ROBIN LOH v. ROB SALAMON AND OTHERS

bjbj HCA001595/1978 Libel - plea of justification - particulars of justification - discovery of documents. IN THE HIGH COURT OF JUSTICE ACTION NO. 1595 OF 1978 BETWEEN ROBIN LOH Plaintiff ROB SALAMON 1st Defendant PACIFIC MAGAZINES LTD. 2nd Defendant GERALD A. DELIKHAN 3rd Defendant IAN VERCHERE 4th Defendant DAI NIPPON PRINTING CO. (H.K.) LTD. 5th Defendant PACIFIC MAGAZINES LTD. ----------------- Coram: Rhind, J. Date of Judgment: 31st. October. 80 ----------------- JUDGMENT ----------------- Ruling on an Application by the 1st, 2nd and 4th Defendants for an Order (i) that Plaintiff serves a verified Further and Better list of Documents and (ii) that Plaintiff files an affidavit stating whether certain specified documents or classes of documents are in his possession. The Plaintiff is a businessman who controls a conglomerate of companies based in Singapore and Hong Kong, whereas the 1st Defendant is a journalist and the deputy-editor of the monthly magazine, "Insight", which circulates throughout Asia and elsewhere. The 2nd Defendant is the publisher of that magazine, and the 4th Defendant, the editor. The 1st, 2nd and 4th Defendants will hereafter be referred to collectively as "the Defendants". In this action the Plaintiff complains that an article in the March, 1978 number of that magazine published by the Defendants libelled him. For present purposes there is no need to set out the full text of the article complained of which runs to approximately eight foolscap pages of typing. The article inter alia purports to describe the Plaintiff's business career and the business dealings and methods of the Plaintiff himself and some of the companies he controls. It also concerns itself with the state of the financial health of the Plaintiff and his companies. According to the Plaintiff's Statement of Claim, the article in its natural and ordinary meaning meant and was understood to mean:- that the Plaintiff is dishonest and a thief; that both the Plaintiff personally and the industrial conglomerate which he controls are at imminent risk of financial collapse and on the verge of bankruptcy; that the Plaintiff is obsessively concerned to avoid publicity because he fears that publicity would expose his numerous illicit and shady business dealings; that the Plaintiff has paid bribes to and/or entered into corrupt dealings with the Deputy Chairman of Singapore's Economic Development Board, the Deputy Prime Minister and Minister of Defence of Singapore and the President of Indonesia; that the Plaintiff together with General Ibnu Sutowo were guilty of fraud on a massive scale in connection with Pertamina; that the Plaintiff allowed Robina Department Store (Private) Limited to go into liquidation in callous disregard for the severe financial hardship thereby caused to the numerous creditors of that company; that the Plaintiff collaborated with the occupying enemy Japanese armies during the Second World War; that the Plaintiff is a close associate of a swindler in the shipping business named Rappaport; that the Plaintiff has falsely denied his humble origins as a taxi-driver in Singapore. Those meansings imputed by the Plaintiff to the article complained of fall into the category of what are generally known as "false innuendoes". They are the meanings he contends any average reader without specialised external knowledge would be likely to draw as a matter of inference from the terms of the article itself. He also pleads further or alternatively what purport to be "true innuendoes", which are the meanings likely to be understood by those with specialised inside knowledge not appearing in the article itself. Those "true innuendoes" are of no significance for the purposes of the present application. No separate submissions were made to me on them and no further reference needs be made to them in this ruling. Basically, the Defendants have pleaded two defences. The first by paragraphs 4 and 6 of the Defence is that the article is not capable of bearing the meanings attributed to it by the plaintiff. In other words, the Defendants maintain that the average reader would not read into the article the meanings specified in the "false innuendoes" (a) to (i) which I have set out above. No problem arises over that defence at this stage. It is the second defence which gives rise to the problems which have to be faced in the present application. This second defence, (which is principally in paragraph 5 of the defence) is intended to be to the effect that if the words complained of do in fact have a defamatory meaning, then they are true in substance and in fact. What this second defence amounts to is a plea of justification, so the learned Counsel for the Defendants assures me, and the application before me proceeded on the asumption by Counsel on both sides that it was a plea of justification. I express myself in these guarded terms because I am not necessarily persuaded that the words used in the Defendants' pleading do give rise to what is conventionally understood by "justification" in this branch of the law. The wording of the plea (para. 5(a) of the defence) is as follows:- " In so far as the said words (complained of) consist of facts, these defendants say that they are in their natural and ordinary meaning true in substance and in fact." My reservation about this plea stems from the circumstance that it leaves the position with regard to any words consisting of comment in nubibus, whereas my understanding of the conventional plea of justification is that it explicitly justifies both fact and comment. The difficulty with this plea is that it is neither in the standard form of a plea of justification, nor of fair comment, nor is it a "rolled-up" plea