这是原告就银行一家分行经理所说的话，对被告银行提起的诉讼。原告主张的诉因为：(A) 口头诽谤；(B) 违反不泄露有关原告与银行交易信息的默示合同。第二点涉及具有相当公共重要性的问题，我拟先予审议。\n\n(1) 9 M. & W. 608, 611. (2) (1860) 29 L. J. (Ch.) 670.\n\n在 Joachimson v. Swiss Bank Corporation（约阿希姆森诉瑞士银行公司）(1) 一案中，本院曾须审议在通常业务过程中，银行开立活期账户时银行与客户订立的合同条款为何。本院全体成员均认为，该合同包含若干默示条款；就审理该案所必需的范围而言，其中部分条款当时已予说明。该案取决于客户能否在未先提出要求的情况下，就其贷方余额金额起诉银行。现有必要审议，银行是否负有保密义务的默示条款；如有，该条款为何。合同中应默示何种条款属于法律问题：In re Comptoir Commercial Anversois and Power（安特卫普商业银行及鲍尔案）(2)；法院应遵循的规则载于 Lord Esher（埃舍尔勋爵）在 Hamlyn v. Wood（哈姆林诉伍德）(3) 一案判决及 Lord Watson（沃森勋爵）在 Dahl v. Nelson, Donkin & Co.（达尔诉纳尔逊、多金公司）(4) 一案判决中的段落，Bankes L.J.（班克斯上诉法官）曾引用该等段落。(5) Scrutton L.J.（斯克拉顿上诉法官）以实质相同的措辞陈述了该原则：(6) 他说：“应由法院，而非陪审团，作为认定此种条款的裁判机关；法院不应仅因该条款若当事人曾考虑该事项便会是适宜纳入的合理条款，或仅因一方当事人若曾考虑该事项便不会在未纳入该条款的情况下订立合同，而默示纳入该条款；该条款必须是双方当事人必定意图使其成为合同条款的必要条款，只因其必要性过于明显而被视为当然，故未予明示。”银行与客户的关系中，是否可默示出任何保密条款？我本人毫不怀疑，有此条款。即使假定该检验标准比 Lord Watson（沃森勋爵）所要求的更为严格，且不仅是作为公平合理之人的当事人可能会同意什么，而是法院认为他们必定会同意什么，\n\n(1) [1921] 3 K. B. 110. (4) (1881) 6 App. Cas. 38.\n(2) [1920] 1 K. B. 868. (5) [1920] 1 K. B. at pp. 886-7.\n(3) [1891] 2 Q. B. 488. (6) Ibid, at pp. 899-900.\n2 K 2 2\n\n484 王座法庭。[1924]\n\n上诉法院\n1923\nTournier（图尼耶）\n诉\nNational Provincial and Union Bank of England（英格兰国民省级及联合银行）\nAtkin L.J.（阿特金上诉法官）\n\n我认为仍必须默示某种保密条款。银行认为有必要使其雇员承担保密义务；其在所有客户的存折中告知这一事实；我确信，若潜在客户询问其是否负有保密义务，银行会毫不犹豫地回答“是”。本案中关于该银行业务流程的事实，在一般银行业务中看来绝无任何异常之处。我得出结论，合同的一项默示条款是，银行对客户负有附条件的义务，未经其同意不得披露其事务信息。银行代理律师承认，银行实际上认为自己负有维持保密的法律义务，这进一步证实了我的结论。此种义务只能源自合同条款。\n\n重要且存在困难的一点是该义务的范围。原告在诉状中以广泛措辞主张该义务是绝对且无条件的。我认为，主审法官完全正确地裁定并不存在此种绝对义务；此后，在未进一步修改诉状的情况下，审理继续进行，其基础是原告主张违反真正的合同，不论该合同为何。主审法官向陪审团指示：“如银行家作出披露具有正当性，即在特定案件的情形下，其作出该项传达是合理且适当的，则其并未违反合同。”在未作任何进一步指示的情况下，他将下列问题交由陪审团裁决：“有关原告在该银行账户的传达，是否在合理且适当的情形下作出？”该指示和问题似乎遵循了 Byles J.（拜尔斯法官）在 Hardy v. Veasey（哈代诉维西）(1) 一案中向陪审团作出的指示，该指示获财政法院确认。我认为，该案判决是以如下事实为基础：获认可的表述是由原告代理律师在其诉状中采用，并由其接受为代表应交由陪审团裁决的真正争点的表述。\n\n(1) L. R. 3 Ex. 107.\n\n然而，实际上，将何为“正当”或“适当”交由陪审团决定，不过是在告诉他们，银行不得披露信息，除非在其可以披露信息的情形下；而对于何为该等情形，则由陪审团裁判。这在我看来，是把法律问题当作事实问题处理，且未向陪审团提供任何指引，致使每一案件中客户与银行之间的权利和义务均随各陪审团成员的个别观点而变化。\n\n第一个问题是：保密义务延及何种信息？其显然不限于账户状态，即是否有借方或贷方余额以及余额数额。其至少必须延及通过该账户进行的所有交易，以及就该账户提供的担保物（如有）；而就该等事项而言，我认为其必须延及账户关闭后或不再为活跃账户之后的期间。难以想象任何一方会设想，一旦客户关闭其账户，银行便可随意披露其在客户尚为客户期间为其办理的特定交易。我还认为，该义务延及并非从客户实际账户取得的信息，只要取得该信息的场合源自银行与其客户之间的银行关系，例如为协助银行经营客户业务，或为协助银行作出有关如何对待其客户的决定。在此，银行代理律师再次承认，银行认为自己负有此种义务；我认为，这亦符合通常银行惯例。然而，在本案中，我不会将该义务扩展至客户不再为客户后所取得的有关该客户的信息。