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KAMALANATHAN RATNAM JC

THE APPLICATION

This is the 2nd defendant's application by way of summons (Enclosure 49) for further and better particulars pursuant to O 18 r 12(3) of the Rules of the High Court 1980 (the RHC). This application is in respect of the plaintiffs' amended reply to the amended defence of the 2nd defendant dated 19.11.96.

THE BACKGROUND FACTS

The plaintiffs' claim is for libel and slander against the 1st defendant and by way of vicarious liability, against the 2nd defendant. The defamatory words complained of were allegedly published in an article "Malaysian Justice on Trial" written by one David Samuels and published in the November 1995 issue of a magazine called "International Commercial Litigation".

In the article, there are two allegedly defamatory statements attributed to the 1st defendant. The plaintiffs have set out the words as follows in the statement of claim:

The first statement complained of as set out in paragraph 4(1) of the statement of claim is as follows:

"I acted for EAC. The procedural gymnastics in which the subsidiaries engaged during that dispute raise questions that cry out for answers. I point to the sequence of the two identical legal actions started in two different courts, one of which was then discontinued, as proof that the subsidiaries were trying to get their case before one particular judge, namely Judge Low Hop Bing. Lingham told Judge Vohrah on August 19 that the action they had started in Court No 5, on August 11, had to be withdrawn on August 14 because of typing errors. That simply cannot be right. If you compare the main document from Court No 5, which is supposed to have contained so many typing errors that it had to be withdrawn, with the main document put into Court No 2 (Low Hop Bing's court), you will see that there are absolutely no differences between them. And there are only two inconsequential differences between the supporting affidavits. The irresistible inference has to be that they wanted Low Hop Bing, and only Low Hop Bing, to hear their case. When everyone else involved agreed that all the actions should be brought together in Judge Vohrah's court, it was Lingham who insisted the subsidiaries' case should stay with Low Hop Bing. The Malaysian Bar Council's record shows that Lingham qualified in 1988. Since then Lingham has built up a small portfolio of clients all of whom are incredibly rich and very loyal to him, mainly Malaysian entrepreneurs."

The second statement complained of as set out in paragraph 4(2) of the statement of claim is as follows:

"The present situation is terrible. One hears all sorts of gossip. Malaysian lawyers, have already decided that they should question the integrity of our judges, rather than the intellectual capacity of our courts."

THE FURTHER AND BETTER PARTICULARS REQUESTED

The following are the specific requests for particulars pursuant to the request for further and better particulars of the plaintiffs' amended reply to the amended defence of the 2nd defendant and which is dated 18.9.97.

Under Paragraph 2 of the Amended Reply

Of: "Since at least two partners of the Second Defendants (Mr. Tommy Thomas and Mr. K. Anantham) had actively and jointly contributed to the publication of the said article, the Plaintiffs will contend that the Second Defendants did in fact make it their business to talk to the representative or representatives for the Magazine about the business or conduct of the Plaintiffs and their solicitors and counsel."

State without equivocation whether it is or is not the plaintiffs' case that any partner of the 2nd defendant other than Mr. Thomas and Mr. K. Anantham "actively and jointly contribute to the publication of the said article".

If it is so alleged, state:

which other partner or partners of the 2nd defendant actively and jointly contributed;

precisely how each such partner contributed to the publication of the article.

State precisely what contribution it is alleged that Mr. Anantham made to the article.

State whether by "actively and jointly" it is alleged that Mr. Anantham knew in advance that Mr. Thomas was going to defame the plaintiffs to the magazine or otherwise precisely what is alleged against Mr. Anantham by the word "jointly".

Under Paragraph 6 of the Amended Reply

Of: "The Plaintiffs also allege that the Second Defendants are vicariously responsible for the malice of the First Defendant who was actuated by malice, for which malice the Second Defendants are vicariously liable."

State whether these particulars are to be read as supporting the claim for damages pleaded in paragraph 14 of the statement of claim (which appears to allege malice against the 2nd defendant firm) or, if not, to what issue in this action this paragraph is directed.

Under Paragraph 9 of the Amended Reply

Of: "... the Magazine is available on sale to the general public at all material times ... The Second Defendants were also aware of the significant global readership and influence ..."

State precisely where the magazine is available on sale to the general public within the jurisdiction; identifying by name and address any shop or other distribution outlet relied on.

