Shunmugam Jayakumar and Another v Jeyaretnam JB and Another

• Jurisdiction: Singapore
• Judgment Date: 08 August 1996
• Date: 08 August 1996
• Docket Number: Suit No 198 of 1996 (Registrar's Appeal 114 of 1996)
• Court: High Court (Singapore)

Shunmugam Jayakumar and others

Plaintiff

and

Jeyaretnam Joshua Benjamin and others

Defendant

[1996] SGHC 158

G P Selvam J

Suit No 198 of 1996 (Registrar's Appeal 114 of 1996)

High Court

Civil Procedure–Judgments and orders–Discretionary power of court to give judgment under O 27 r 3 Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) exercisable only where defendants had made admissions of fact–Defamation cases involved matters of law, questions of mixed law and fact and opinions–Whether defamation cases suitable for application under O 27 r 3 Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)–Contract–Contractual terms–Compromise agreement–Defamation–Defendants admitted to defamation and agreed to pay damages and costs–Negative covenant not to repeat libel–Whether defendants precluded from retracting admission–Nature of contract of compromise–Tort–Defamation–Damages–Contract of compromise–Disagreement on amount of damages–Proper course of action–Whether plaintiffs entitled to sue for damages as fresh claim–Effect of apology–Tort–Defamation–Publication–Defendants admitted to defamation in contract of compromise–Whether defendants could subsequently retract admission of liability in action for damages

The plaintiffs participated in a series of events organised to promote the use of the Tamil language among Tamils in Singapore by gracing and speaking at various events. An article appeared in The Hammer, the official publication of the opposition Workers' Party, which the plaintiffs felt were defamatory of them.

They instructed their solicitors to write to the defendants to demand an apology, an undertaking that they would not repeat the allegations in the future, damages and costs. An exchange of correspondence then took place between the parties' solicitors. These dealt primarily with the form of the apology. The defendants ultimately agreed to publish an apology in the form demanded by the plaintiffs.

After the publication of the apology, the plaintiffs took up the question of damages. The parties were unable to agree on the quantum of damages and the plaintiffs commenced proceedings. They applied to the court for summary judgement under O 14 of the Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) (“the RSC”). In the alternative, they sought judgment pursuant to O 27 r 3 of the RSC. They also asked for damages including aggravated damages to be assessed and sought directions for assessment of damages. The senior assistant registrar who heard the application made no order on the application under O 14 but gave interlocutory judgement under O 27 r 3 with consequential directions relating to the assessment of damages. The defendants appealed.

Held, granting interlocutory judgment for the plaintiffs and for damages to be assessed:

(1) When the defendants had admitted to the defamation, they impliedly conceded that they could not raise any defence to the proposed action. Further, they had agreed under the terms of the compromise to pay damages and costs and were bound by the negative covenant not to repeat the libel. They were therefore precluded from retracting their admission even if they later felt that they could have raised a defence to the claim filed by the plaintiffs provided that the plaintiffs bona fide believed that they had reasonable ground for suing and that there was a fair chance of succeeding in their claim. This was the nature of a contract of compromise: at [20], [21] and [55].

(2) After an apology was published by the defendants, when the parties were not able to agree on the question of damages, the proper form of action for the plaintiffs was to enforce the compromise by seeking a declaration that there was a compromise and an order for assessment of damages instead of formulating their claim as though it was a fresh claim: at [24] and [40].

(3) An appeal against a Registrar's decision was different from an appeal to the Court of Appeal in that the former would be in effect a fresh hearing at which the matter would be argued afresh: at [31].

(4) The court's discretionary power to give judgment under O 27 r 3 was exercisable only where a defendant had made admissions of fact. If the matter involved questions of law, admissions of fact alone could not decide the matter. The rule excluded admissions of non-factual matters such as comments, opinions and admissions of law or mixed facts of law. For that reason, defamation cases of the present kind were unsuitable for an application under O 27 r 3: at [35], [36] and [37].

(5) The admission of liability in a defamation case was as a matter of law and fact part of a contract of compromise and as such was analogous to a consent judgment in that it was a compromise of the parties. Unless there was a vitiating factor, a court had no power to undo the contract which was voluntarily entered into. A court was mandated to treat an apology made and published by a defendant in a defamation action as a strong mitigating factor on the issue of quantum of damages. The admission therefore had gone beyond recall: at [40] and [41].

