In defamation cases, the burden lies on the plaintiff to prove that the defendant's defenses are bound to fail; an interim injunction should not be granted if the defendant believes the statements to be true.

JUDGMENT

Roz Mawar Rozain JC:

The Sessions Court's Order

[1] This appeal is against the Sessions Court's decision on 25 August 2023 that allowed the respondents' application for an interim injunction. In essence the order restrains the appellants (and their agents) from further publishing or causing/authorising the publication of the impugned statements until the disposal of the trial. The 1st appellant was the former client of the respondents - the 1st respondent the law firm and the 2nd respondent, its sole proprietor, advocate and solicitor. The impugned statements are contained in an email sent by the 2nd appellant, director of the 1st appellant to the 2nd respondent and one Noorul Haq Zainaldin (another director of the 1st appellant/defendant), copied to Daniel Kenneth Dees (another director of the 1st appellant/ defendant) dated 16 February 2022 (client-solicitor email). The substance of the impugned statements in the client-solicitor email is reproduced herein:

"~

We did retain you for the appeal you recommended, including you ignoring the judge's instruction in order to have him strike the entire case to have this appeal. You did file this appeal without stating liberty to file afresh for striking out order, and we believe any change now from the position you've put us in will hurt our original suit and the appeal case and it will damage us severely. The appeal started by you must continue until you receive further instructions. However, please do not proceed with any work on the appeal without first getting our written approval.

~

We received a letter of engagement only on 20 Jan 2022 ie. after you commenced the case on 10 Jan 2022, and we did not agree to the fee amount you quoted beforehand, actually saying it was too high, before you shockingly withdrew with one business day's notice for action.

We also had no discussion of your posture beforehand, and were thus unaware that "SUBJECT: considering withdrawal of defamation" would result in your ultimatum. This caused us considerable unplanned expense and disruption."

[2] In coming to its decision to grant the interim injunction, the Sessions Court stated its reasons as follows:

(a) there was a real and serious risk that the appellants would continue to publish the impugned statements which are libelious in nature against the respondents;

(b) the risk that the publication of the impugned statements which are libelious in nature against the respondents would tarnish the reputation of the respondents with the Bar Council of Malaysia and State, and its field of practice as an advocate and solicitor;

(c) the respondents will experience a loss of reputation should the impugned statements be published;

(d) the order was only for a finite time - only after the disposal of trial;

(e) The respondents' loss of reputation could not be compensated if the interim injunction was not granted; and

(f) The respondents had given an undertaking as to damages.

The Factual Matrix Of The Case

[3] Before considering the submissions by the appellants and the response by the respondents, it is imperative to lay out the factual matrix of this case. The 2nd respondent through his firm, the 1st respondent had conducted matters for the 1st appellant of the following matters:

(i) Appsmiths Sdn Bhd & Ors v. Jason Kok Chin Hwa & Ors (Suit 788);

(ii) Court of Appeal [Civil Appeal No: W02-(IM)-(NCVC)-2120-11-2021] (Appeal 2120);

(iii) Kuala Lumpur High Court [Suit No: WA-23NCVC-6-01-2022] (Suit 5).

Suit 788

[4] According to the respondents' statement of claim (SoC), the following were pleaded:

(a) Instructions for Suit 788 were relayed by the 2nd appellant and Noorul Haq. Suit 788 was commenced against one Jason Kok Chin Hwa (Jason Kok) and three others. The defendants there had filed interlocutory applications to strike out the suit and for security for costs;

(b) The High Court had dismissed all the applications but had directed for the appellants to amend their pleadings. The High Court Judge had issued a ruling that subs