Basil Anthony Herman v Premier Security Co-operative Ltd

• Jurisdiction: Singapore
• Judgment Date: 07 April 2010
• Date: 07 April 2010
• Docket Number: Civil Appeal No 128 of 2009
• Court: Court of Appeal (Singapore)

Basil Anthony Herman

Plaintiff

and

Premier Security Co-operative Ltd and others

Defendant

[2010] SGCA 15

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 128 of 2009

Court of Appeal

Civil Procedure—Costs—Costs when reasons for ordering new trial substantially attributable to conduct of one party—

Civil Procedure—Order 14 r 12 Rules of Court (Cap 322, R 5, 2006 Rev Ed)—When preliminary determination of natural and ordinary meaning of defamatory words appropriate—

Civil Procedure—Witnesses—Calling witnesses to give evidence-in-chief orally—Stage of proceedings at which objections ought to be taken—

Evidence—Improperly rejected evidence—Appropriate remedies—When new trial appropriate—

Evidence—Principles—General and fundamental right of litigant to adduce relevant evidence—Specific limits thereto—How balance ought to be struck between general right and specific limit—

Tort—Defamation—Damages—Damages recoverable by corporate plaintiff—

Tort—Defamation—Damages—Demarcation of damages awarded for defamation and additional damages awarded for defamer's aggravating conduct in relation to defamation—

Tort—Defamation—Distinction between malice which defeated fair comment and malice which defeated qualified privilege—

Tort—Defamation—Distinction between statement of fact and comment—

Tort—Defamation—Relevance of events after defamation for purposes of justification and fair comment

The appellant ("Basil") was a former officer with the Singapore Police Force ("SPF"). Basil joined the first respondent ("Premier"), a co-operative in the business of providing security services, as a security executive. The second respondent ("Saraj") was the managing director of Premier at the material time. The third defendant ("Annie") was the administration and financial manager of Premier at the material time.

Basil was dismissed about eight months after joining Premier, ostensibly for his poor performance. After his dismissal, Basil wrote four letters of complaint against the respondents. The letters alleged, inter alia, that Basil had been wrongfully and capriciously dismissed, and that Premier provided substandard services to its clients, specifically SBS Transit ("SBS"), Singapore Mass Transit ("SMRT"), and Singapore Airline Services ("SATS"). The letters were sent to a number of persons, including the Minister for Manpower, the Commissioner of Police, the chairman of the Singapore Police Co-operative Society Ltd, the head of the Security Industry Regulatory Department of the SPF ("the SIRD"), and the general manager of SATS.

In response to Basil's letter to the Minister for Manpower, an assistant commissioner of labour requested Premier to provide information relating to Basil's employment and dismissal. Premier's reply, drafted by Saraj, set out its complaints against Basil and enclosed an anonymous letter alleging, inter alia, that Basil was racist, incompetent, and a troublemaker.

The respondents sued Basil for defamation in relation to the four letters he wrote. Basil counterclaimed for wrongful dismissal and also for defamation in relation to Premier's reply to the assistant commissioner of labour. The respondents obtained a preliminary declaration pursuant to O 14 r 12 of the Rules of Court that seven statements in Basil's letters were defamatory in their natural and ordinary meaning. The trial below therefore concerned only Basil's counterclaim and his defences of justification, fair comment, and qualified privilege to the respondents' claim.

Before the trial, Basil had subpoenaed the manager of a SBS bus depot; the head of another SBS bus depot; an assistant vice president for rail safety, security and quality at SBS; a security executive of SMRT; and a former security executive with Premier. He also obtained leave for these persons to give evidence-in-chief orally. One week before the trial, counsel for the respondents applied to the trial judge to set aside the subpoenas to all five persons proposed to be called by Basil (collectively "the disallowed witnesses"). The application was allowed by the trial judge. A few days later, counsel for Basil applied for leave to issue fresh subpoenas to the disallowed witnesses. The application was disallowed by the trial judge.

