The New Straits Times Press (M) Bhd

- vs -

Airasia Bhd

Judgment

Abdul Hamid LP

1. The respondent/plaintiff claims damages against the appellant/defendant for libel. The libel was alleged to be contained in an article headed “Danger in Model Job” and another article headed “Cops Check Model Job” published in two issues of The Sunday Mail dated 14 April 1985 and 30 June 1985 respectively.

2. The respondent also asks for an injunction to restrain the defendant from the publication of the articles or any of them or in words to the like effect.

3. On an ex parte application the respondent asked for an interim injunction pending hearing of the action substantially in the terms of the claim for an injunction as endorsed in the writ. The learned Judge gave an order in terms. The appellant then applied to set aside the order. It was dismissed. Hence the appeal.

4. After hearing the appeal we formed the view that the learned Judge had acted erroneously in the exercise of his judicial discretion when he granted the interim injunction. We therefore allowed the appeal with costs and set aside the order. We now give our reasons.

5. The pleadings referred to the two articles that were alleged to be libellous. As for the first article headlined “Danger in Model Job”, the respondent alleges that the appellant falsely and maliciously wrote and published the article and meant and was understood to mean that the respondent was a disreputable and non-existent company and that its directors/employees were immoral, lewd and promiscuous people by seeking to offer employment to a girl with the intention of procuring her for immoral purposes. With reference to the second article headed “Cops Check Model Job”, the respondent alleges that the appellant falsely and maliciously published the article and meant and was understood to mean that the respondent and/or its executives were elusive, shady and dangerous characters whom members of the public must be protected from.

6. The appellant admits publishing the articles but denies they were falsely and maliciously published. The appellant also denies that the articles complained of conveyed the meaning alluded to. In particular, the appellant asserts that the matters set out in the articles complained of are —

   1. in substance true in fact, and

   2. matters of comment upon a matter of public interest.

7. In support of these assertions particulars are set out in the defence. In support of (a), the appellant refers to the advertisement asking for applicants interested in working as models and film extras, the response of a schoolgirl to the advertisement, the offer by the respondent for work on unknown terms without interview, police investigation and so forth.

8. In support of (b), the appellant asserts that when someone offers lucrative jobs to young girls without job interviews through an advertisement for a job as a model it can have dangerous consequences and there could be something “fishy” going on. Such assertions should, in our view, be sufficient to satisfy the Court that the appellant is specifically raising a defence of justification especially where the appellant is asserting that the words complained of were true in substance and in fact; (see Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450, 456. The appellant is also raising a defence of fair comment. It is the appellant’s case that the statements of fact on which comment is based are substantially true and are matters of public interest and therefore the comment on those facts is fair.

9. The question before the Court therefore is whether an injunction ought to have been granted by the learned Judge in a case where a defendant has specifically pleaded that he will rely on a well-recognised defence.

10. There is, in law, no doubt that “the High Court may grant an interlocutory injunction restraining the defendant, whether by himself or by his servants or agents or otherwise, from publishing or further publishing matter which is defamatory or of malicious falsehood. It is not necessary to show that there has already been an actionable publication or that damage has been sustained. In appropriate cases an injunction may be granted ex parte and before the issue of a writ.” (Halsbury’s Laws of England, 4th Ed, vol 28, para 166).

11. However, in deciding whether or not to grant an interlocutory injunction the Court must exercise its discretion judicially. It is of cardinal importance to bear in mind that: —

    Because of the court’s reluctance to fetter free speech and because the questions that arise during the proceedings, such as whether the meaning is defamatory, whether justification or fair comment are applicable and as to malice, are generally for the jury, interlocutory injunctions are granted less readily in defamation proceedings than in other matters and according to different principles. [Halsbury’s Laws of England, 4th Ed, vol 28, para 167]

    (See Quartz Hill Consolidated Gold Mining v Beall (1882) 20 Ch D 501).

12. In Bonnard v Perryman [1891] 2 Ch 269, 284, Lord Coleridge CJ delivering the judgment of the Court in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, emphasised that:

    The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, MR in Coulson v Coulson — ‘To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable.

13. Bonnard’s case and Monson v Tussauds Ltd [1894] 1 QB 671 were followed in Crest Homes Ltd v Ascott [1980] FSR 396, where the trial Judge granted an interlocutory injunction against the defendant who said that he would justify his assertions. Allowing the appeal and discharging the injunction, the Court (CA) held:

    (1) There was no reason to depart from the general rule that an interlocutory injunction will not be granted against a defendant in a libel action if he intends to plead justification unless the plaintiff can prove that the statement is untrue; (2) The plaintiff had not shown that the defendant’s statement was untrue.

    Lord Justice Geoffrey Lane, sitting with Lord Denning MR and Lord Justice Stephenson, stated that:

    the line of authority is long and weighty that interlocutory injunctions in these cases will not be granted unless the plaintiff shows that the defence of justification will not succeed.

14. Authorities do also show that the principle that there shall be no interim injunction if defence is raised “applies not only to the defence of justification” (Bonnard v Perryman), “but also to the defence of privilege” (Quartz Hill Consolidated Gold Mining v Beall (1882) 20 Ch D 501), and “fair comment” (Fraser v Evans [1969] 1 QB 349). “In accordance with the long established practice in defamation action, the principles enunciated by the House of Lords in American Cyanamid v Ethicon Ltd [1975] AC 396 relating to interim injunctions are not applicable in action for defamation (Herbage v Pressdram Ltd [1984] 1 WLR 1160, 1162).”

15. In our judgment the learned Judge had erred in law when he exercised the power to grant interlocutory injunction contrary to the established principle governing the issue of interim injunctions in libel actions. He should not therefore have granted the interim injunction against a defendant who has specifically pleaded justification and had raised as a defence fair comment on a matter of public interest.

16. The principle has clearly emerged by reason of the fact that the questions of libel or no libel are eminently matters to be decided on facts at the trial and there is also the question of the proper meaning to be assigned to the words used in a particular statement. To restrain a defendant before the questions are determined would amount to fettering with free speech. Indeed it is because of the importance of leaving free speech unfettered that the Court must be slow in issuing interim injunction in a libel action.

17. In applying these principles, value is placed by the Court upon the freedom of speech which is related to the freedom of the press when balancing it against the reputation of a single individual who, if wronged, can be adequately compensated in damages. The Court should act cautiously in granting interim injunction to restrain publication of an alleged defamatory statement. In fact it should not grant the injunction where the defendant says he is going to justify it at the trial of the action except where the statement is obviously untruthful or where the plaintiff has satisfied the Court that the defence will fail. That was made clear by Denning MR in Harakas v Baltic Exchange [1982] 2 All Er 701, 703.

18. It was for these reasons that we allowed the appeal with costs, and ordered that the order of the learned Judge be set aside.

Cases

Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450; Bonnard v Perryman [1891] 2 Ch 269; Monson v Tussauds Ltd [1894] 1 QB 671; Crest Homes Ltd v Ascott [1980] FSR 396; Quartz Hill Consolidated Gold Mining v Beall (1882) 20 Ch D 501; Fresder v Evans [1969] 1 QB 349; American Cyanamid v Ethicon Ltd [1975] AC 396; Herbage v Pressdram Ltd [1984] 1 WLR 1160; Harakas v Baltic Exchange [1982] 2 All ER 701

Authors and other references

Halsbury’s Laws of England, 4th Ed, vol 28

Representation

Robert Lazar for the appellant

CK Leong for the resspondent.