Defamatory statements made in court may be protected by absolute privilege, subject to the relevance and good faith standards, which the court clarified in this judgment.

JUDGMENT

Ravinthran Paramaguru JCA:

Introduction

[1] The appellant who was the 1st defendant in the High Court was found liable for defaming the respondents. The 2nd defendant did not defend the action and judgment in default was entered against him. The alleged defamatory statement was published in a statement of defence filed by the appellant in another suit; a negligence suit brought by the respondents. The main issue in the Court below and before us is whether the appellant can avail the defence of absolute privilege as the defamation was published in the course of Court proceedings in the statement of defence.

Background Facts

[2] The 1st respondent is a businesswoman. The 2nd respondent is a senior lawyer. The appellant runs a hotel in Ipoh. The 2nd defendant is an individual who apparently claimed to be the husband of the 1st respondent. This fact was disputed by the 1st respondent. The detailed factual background need not detain us long as it is apparent that the big question that arises in this appeal is a question of law about the defence of absolute privilege. It suffices if we summarise what happened in the hotel that involved the respondents and the 2nd defendant.

[3] On 17 December 2016, the respondents were in a room in the hotel in question that was managed by the appellant. The 2nd defendant obtained an access card from the reception staff and barged into the hotel room occupied by the respondents. He assaulted both respondents. Following this incident, the respondents filed a civil suit (Suit AA- 22ANCVC-301-/2017) against both the appellant and the 2nd defendant in the High Court. The cause of action pleaded against the appellant was the tort of negligence as the hotel staff had given the room access card to the 2nd defendant. The tort of assault was pleaded against the 2nd defendant. The suit was transferred to the Sessions Court. The respondents succeeded in their action against the appellant and the 2nd defendant in the Sessions Court. After that, the respondents instituted the instant defamation action in the High Court.

Defamation Action

[4] It is the respondents' case the adultery allegations in the statement of defence filed in the negligence action by the appellant were defamatory. In the statement of defence, the appellant pleaded that the respondents committed adultery and that was the cause of the altercation between them and the 2nd defendant. The respondents filed an application to strike out all the averments relating to the adultery allegation on the ground that they frivolous, vexatious, scandalous and malicious. The Sessions Court allowed the application and the appellant did not appeal the decision.

[5] However, the matter of the defamatory averments in the statement of defence did not end after they were struck out. The respondents issued a notice of demand on 27 December 2017 to the appellant and the 2nd defendant demanding retraction and unconditional apology in the newspapers for the defamatory pleadings. Upon failure of the appellant and the 2nd defendant to accede to the notice of demand, the respondents filed the instant defamation suit against them.

Defamatory Averments

[6] The respondents pleaded that the following averments in the original statement of defence filed by appellant was defamatory of them. The averments pertained to the allegation that they committed adultery in the hotel room in question. The averments are as follows:

Paragraph 5:

"Defendan Pertama menegaskan bahawa kebanyakan kakitangan Defendan Pertama mengenali Plaintif Pertama dan Defendan Kedua sebagai suami isteri seperti mana yang diketahui umum."

Paragraph 8:

"Defendan Pertama menegaskan bahawa Plaintif Kedua adalah seorang individu yang mempunyai isteri dan anak-anaknya melalui perkahwinan yang sah, dan Defendan Pertama dan kakitangannya pula hanya mengenali Plaintif Pertama dan Defendan Kedua sebagai suami isteri, pada segala masa yang material. Defendan Pertama memohon Plaintif Kedua untuk mengemukakan butiran berkenaan