Lee Kuan Yew v Devan Nair (Straits Times Press (1975) Ltd and Another, Third Parties)

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 08 December 1992
• Neutral Citation: [1992] SGHC 303
• Docket Number: Suit No 1042 of 1988, Summonses in Chambers Nos 6483 and 6848 of 1991,Suit No 1042 of 1988
• Date: 08 December 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Sharon Koh (Lee & Lee) (on a watching brief)
• Defendant Counsel: Loh Boon Huat (Godwin & Co),Harry Elias and Vimala Samuel (Harry Elias & Partners)
• Court: High Court (Singapore)
• Citation: [1992] SGHC 303
• Subject Matter: Principles applicable,Defamation,Joinder,Whether such consent a complete defence to defendant's claim for indemnity or contribution,Indemnity or contribution,Civil Procedure,Setting aside third party notice,Parties,s 11(1)(c) & (2) Civil Law Act (Cap 43, 1988 Ed),Publication made at 'request' of and with consent of defendant author of statement,Third party proceedings,Publication,Whether there was question proper to be tried,Tort,Publication of alleged libellous statement in newspaper made by third party publishers,Whether third party publishers were tortfeasors,Nature of proceedings,Whether third party publishers acted as agent of defendant in publication of statement,Whether there was question proper to be tried as to third party publishers' liability for indemnity or contribution claimed

This was an appeal against the decision of the assistant registrar in which he (i) dismissed with costs an application by the Straits Times Press (1975) Ltd (`STP`) for an order to set aside the third party notice issued by the defendant against STP pursuant to an order made on 7 August 1988, or alternatively, for an order to discharge the order of 7 August, and (ii) made an order for third party directions in terms of an application by the defendant. At the conclusion of the hearing of the appeal, I dismissed it with costs. I now give my reasons.

On 6 May 1988, one Francis Seow (`FS`) was detained under the Internal Security Act (Cap 143). While under detention he made a statutory declaration on 16 May 1988 which contained, among other things, the following statements: `I look up people like Devan Nair whose opinion and views I felt I could benefit from ... . Sometimes about mid-1987, I called on Devan at his house ... `.

On 20 May 1988 or thereabout the political desk of STP received from the government of Singapore a statement in respect of FS`s detention and excerpts from his statutory declaration. As the involvement of the defendant in the statutory declaration was a newsworthy story, one Leslie Fong, then head of the political desk of STP, directed Bertha Henson, a reporter, to seek an interview with the defendant. Bertha Henson got in touch with the defendant and as a result an interview was arranged which took place at the defendant`s home in the evening of 20 May 1988. Before the interview began, Bertha Henson handed to the defendant copies of the government`s statement and excerpts from FS`s statutory declaration to read. After the defendant had read the documents, Bertha Henson conducted the interview in which the defendant said, among other things, the following:

I recall telling him [Francis Seow] that in doing so, he did nothing exceptional. He was in the distinguished company of Mr Lee Kuan Yew and the rest of us, ...

I recall that Mr Lee himself visited establishment and opposition circles in capitals like London, Sydney and Wellington to court goodwill and support for the PAP`s goal of Malaysian Malaysia, ...

On the following day, 21 May 1988, the government`s statement, the excerpts from FS`s statutory declaration and statements made by the defendant at the interview were published in the issue of The Straits Times . The defendant`s statements were headed with the title `Devan confirmed he gave political advice to Seow`.

The plaintiff responded to the defendant`s comments through his press secretary, James Fu, in a written statement dated 21 May 1988 which was received by STP from the Ministry of Communication and Information. On the following day, an article containing this statement or a substantial portion thereof was published in the issue of The Straits Times and was entitled in bold print `Devan dishonest in saying Seow did nothing wrong`. The article contained, among other things, the following:

Mr James Fu, press secretary to the Prime Minister, said Mr Nair was dishonest in making those statements.

He said Mr Nair knew that what Seow had done was wrong, especially his contacting US state department officials to seek support and asylum.

In the afternoon of the same day, Leslie Fong`s office received a telephone call from the defendant requesting for someone to collect a statement by the defendant at the latter`s house. Accordingly, Bertha Henson went there and collected the statement. The statement was headed `Response of Devan Nair to the statement of James Fu ( The Sunday Times , 22 May 1988)` (`press statement`) and contained, among other things, the following:

Other versions of the history of Singapore`s brief experience as part of Malaysia tell a different story. One of them is that of Tunku Abdul Rahman, Malaysia`s first prime minister, who told me not long ago, that he had all the facts at his disposal to warrant the arrest of Mr Lee when he was the most vociferous member of the Malaysian opposition. ...

