2 MLJ 278
Dato’ Seri Dr Ling Liong Sik v
HIGH COURT (
ARIFIN ZAKARIA J
Civil Procedure — Particulars — Application for further and better particulars — Statement of claim and statement of defence — Particulars may be sought only of matters arising from pleadings — Exercise of court’s discretion — Particulars not to be granted of matters of evidence or inference drawn or substitute interrogatories — Whether court should allow application — Rules of the High Court 1980 O 18 r 12(3)
Legal Profession — Professional privilege — Communication between solicitor and client — Information on date and mode of client’s instructions — Privilege applicable to communication for purpose of seeking legal advice — Whether extends to matters observed by solicitors in the course of his retainer
The claim herein arose out of a letter written by the defendant to the plaintiff, which allegedly contained defamatory allegations (‘the letter’). The defendant claimed that he was at all material times acting for one Dato’ Soh Chee Wen (‘the client’). The contents of the letter were published in the newspapers. Arising from the respective pleadings, the parties applied for further and better particulars pursuant to O 18 r 12(3) of the Rules of the High Court 1980. The plaintiff applied for the following further and better particulars in respect of the amended defence: (a) under para 4, the date when the client left the jurisdiction, the circumstances and reasons why the client had left the jurisdiction and the present address of the client; (b) under paras 6(a) and 6(b), the date and mode of the instructions and the location of the client at the time of the alleged conversation and instructions; (c) under para 6(h), the client’s address and facsimile number to which the letter from the defendant’s office was transmitted and the date and mode of the client’s instruction to do so; (d) under para 6(1), the source of the alleged information or informant, the date of receipt of the alleged information and the position, status and relationship of Lee Chai Huat (‘LCH’) to the client. According to para 6(1) of the defence, the defendant had been informed that LCH had published the letter to the various newspapers. The defendant, on the other hand, applied for further and better particulars of the amended claim. In the plaintiff’s amended claim, the plaintiff pleaded that: (a) the letter was read by the plaintiff’s press secretary (‘OBS’) and the plaintiff’s senior private secretary (‘LLC’) (‘para 5.1(iva)’); (b) the defendant caused or otherwise facilitated the publication of the letter to various newspapers (‘para 5.1(v)’); (c) the defendant had caused or facilitated the publication of the letter on the Internet website of ‘Malaysiakini.com’ (‘para 5.1(vi)’); (d) the defendant, his agents and/or servants had spoken to reporters from various newspapers regarding the letter (‘para 5.1(vii)’); (e) the letter was sent and published in the press two days before the Malaysian Chinese Association’s annual general meeting (‘para 9(b)’); (f) the allegations in the letter were four years old and stale (‘para 9(g)’); and (g) the defendant had acted recklessly and without caring for the truth of the defamatory allegations in the letter or unverified instructions from the client who had fled the country to avoid investigations and charges by the relevant authorities (‘para 10(c)’). The particulars sought by the defendant were: (a) in respect of para 5.1(iva), particulars regarding the person who had allowed OBS and LLC to read the letter; (b) in respect of paras 5.1(v) and 5.1(vi), the time and place of each publication thereof, how and by what way the defendant was alleged to have caused or assisted in the publication of the letter and the identities of the persons to whom the letter had been circulated to and published; (c) in respect of para 5.1(vii), the reporters whom the defendant, his agents and servants had spoken to and the identities of the defendant’s agents and/or servants; (d) in respect of para 9(b), the person by and to whom the letter had been sent; (e) in respect of para 9(g), the person who had made the allegations four years ago; and (f) in respect of para 10(c), the charges that had been or would be brought against the client.
(1) The principles governing particulars were that particulars may only be sought of matters arising from the pleading and that the discretion was with the court as to whether to grant an order of particulars. In addition, particulars would not generally be ordered in respect of matters of evidence or inference drawn or substitute interrogatories (see pp 286H–287A).
(2) The particulars sought for by the plaintiff in respect of para 4 of the amended defence were matters of evidence for the defendant to adduce to show whether he had taken reasonable steps to verify the instructions of the client. The circumstances and reasons for the client’s absence from jurisdiction and the client’s present whereabouts did not have any relevance to the present action. Accordingly, the plaintiff’s application for particulars in respect of para 4 of the amended defence was rejected (see p 287F–G).
(3) The particulars sought for by the plaintiff in respect of paras 6(a) and 6(b) of the re-amended defence did not come within the ambit of legal and professional privilege as provided under s 126 of the Evidence Act 1950. The particulars sought for under those two paragraphs were relevant to the issue of verification of the truth of the letter of demand with the client. As such, the defendant was ordered to furnish to the plaintiff the particulars sought for thereunder (see pp 288G, 289C–D).
(4) In respect of the particulars sought for under para 6(h) of the re-amended defence, the defendant was prepared to give the address of the client’s office and the facsimile number to which the letter was transmitted. Legal professional privilege only extended to communications for the purpose of seeking legal advice. It was limited to the information for and the content of any legal advice but it did not extend to matters observed by the solicitors in the course of his retainer. Accordingly, legal professional privilege did not extend to the date and mode of the client’s instructions (see pp 289H, 290A–B).
(5) The particulars sought for in respect of para 6(1) of the re-amended defence were irrelevant to the issue herein and the question of how and from whom the defendant had obtained the information was a matter of evidence for the defendant to adduce at the trial (see p 290F–G).
(6) The particulars sought under para 5.1(iva) of the plaintiff’s claim did not arise out of matters pleaded but rather out of the defendant’s own averment. As such, the defendant’s application for particulars arising under para 5.1(iva) of the amended claim was disallowed (see p 291E–F).
(7) The defendant was not entitled to the particulars sought for under para 5.1(v) of the amended claim. In the re-amended defence, the defendant did not deny the publication in the newspapers except that he did not know that the letter or news feature in respect thereof would be published in the print or electronic media. From the pleadings, it was obvious when the publication had taken place and the defendant had admitted that he had written the letter. It was a matter of evidence as to how the letter got into the hand of the newspapers concerned and it was certainly not for the plaintiff to furnish the particulars thereof (see p 292A–B).
(8) In respect of the particulars sought under para 5.1(vi) of the plaintiff’s claim, the time and place of circulation were matters of evidence and therefore the plaintiff need not give the particulars. The defendant did not deny that he had written the letter, the only dispute was as to how the letter was published on ‘Malaysiakini.com’. Again, this was a matter of evidence. As such, the defendant’s application on matters arising under para 5.1(vi) was disallowed (see pp 293G, 294D).
(9) In so far as the plaintiff’s pleading in para 5.1(vii) related to the defendant’s agents or servants, the plaintiff properly ought to give particulars of the agents or servants and the reporters of the respective newspapers as it would be a difficult task for the defendant to prepare his defence without knowing who the relevant servants or agents were and the reporters to whom they were alleged to have spoken to (see p 294H–I).
(10) The particulars sought for in respect of para 9(b) of the plaintiff’s claim were irrelevant for the purpose of para 9(b) as the facts pleaded therein were only to support the plaintiff’s claim for exemplary damages (see p 295G–H).
(11) As for the particulars sought under para 9(g) of the amended claim, since the plaintiff had raised the matter in his pleading, it was fair that the plaintiff provide the particulars asked for to enable the defendant to prepare his case (see p 296C–D).
(12) The particulars sought by the defendant in respect of para 10(c) were highly relevant to the issue of the credibility of the client. If the client had in fact fled the country to avoid investigations, the defendant ought therefore to exercise more care in acting on the instructions of the client. This was relevant to the issue of whether the defendant had in the circumstances acted recklessly or without caring (see p 296H–I).