Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 MarsdenLR 1833

HIGH COURT MALAYA KUALA LUMPUR
TAN SRI DR MUHAMMAD SHAFEE ABDULLAH – Appellant
Versus
TOMMY THOMAS & ORS – Respondent
[Civil Suit No: 22NCVC-127-03/2015]

Petitioner Advocates:Tan Sri Dr Muhammad Shafee Abdullah,Sarah Abishegam as McKenzie Friend ,Respondent Advocate: Lambert Rasa-Ratnam,Andrew Chiew Ean Vooi,Colin Yoong Shern Zian

Damages for reputational loss and emotional distress are recoverable under a breach of statutory duty, provided that the plaintiff establishes a causal link between the breach and the loss incurred.

Headnote:(A) Legal Profession Act 1976 - Section 99(1) - Breach of statutory duty by Malaysian Bar in publishing a motion instead of referring to the Disciplinary Board - Claim for damages by plaintiff for reputational harm, emotional distress, and loss of earnings - Statutory immunity under Section 111 of the LPA not applicable due to breach of statutory duty. (Paras 1-5)

(B) Damages - Claims for reputational harm and mental stress recoverable under tort of breach of statutory duty where loss is proven - Burden of proof remains on plaintiff to establish actual damages. (Paras 37-38)

(C) Damages for loss of opportunity noteworthy and recoverable if linked to breach. (Paras 52-56)

Facts of the case:
The Malaysian Bar published a motion criticizing the plaintiff’s professional conduct publicly instead of referring concerns to the Disciplinary Board as required by law, leading to claims for damages including reputational losses and emotional distress. (Paras 3-5)

Findings of Court:
The breach led to reputational damage and the Court accepted a modest award under general damages based on limited evidence. The total awarded was RM340,000.00 with awards for reputational loss, loss of opportunity, mental distress, and aggravated damages. (Paras 98)

Issues: The key issues were whether damages for reputational loss and emotional distress are recoverable under breach of statutory duty and the extent of damages based on established statutory breach. (Paras 6-7, 18)

Ratio Decidendi: The Court concluded that breaches leading to reputational damage merit compensation under statutory duty breaches; however, proof of actual losses remains crucial in justifying damage awards. (Paras 54-55)

Result: The total damages awarded amount to RM340,000.00, reflecting compensatory relief for the breach.

Judgement Key Points

Key Holdings

Damages for reputational loss and emotional distress are recoverable under breach of statutory duty if causal link is established. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Statutory immunity under Section 111 LPA inapplicable where act constitutes breach of statutory duty, as it is not done "under the Act". (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Economic loss and loss of professional opportunity recoverable under breach of statutory duty if linked to protection of livelihood under the statute and sufficiently proven. (!) (!) (!) (!) (!) (!) (!) (!)
Aggravated damages available for heightened harm from defendant's knowing disregard of statutory procedure, but exemplary damages not awarded absent oppressive conduct by government servant or profit motive. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Damages assessment guided by principles of moderation, proportionality, and proof of actual loss; modest awards appropriate where evidence limited. (!) (!) (!) (!) (!) (!) (!)

Facts

Malaysian Bar breached s 99(1) LPA by publishing "Motion Against Shafee Abdullah" on website and tabling at AGM instead of referring to Disciplinary Board; motion criticized plaintiff's conduct as ad-hoc Deputy Public Prosecutor. (!) (!) (!) (!) (!) (!) (!) (!)

Procedural History

Plaintiff's claims for defamation and conspiracy dismissed at High Court and Court of Appeal; Federal Court allowed appeal solely on breach of statutory duty, remitting for damages assessment against Malaysian Bar. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

Court's Findings on Damages

Reputational loss and injury to feelings: RM200,000 (modest due to limited evidence, ongoing practice, but considering dissemination to 15,000 Bar members). (!) (!) (!) (!) (!) (!) (!)
Loss of professional opportunity: RM100,000 (inferred from client concentration despite lack of specific proof). (!) (!) (!) (!) (!) (!)
Mental stress: RM20,000 (modest for emotional distress implied by "damnified" finding, despite no medical causation evidence). (!) (!) (!) (!) (!) (!) (!) (!) (!)
Aggravated damages: RM20,000 (for institutional carelessness in known procedure). (!) (!) (!)
Exemplary damages: None. (!) (!)
Total award: RM340,000. (!) (!) (!)

