Wednesday, January 31, 2007

Thiruchelvasegaram v Mahadevi

Thiruchelvasegaram a/l Manickavasegar v Mahadevi a/p Nadchatiram

[2000] 5 MLJ 465

HIGH COURT (KUALA LUMPUR) — CIVIL SUITS NOS S2(S5)–23–04 OF 1997 AND S5–23–08 OF 1997

JAMES FOONG J

22 JANUARY 2000

Catchwords

Tort — Conspiracy —Conspiracy to defame —Allegation of incest —Agreement to conspire — Whether proved

Summary

The plaintiff and the defendant are both advocates and solicitors. The plaintiff is the brother-in-law of the defendant, having married the defendant’s eldest sister, Vijayalakshmi. The plaintiff has a daughter, Shanti. The plaintiff claimed that the defendant conspired with her brother (Jega), sister (Saraswathy) and Shanti to defame him. The sting of the defamation was incest by the plaintiff on Shanti. The defamation was said to be contained in: (1) the submission of the defendant to the judge in a civil suit filed by Vijayalakshmi against the defendant; (2) utterance in the court house when the court was not in session; (3) the letter written by Jega to Vijayalakshmi’s solicitor; (4) the letter from the defendant’s solicitors’ firm addressed to the plaintiff’s legal company; (5) remarks written by Shanti contained in an acknowledgement copy of the plaintiff’s letter; (6) the writing on the back of the last page of the serving copy of the writ; (7) the writing on the back of a letter of demand for an apology; and (8) statutory declaration made by Shanti. The plaintiff claimed that the words stated imputed him to be a person of low morals, who had committed the sexual crime of incest and has discredited him and exposed him to hatred, contempt and ridicule in the eyes of the right-thinking members of the society. The defendant pleaded, inter-alia, the defence of absolute and qualified privileged, justification and non-publication. After setting out the substantive defences, the defendant pleaded a general plea.

Holdings
Held:

(1) In a defamation suit, it is well settled that a defendant must expressly plead the particular defence he wishes to rely on against each specific charge of defamation with full particulars; ie the ground and fact on which it is based. The general plea of the defendant related to no particular and distinctive allegation in the statement of claim. The defences raised were not supported by any disclosed facts and grounds. By the defendant’s own admission, this paragraph was intended as a net to capture anything that had been overlooked. This is certainly unacceptable as it will confuse the plaintiffs and take him by surprise. If the defendant is displeased with the so called ‘messy’ pleadings of the plaintiff, she can avail herself of all the remedies provided under the rules and procedures as set out under the Rules of High Court 1980; certainly it cannot be reciprocated with this generalised form of pleading. For this, the court shall not entertain the defences raised in the general plea (see p 482G–H).

(2) After careful perusal of all the relevant evidence and having the opportunity to observe the demeanour of the witnesses, the court found that the claim of incest was not proved, even on the balance of probability (see p 483B–D).

(3) The submissions of the defendant, however defamatory they were of the plaintiff, are protected by absolute privilege. The court accepted the submission when tendered. When this happened, the statements contained in these documents must be considered to be made in the course of legal proceedings (see p 488C–E).

(4) Statements once made remain. When the court expunged them, it was only for the purpose of the court’s process and record. Other than this, the statements remain as statements made. Thus, the defendant’s assertion that since the offending parts of the submissions were expunged by the courts, no defamatory statements exist, was totally unacceptable and was a fallacy (see p 489C–D).

(5) The utterance in the court house when the court was not in session was scandalous based on the finding that there was no truth in the allegation of incest by the plaintiff. Further, the remark was actually uttered by the defendant. A defamatory statement made by counsel outside the court room, with reference to the proceedings, is not entitled to absolute privilege (see p 489D–E, G).

(6) By virtue of ss 5 and 6 of the Defamation Act 1957 in a slander to the plaintiff of his profession, there shall be no necessity for the plaintiff to prove that he has suffered damages. Here, the plaintiff is and was an advocate and solicitor, and the slander inflicted by the defendant on him was calculated to disparage him in his profession (see p 489H–I).

