A Plaintiff must establish ownership of a defamatory statement to claim damages for defamation; failing this, the claim will be dismissed.

JUDGMENT

John Lee Kien How @ Mohd Johan Lee JC:

Introduction

[1] This is the Plaintiff's claim ('this Claim') for damages against the Defendant for a defamatory statement which were allegedly sent by the latter to the Plaintiff's wife via a text message.

Background Facts

[2] Briefly, on 5 June 2017, the Plaintiff's wife received a text message via the iPhone messaging application, iMessage ('the iMessage') via 'michellechin0X@ icloud.com' ("the iCloud Email Address") to her phone.

[3] The Plaintiff contended that the iMessage was defamatory as it had impliedly labelled the Plaintiff as having an extramarital affair. And this has further distressed the Plaintiff's relationship with his wife and their family.

[4] However, at all times, the Defendant disputed that she had ever sent the iMessage to the Plaintiff's wife and argued that she has never owned the iCIoud Email Address. Nevertheless, it was never disputed that the phone number of '012-2XXXXX5' was indeed owned by the Defendant. The Defendant, nonetheless, denied that her phone number had ever been associated with the iMessage and the iCloud Email Address.

[5] As the Plaintiff was not satisfied with the Defendant's response, the Plaintiff filed this Claim against the Defendant. The Plaintiff was, in essence, seeking damages from the Defendant and seeking an injunction to prohibit the Defendant from further authoring or publishing any defamatory statement about the Plaintiff.

The Trial

[6] On the side note, I must express my gratitude to the parties for their cooperation and willingness to embrace remote access technology to enable the entire case to be conducted totally via zoom. This enabled a smooth running of the trial notwithstanding that one of the witnesses was in Singapore and one of the counsels was in the UK at the time of the trial. Truly, the application of O 33A r 3 of the Rules of 2012 and the amendment to ss 3, 15A, 16, 17, 17B and 69 of the Courts of Judicature Act 1964 as amended through Courts of Judicature (Amendment) Act 2020 have been totally utilised to its entirety. The Plaintiff called three (3) witnesses during the trial while the Defendant called one (1) witness:

SP1 Vilashinee a/p Raman

SP2 Pushparajan A/L R. Thachanamoorthy

SP3 Malar Selvi a/p Rajoo

SD1 Chin Wai Yee

Issues

[7] Before the commencement of the trial, the Parties had agreed on the following issues to be tried:

1. Whether there was a defamatory short messaging service message made by the Defendant against the Plaintiff?

2. Whether the defamatory short messaging service message referred to the Plaintiff and had been published to third party?

3. Whether the short messaging service message is defamatory?

4. Whether on or around 21 June 2017 the Plaintiff through his solicitor SN Nair & Partners had made any claim against the Defendant?

5. Whether the Plaintiff suffered any loss and damage as a result of the defamatory short messaging service message?

Decision And Findings Of The Court

[8] The crux of our present case is whether the iMessage that was sent to the Plaintiff's wife was made and/or sent by the Defendant. Thus, it is of the utmost importance that I deal with this issue first as it will be futile to go into the elements of defamatory without addressing the core dispute of this Claim.

i. Whether The iMessage Was Sent And/Or Published By The Defendant?

[9] It is pertinent in any defamation action to establish that it was the defendant who actually uttered the words as reflected in the impugned statements. If it cannot be established that she has never made the impugned statements, she could not be held liable no matter how defamatory the words are (see Siti Sakinah Bt Meor Omar Baki v. Zamihan Mat Zin & Anor, 2017 MarsdenLR 2756 ).

[10] The core defence of the Defendant in the present claim is that she denied that the iMessage was ever made by her and it was her submission that the Plaintiff has failed to prove the iMessage was made by her. The following is the iMessage in issue:

[11] Like any other inst