Oversea-Chinese Banking Corp Ltd v Wright Norman and others and another action

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 27 June 1994
• Neutral Citation: [1994] SGHC 174
• Date: 16 September 1994
• Docket Number: Suits Nos 3190 of 1987 and 98 of 1988
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Charles Gray QC and Sarjit Singh Gill (Shook Lin & Bok)
• Citation: [1994] SGHC 174
• Defendant Counsel: Tan Chee Meng (Harry Elias & Pnrs),Patrick Milmo QC and Sivakumar (Arthur Loke & Pnrs)
• Court: High Court (Singapore)
• Subject Matter: Defamation,Justification,Use of "prima facie",Tort,Whether publication of apology by newspaper a privileged occasion,Duty to correct unwarranted statements published earlier in newspaper,Whether defence available,s 8 Defamation Act (Cap 75),Qualified privilege,Whether natural and ordinary meaning of words in letter defamatory,Whether claim that statements made were "wholly unfounded" ordinarily defamatory to maker of such statements,Whether the expression "prima facie" necessarily implies that the statement contains an opinion,Applicable principles,Apology published by newspaper,Damages,Duty to ascertain truth of article and determine if facts ascertained justified comments made in letter,Whether natural and ordinary meaning of words in the apology were defamatory,Letter to newspaper commenting on article,Whether words in letter were statements of opinion or fact,Defamatory statements,Fair comment,Whether reference may be made to article in determining meaning of statements in letter,Duty to ascertain truth of article and determine if facts ascertained warranted comments made,Apology and payment into court

Cur Adv Vult

On 17 November 1987 a news item appeared on the front page of the Business Times (BT) entitled `OCBC plans to recruit four top-ranking bankers.` BT is an English daily newspaper which is widely read by the business community in Singapore. The item was written by Mr Alvin Tay (Tay), its banking correspondent. The pertinent portions of that article for our present action are the following:

The Oversea-Chinese Banking Corporation is eyeing four top-ranking bankers, including former central banker Mrs Elizabeth Sam, in what promises to be the biggest recruitment drive of high calibre staff in the bank`s history.

Besides Mrs Sam, the other names reported to be on OCBC`s `wanted list` are Mr Ng Tat Pun, Mr Lai Teck Poh and Mr Goh Chee Hiong. Mr Ng is the general manager of the International Bank of Singapore. Mr Lai is the managing director of Citicorp Investment Bank (Singapore) while Mr Goh is a former general manager (credit and marketing division) of United Overseas Bank. He now operates his own business.

Official confirmation from OCBC was not available yesterday but BT understands that Mr Ng is receptive to the bank`s offer. The status of the other individuals is not clear.

Assuming all four decide to join OCBC, they are likely to do so around the same time - possibly at the beginning of next year.

... Sources said if Mrs Sam accepts an offer from OCBC, she is likely to take charge of OCBC`s investment banking department.

... Banking sources speculate that Mr Lai is the leading candidate to take over as head of the corporate banking department, a job vacated by Mrs Theresa Foo earlier this month. She left to join Standard Chartered as its corporate banking manager.

On 23 November 1987, BT published a feature article entitled `Tracking down the best head for the job` written by one Tong Suit Chee, which was first published in the November 1987 issue of the journal Singapore Business . The article dealt with the services rendered by executive search consultants, who are colloquially called `headhunters`.

The first defendant, Mr Norman Wright (Wright), is a senior executive with the third defendants, who are executive search consultants. Wright first read Tong`s article in Singapore Business . On 19 November 1987, he wrote a letter commenting on the article to the editor of the journal. By the time Tong`s article appeared again in BThe realized that his letter to Singapore Business might probably not be published as he thought it did not have a readers` column. So he decided to write to BTthe very day in response to the publication of Tong`s article in BT. The letter was published in the weekend issue of BT of 28-29 November 1987. It was written on the letterhead of Egon Zehnder International South East Asia, the second defendant. It was a fairly long letter, more than three-quarters of which were comments of Wright on Tong`s article. Nothing in those portions are relevant to this action. However, the last three paragraphs thereof are the subject of this action which OCBC complains contain a libel by Wright. The paragraphs read:

A case of how not to go about attracting top executives was demonstrated in the front page article which appeared in your November 17 issue regarding OCBC`s reported plans to hire four, named, senior banking officials. Professional executive search firms would recoil in horror at such publicity.

Your reporter has met his professional duty to `find and report the news`, but there is a prima facie case of rank amateurism or carelessness at OCBC to have allowed such a breach of confidentiality to happen. I doubt that a professional executive search firm would have been involved.

It shows clearly how difficult it is for an organization to maintain confidentiality when it conducts its own search. The leakage is potentially damaging to those named, at the very least embarrassing, and the effect on the morale of their present staff and, indeed, on that of the staff at OCBC, must be unfortunate.

For ease of reference, I shall hereinafter refer to these paragraphs collectively as `the three paragraphs` or separately as para `A`, `B` or `C` respectively.