The trial judge allowed the respondents' claim and disallowed Basil's counterclaim. On appeal, Basil took issue with, inter alia, the trial judge's setting aside of the subpoenas to the disallowed witnesses, several findings of fact and propositions of law made in the judgment of the trial judge, and the general conduct of the proceedings by the trial judge.

Held, setting aside the judgment of the High Court and ordering a new trial in the District Court:

(1) Every litigant had a general and fundamental right to bring all evidence relevant to his or her case to the attention of the court. This right was of constitutive importance to the adversarial approach to fact-finding. It was, of course, subject to specific limits. A litigant only had the right to adduce relevant evidence. The adduction of evidence had to, as far as practicable, take place in accordance with the rules of procedure. Finally, a litigant was prohibited from manipulating the court's machinery to further his ulterior or collateral motives in an abusive or oppressive manner. In striking the proper balance between the general right and the specific limits, a trial judge had to not only be guided by the applicable rules and decisions, but had to look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome was reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence. In doubtful cases, it was usually both prudent and just to err in favour of admission rather than exclusion: at [24] to [26].

(2) On the facts, the disallowed witnesses were in a position to give oral and documentary evidence relevant to almost all the issues that were raised. In fact, they were in a position to give what could have been crucial evidence on the key events on which the outcome of the case turned. The trial judge therefore ought not to have set aside the subpoenas to the disallowed witnesses: at [50] and [51].

(3) It was not possible to predict what the evidence of the disallowed witnesses would be, and therefore the decision of the trial judge could not be reversed in favour of Basil. It was also neither proper nor convenient for the disallowed witnesses to be examined before the Court of Appeal. In the circumstances, it was necessary to consider whether a new trial should be ordered: at [52].

(4) If improperly rejected evidence would not, if admitted, meaningfully vary the outcome of the case, no new trial would be ordered. Equally, if the improperly rejected evidence would vary the outcome of the case if admitted, but could be clearly and objectively established before the appellate court, no new trial would ordinarily be ordered, because in such a situation the outcome of the case should simply be varied accordingly. A new trial would ordinarily be ordered only where (a) the improperly rejected evidence would, if admitted, have a substantial and realistic prospect of making a meaningful difference to the outcome of the case, and (b) the appellate court was in no position to evaluate the improperly rejected evidence itself: at [55].

(5) In the present case, the evidence of the disallowed witnesses would certainly have a substantial and realistic prospect of making a meaningful difference to the outcome of the case. At the same time, it was impossible to say precisely what the evidence of the disallowed witnesses might be, whose evidence would be confirmed, and whose would be refuted. This could only be done by subjecting both parties' witnesses to the crucible of cross-examination. For the witnesses who had testified in the trial below, the difference would be that they would be confronted with the evidence of disinterested third parties this time round. In the circumstances, the decision of the trial judge should be set aside and a new trial ordered: at [56] and [57].

(6) The new trial should be held in the District Court, since the respondents, even if entirely successful, would not recover damages exceeding the District Court limit: at [81].

(7) There was a bright line in the law of defamation distinguishing statements of fact from comments. The defence of justification applied to statements of facts, and was not defeated by malice. The defence of fair comment applied to comments, and was defeated by malice. It was, therefore, necessary to identify, in each case, whether the defamatory statement was one of fact or comment: at [59].

(8) There was a distinction between the type of malice which defeated the defence of qualified privilege and that which defeated the defence of fair comment. The defence of fair comment did not apply if the defamer did not honestly believe in the truth of the defamatory comment. For the defence of qualified privilege, motive rather than honesty of belief was the essential indicator of malice. The defence of qualified privilege was not an available defence if the defamer did not make the defamatory statement for the purposes of protecting the interest or discharging the duty which gave rise to the privilege: at [60].

(9) There was a difference in the relevancy of events that occurred after the defamation for the purposes of the defence of justification and the defence of fair comment. Such facts might be relevant to proving the former but not the latter: at [63].

(10) In awarding damages for defamation, a judge ought to demarcate and explain the damages awarded for the defamation itself and the additional damages awarded for the defamer's aggravating conduct in relation to the defamation. It should also be...