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Case Update: Pleadings and Documents filed in court proceedings are shielded by absolute privilege from Defamation

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15 December 2022

LAW OF TORTS
Alleged Defamatory Statement – Statement of Defence – Absolute Privilege

Kinta Riverfront Hotel & Suites Sdn Bhd v Chang Yoke Yee & Anor
Civil Appeal No. A-02(NCVC)(W)-1771-11/2020 | Court of Appeal
- see the grounds of judgment here

Facts Chan Yoke Yee (“1st Respondent”) is a businesswoman. The 2nd Respondent is a senior lawyer while, Kinta Riverfront Hotel & Suites Sdn Bhd (“Appellant”) runs a hotel in Ipoh. The Appellant who was the 1st Defendant in the High Court was found liable for defaming the Respondents. The alleged defamatory statement was published in a statement of defence filed by the Appellant in another suit; a negligence suit brought by the Respondents. The 2nd defendant in the tortious suit is an individual who apparently claimed to be the husband of the 1st Respondent. This fact was disputed by the 1st Respondent. On the day in question, the respondents were in a room in the hotel in question that was managed by the Appellant. The 2nd Respondent obtained an access card from the reception staff and barged into the hotel room occupied by the Respondents. He assaulted both Respondents. In the statement of defence by the Appellant, they pleaded that the Respondents committed adultery and that was the cause of the altercation between them and the second defendant. At the High Court, the Appellant did not give any evidence in this case as they elected to submit a no case to answer. The respondents denied committing adultery. In the premises, the learned High Court Judge found that the defence of justification and fair comment failed. Hence, this appeal.

Issue Whether the appellant can avail the defence of absolute privilege as the defamation was published in the course of court proceedings in the statement of defence.

Held In allowing the Appeal, Judge Ravinthran Paramaguru held that the learned High Court Judge had erred in making his decision.  The defamation in the instant case was published within the four corners of a court proceeding. Although the impugned averments were irrelevant, reckless and perhaps malicious, defence of absolute privilege can be availed by the Appellant. At the High Court, the learned Judge said that the appellant cannot claim absolute privilege because the defamatory averments in the statement of defence were not relevant and were not made in good faith. However, the Court of Appeal held that the learned High Court Judge seriously misdirected himself to deprive the appellant of the defence of absolute privilege. The Court of Appeal further held that the principle that pleadings and documents filed in court proceedings are protected by absolute privilege as stated in several English cases that was cited by the Court of Appeal that has been consistently accepted and applied by our courts. Once it is accepted that absolute privilege applies to an averment in a pleading, there can be no question of limiting the defence by placing restriction on it such as the requirement of relevance and good faith. Otherwise, only the defence qualified privilege will apply to defamatory statements made in the course of court proceedings. Hence, the appeal was allowed.

Zul Rafique & Partners
{15 December 2022}

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