State which partners of the 2nd defendant allegedly knew as at the time when the alleged slanders were published:

that the magazine was on sale to the general public;

that the magazine had significant global readership and influence;

how, when and from whom each such partner acquired knowledge of the matters referred to in (a) and (b) above.

CASE FOR THE APPLICANT

The 2nd defendant relied on Halsbury's Laws of England (4th Edition) Volume 36. I reproduce the passage relied on by the 2nd defendant:

"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs."

The applicant also relied on In re Estate of Lee Siew Kow, Deceased; Gan Eng Neo (w) & 2 Ors v Yeo Siew Neo (w) [1951] 17 MLJ 224. This case concerned an application for further and better particulars arising out of the proceedings in which the plaintiffs sought to obtain letters of administration of the estate of the deceased and where the defendant, claiming to be a widow of the deceased, sought to share in the grant of the letters of administration. The plaintiffs denied that the defendant was a widow and delivered pleadings accordingly. The defendant in her defence pleaded co-habitation and recognition of her status as the lawful wife of the deceased by various persons. The plaintiffs successfully sought further and better particulars of the co-habitation and of the friends and relatives by whom recognition was alleged to have been accorded. The 2nd defendant also relied on Lee Kuan Yew v Chin Vui Khen [1991] 3 MLJ 494 wherein Siti Norma Yaacob J (as her Ladyship then was) relied on a quote from Ackner LJ in Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177 CA wherein his Lordship said at page 181:

"It is axiomatic that the function of pleadings is to define the issues between the parties, so that both the plaintiff and the defendant know what is the other side's case and thus everyone, counsel, judge and jury are able to focus on the real nature of the dispute. Although to some it may seem a startling observation, we can see no reason why libel litigation should be immune from ordinary pleading rules."

Since the plaintiffs in paragraph 2 of the amended reply use the phrase "... at least two partners ..." suggesting that the pleadings may be read to mean that there are other partners apart from Mr. Thomas and Mr. Anantham who had actively and jointly contributed to the publication of the article, the 2nd defendant contended that in order for it to meet the charges sufficiently, the plaintiffs must state unequivocally whether it is their case that there are other partners apart from Mr. Thomas and Mr. Anantham who are alleged to have contributed to the article and that the establishment of these partners is a material fact and ought to be pleaded.

The 2nd defendant further submits that bearing in mind that the words complained of were uttered by the 1st defendant, the use of the words "actively and jointly" in paragraph 2 of the amended reply seems to suggest that Mr. Anantham knew in advance that Mr. Thomas was going to defame the plaintiffs, to the magazine. The 2nd defendant therefore required the plaintiffs to state without reservations whether that was their case.

Since the plaintiffs had pleaded in paragraph 6 of the amended reply that the 2nd defendant is vicariously responsible for the malice of the 1st defendant, and in paragraph 14 of the statement of claim the plaintiffs had relied on certain facts to support their claim for exemplary damages, the 2nd defendant submitted that it ought to be put on notice as to whether those particulars pleaded in paragraph 6 of the amended reply are to be read as supporting the claim for exemplary damages. And if not, it was submitted that the plaintiff ought to plead the precise issue at which those particulars are directed.

In paragraph 9 of the amended reply, while the plaintiffs alleged that the said magazine was available on sale to the public at all material times it was argued that they had omitted or failed to disclose whether the said magazine was on sale to the public within the jurisdiction.

Since the plaintiffs had pleaded that the 2nd defendant was aware at all material times of the significant global readership and influence, it was also submitted that the plaintiffs had omitted or failed to state with significant precision which of the partners knew when the alleged slander was published, that the magazine was available for sale to the general public and that it had global readership and influence.

CASE FOR THE PLAINTIFFS

The plaintiffs raised various preliminary issues. Firstly, it was pointed out that the affidavit (Enclosure 48) affirmed by Mr. Rabindra Santhanasegira Nathan, a solicitor for the 2nd defendant, in support of Enclosure 49, was merely dated as 1997 at 2.00 p.m.

It was also pointed out that the letter dated 18.9.97 forwarded by Shearn Delamore & Co seeking particulars gave the plaintiffs 5 days to furnish the particulars failing which an application would be made to Court. The 5 days expired on 23.9.97. However the 2nd defendant filed the summons in chambers on 19.9.97. The plaintiffs also raised delay on the part of the 2nd defendant in seeking the required particulars, as an issue.

