When Does a Defamation Claim Become an Abuse of Process?

Client Update: Singapore 2017 OCTOBER

Dispute Resolution

Introduction

Defamation as a tort can cover a variety of forms of publication and size of the group of publishees - defamatory statements may be contained in public media releases or private letters, or may simply be made in a speech to the masses or in private conversations with a few persons. However, are there situations where a defamatory publication is deemed to be so trivial that it warrants the striking out of a claim without allowing the defamed party the right to prove his case at trial? This was the question faced by the Singapore High Court in the case of Chan Boon Siang and others v Jasmin Nisban [2017] SGHC 249.

The Plaintiff was successfully represented in this case by Lau Kok Keng, Chia T-Chien and Daniel Quek of Rajah & Tann Singapore LLP.

Brief Facts

The Plaintiff was, at the material time, the Treasurer of the Singapore Chess Federation (“SCF”). Between November 2015 and January 2016, a letter addressed to “Esteemed Friends of the Chess Community” was circulated to and signed by some 51 individual and affiliate members of the SCF. The letter sought the support of members of the SCF to requisition an Extraordinary General Meeting in order to pass votes of no-confidence against each and every member of the Executive Committee, including the Plaintiff. The letter contained statements which were defamatory of the Plaintiff, in that it alleged that a former female SCF trainer had resigned due to an incident involving “two Council members” and “sexual misconduct in the premises of SCF”. The letter then identified the Plaintiff as one of “the two Council members implicated”.

The letter was sent to the Executive Committee with a view to having it convene an Extraordinary General Meeting of members on the basis of the contents of the letter. After seeing the letter, the Plaintiff then wrote to the 51 signatories to request that they dissociate themselves from statements therein which were defamatory of the Plaintiff. 39 of the signatories refused to do so, leaving the Plaintiff with no option but to commence proceedings for libel against them.

The Defendants then applied to strike out the action on the basis that it amounted to an abuse of process. The Defendants sought to establish the proposition that, where a defamatory publication was to only a limited audience which would not have believed what was published anyway, and the costs of allowing the matter to proceed to trial would be disproportionate to any damages which may be recovered by a successful plaintiff, the action should not be permitted to proceed further and should instead be struck out for being an abuse of process.

The Deputy Registrar in the State Courts agreed with the Defendants and struck out the Plaintiff’s claim on that basis. The Plaintiff appealed successfully to the District Judge, who reinstated the action. The Defendants then appealed to the High Court against the decision of the District Judge.

Client Update: Singapore 2017 OCTOBER

Dispute Resolution

Holding of the High Court

The High Court dismissed the Defendants’ appeal, upholding the decision of the District Judge and allowing the Plaintiff’s claim to continue.

Striking out principles

An action may be struck out before trial on a number of grounds. As provided in O18 r19(1) of the Rules of Court, this includes situations where:

(i) There is no reasonable cause of action or defence; or (ii) It is an abuse of the process of the Court.

In applying to strike out the Plaintiff’s claim, the Defendants relied primarily on an English Court of Appeal case, Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (“Jameel”). The Defendant submitted that Jameel was authority for the proposition that where a defamation action is so trivial or pointless such that it would be disproportionate to permit it to proceed it any further, such an action would be struck out for an abuse of process of the court as the action does not amount to a “real and substantial tort”.

In Jameel, the Court struck out a libel claim where the alleged libel had been published on the internet, but had only been read by 5 people in the UK, 3 of which were associates of the plaintiff. The Court was of the opinion that the plaintiff was forum shopping. Further, the Court relied on certain legal developments in the UK which emphasized the balance of the freedom of expression with the protection of individual reputation. It was in this context that the Court considered whether “the game was worth the candle”.

In Chan Boon Siang and others v Jasmin Nisban however, the Singapore High Court pointed out that although the court’s resources ought not to be used for the pursuit of trivial or pointless claims, each case must be determined on its own facts. Jameel cannot be taken to be an exception to O18 rule19(1), nor does it represent the law on striking out in itself. Ultimately, whether there is an abuse of process of the court is dependent on the facts of each case.

On the facts

In the present case, the Court found that the letter was prima facie defamatory, as it referred to the resignation of a female staff and stated that it involved sexual misconduct with certain individuals implicated. The justification of the letter, and whether damages would be substantial or minimal, would be matters for trial. As such, the case could not be regarded as an abuse of process.

The Court also found the argument that the only recipients of the letter were the Executive Committee members and the administrative staff to be relevant only at the assessment of damages stage, after liability has been established. In any event, the Court accepted that plaintiff’s argument that it was by no means certain at this stage as to how many others may have read the letter, but did not sign it. The Defendants’ argument that the recipients of the letter would not have believed in the defamatory statements therein was considered by the Court to be “speculative”.

Client Update: Singapore 2017 OCTOBER

Dispute Resolution

Concluding Words

The merits of a defamation case are highly fact-centric, with each case involving its own unique set of facts and circumstances. The High Court in Chan Boon Siang and others v Jasmin Nisban declined to adopt Jameel as a rule of law, despite its application in other Singapore defamation cases such as Kesavan Engineering & Construction Pte Ltd v S P Powerassets Limited [2011] SGDC 179, Yan Jun v Attorney General [2015] 1 SLR 752 and Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] 4 SLR 977. Instead, the High Court highlighted the fact-specific nature of defamation suits, and the striking out principles under Order 18 rule 19(1). Once publication of prima facie defamatory statements is established, whether there is substantial or minimal damage arising from such publication are matters for trial, and the plaintiff cannot be prevented from seeking redress and justice by having his claim struck out as an abuse of process.

For further queries, please feel free to contact our team below.

Contacts

Lau Kok Keng Chia T-Chien Head, Intellectual Property, Associate Sports and Gaming D +65 6232 0754 D +65 6232 0765 F +65 6428 2140 F +65 6428 2118 [email protected] [email protected]

Daniel Quek Associate

D +65 6232 0758 F +65 6428 2109 daniel.quek @rajahtann.com

Please feel free to also contact Knowledge and Risk Management at [email protected]

Client Update: Singapore 2017 SEPTEMBER

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Client Update: Singapore 2017 SEPTEMBER

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