On the day this letter was published in BT, Mr David Cheam (Cheam), the vice-president in charge of public relations at OCBC, spoke to Tay to complain that the three paragraphs were offensive. Cheam followed up on that conversation with a letter, which stated, inter alia:

You have confirmed that your source of information relating to your article ... dated 17 November 1987 was not obtained from OCBC ...

It would be appreciated if you could immediately look into this matter as promised and let us know what action Business Times intends to take to rectify this situation.

On 30 November 1987 the acting editor of BT, Ms Margaret Thomas, replied to Cheam confirming that Tay `did not get any information from (Cheam) when he spoke to (Cheam) about the matter the day before (Tay`s) article was published.` Ms Thomas referred to the fact that in the story itself it was clearly stated that official confirmation from OCBC was not available. Ms Thomas ended her letter by inviting OCBC to write a letter to refute Wright`s points, which BT would publish in the letters to the editor`s column which appeared every Saturday.

OCBC did not take up this offer and instead instructed its solicitors, M/s Shook Lin & Bok (SLB), to write to Wright and BTdemanding, among others, an apology be published `in as prominent a position as the letter complained of` and in a form approved by OCBC. The letters from SLB were issued on 3 December 1987 and Wright and BTwere each given until 12 noon on 5 December 1987 to respond. Wright received the letter on the day itself when he returned home from the office.

The next day, 4 December 1987, Wright through his solicitors, M/s Arthur Loke & Partners (ALP), responded to SLB stating that the comments in the letter could not constitute a libel upon OCBC and that those comments were fair and made without malice. ALP further stated that `no aspersions were cast on [OCBC`s] integrity or ability as bankers.`

On the same day, the solicitors of BT, M/s Drew & Napier, forwarded a draft apology to SLB which BTproposed be published in the weekend issue of 5-6 December 1987. OCBC found that draft inadequate and, through its solicitors, stated that it would be agreeable to abandoning its claim for compensation against BTif BTwould publish a revised draft apology, which SLB forwarded therewith. BTaccepted the revised draft and had it published in the letters column of the weekend issue BTof 5-6 December 1987. The apology reads:

Unreserved apology

In the 28 November 1987 issue of the Business Times we published a letter of Mr Norman Wright, managing partner of Egon Zehnder International South-East Asia, titled `Searching for Executives` and subtitled `Need to Maintain Confidentiality`.

Business Times is satisfied and accepts that the statements concerning the Oversea-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded. We know of no carelessness or failing on the part of Oversea-Chinese Banking Corp Ltd to have allowed any breach of confidentiality to happen and we accept that we know of no basis or foundation whatsoever for the statements.

Business Times is glad to take this earliest opportunity of expressing to the Oversea-Chinese Banking Corp Ltd its unreserved regrets for any distress, inconvenience or embarrassment caused to them by the said statements.

On 10 December 1987, ALP wrote on behalf of Wright to the editor of BTcomplaining that the apology constituted a libel on Wright. ALP sought information on whether the terms of the apology were provided by OCBC while reserving the rights of their client. On 21 December 1987, ALP sent a reminder to the editor of BTand asked the newspaper to publish an unreserved apology in terms to be approved by ALP and giving the newspaper until 4pm on 22 December 1987 to reply. However, on 19 December 1987, BTreplied to ALP (which letter crossed that of the ALP of 21 December 1987), denying that there was any libel in the apology published. And in response to the specific query, BTstated that `the apology was demanded and drafted by OCBC`. On 24 December 1987, M/s Drew & Napier, acting for BT, replied to ALP to say that they had instructions to accept service of process.

In the meantime, on 12 December 1987, OCBC filed a writ, Suit No 3190/87, against Mr Wright, Egon Zehnder International South East Asia (sued as a firm) and Egon Zehnder International Pte Ltd. On 14 December 1987, ALP informed SLB that they had instructions to accept service on behalf of Wright and Egon Zehnder International Pte Ltd (the company). The writ was served on Wright and the company on 16 December 1987. I should mention here that the firm is not an entity in existence in Singapore. So for the purpose of the present action there are effectively only two defendants, Wright and the company.

Wright did not take issue with OCBC on the apology until 29 December 1987 when ALP wrote to SLB alleging that OCBC `had caused or conspired with BTto publish statements ... that are defamatory of our client` and demanded that OCBC publish an unreserved apology in BT. On 31 December 1987, SLB replied denying that the apology published was defamatory of Wright and rejected the request for an apology.

On 16 January 1988, Wright filed a writ for libel in Suit No 98/88 against BT (first defendant) and OCBC (second defendant).

Both the actions came before me for trial and I have heard them one following the other. It was also the understanding of the parties that in order not to repeat the evidence, the evidence adduced for the 1987 action may also be treated as evidence adduced for the 1988 action. I shall now turn to deal first with the 1987 action.

1987 action - the pleadings

OCBC allege in para 5 of their statement of claim that the three offensive paragraphs...