Abdul Malek Ahmad FCJ:

On 27 November 2001, this court (Steve Shim Lip Kiong, CJ Sabah and Sarawak, Abdul Malek Ahmad and Mohtar Abdullah, FCJJ) heard the motions for leave to appeal for this case and another related matter namely Federal Court Civil Appeal 02-21-2001(W). Leave to appeal had been granted in both cases and the other appeal had actually been heard by the same panel as the leave panel on 24 July 2002. Judgment had been reserved to a date to be fixed. Due to time constraints, this appeal was adjourned. On 5 August 2002, our learned brother Mohtar Abdullah FCJ was hospitalised and so, when we heard this appeal on 24 and 26 March 2003, his place has been taken by Mokhtar Sidin JCA.

Leave had been granted by this court in this case on the following questions:

(1) whether a statement made by one counsel to the opposing counsel in Court premises when the Court is not in session:

(a) in respect and related to matters concerning the Court proceedings; and

(b) which statement is based on information given to the counsel by a witness to the said Court proceedings;

is covered by absolute or qualified privilege.

(2) whether defamatory words written by a party on the acknowledgement copy of a Writ or in other Court documents whilst accepting service, which are part of the Court documents in a pending Court proceedings, covered by absolute privilege in the light of, inter alia, the Court of Appeal decision of Lincoln v. Daniels[1962] 1 QB 237.

At the outset of the proceedings before us, we were faced with two motions and two preliminary objections. The first motion was by the appellant to amend the memorandum of appeal dated 17 January 2002 which, however, learned counsel for the appellant withdrew during the course of arguments by learned counsel for the respondent on the respondent's motion that the leave granted to the appellant on the first issue on 27 November 2001 be revoked. The respondent's motion had specifically asked that:

(1) leave granted to the appellant on the 27/11/2001 on issue 1, namely:

Whether a statement made by one counsel to the opposing counsel in Court premises when the Court is not in session:

(a) in respect and related to matters concerning the Court proceedings; and

(b) which statement is based on information given to the Counsel by a witness to the said Court proceedings;

is covered by absolute or qualified privilege.

be revoked.

(2) the grounds set out in paragraphs 1 to 18 in the Memorandum of Appeal filed by the appellant on the 17/01/2002 be struck off.

(3) the Supplementary Record of Appeal known as "Rekod Rayuan (Jilid 13)" to be filed in the connected appeal in Federal Court Civil Appeal No. 02-21-2001(W) brought by the respondent against the appellant be also form as part of the Record of Appeal in Federal Court Civil Appeal No. 02-22-2001(W).

(4) the costs of and incidental to this application shall be paid by the appellant to the respondent.

(5) other reliefs as the Honourable Court shall think just to grant.

Prayer (3) was, however, withdrawn in the course of submissions.

The first notice of preliminary objection by the respondent dated 3 January 2002 was that at the hearing of the appeal, the respondent shall apply that the appeal and the leave to appeal granted on issue 1 namely:

Whether a statement made by one counsel to the opposing counsel in Court premises when the Court is not in session:

(a) in respect and related to matters concerning the Court proceedings; and

(b) which statement is based on information given to the counsel by a witness to the said Court proceedings;

is covered by absolute or qualified privilege be dismissed on the following grounds:

the factual situation/purported facts upon which the issue No. 1 are based or deemed to be based, are non-existent, and contrary to the pleadings, evidence, submissions of the appellant in the High Court and finding of the trial Judge and the Court of Appeal, in that:

(i) the appellant by her defence pleaded that she did n