Malaysian High Court Strikes Out Defamation Suit Against Lawyers, Upholding Absolute Privilege for Inter-Solicitor Letter

Introduction

In a ruling emphasizing the protection of legal communications during ongoing litigation, the High Court of Sabah and Sarawak struck out a defamation claim filed by a Kuala Lumpur law firm against Sarawak-based advocates. Judicial Commissioner John Lee Kien How @ Mohd Johan Lee allowed the defendants' application under Order 18 rule 19 of the Rules of Court 2012, finding the disputed letter neither defamatory nor actionable due to absolute privilege. The case arose from disputes between companies Expro Marine Sdn Bhd and Amalgamated Plant Engineering Sdn Bhd (APE), highlighting tensions in cross-jurisdictional legal practice.

Case Background

The dispute originated from commercial agreements between Expro Marine and APE, leading to arbitration in Kuala Lumpur and court proceedings in Sarawak. Messrs Lo & Partners, a Sarawak firm, initially represented Expro Marine in an originating summons for interim relief under the Arbitration Act 2005, which was dismissed by the Bintulu High Court on December 10, 2020, with costs. Expro Marine appealed to the Court of Appeal, where solicitors from Messrs Ong, Ric & Partners (the 1st plaintiff) briefly took over before reverting to Messrs Lo & Partners.

On July 12, 2021, a Zoom meeting involving APE, Expro Marine, and Petronas Carigali discussed compliance with a Court of Appeal order favoring Expro Marine. Partners from Ong, Ric & Partners (the 2nd and 3rd plaintiffs) attended as "supervising solicitors" without prior notice to APE's counsel, Thomas Shankar Ram & Co (the 1st defendant). On July 15, 2021, the 1st defendant issued a letter to the plaintiffs and others, criticizing their conduct as improper, unprofessional, and in breach of etiquette rules, alleging unauthorized practice in Sarawak.

The plaintiffs sued for libel, claiming the letter defamed their professional reputation. The defendants sought to strike out the writ and statement of claim, arguing no reasonable cause of action, scandalous pleadings, defects, and abuse of process. Key questions included whether the letter's words were defamatory, protected by absolute privilege, and if the claim complied with pleading rules.

Arguments Presented

The plaintiffs argued their claim disclosed a prima facie defamation suit, alleging the letter imputed serious professional misconduct and malice. They contended the pleadings met Rules of Court requirements, denied absolute privilege (claiming unnecessary carbon copies), and rejected abuse of process, asserting no evidence of ulterior motives.

The defendants countered that the letter, an inter-solicitor correspondence issued on APE's instructions amid ongoing disputes, bore no defamatory meaning in its natural or contextual sense. They invoked absolute privilege as the letter was ancillary to judicial and arbitral proceedings. The claim was scandalous, frivolous, and vexatious, lacking prospects of success and aimed at retaliating against APE's separate suits and complaints against the plaintiffs. They also highlighted defective pleadings under Order 78 rule 3, failing to particularize innuendos, and labeled the suit an abuse of process to harass APE's advocates.

Legal Analysis

The court applied the test from Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, striking out only "plainly and obviously unsustainable" claims without detailed factual inquiry. It ruled the words lacked defamatory meaning per Chok Foo Choo @ Chok Ke Lian v The China Press Sdn Bhd [2001] 4 CLJ 282, analyzing their ordinary sense, context, and threshold of seriousness from Gatley on Libel and Slander (12th Ed), finding no imputation of dishonorable conduct.

Alternatively, absolute privilege applied under Lincoln v Daniels [1962] 1 QB 237, covering statements in judicial proceedings, extended to ancillary documents like the letter, which was issued coram judice for ongoing APE-Expro disputes. Local precedents such as S Ashok Kandiah v Dato’ Yalumallai Muthusamy [2007] 6 MLJ 513 and Hock Peng Realty Sdn Bhd v Ting Sie Chung [2009] 4 MLJ 845 affirmed protection for advocates' communications to prevent "flank attacks." The court distinguished from qualified privilege, noting absolute immunity even for malicious statements.

Pleadings were defective under Order 78 rule 3 ROC 2012, lacking particulars for innuendos ( Big Blue Taxi Facilities Sdn Bhd v Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2015] 1 LNS 123). The suit abused process per Indah Desa Saujana & Ors v James Foong Cheng Yuen [2014] 4 CLJ 379, as a tactical retaliation, with limited publication justifying dismissal under Dow Jones & Co Inc v Jameel [2006] EWCA Civ 1694, adopted in Chan Tse Yuen & Co v Yap Chin Gaik [2019] 2 LNS 108.

Key Observations

• "The words complained of, based on their natural and ordinary meaning or innuendo, do not bear any defamatory meanings... the meanings or imputations alleged by the Plaintiffs are not capable of being defamatory because they do not meet the necessary threshold of seriousness required." (Para [38])
• "Absolute privilege attaches to statements made in the course of judicial proceedings... to ensure that judges and others engaged in the administration of justice should be free from the fear of proceedings." (Para [44], citing Lincoln v Daniels )
• "The impugned letter... was issued in the course of legal proceedings and/or ancillary to the legal proceedings between APE and Expro Marine;... ought to be absolutely privileged to protect the advocates... from a flank attack." (Para [54])
• "The non-compliance of this O 78 r 3(1) is fatal to the plaintiff’s case." (Para [58], referencing Big Blue Taxi Facilities )
• "Such minimal publication is petty and hence must be dismissed... it would be an abuse of process for this case to go for trial." (Para [74], citing Jameel )

Court's Decision

The court allowed the defendants' application, striking out the plaintiffs' statement of claim and canceling the writ under Order 18 rule 19(1)(a), (b), (c), and (d) ROC 2012, with costs. This upholds robust protections for lawyers' communications in litigation, shielding inter-solicitor letters from defamation suits if ancillary to proceedings, even if critical. It discourages retaliatory claims, promoting efficient justice administration, and may deter cross-jurisdictional overreach without ad hoc permissions, affecting future disputes involving multiple Malaysian jurisdictions.