... But in courting and sedulously cultivating a whole variety of foreign establishment and opposition circles, we did no more than what Mr Seow is supposed to have done in his meetings with US state department officials, who turned out to be rather small fry. Mr Lee courted far more powerful figures in the countries concerned.

A substantial portion of the press statement was published by STP in the issue of The Straits Times on 23 May 1988 bearing a large heading `Devan rejects criticism that he was dishonest`. The article contained, among other things, the following:

He reiterated his defence of Seow, first made when he spoke to The Straits Times on Friday night, saying that `in courting and sedulously cultivating a whole variety of foreign establishment and opposition circles, we (PAP leaders) did no more than what Seow is supposed to have done in his meetings with state department officials ... `.

These officials `turned out to be rather small fry`, he added. `Mr Lee courted far more powerful figures in the countries concerned.`...

Mr Nair added that the Tunku told him not long ago that he (Tunku) `had all the facts at his disposal to warrant the arrest of Mr Lee when he was the most vociferous member of the Malaysian opposition.`

On 25 May 1988, the plaintiff instituted this action against the defendant claiming damages for two alleged libels published by the defendant and an injunction restraining the publication of the alleged libels. The first alleged libel consisted of the words spoken by the defendant on 22 May 1988 which were broadcast and published on the radio by the British Broadcasting Corporation. The words complained of were:

He [meaning Mr Francis Seow] did not do anything which Lee Kuan Yew and I had done with greater distinction when we were sitting on the opposition benches of the Malaysian Parliament.

The second alleged libel was that passage from the defendant`s press statement which I have earlier set out. After the action had been commenced, pleadings were delivered followed by various interlocutory proceedings.

On 7 April 1989, the plaintiff obtained leave of the court to amend the statement of claim by adding a claim for a third alleged libel which was the passage from the article published by STP on 23 May 1988 in The Straits Times entitled `Devan rejects criticism that he was dishonest`, which I have earlier set out. The plaintiff complained that that passage of the article was libellous of him. Subsequently, amended defence was delivered by the defendant and amended reply was delivered by the plaintiff.

It is in respect of this publication by STP on 23 May 1988 that the defendant seeks an indemnity or contribution from STP. On 7 August 1991, the defendant applied ex parte for leave to issue a third party notice claiming an indemnity or contribution from STP to the extent that the court finds just and equitable under s 11 of the Civil Law Act (Cap 43, 1988 Ed) on the ground that the third alleged libel was published by STP on 23 May 1988 to a wide audience in Singapore. An order was made on the same day, that is, 7 August 1991, for the issue of a third party notice, and thereafter the third party notice was issued and was served on STP.

On 17 October 1991, the defendant took out a summons for third party directions, No 6843 of 1991, which was returnable on 18 November 1991. Prior to the return date, STP took out an application by Summons-in-Chambers No 6848 of 1991, for an order that the third party notice issued pursuant to the order dated 7 August 1991 be set aside or that the order of 7 August authorizing the issue of the third party notice be discharged. That summons was returnable on 6 January 1992. Both the summonses were subsequently fixed for hearing on another date and were heard together before the assistant registrar. At the conclusion of the hearing, the learned assistant registrar dismissed the application by STP and made an order for third party directions in terms of the application by the defendant. Against the decision of the learned assistant registrar on both the summonses STP appealed.

The learned assistant registrar has given detailed reasons for his decision, which may be summarized as follows. First, he treated the third party procedure as analogous to a cause instituted by a defendant as the plaintiff against the third party as the defendant with the consequence that the third party may defend himself in any way in which a defendant in an action at the suit of the plaintiff may defend himself. Accordingly, he held that the application by STP to set aside the third party notice at the interlocutory stage was governed by the same principles applicable in an application by a defendant to strike out a statement of claim of the plaintiff under O 18 r 19 or the inherent jurisdiction of the court. Next, the learned assistant registrar went on to consider whether the defendant had a prima facie case against STP for an indemnity or contribution. In that connection, he considered the contention of STP that as the defendant had authorized the handing of the press statement to STP, the defendant had consented to the publication and that such consent was a defence to the defendant`s claim for an indemnity or contribution. He accepted that in an action for libel consent of the plaintiff to the publication by the defendant of the defamatory material is a defence to the plaintiff`s claim, but he held that the authorities did not go that far as contended on behalf of STP. He was of the opinion that the claim for an indemnity or contribution was not a cause of action founded in tort but was a right sui generis conferred by statute. Though the consent to the publication could well be raised in a claim for an indemnity or contribution, it would not necessarily operate as a complete defence such that STP bore no responsibility whatsoever for any damage and that the claim of the defendant...