Koh Sin Chong Freddie v Chan Cheng Wah Bernard

• Judgment Date: 26 August 2013
• Date: 26 August 2013
• Docket Number: Civil Appeals Nos 63 and 68 of 2012
• Court: Court of Appeal (Singapore)

Koh Sin Chong Freddie

Plaintiff

and

Chan Cheng Wah Bernard and others and another appeal

Defendant

[2013] SGCA 46

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeals Nos 63 and 68 of 2012

Court of Appeal

Tort—Defamation—Damages—Unincorporated association—Factors relevant to determining quantum of damages—Proportionality where collective group defamed—Aggravated damages—Proportionality in quantifying aggravated damages

Civil Procedure—Costs—Principles—Whether taxed bill could be reviewed where already paid

In Chan Cheng Wah Bernard v Koh Sin Chong Freddie[2012] 1 SLR 506 (‘the Merits Judgment’), the plaintiffs succeeded in their defamation action against the defendant as the defence of justification was not made out by the defendant and the defence of qualified privilege was defeated on account of the defendant's malice. The court ordered that damages be assessed. Costs for that appeal and for the trial were awarded to the plaintiffs on a standard basis. The High Court judge proceeded to assess the damages payable by the defendant to the plaintiffs. The plaintiffs and defendant appealed against the awards made.

The defamation action concerned two statements made by the defendant, who was the president of the management committee of the Singapore Swimming Club at that time, in the course of an investigation into certain ‘emergency’ expenditure incurred by the previous management committee of the club. The plaintiffs were members of the previous managing committee. These statements were reflected in the minutes of meetings which were posted on the notice board of the club.

Held, allowing the appeal in part and dismissing the cross-appeal:

(1) Although the defamatory statements might have attacked the members of an unincorporated group jointly, the harm was inflicted on each of the individuals concerned. A collective assessment of damages and granting of a single award to the group might lead to difficulties in quantification and absurd results. Hence, where the plaintiff was part of a collective group defamed, the correct approach would be to assess damages severally in relation to each person: at [15] , [17] , [21] and [22] .

(2) The defamatory statements implied that the Plaintiffs had deliberately set out to deceive club members and insinuated that this dishonesty verged on some criminal misconduct on the part of the plaintiffs. Nonetheless this did not rise to the level of seriousness of ‘extremely dangerous and vicious fraud’ or ‘a conspiracy to misappropriate funds amounting to fraud and gross misconduct’. Moreover there was no allegation of the plaintiffs obtaining a direct financial benefit: at [29] and [30] .

(3) Statements did not exist in vacuo, thus the nature and gravity of the statements had to also be considered against the context in which they were made. The defamatory statements were not emotional, off-the-cuff statements made in the heat of battle and were likely to be accorded weight, thus arguably compounding the gravity of the sting. Moreover, the statements were disseminated to a group of recipients to whom an intimate knowledge of the relationship between the parties could not be imputed: at [31] and [33] .

(4) The plaintiffs did not ask to be differentiated on the basis of their individual professions and appeared to limit their claims to damage to their reputation and standing in the club as members of the previous management committee. Further, the Merits Judgment appeared to limit the sting of the libel to the plaintiffs' positions as former office bearers in the club. Hence, only the plaintiffs' standing and reputation in the club should be taken into account for the purposes of assessment of damages. Weight should be given to the plaintiffs' status as former office bearers and long-standing members of the club and the status of the defendant as president and highest authority in the club at the material time: at [36] and [40] .

(5) The extent of publication must be proved either by direct proof or by establishing a platform of facts from which the court could properly infer that substantial publication had taken place. In this case, the publication of the defamatory statements remained in a single, fixed location which had to be physically accessed by the viewer. This, coupled with the additional inconvenience of the club member having to leaf through the document to read the offending statements, would show that substantial publication could not be properly inferred: at [46] to [48] .

(6) A prior narrative judgment rejecting a defence of justification and so holding the libel to be established was capable of providing some vindication of a claimant's reputation. However it did not follow that damages should thus be substantially reduced: at [49] and [50] .

