In defamation cases involving professional conduct complaints, allegations are protected by qualified privilege unless express malice is successfully demonstrated by the plaintiff.

Abdul Wahab Patail J

The plaintiff Subramaniam a/l Paramasivam, a barrister and solicitor, claims damages against the defendants, Courts Mammoth Bhd and Nicholas Alexander Elphick for defamation. The defendants were the plaintiff’s former clients.

There are three initial elements to an action in defamation. The first is whether the words by their natural and ordinary meaning (see Chong Swee Huat & Anor v Lim Shian Ghee T/AL & G Consultants & Education Services [2009] 3 MLJ 665[2009] 4 CLJ 113 (CA)) or by innuendo ( Rajagopal v Rajan [1972] 1 MLJ 45Luk Kui Lam v Sim Ai Leng [1978] 1 MLJ 214Henry Ong Keng Sem v Patrick Ong King Kok [2008] 7 MLJ 569[2008] 4 CLJ 276; Ismail bin Shamsudin v Abdul Aziz bin Abdan and other suits [2007] 3 MLJ 512[2007] 8 CLJ 65; Kian Lup Construction v Hongkong Bank Malaysia Bhd [2002] 7 MLJ 283[2002] 7 CLJ 32. Only if these elements are established, then it can be said that prima facie the words are defamatory of the plaintiff. Only then would it become necessary to consider the defences and the plaintiff’s answers thereto.

The claim is premised on words or innuendos contained in: (a) the first defendant’s solicitor’s letter of termination dated 17 February 2003, and (b) the first defendant’s letter of complaint against the plaintiff to the Advocates & Solicitors Disciplinary Board dated 16 April 2004.

In the letter of termination, the offending words were: ‘Any and all money paid by COURTS to you with respect to the ‘226 files’ which has been wrongfully apportioned, appropriated and/or expended’.

[2010] 9 MLJ 363 at 368

In the letter of complaint, the words the plaintiff takes exception to the following:

3.Nature of Misconduct COURTS believes that Mr. Subramaniam is guilty of misconduct pursuant to Section 94 (3) of the Legal Profession Act 1976 for the reason set out below

3.1Refusing to provide Courts with the status reports and statements of account

(c)Payment of money by COURTS Pursuant to the abovementioned Bills/Invoices, COURTS paid a total of RM 655,777-00 to Mr. Subramaniam and/or Messrs. Adliza Subra And Partners as follows:

(d)Refusal to provide status report or statement of accounts Notwithstanding COURTS’ various request and demands, Mr. Subramaniam failed and refused to do the following:

(i)Failed and refused to provide COURTS informed of the various Matters.

(ii)Failed and refused to provide accounts showing how money paid by COURTS have been apportioned, Subramaniam and/ or Messrs Adfiza Subra And Partners.

(e)Demand for Status Report & Statement of Account COURTS did through its solicitors’ letter dated 22nd May 2003 demand from Mr. Subramaniam and Messrs Adliza Subra And Partners a written and complete status report of ail Matters (‘Status Report’) and a written and complete account of all money paid by COURTS to and received by Mr. Subramaniam and Messrs Adliza Subra & Partners (‘Statement of Account’).

(i)Instead of providing the Status Report and Statement of Account, Mr. Subramaniam and/ or Messrs Adliza Subra And Partners did via letters 26th May 2003, 29th May 2003 and 15th July 2003 refund RM 8,246-00 to COURTS. The particulars of the refund are sent out in Folio 3 of the Amended SOC (the relevant documents are found in the Complaint’s Documents-Bundle C).

(ii)Thereafter, Mr. Subramaniam and/ or Messrs Adliza Subra And Partners, did via a letter dated 20th August 2003 refund a further sum of RM422.50 to COURTS.

(f)Continued refusal to provide status report or statement of accounts However, Mr. Subramaniam and/or Messrs Adliza Subra And Partners continue to fail and refuse to provide COURTS with the Status Report and Statements of Account.

3.2Failure to exercise due diligence and/or provide proper legal service

(a)Wrongful conduct of court proceeding. Mr. Subramaniam and/or Messrs Adliza Subra & Partners has filed a suit for and on behalf of COURTS In [2010] 9 MLJ 363 at 369Johor Bahru Magistrate’s Court with A/E No. 76-387-2001 against one Norashikin Binti Radzali.

(i)Suddenly, by a letter