就我个人而言，考察法院认定从其他职业的合同中产生的默示条款，对我帮助不大。\n\n联合\n\n486 王座法院庭。[1924]\n\n上诉法院。诸如律师或医生等职业。1923年对默示条款所作的限制，必须随每一类职业所特有的特殊情形而变化。另一方面，我认为显然，银行不披露我所提及的信息这一义务必然受到重大限制。显然，在法律程序中被强制披露时，并不存在免于披露的特权。但是，银行有权就其对客户承担的责任、客户对其承担的责任，以及其为客户或与客户进行的交易中对第三方承担的责任，保障自身利益。很难提出一个公式来界定必须必然默示的义务的最大范围。但我认为，可以稳妥地说，不披露我所提及的信息的义务，受如下限制：当且在为保护银行利益所合理必要的范围内，银行有权披露该等信息；无论该利益是相对于其客户，还是相对于就银行为客户或与客户进行的交易所涉第三方，或者是为了保护银行、利害关系人或公众免受欺诈或犯罪侵害。我已经将该义务表述为未经客户同意不得披露的义务。该义务属于默示条款，因此可以通过明示协议加以变更。无论如何，同意可以是明示或默示的；在已作出同意的范围内，银行的行为即属正当。这种同意的常见例子是客户提供银行资信证明。其授权在该资信证明中提供信息的范围，必须根据每一案件的事实确定。对于银行彼此提供有关其各自客户事务的信息这一做法，我不愿发表任何最终意见；但我认为，如该做法有正当性，其依据必须是客户的默示同意。\n\n至于本案其余基于诽谤的部分，我认为该争点也必须发回重审。我不认为，仅仅向陪审团说明“诽谤性”一词的含义是：这些言辞是否足以使原告在一个理性人的心目中遭受憎恨、嘲笑或蔑视，而不作进一步说明，便构成充分指示。\n\n1 K. B. 王座法院庭。487\n\n我认为，向陪审团作出上述指示并不充分。该表述为律师所熟知，但显然可能作出极其损害某人在商业中品格的暗示，而在通常意义上并不会引起憎恨、嘲笑或蔑视——例如，对精明欺诈行为的指控，尽管在道德和法律上均应受谴责，却未必引起陪审团成员所理解的憎恨或蔑视。就我个人而言，我还认为，在提出特权争点时，在法官裁定该场合是否享有特权之前，将明示恶意问题交由陪审团裁决并不可取。法官不仅必须确定该场合是否享有特权，还必须确定被告是否超出了该场合所产生的特权范围：Adam v. Ward（亚当诉沃德案）。(1) 用 Lord Loreburn（洛尔本勋爵）的话说：“所有这些均仅由法官决定；由陪审团决定的恶意问题，只有在法官就整个特权问题作出裁定后才会产生。”在许多案件中，我认为本案即属其一，在法官裁定法律特权所依赖的有关法律义务、社会义务等情形是否存在之前，陪审团无法就何为明示恶意形成正确意见；如果该场合不享有特权，或事实上已超出特权范围，则明示恶意问题并无关联；我认为，在最终裁决可能看来与陪审团的回答相冲突时，不必要地向陪审团提出问题，不利于司法公正的实施。我还认为，显然原告有权向陪审团提出其主张，即已证明的言辞虽非所主张的原话，但在实质上具有相同效果。无论是通过修改诉状、拟定向陪审团提出的问题以提出该争点，还是指示陪审团，证明实质上相同效果的言辞即足以证明所主张的言辞，\n\n(1) [1917] A. C. 309, 321.\n\n英格兰\n\n488 王座法院庭。[1924]\n\n上诉法院。其余部分在我看来并不重要。如果必须证明诉状中所载的原话，则任何具有复杂性的诽谤均永远无法得到证明。在既已确立的日常惯例以及有关此类案件中质询书形式的判决中，似乎均有充分权威支持我所表达的观点。\n\nNational Provincial and Union Bank of England（英格兰国民省立联合银行）。\n\n基于上述理由，且不就审判中当事人之间提出的争点发表意见，我认为本上诉必须获准，并应下令重审。\n\n准许上诉。\n\n上诉人的律师：J. B. Cort Baihurst。\n\n被上诉人的律师：Wilde, Wigston & Sapte。\n\nJ. P. C.\n\n12月14日、21日。\n1923年\n\nPRATT v. PATRICK AND OTHERS（普拉特诉帕特里克及其他人）。\n[1923. P. 2588.]\n\n过失——机动车——车主朋友的过失驾驶——车主保留控制权——车主对车内第三人所受伤害的责任。\n\n被告在其机动车内；应其邀请，车内还有两名朋友E.和P.。E.驾驶该车，并因其过失与另一车辆相撞，P.因此受伤并最终死亡。P.的遗孀依据Lord Campbell's Act（坎贝尔勋爵法）向被告提起损害赔偿诉讼：—\n\n裁定：由于被告在车内，且没有证据表明其已放弃控制权，尽管其通过临时授权将该车的实际操纵和机械控制交给E.，其仍应承担责任。\n\n适用Samson v. Aitchison（萨姆森诉艾奇森案）[1912] A. C. 844。\n\n此外，Acton J.（阿克顿法官）审理了在伯明翰巡回审判中审理的诉讼。\n\n原告代表其本人及其四名未成年子女，依据Lord Campbell's Act（坎贝尔勋爵法）就其丈夫在下列情形中死亡所造成的损害提起赔偿诉讼：1923年5月17日，被告Patrick（帕特里克）正由他人驾驶其车辆载送，","key_entities":["Je","CIPA"],"ecf_references":[],"word_count":11649,"status":"published","published_at":null,"created_at":null,"updated_at":"2026-08-23 21:07:02"}