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Shielding Defamation: Absolute Privilege In The Courtroom

In the realm of legal proceedings, a powerful shield known as absolute privilege stands guard, providing robust protection to statements made within the confines of the courtroom. This doctrine which deeply rooted in the principles of justice and free speech, grants immunity from defamation claims to individuals involved in judicial proceedings. Amidst this legal landscape, a pivotal question arises: Can one truly speak freely within the courtroom or does the shadow of defamation liability loom large? The Court of Appeal case of Kinta Riverfront Hotel & Suites Sdn Bhd v Chang Yoke Yee & Anor [2023] 1 MLJ 84 delves into this very realm.



The first respondent (a businesswoman) and the second respondent (a senior lawyer), were embroiled in an incident at the appellant’s hotel. A man, claiming to be the businesswoman's husband, gained access to the respondents’ room and assaulted them. Legal action ensued, with the respondents filing a negligence suit against the appellant. However, the plot thickened as the appellant retaliated within its statement of defense, alleging adultery by the respondents.


Subsequently, the appellant filed an application to strike out the suit on the ground that the impugned defamatory averments in the statement of defence were protected by absolute privilege. The High Court allowed the striking out application of the appellant but upon appeal, the Court of Appeal reversed the decision. The Court of Appeal was of the view that the issue whether the appellant was entitled to the defence of absolute privilege should be decided by the High Court after a full trial.


High Court

During the trial, the respondents categorically denied committing adultery in their testimony. Their denial faced little challenge during cross-examination by the appellant’s counsel. The burden to prove the defence of justification was on the appellant. However, no witnesses were called on behalf of the appellant either. Thus, the defence of justification failed. The defence of fair comment also failed as the fact of adultery was not proven.


The High Court recognised that the defence of absolute privilege is afforded by the common law concerning defamatory statements made during court proceedings. However, the High Court was of the view that the defence of absolute privilege is not without limitation and commented:

“In my mind, the requirement of relevance and good faith as a proviso to the defence of absolute privilege specifically in judicial proceedings is of utmost importance. This is to avoid possible instances where a party may be improperly and maliciously harassed with irrelevant, scandalous, malicious, libellous or slanderous defamatory statements guised in the blanket form of a statement made in the course judicial proceeding by the other party.”


Having found that the defamatory averments in the statement of defence were of no particular relevance to the initial suit, which was based on the tort of negligence and were made maliciously and in bad faith, the High Court held that the appellant was not protected by absolute privilege and entered judgment for the respondents.


Court of Appeal

The central issue before the Court of Appeal was whether the appellant was entitled to rely on the defence of absolute privilege.

Referring to the established legal principles from both English and Malaysian cases, the Court of Appeal held that despite the impugned averments being irrelevant, reckless and perhaps malicious, they were made within the four corners of a court proceeding. As such, the Court of Appeal ruled that the defence of absolute privilege can be availed by the appellant. In light of this, the Court of Appeal set aside the High Court's decision.


The rule of absolute privilege, as has so often been pointed out, ensures that judges and others engaged in the administration of justice can proceed without fear of proceedings and the vexation of defending actions. It allows for unencumbered and free discourse within the legal arena.


This case reinforces the principle that statements made within court proceedings are granted a broad and unqualified shield of absolute privilege. It dispels any notion that this privilege can be diminished by considerations of relevance or alleged malice. The key determinant is that the statements are made within the legal arena.


In the landmark case of Lincolns v Daniels [1961] 3 All ER 740, the English Court of Appeal unequivocally affirmed that the defence of absolute privilege extends to all pleadings for the purpose of court proceedings.


“The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence.


The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings.


The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor.”


Similarly, in the case of S Ashok Kandiah & Anor v Dato’ Yalumallai @ Ramalingam s/o Muthusamy & Anor [2010] MLJU 2218, the Court of Appeal held as follows:


“ It is ideal to remember that the legal consequence of absolute privilege is this. That whether the words are relevant or irrelevant, true or false, malicious or bona fide, the action must be regarded as baseless and frivolous.”


The misdirection by the High Court in the Kinta Riverfront Hotel & Suites case serves as a resounding reminder that the sanctity of legal proceedings is paramount. The Court of Appeal’s decision unequivocally reinforces the notion that once one is within the confines of court proceedings, the shield of absolute privilege prevails and statements are impervious to considerations of relevance or good faith.

29 March 2024


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