Table of Content
1. assessment of damages post breach of duty (Para 1 , 2 , 3 , 4 , 5 , 6)
2. factual background leading to damages claim (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16)
3. scope of federal court's decision (Para 17 , 18 , 19 , 20)
4. statutory immunity under s 111 of the lpa (Para 29 , 30 , 31 , 32 , 33 , 34)
5. claims for reputational harm under statutory duty (Para 38 , 39 , 40 , 41 , 42 , 43)
6. claims for economic loss and its substantiation (Para 52 , 64)
7. aggravated damages and their justification (Para 72 , 78 , 79 , 80)
8. principles of moderation in damages assessment (Para 93 , 94 , 95 , 96)
9. final assessment of damages awarded (Para 98 , 99)

Ahmad Shahrir Mohd Salleh J:

Introduction

[1] This is the assessment of damages following a finding by the Federal Court of a breach of statutory duty by the Malaysian Bar. The breach arose under s 99(1) of the Legal Profession Act 1976 (" LPA ").

[2] In its judgment, the Federal Court held that the Malaysian Bar had committed a breach of statutory duty. The breach occurred when the Malaysian Bar published a motion entitled "Motion Against Shafee Abdullah" on its official website and subsequently tabled the said motion for deliberation and resolution at the Annual General Meeting ("AGM"). The Federal Court found that such action contravened the requirements of s 99(1) of the LPA . Under that provision, the Malaysian Bar was obliged to refer the matter directly to the Disciplinary Board rather than raising it through a public forum such as the AGM.

[3] The plaintiff, Tan Sri Dr Muhammad Shafee Abdullah, claims damages in light of the said breach. He seeks a global sum of RM2.00 million. This sum is claimed under the heads of general damages, aggravated damages and exemplary or punitive damages.

[4] The general damages claimed encompass several aspects. These include reputational harm, injury to feelings, loss of professional opportunities, loss of earnings and deterioration of mental health due to stress. The plaintiff further claims that the conduct of the Malaysian Bar warrants aggravated and punitive damages in view of its alleged recklessness and disregard for his rights.

[5] The 3rd defendant, namely the Malaysian Bar, refutes the plaintiffs entitlement to damages. In defence, it advances several grounds. Among the primary grounds is a claim of statutory immunity under s 111 of the LPA . The Malaysian Bar also submits that the plaintiff has failed to establish a causal link between the breach and the loss allegedly suffered. It contends that the plaintiff has not adduced sufficient evidence to prove any actual damage or injury flowing directly from the breach of statutory duty.

[6] The principal issue before this Court is whether the plaintiff is entitled to an award of damages pursuant to the breach of statutory duty as previously found by the Federal Court. Should the answer to that question be in the affirmative, this Court must further determine the appropriate quantum of damages to be awarded.

Brief Background Of Facts

[7] The present dispute arises from a motion titled "Motion Against Shafee Abdullah" dated 28 February 2015. The motion was proposed by the 1st defendant, Tommy Thomas, and seconded by the 2nd defendant, Tan Sri Vadaketh Chacko George. The motion sought three specific outcomes. First, it sought to condemn the plaintiff in the strongest terms for his behaviour since 10 February 2015. Second, it urged the incoming Bar Council to lodge a complaint against the plaintiff with the Disciplinary Board. Third, it called upon the Bar Council to take appropriate steps to prevent the plaintiff from bringing the legal profession into disrepute.

[8] The motion stemmed from the plaintiff's conduct in his role as ad-hoc Deputy Public Prosecutor in the case of Public Prosecutor v. Anwar Ibrahim. The motion also referred to certain public comments made by the plaintiff following the Federal Court's decision in that case.

[9] On 9 March 2015, the Bar Council circula

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