RK Nathan J:

The Application

This is an application (encl. 111) by the 1st defendant for leave to amend his defence.

The major amendments sought inter alia are to include the following:

Para 1

The 1st Plaintiff is a non-trading corporation and accordingly no damages for libel are recoverable on its behalf.

Para 2.3

The said Defendant has not at any time been authorised by his partners to speak for them or for the firm. The said defendant said nothing to Samuels which could or should have led him (Samuels) to suppose that he (the said Defendant) was speaking on behalf of the firm.

Para 3.2

The said Defendant will contend at trial that he is answerable only for the words actually spoken by him and not for any other words in the article or for any insinuations arising out of the context in which the said Defendant's words appear in the article. Without prejudice to the generality of that contention the said defendant denies that in any of his conversations with Samuels he spoke any of the following words or any words to the following effect:

(i) that any of the judges in the Courts of Malaysia has been guilty of corruption in any of the decisions or cases mentioned in the said article;

(ii) that any Member of the Malaysian Bar has been guilty of corruption;

(iii) that any of the parties in any of the cases mentioned in the said article has been guilty of corruption.

To the contrary in none of their conversations did either the said Defendant or the said Samuels mention any of the following words "corruption, dishonesty, fraud or moral turpitude". Samuels gave no intimation to the said Defendant that he was proposing to write an article critical of the Malaysian judiciary.

Para 5

A further telephone conversation between the said Defendant and Samuels took place a few days later when Samuels told the said Defendant that he had spoken to a few other people and further discussion took place. A third and final conversation took place between them towards the end of September 1995.

Para 7.2

If the said Defendant had been made aware by Samuels of the context in which words spoken by him were going to appear in the magazine, he would have declined to give his permission to be quoted or indeed to have any further conversation with Samuels.

Case For The Applicant

Raja Aziz Addruse for the applicant relied on Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 FC wherein Mohamed Azmi FJ said at pp. 214/215:

Under Order 20 of the Rules of the High Court 1980, which is equivalent to Order 28 Rules of Supreme Court, a Judge has a discretion to allow leave to amend pleadings. Like any other discretion, it must of course be exercised judicially (see Kam Hoy Trading V. Kam Fatt Tin Mine [1963] The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. (See Mallal's Supreme Court Practice page 342). If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim.

Learned counsel submitted that the amendments sought did not add anything new to the earlier defence filed. He also relied upon the recent Court of Appeal decision in Abdul Johari bin Abdul Rahman v. Lim How Chong & Ors [1997] 1 CLJ 361; [1997] 1 MLJ 629 CA wherein it was held t