COURT'S FINDINGS

Undated Affidavit

I have checked Enclosure 48 and I note that the said affidavit does not have the date and month when it was affirmed. This is a clear violation of O 41 r 9(2) of the RHC which reads:

"(2) Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the Court."

I am compelled to reject the said affidavit as no leave has been applied for, for the use of the same. It is not appropriate for me to comment upon the tardy attempt to affirm the affidavit. In the circumstances, the said application for further and better particulars is not supported by an affidavit and ought to fail in lemine.

IS AN AFFIDAVIT NECESSARY

At this juncture, it is appropriate that I consider the submission of the 2nd defendant in relation to my judgment in  Tan Hoe Kock & Anor v Ali Akarbara bin Mangudin & Ors [1997] 4 MLJ 311. It was submitted that I had by way of obiter in that case at page 320(I) - 321(A) observed that a party seeking particulars must file an application pursuant to O 18 r 12(3) with a supporting affidavit giving reasons for seeking such particulars. The 2nd defendant submitted that this is not reflected as a requirement under O 18 r 12(3) which reads:

"(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just."

It is difficult to fathom this submission. If there was no need to file an affidavit as maintained by the 2nd defendant, why did the 2nd defendant do so in this case, let alone make a totally unsatisfactory attempt. This Court had to reject the said affidavit for not bearing the date and month. This act of approbation and reprobation by the 2nd defendant ought to be deprecated. In any case the said sub-rule clearly gives the Court the discretion to make any order "on such terms as the Court thinks just". It verges on common sense that an affidavit ought to be filed so that the party seeking the particulars may give reasons why he is inhibited from proceeding further without being in possession of the particulars sought. The applicant ought to explain to the satisfaction of the Court that far from being a venturesome adventure of a fishing expedition, his desire for the particulars is a genuine effort to expedite the trial.

At this juncture, it is appropriate that I refer to the case of In re Estate of Lee Siew Kow (supra) relied on by the 2nd defendant. In that case the plaintiffs applied by letter for further and better particulars of "the co-habitation" and of "the friends and relatives" by whom recognition was alleged to have been accorded to the 2nd wife who was the defendant in the case. The Court was of the view that such particulars ought to be given because the plaintiffs ought to know the names of the friends and relatives who recognised the defendant as a wife.

To my mind the case of Lee Kuan Yew referred to by the 2nd defendant merely reiterated the law as it stood.

THE LETTER REQUIRING THE PARTICULARS  

The letter dated 18.9.97 from the 2nd defendant's solicitors gave the plaintiffs 5 days to furnish the particulars failing which an application would be made to the Court. The 5 days in fact expired on 23.9.97. However, for reasons best known and understood by the 2nd defendant, the said application was filed on 19.9.97, that is a day after the letter dated 18.9.97 was sent out. Therefore I find that the 2nd defendant had breached the contents of its own letter in not allowing the 5 days time limit set by itself. The conduct of the 2nd defendant in failing to await the expiry of the 5-day period stipulated by itself, calls for an inference of an application of undue pressure being exerted upon the plaintiffs.

INORDINATE DELAY IN APPLYING FOR THE PARTICULARS

It is pertinent to note that the further and better particulars sought for by the 2nd defendant is after a lapse of 10 months of the plaintiffs' filing the amended reply, which was dated 19.11.96. In any event this application was filed after the Court fixed this case for case management. Particulars are necessary to assist a party to be best able to defend itself from any allegations raised in the pleadings. In the circumstances, an apprehensive litigant would be moved to proceed with alacrity to demand at the earliest opportunity any and or all the relevant particulars that ought to best assist his case. A delay like in this case of 10 months, and more so when the application is filed after this Court had fixed the case for case management, clearly shows the insincerity behind the said application.

I do not think it is necessary for me to go into the details of the request for further and better particulars as the very application itself has flounded in shallow waters leaving the application totally grounded. I am therefore compelled to dismiss this application with costs.

COUNSEL:

Cecil Abraham with R S Nathan and Rajasingam (Shearn Delamore & Co) for the applicant/second defendant.V K Lingam with V Sivaparanjothi and R Thayalan (V Siva and Partners) for the respondents/plaintiffs.Darryl Goon (Raja Darryl & Loh) for the first defendant.Yew Lee Ann (N Navaratnam & Co) for K Anantham, a partner of the second defendant.