of both justification and fair-comment. However, as both counsel were happy to treat it as amounting to conventional justification for the purpose of the application before me, I will too. By choosing to plead the "false innuendoes" set out in para. 5 of his Statement of Claim, the Plaintiff has committed himself to an interpretation of the meaning of the words in the article he complains of. Having thus nailed his colours to the mast of a particular defamatory meaning, he has accepted the risk that if the jury disagrees with that interpretation of the words he is bound to succumb to the defence that the words do not bear the meaning he has attributed to them. Thus, the danger to a plaintiff in imputing a particular meaning to words is that if he is wrong, his case never gets past first base. The obverse side to the coin, though, is that by declaring a particular meaning for the words though his "false innuendoes", a plaintiff restricts a defendant to justifying the meaning of the words to the sense that the plaintiff has elected to assign to them. A defendant wishing to plead justification cannot simply ignore the meanings imputed by the plaintiff, and then proceed to justify in some other sense. He can, of course, deny that the words mean what the plaintiff says they do, but if he wants to justify, he can only do so on the basis that they mean what the plaintiff says. (See Gatley on Libel and Slander (7th Edition) at para. 1038). Thus, to justify in the present case, the Defendants would, for example, have to set about showing that the Plaintiff is dishonest and a thief or that he has paid bribes to or entered into corrupt dealings etc. as specified in the "false innuendoes". What the Defendants cannot do is contend that the words mean something else and then set about justifying that. A defendant pleading justification will be required to furnish particulars of such justification when called upon to do so by the plaintiff. Those particulars become part of the pleadings, and need to include instances of the allegations a defendant is purporting to justify. (See Gatley at para. 1047). If you wish to justify imputations of someone, for example, being a thief, you will need to particularize instances of when he stole, and likewise if it is a meaning of paying bribes you want to justify, then you need to set down the incidents of bribery you are referring to. (Arnold and Butler v. Bottomley [1908] 2 K.B. 151.) When it comes to trying to prove justification at the trial, a defendant who has given particulars in support of a plea of justification will not be entitled to refer to incidents other than those he has particularised. (Gatley 1094). It is important that a defendant should be circumscribed by the particulars that he has furnished because a plaintiff cannot be expected to come along ready to vindicate his whole life at the trial. The Defendants have filed a document entitled "Further and Better Particulars of the Defence". In that document there are two headings to the effect of "Particulars of Facts and Matters which the Defendants will rely on at the trial in support of their Plea of Justification". However, subject to one or two exceptions with which I will deal in due course, those particulars do not attempt to meet the imputations which the Plaintiff has attributed to the words complained of. May be some of those particulars might justify some different imputation, but that cannot assist the Defendants in the context of justification where the defence must justify in accordance with meanings set down in the Plaintiff's "false innuendoes". Such particulars as the Defendants furnished were prompted by a request for Further and Better Particulars of the Defence by the Plaintiff. If, as everyone now seems willing to assume, the defence is one of justification, the Plaintiff's request for Further and Better Particulars should ideally have taken the form of asking the Defendants what facts they relied on in support of their justification of their allegations against the Plaintiff. For example, one might normally have expected the Plaintiff to ask, in the face of a defence of justification, what facts the Defendants relied on in support of the allegation that the Plaintiff is dishonest and a thief. Likewise, a similar request should have been made in respect of the allegations on each and every one of the "false innuendoes". The matter was not approached in that way, however. Instead, the Plaintiff asked the defendants to give "full particulars of all facts and matters relied on in support of the allegation that the said words are in their natural and ordinary meaning true in substance and in fact". Anyway, what the Plaintiff got in response to that was the Defendants' document with their "Particulars of Facts and Matters in support of their Plea of Justification" already referred to. As best I can, I have tried to marry up such particulars as the Defendants have given with the specific meanings imputed by the Plaintiff in his "false innuendoes". My task would certainly have been made easier if the defence had adopted the approach of trying to justify each of the false innuendoes seriatim. Besides the Defendants' Further and Better Particulars already referred to, there is yet another document which is described as the Defendants' Further and Better Particulars of the Further and Better Particulars. There is no need to treat the contents of the two documents separately, and I will simply refer to their combined content as "the Further and Better Particulars". Nowhere in the Further and Better Particulars are there any references to any specific instances, incidents, or circumstances which offer even a glimmering of justification for any of the following "false innuendoes" which the Plaintiff pleaded:- that he is dishonest and a thief; that he has paid bribes to and/or entered into corrupt dealings with the Deputy Chairman of Singapore's Economic Development Board etc.; that he together with General Sutowo was guilty of fraud on a massive scale in connection with Pertamina; that he collaborated with the occupying enemy, Japanese armies during the Second World War; that he is a close associate of a swindler in the shipping business named Rappaport. With regard to false innuendo (f) i.e. "that the Plaintiff allowed Robina Department Store (Private) Ltd., to go into liquidation in callous disregard for the severe financial hardship thereby caused to the numerous creditors of that company", the defence particularised two sets of circumstances which might go some way towards justifying this allegation. One was that the audited profit and loss accounts and balance sheets of the Plaintiff's Robina Department Store of the years ending 31st December, 1973 and 31st December, 1976 respectively disclosed that the company appeared to have been unable to meet its liabilities as and when they would fall due, and the other was that in an auditor's report to the members of Robina Department Store (Private) Ltd., dated 13th January, 1976 it was reported that the company appeared insolvent. Those specific problems of Robina Department Store (Private) Ltd., might also serve towards justifying "false innuendo" (b) "that both the Plaintiff personally and the industrial conglomerate which he controls are at imminent risk of financial collapse and on the verge of bankruptcy." Also the specific information given by the defence that the Plaintiff's company Robin Construction (Private) Ltd., borrowed $15.3 million in 1975 and was unable to meet its liabilities that year according to Companies Registry records might also help justify (b). An item which had a bearing on the financial position of the plaintiff and his conglomerate was the claim made against the Plaintiff's company Ednasa Ltd., by the Sanko Steamship Company of Japan. There was no lack of precision about this item, but it lacked relevance to the "false innuendoes". By establishing that Ednasa Ltd. had to pay out $8 million to Sanko does not tend towards justifying false innuendo (b) or any of the other innuendoes. There are particularised instances given by the defendants which could justify the opening part of (c) to the effect that "the plaintiff is obsessively concerned to avoid publicity" but nothing to support the concluding part "because he fears that publicity would expose his numerous illicit and shady business dealings". For completeness a word should be said about false innuendo (i), namely that the Plaintiff has falsely denied his humble origins as a taxi driver in Singapore. Specific material in justification of that allegation was furnished by the defendants both in their Particulars and in paragraph 8 of the defence. Other than the material I have just identified the rest of the content of Defendant's Further and Better Particulars is too vague or inconclusive to ground justification. As I have already mentioned, the particulars of justification form part of the pleadings in the case and they serve to delimit the issues which will arise at the trial. If there are no particulars to justify the meaning imputed by a "false innuendo", then justification of that meaning cannot arise as an issue or question in the case. Whether the words meant what the Plaintiff contended they meant will have arisen as an issue, but, if that issue is resolved in his favour, he is bound to win when his opponents' pleading consists of nothing more than an assertion of justification unsupported by particulars. At least in so far as false innuendoes (a), (d), (e), (g), (h) and part of (c) are concerned, the Plaintiff is bound to succeed in his action provided he can persuade the jury that the words mean what he contends they mean, the Defendants' absence of particulars to justify these "false innuendoes" necessarily bringing about the result that a plea of justification for them cannot arise at the trial. Which documents the Plaintiff is required to discover for the purpose of the trial is linked to the questions which will arise at the trial in the light of the pleadings. (0.24 r. 7(3) and Gatley at para. 1126). As demonstrated, the only issues at the trial on the pleadings as they stand are whether the words bear the "false innuendoes" attributed to them by the Plaintiff, and whether the Defendants can justify the "false innuendoes" (b), (f), (i) and part of (c), which are the only ones enjoying the benefit of particulars. The general rule in discovery that a party must disclose any document which it is reasonable to suppose contains information which may enable the other party either to advance his own case or to damage that of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences (Compagnie Financiere v. Peruvian Guano Co., 1882 11 Q.B.D.) gives way in libel cases where justification is pleaded to the special principle that the plaintiff needs only discover documents relating to incidents by way of justification which the defendant has already particularised. (Gatley, para. 1124). What the Defendant is never allowed to do is to rely on the discovery procedure to furnish him with his particulars of justification. (Gatley, para. 1097). Unless the Defendant has already particularised an incident by way of justification there will not be a question arising in the action in relation to that incident, so the Plaintiff is not obliged to discover documents in his possession relating to that incident. (See Gatley at para. 1048 and White Book 18/12/16A and 24/2/4). The law on this point is quite clear: if you choose to defame someone you must have your material by way of justification readily to hand from the out-set because the law will not assist you to get it at a later stage from your opponent. Zierenberg v. Labouchere [1893] 2 Q.B. 183. A similar policy is to be discerned in the analagous situation of interrogatories where the law prohibits "fishing interrogatories". (Gatley 1144 and 1162.) 