(7) Conspiracy is a cause of action on its own in tort to cover a situation where there is a combination of two or more persons who wilfully injure a man in his trade resulting in damage to him. This cause of action is separate and distinct from that of the tort of defamation which is governed by different factors. By the pleadings of the plaintiff, I am of the view that the allegation of defamation in the letter written by Jega to Vijayalakshmi’s solicitors is more for the tort of conspiracy rather than defamation (see p 490D–H).

(8) The court could not agree to the defendant’s explanation that the letter by the defendant’s solicitors’ firm addressed to the plaintiff’s legal company was to seek clarification. There was no request for clarification nor was there any subject matter that need to be clarified. The contents consisted of derogatory remarks, which had no truth in them. They imply that the plaintiff was a person of low morals, lustful and mean, and for this had exposed him to hatred, contempt and ridicule by the right-thinking members of society. Though the publication of the letter was to the plaintiff’s staff, the defendant was considered liable for defamation when such publication was to the plaintiff’s servant and/or agent (see pp 490I–491A, F).

(9) Though the defendant had clarified that the remarks were written by Shanti, the liability for publication arose from authorization. The defendant is and was the sole proprietor of the legal firm and Shanti was only a legal assistant — an employee of the defendant. By allowing a staff to write defamatory remarks on a document meant and intended for the firm, and approving them amounts to the proprietor of the firm making such statements. For this, the defendant must be held responsible (see pp 491H–492A).

(10) The defendant’s reliance on her assertion that the statement was written in her private office and thereafter placed in a sealed envelope marked ‘private and confidential’ was just not probable. As an advocate and solicitor, the defendant would be aware of the rules and procedures that require such an acknowledgement copy of serving writ to be exhibited to an affidavit of service. With such a practice, she would have known that there could be no confidentiality for this document. So it is most unlikely that she did what she claimed (see p 492C–E).

(11) The plaintiff had not satisfied the court that the defendant directed Shanti to affirm contents in the statutory declaration. Shanti is and was then an adult and a member of the Bar. The court did not think such a serious act as affirming a statutory declaration, Shanti could be forced into it. She must have done this, most probably in furtherance of the conspiracy brought about by inducement by the defendant and Jega. But the court was not convinced to charge the defendant for making this defamatory statement (see p 493F–G).

(12) After considering the evidence as a whole and particularly from the contents of the defamation and how they were executed, the court found the tort of conspiracy proved. The court detected a pattern of concerted actions by the defendant’s group to synchronise their attack on the plaintiff’s reputation and his profession. This is with the sole objective of forcing the plaintiff to influence his wife to compromise on the settlement of the estate property. Though the defendant had expressly denied any part in this scheme to injure the plaintiff in his profession, however the court found that she was and is in the thick and thin of the whole conspiracy as can be noticed by her actions in the carrying out these defamatory remarks in association and in conjunction with the others named. In conspiracy, the tort is committed as soon as the agreement with other conspirators is made, and it continues to be committed so long as the combination persists. The court concluded that the defendant was liable to the plaintiff under this cause of action of conspiracy (see p 494B–F).

(13) Since the slander in this case involved the plaintiff in his profession and imputed him to a crime punishable with a term of imprisonment, there was no necessity for the plaintiff to tender proof of special damages. Undoubtedly, the defamatory remarks by the defendant were of grave and serious nature. The defendant’s act in publishing such defamatory statements over a substantial period; and with malice, had certainly exposed the plaintiff to much hatred, contempt and ridicule by society. The mode of publication of the defamation, especially those on formal and legal documents were contemptuous. It showed the defendant’s total disrespect for the image, integrity and honour of legal profession of which she, herself is a member (see p 495A–B, D–G).

Lawyers
Gurbachan Singh (Malik Imtiaz Sarwar with him) (M Segaram & Co) for the plaintiff.

Lawyers
Mahadevi Nadchatiram (RS Sothi with her) (Mahadevi Nadchatiram & Partners) for the defendant.

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