The issuance of an internal email warning about the plaintiff's legal practices constituted a legitimate risk management measure, not defamatory, supported by qualified privilege and justification.

Nantha Balan JCA:

INTRODUCTION

[1]ÂÂThere are two inter-related appeals before us, namely, Civil Appeal No P-02(NCvC)(W)-2112–11 of 2022 (‘Appeal 2112’) and Civil Appeal No P-02(NCvC)(W)-2197–11 of 2022 (‘Appeal 2197’). The appeals arise from the decision of the learned judicial commissioner (‘JC’) of the High Court at Penang dated 27 October 2022 (‘the said decision’) delivered after full trial in Suit No PA-23NCVC-11–02 of 2018. We shall refer to this suit as the ‘defamation suit’.

[2]ÂÂAlthough these appeals arise from a defamation suit, it was necessary for us to make copious reference to two running down actions namely, Georgetown Magistrate Suit No PA-A73KJ-513–06 of 2017 (‘Georgetown Suit’) and Kulim Sessions Court Suit No A53KJ-126–07 of 2017 (‘Kulim Suit’) which are inextricably connected to the filing of the defamation suit. The Kulim Suit was originally filed as Mahkamah Majistret Bandar Bahru Saman No A73KJ-39–09 of 2015. By an order of the Kulim Sessions Court dated 12 July 2016, the case was transferred to the Kulim Sessions Court and registered as Suit No A53KJ-126–07 of 2017.

[3]ÂÂThe common thread in the Georgetown Suit and in the Kulim Suit is that the plaintiff acted for the third-party claimant in both these running-down actions. And in both suits, the motor-vehicles which were allegedly involved in the motor-vehicular accidents which gave rise to the filing of the Georgetown Suit and the Kulim Suit, were insured by the third defendant. Thus, this judgment refers to the background facts for both these running-down actions in some detail to give context to the legal issues arising therefrom. Consequently, we were compelled to make some general observations about the law and practice of running-down actions and the motor insurer’s statutory liability to pay when judgment is entered against their insured.

[4]ÂÂThe first defendant and second defendant are employees of the third defendant. The defamation suit is predicated on an email dated 15 December 2017 (‘the impugned email’) which was authored by the first defendant and tacitly condoned (or at any rate, not objected to) by her superior, the second defendant. According to the plaintiff, the third defendant, qua employer of the first defendant and defendant, is vicariously liable for their actions vis a vis the impugned email. The impugned email, which was published internally to employees of the third defendant and also to a few of their panel solicitors who regularly handled insurance (running down) cases, reads as:

Subject: Subramaniam Shafiq

It has come to our attention that the above lawyer is assessing claims without the defendant lawyers appointed. If you do come across such situations, please enquire with the court interpreter who are the insurers and to go on record if Allianz are the insurers on record.

We require your help in the above. (Emphasis added.)

[5]ÂÂAt its core, the impugned email alleges that the plaintiff is conducting assessment of damages without the presence of the lawyers who would ordinarily have been appointed by the insurers to act for and on behalf of their insured (defendants).

[6]ÂÂThe plaintiff claimed that the impugned email conveyed defamatory imputations and the defamatory meanings are as stated in paras [86] and [87] of this judgment. As such, the plaintiff claims that his reputation as a senior advocate and solicitor had been irreparably tarnished.

THE HIGH COURT ORDER

[7]ÂÂAfter a full trial, the JC found the impugned email to be defamatory of the plaintiff and rejected the defences of justification and qualified privilege. Thus, the JC allowed the plaintiff’s claim and ordered the defendants to pay RM300,000 as general damages (including aggravated and exemplary damages) with interest at 5%pa from the date of filing of the writ until full settlement, and an injunction restraining the defendants (or their agents) from repeating or publishing the said libellous statements of and conc