0.26 (1)(a) relating to interrogatories shares the similarity with 0.24 r.7(3) relating to discovery that each of the two processes is limited to "the matter in question in the cause". (See also White Book 26/1/10). So far, besides some routine documents and a bundle of contracts made between "Pertamina" and a company called Pacific Associates Inc., the only voluntary discovery made by the Plaintiff has been of the audited accounts of Robina Department Store (Private) Ltd., for 1973 and 1976, and an auditor's report to the members of Robina Department Store (Private) Ltd. It will be recalled that the Defendants specifically cited those documents of Robina Department Store (Private) Ltd., in their Further and Better Particulars. Now, by their present application for further discovery, the Defendants are asking the court to assist them in what is effectively a massive trawling operation to see what particulars by way of justification can be brought to light. There has been no attempt made by the defence to conceal their objective. In brief what the Defendants seek are:- the audited accounts for the period 1972 to 1976 of eighteen of the Plaintiff's companies, plus the audited accounts of all his other Singapore companies and of all his shipyards; (ii) all Plaintiff's contracts and correspondence relating to Pertamina between 1973 and 1976; (iii) all contracts of sale of Plaintiff's ships between 1973 and 1976; (iv) all correspondence from 1975 to 1978 relating to Pertamina between Plaintiff's named business concerns and the following:- Overseas Chinese Banking Corp.; Singapore Economic Development Board; Mr. Tang-I-Fang; Mr. Gog Keng Swee; Ibnu Sutowo; Major-General Piet Harjono; Mr. J.B. Sumarlin; Bruce Rappaport; Tanker International. All documents in the action in 1975 in Hong Kong between Sanko Steamship and Ednasa Ltd.; (vi) All standard employment contracts of high ranking officials and employees of the named business concerns between 1976 to 1978. On a very narrow base of particulars which the Defendants have supplied themselves, they now ask for help in building a vast edifice of information. I am satisfied that the defence has failed to show cause generally why the Plaintiff should file a further and better list so that part of the Defendants' application is dismissed. There is no reason to suppose generally that the Plaintiff has kept back material he ought to disclose. It is only where the Defendants have, first of all, come up with adequate particulars by way of justification that a duty would arise for the Plaintiff to supplement those particulars by discovering documents in his possession. As I see the position, the only particulars filed by the Defendants which do in fact entitle them to any further discovery are those relating to Robina Department Store (Private) Ltd., and Robin Construction (Private) Ltd. The Defendants' particulars have laid a sufficient ground-work to show that those companies of the Plaintiff's were in financial difficulties. In the terms of the Defendants' application, I will order the Plaintiff to file an affidavit stating whether he has audited profit and loss accounts and balance sheets for Robina Department Store (Private) Ltd., for each of the years 1972, 1974 and 1975. The documents for 1973 and 1976 have already been discovered. For Robin Construction (Private) Ltd., I direct that the affidavit will state whether he has audited profit and loss accounts and balance sheets for 1972 to 1976. I will allow the Plaintiff fourteen days from the date of this Order to file his affidavit. Although the Defendants have furnished some particulars to justify the part of "false innuendo" (c) that the Plaintiff is obsessively concerned to avoid publicity, I do not regard them as sufficient to ground the defence application for discovery of all standard employment contracts of the Plaintiff's high ranking officials and employees. The reason the Defendants want them is to see whether they contain clauses forbidding the Plaintiff's employees from divulging information to outsiders about the Plaintiff. Asking for such contracts is in the nature of "fishing" by the Defendants so it cannot be permitted. It would have been different if the Defendants had named who the employees were they had in mind and had identified the contracts, accurately setting out the terms of the clauses they have in mind. (See The Metropolitan Saloon Omnibus Company (Limited) v. Hawkins (1859)4 H and N 792 at 794). It is not good enough for the Defendants to speculate that the Plaintiff's employees have such contracts, and then ask the Plaintiffs to furnish the material to prove it. The false innuendo (i), "that the Plaintiff has falsely denied his humble origins as a taxi driver in Singapore", in respect of which the Defendants have furnished some particulars, does not lend itself to discovery. (J.J. RHIND) Judge of the High Court Representation: PAGE PAGE PAGE - &`#$ &`#$ HCA001595/1978 ROBIN LOH v. ROB SALAMON AND OTHERS Normal YANGLX Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA001595/1978 ROBIN LOH v. ROB SALAMON AND OTHERS Title Microsoft Word Document MSWordDoc Word.Document.8 HCA001595/1978 ROBIN LOH v. ROB SALAMON AND OTHERS Normal YANGLX Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA001595/1978 ROBIN LOH v. ROB SALAMON AND OTHERS Title