(7) A clear case for aggravated damages was made out on the facts. Although aggravated damages might be significantly reduced to take into account the claimant's conduct, no provocation had been found on the part of the plaintiffs. In any case, the other conduct raised by the defendant did not relate to the subject of the defamatory statements and were therefore not relevant to mitigation: at [52] and [55] .

(8) A reckless plea of justification that was bound to fail was a classic aggravating factor. It could reasonably be said that a justification plea was bound to fail where there was strong prima facieevidence that the statement was untrue. In light of the long trial on the merits and the fact that the defendant had succeeded in making out the defence of justification at the first instance, it could not be said that the defence was one that was wholly unfounded: at [58] and [60] .

(9) In order to establish the existence of malice, evidence might be led of subsequent publications in respect of which no separate action had been brought where they substantially repeat the same imputation. However, the republication here was essentially a historical account of events and could hardly be regarded as an unrepentant persecution of the plaintiffs: at [61] and [62] .

(10) It was settled law that the size of the group and the generality and extravagance of the allegations were considerations that ought to be taken into account to determine whether the link between the defamatory statement and the plaintiff's reputation was so weakened that any adverse impact on the individual's reputation fell below the threshold of legal recognition. There was no reason why the court should not at the assessment of damages stage take similar considerations into account to properly determine the harm and injury occasioned to the individual plaintiff: at [68] and [69] .

(11) There was no rule that aggravated damages had to be a fixed proportion of general damages. Nonetheless, the quantum of aggravated damages awarded should be proportionate to the general damages awarded. Aggravated damages were awarded in order to compensate for the aggravation of the injury suffered by the claimant. Caution, therefore, had to be exercised against over-compensating the claimant for the distress, humiliation and injury to feelings which had already been taken into account in awarding basic compensatory damages: at [74] , [75] and [77] .

(12) As damages awarded to each of the plaintiffs had to be proportionate to the harm and injury actually occasioned to him, it logically followed that different awards of damages may be made to multiple plaintiffs. However, on the facts of the present case, no case was made out for different awards for the different claimants: at [79] .

(13) The judge hearing the assessment had arrived at a wholly erroneous estimate of the damages suffered by the plaintiffs by failing to give sufficient weight to the differentiating factors between the present case and the precedents she considered. There were other appropriate precedents that could have been considered instead: at [82] and [85] .

(14) The individual amounts of damages recovered by joint plaintiffs should not be aggregated to determine the scale of costs applicable. The appropriate scale of costs was to be upon the footing that each individual had brought a separate action: at [87] and [88] .

(15) Costs in claims for unliquidated damages should ordinarily not be assessed before damages had been agreed or determined. Appendix 1 to O 59 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) clearly suggested that there was an incontrovertible link between the costs to be awarded and the judgment amount: at [90] .

(16) The powers conferred on the under s 37 (5) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) were broad and they might be exercised when the justice of the case called for it. It was a facilitative provision to enable the Court of Appeal to make such consequential orders as the justice of the case required: at [100] .

(17) While setting aside the two taxed bills was not a specific point raised in the appeal, it was clearly a consequential matter on which this court was entitled to make the necessary adjustment following the decision on appeal on damages. Accordingly, the two taxed bills were set aside: at [101] .

ABalakrishnan v Nirumalan KPillay [1999] 2 SLR (R) 462; [1999] 3 SLR 22 (refd)

Al Amoudi v Brisard [2007] 1 WLR 113 (folld)

Alberta Union of Provincial Employees v Edmonton Sun [1986] Carswell Alta 269 (refd)

Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR (R) 86; [2001] 1 SLR 505 (refd)

Associated Newspapers Ltd v Dingle [1964] AC 371 (folld)

Au Yee Ming Ivan v Ng Fei Tip [2010] HKEC 1319 (refd)

Bonnard v Perryman [1891] 2 Ch 269 (folld)

Booth v Briscoe (1877) 2 QBD 496 (folld)

Bou Malhab v Diffusion Métromédia CMR inc [2011] 1 SCR 214 (distd)

Brady v Ottaway Newspapers, Inc 445 NYS (2 d) 786 (refd)

Brien v Watts [1964] VR 673 (refd)

Buckley v The Herald & Weekly Times Pty Ltd [2009] VSCA 118 (folld)

Butler v Southam Inc [2001] NSCA 121 (refd)

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