Is The Game Worth the Candle


Vijay Raj discusses a novel application of the principle of proportionality in defamation suits


Defamation suits seem to be on the rise, perhaps due in part to the increased opportunity of publishing words on the internet, and in hardcopy through the aid of printers.

However in the case of Naza Kia Sdn Bhd v Eco Oto (M) Sdn Bhd & Anor (Civil Suit No. S–22–392–2008), the Kuala Lumpur High Court held last year that:

“The bringing of a suit by the Plaintiff as a claimant who had suffered no or minimal damage to his reputation might constitute an interference with freedom of expression that was not necessary for the protection of the Plaintiff’s reputation …”

In that case, the Plaintiff sued the Defendants for defamation that they alleged arose from a letter written by the Defendants to the then Minister of Finance I that was resent to the then Minister of Finance II. In that letter, the Defendants complained about the Plaintiff after the latter refused to pay for services rendered by the 1st Defendant, despite repeated requests.

The Defendants made a number of allegations in the letter that the Plaintiff was unhappy about. The Defendants said that they had no choice but to write the letter because they had exhausted all avenues in seeking payment, barring court action.

The Defendants also said that since they had done the work in relation to a project that was launched by the then Minister of Finance II, it was appropriate that they should raise the matter of non-payment before the same Minister prior to commencing court proceedings.

As it turned out, the letter was unhelpful and it became necessary for the 1st Defendant to commence a civil suit to recover the debt. The debt recovery suit was commenced shortly after the defamation suit. After a trial involving many witnesses, it was adjudged in the debt recovery suit that the payment claimed by the 1st Defendant was in fact due to them.

The Defendants contended in the defamation suit which remained pending after the disposal of the debt recovery suit, that having regard to all the facts, even if some of the statements in the letter may be considered defamatory, the damage to the Plaintiff’s reputation was minor or minimal and therefore, that a summary and immediate dismissal of the defamation suit was warranted. It appears that such a proposition was hitherto unsupported by any case law in Malaysia.

The Defendants’ argument was a novel proposition in defamation claims in Malaysia as the law seemed to allow a plaintiff to prosecute till the end a claim for defamation even if the damage to reputation was minor or minimal, so long as some ground existed to support the contention that, from an objective point of view, the plaintiff’s reputation had been lowered in at least one person’s mind.

The learned High Court Judge, Dato’ John Louis O’Hara, accepted the Defendants’ contention as well as the English cases that were cited in support of the contention and struck out the defamation suit summarily without requiring a trial to be had. In so doing, His Lordship, amongst others, held as follows:

“The Plaintiff argues that this suit should go for trial. I reject the Plaintiff’s argument that I should not strike out the Plaintiff’s claim because if I did so, it would deprive the Plaintiff of his right that the suit should go for trial. And I am obliged to ask the same question that Justice Eady asked in Schellesiberg v British Broadcasting Corporation … in regard to the requirement for proportionality that is whether “the game is worth the candle”, which Lord Phillips MR answered in Jameel (Yusoef) … that “the game will not merely not have been worth the candle, it will not have been worth the wick”. Therefore to allow the Plaintiff’s claim to go on to trial would be a clear abuse of process in view of the findings of (the High Court in the debt recovery suit).”

In one of those English cases, that is Jameel (Yousef) v Dow Jones & Co Inc [2005] 2 WLR 174, a claimant from outside England commenced defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an internet website in the USA, which was available to subscribers in England.

The claimant alleged that the article and a link referred in it implied that he had been involved in a terrorist organization. The publisher said that only five subscribers within England read article, and therefore, that the claimant had suffered no or minimal damage to his reputation.

The claimant though disputing that only five subscribers had read the article, accepted that there had not been many readers of the article in England. The English Court of Appeal held that the defamation proceedings were an abuse of court process since, amongst others, the damage to the claimant’s reputation was insignificant.

In arriving at its decision, the English Court of Appeal also considered other areas of English law and procedure that, at first blush, may not correspond to local law and procedure. However, those differences do not seem to warrant a different conclusion about summarily striking out a defamation suit in Malaysia that is disproportionate to the damage suffered, and certainly the Kuala Lumpur High Court in Naza Kia did not think so.

Jameel was recently applied by the English Court of Appeal in Khader v Aziz & Ors [2010] EWCA Civ 716 where the claimant’s defamation proceedings was struck out because it was held that even if the claimant were to succeed at trial:

“She would at best recover minimal damages at huge expense to the parties and of court time. This would be so, even if she and those representing her were to adopt for the future a hitherto elusive economical approach to the amount of paper and time which the case might need. As things are, the parties’ expenditure must vastly exceed the minimal amount of damages which the claimant might recover even if she were to succeed in overcoming all the obstacles in the path of such success. The judge was correct to conclude that this claim is disproportionate and that it should be struck out as an abuse.”

The English cases mentioned above were reported in the years 2000, 2005 and 2010 respectively, and are therefore relatively recent decisions of the English courts when compared to the law relating to defamation that dates back to more than 150 years. The relevance of the English law of defamation in Malaysia was after all obvious long ago when the Kuala Lumpur High Court in Abdul Rahman Talib v Seenivasagam & Anor [1965] 31 MLJ 142 observed that the law of defamation in Malaysia was for all intents and purposes the same as the law of defamation in England.

It does not therefore seem out of place to welcome the decision of the Kuala Lumpur High Court in Naza Kia where the principle of proportionality has been applied for the first time to defamation claims in Malaysia. A wider adoption of this principle will sieve out claims that are founded on insignificant damage to reputation, leaving the courts to devote their time and resources to more important claims that merit the courts’ attention.

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Editor’s Note: The Plaintiff in Naza Kia appealed to the Court of Appeal against the striking out, but the appeal did not proceed as the matter was settled on terms agreed by the parties and without admission as to liability by either. The judgment in the Defendants’ debt recovery suit can be found at [2010] MLJU 1192.



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