(6) One principle of the law of compromise was that, prima facie, a threat to enforce one's legal rights by instituting civil proceedings could not be an unlawful or wrongful threat. A contract obtained by such a means was prima facie valid and could not be impeached on grounds of duress. So an ordinary bona fide compromise was clearly a valid contract even through exacted under threats to bring (or defend) legal proceedings or to appeal from a judgment already given. This was so even where there was no ground of action in law and the threat was not manifestly frivolous or vexatious: at [51].

Augustine Zacharia Norman v Goh Siam Yong [1992] 1 SLR (R) 746; [1992] 1 SLR 767 (folld)

Callisher v Bischoffsheim (1870) LR 5 QB 449 (folld)

Dummer v Brown [1953] 1 QB 710 (folld)

Gale v Superdrug Stores plc [1996] 1 WLR 1089 (distd)

Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362 (folld)

Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR (R) 685; [1990] SLR 1234 (folld)

Horrocks v Lowe [1975] AC 135 (folld)

Jayawickreme v Amarasuriya [1918] AC 869 (folld)

Miles v New Zealand Alford Estate Company (1886) 32 Ch D 266 (folld)

Pitt v P H H Asset Management Ltd [1994] 1 WLR 327 (folld)

Reeves v Associated NewspapersThe Times (31 October 1919) (refd)

Defamation Act (Cap 75,1985 Rev Ed)s 10

Evidence Act (Cap 97,1990 Rev Ed)s 31

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)O 27r 3 (consd);O 14,O 18r 2 (2)

Michael Hwang and Ashok Kumar (Allen & Gledhill) for the plaintiffs.J B Jeyaretnam and G Krishnan (G Krishnan & Co) for the defendants.

G P Selvam J

The parties

1 This is an appeal by the defendants to judge-in-chambers from the decision of Senior Assistant Registrar Mr James Leong granting interlocutory judgment in a libel action brought by the plaintiffs. They are Mr S Jayakumar, Mr S Chandra Das, Mr Sushilan Vasoo, Mr K Shanmugam and Mr Sinnakaruppan s/o C Ramasamy. They are also members of the People's Action Party, the ruling party. They are all members of Parliament. The first plaintiff is a member of the Cabinet and has been so since 1984. At present he is the only Tamil in the Cabinet.

2 The libel was said to be in an article in Tamil which appeared in the August 1995 issue of The Hammer, the organ of the Workers' Party, an opposition party.

3 The action is against 13 defendants. The first defendant, Mr J B Jeyaretnam, is the Secretary-General of the party. The next ten defendants are members of the executive council of the party. Mr J B Jeyaretnam is also a member of the executive council. The 12th defendant, Mr A Balakrishnan, was the author of the article and he is a member of the party but not of the executive council. The Workers' Party is the 13th defendant.

The background

4 I shall first narrate the background facts leading up to the publication of the article. In April 1995, a series of events was organised to promote the use of the Tamil language among Tamils in Singapore. They extended over a period of one week and it was described as “The Tamil Language Week” (“the Week”). An organising committee was formed to arrange the programmes for the week. None of the plaintiffs was a member of the organising committee. The organising committee received the support of 25 Tamil organisations in Singapore.

5 The plaintiffs participated in the Week by gracing or speaking at the various events of the Week. Some of the plaintiffs had assisted by advising or giving a hand to the organising committee.

6 The article in question appeared inThe Hammer after a lapse of three months after the Week. It was not a long article. The title in translation was: “The Tamil Language Week - A Drama Enacted to a Written Ruling”.

7 The plaintiffs felt that the article was defamatory of them. So they instructed Allen & Gledhill, Advocates and Solicitors, who on 25 September 1995 wrote to the Workers' Party as follows:

We act for Professor S Jayakumar, Mr S Chandra Das, Dr S Vasoo, Mr K Shanmugam and Mr R Sinnakaruppan.

We refer to an article in Tamil published in the August 1995 issue of The Hammer at 9 under the title 'The Tamil Language Week - A Drama Enacted to the Written Ruling'.

In the article, the following passages appeared (translations being set out below).

'Amidst the pack of vultures determined to keep a number of intellectuals from increasing, we take pride in seeing the white doves of 25 Tamil organisations join the national mainstream of Tamil Language Week.

Having begun at the Marina Mandarin in April, it ended at the Orchard Mandarin with the slogan, “Let us speak sweet Tamil everyday”. It should not stop with the bustle of Tamil Language Week. Although the Tamil Language Week was a drama enacted to the written ruling of the Government, it turned out to be a festival that shared the feelings of the...