Abdul Malik Ishak J:

Introduction

The second defendant by the name of Kumana Pupathi a/l Atimulam @ Athi Kumanan had passed away. His death gave rise to the question of whether the various causes of action in the plaintiff's amended statement of claim would abate.

In the indorsement of claim to the amended writ of summons, the plaintiff claimed for the following causes of action (and this was also reflected at para. 15 of the amended statement of claim):

(a) damages for the tort of conspiracy;

(b) damages for the tort of malicious falsehood; and

(c) damages for the tort of libel.

Tort Of Conspiracy

Lord Devlin in Rookes v. Barnard [1964] AC 1129, 1204 aptly said:

There are, as is well known, two sorts of conspiracies, the Quinn v. Leathem [1901] AC 495 type which employs only lawful means but aims at an unlawful end, and the type which employs unlawful means.

This very passage has received the approval of the House of Lords in the case of Lonrho plc v. Fayed and Others [1991] 3 All ER 303.

In Mulcahy v. R [1868] LR 3 HL 306 at 317, conspiracy is said to be "the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means."

I pause here for a moment and I wonder why should the conduct of two be actionable when the same conduct by one can also wreck havoc. According to Gatehouse J in Metall und Rohstoff A.G. v. Donaldson Lufkin & Jenrette Inc. [1990] 1 QB 391, 402 to 403 it "makes no sense in twentieth century trading conditions" especially when a single juristic person like a multi-national conglomerate may wield immense political and financial power.

In the context of the present case, the plaintiff argued that the tort of conspiracy to defame by publishing defamatory statements exist independently whereas the defendants say that it has merged with the tort of libel. Is there a merger of these two torts?

Tort Of Malicious Falsehood

It consists of false statements made to other persons concerning the plaintiff whereby the plaintiff suffers loss through the action of others. As a general rule, it is an actionable wrong maliciously to make a false statement regarding any person or his property with the result that other persons are deceived and are induced to act in a manner which causes loss to him (Ratcliffe v. Evans[1892] 2 QB 524, 527). At p. 532 of the report of the case of Ratcliffe v. Evans (supra), Bowen LJ had this to say:

an action will lie for written or oral falsehoods, not actionable per se, or even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage

Tort Of Libel

There are two kinds of defamation. One is libel, the other is slander.

Libel consists of defamatory statement made in some permanent and visible form like writing, printing, pictures or effigies (Monson v. Tussauds Ltd[1894] 1 QB 671, 692). Slander consists of spoken words, gestures or inarticulate but significant sounds. It is often said that libel is addressed to the eye while slander is addressed to the ear (Mitchell v. Australian Broadcasting Commission [1958] 60 WAIR 38). In Youssoupoff v. Metro-Goldwyn-Mayer Pictures [1934] 50 TLR 581, the Court of Appeal held that defamation in a "talking" film was libel.

It must be borne in mind that:

(1) Libel is not only an actionable tort, it is also a criminal offence; whereas, on the other hand, slander is a civil matter only.

(2) In all cases, libel is actionable per se; whereas slander is actionable on proof of actual damage.

To The Heart Of The Matter

With that brief discourse on the law, I will now proceed to the main issue at hand. Would the various causes of action abate as against the second defendant when he died on 28 March 2005? Mr. Azhar Azizan Harun for the plaintiff emphasised that notwithstanding the death of the second defendant, the plaintiff was interested in securing damages against the estate of the second defendant. I merely took no