Image credit: Ken Teegardin, available at https://www.flickr.com/photos/teegardin/6093810333
I have previously written about committal applications.
The recent (13.12.2021) Court of Appeal decision of Saraswathy Kandasami v Saravanan Murugan [Civil Appeal No.: W-02(IM)(NCVC)-2341-11/2018] enunciates that committal may fall even at the threshold of a solicitor.
Factual narrative
The case involved a rather poignant set of facts. A defamation claim had been initiated. The same concluded in the recording of a Consent Judgment ("CJ"). The Defendants provided an undertaking not to repeat the defamatory words.
Approximately 9 months after the Consent Judgment had been recorded, the Defendant sought to organise a Press Conference ("PC") to repeat the impugned statements.
The Plaintiff’s solicitors wrote to the Defendant’s solicitors (Messrs S Kandasami) to state that the PC would be a breach of the CJ. The same would also amount to contempt.
The Defendant’s solicitors replied as follows:
Please be informed that your Order is clear in it’s term that our ‘client had agreed not to repeat or make statements relating to the case’ and clearly not the factual averments contained in the said suit. This was clearly not the matter consented for which you should be aware of.
Our clients have the right to make any statements pertaining to the factual averment for which they had pleaded justification as Defence. Please also take note it was a client who wanted to withdraw the case under the pretext of pending investigation.” (sic)
The PC proceeded, with the solicitor present. The impugned statements (which were the subject-matter of the CJ) were repeated at the PC.
The application for committal
The Plaintiff (Applicant) sought an application for contempt not just against the Defendants (Contemnors), but also against the solicitor. The High Court rendered a Contempt Order and unfortunately for the solicitor, the Court of Appeal affirmed the same.
The decision of the COA
The HC made a finding that the solicitor had committed an act of contempt by breaching the Consent Judgment. They were ordered to pay RM10,000.
The COA affirmed this. Interestingly, the COA made several important observations, which are outlined below.
The objections raised by the Contemnors
i. The sealed Order not being served
The Contemnors argued that on the date of the PC, the sealed CJ (with the Penal Endorsement) had not been served on them. The sealed CJ was only perfected on 03.11.2017. It was served on the Contemnors on 30.11.2017, which was 2 months after the PC.
The COA made short shrift of this. Referring to O. 45, r. 7(6) ROC 2012, the COA noted that the core issue would be whether the Contemnors had knowledge of the CJ. This, the COA held, they did:
[32] It is common ground that both Sankaran and the 4th Appellant (City Team Media) were represented by Saraswathy’s legal firm, Messrs S. Kandasami & Co in the Defamation Suit. It is also not in dispute that both Sankaran and the 4th Appellant had given instructions to Saraswathy on the terms of the Consent Judgment. The 2nd Appellant, Periasami a/l Munisamy, a director of the 4th Appellant had admitted in his affidavit that he had given instructions to Saraswathy on the terms of the Consent Judgment. There is no affidavit filed by the 3rd Appellant, Mathialagan a/k Maisllamany, another director of the 4th Appellant. In fact, the draft Consent Judgment was prepared by Messrs S. Kandasami & Co. Therefore, we are of the considered that all the Appellants have knowledge of the terms of the Consent Judgment.
[33] Added to that, the Appellants have admitted to having knowledge of the Notice issued on 26.9.2017 by the Respondent’s solicitors to refrain the Appellants from acting in breach of the Consent Judgement by calling for a “press conference and to publish or cause to the publish the said Matters amounts to a contempt of the Consent Judgement ..”.
[34] Therefore, on the factual matrix of these appeals, we find no merit in the Appellants’ contention that the contempt proceedings were misconceived as the Appellants were not served with the Consent Judgment. The sealed Consent Judgment was all along in the possession of the Appellants’ solicitor firm, Messrs S. Kandasami & Co.
[35] There is also no issue with regard to the fact that the Consent Judgment was only sealed after the date of the Press Statement and Publication. This is because the draft Consent Judgment was prepared by the Appellants’ Solicitor’s firm, Messrs S. Kandasami & Co on 29.12.2016. The draft Consent Judgment was forwarded to the Respondent’s solicitor for approval. The Respondent’s solicitor had approved and returned the draft Consent Judgment to Messrs S. Kandasami & Co on 30.12.2016. Messrs S. Kandasami & Co only served the sealed Consent Judgment on the Respondent’s Solicitor on 10.11.2017 (11 months later). As such, it is misconceived for the Appellants to now complain on the late service of the sealed order when the same was due to the delay on the part of their own solicitors in serving the sealed Consent Judgment on the Respondent’s solicitors.
ii. The failure to set-aside ex-parte leave
Several other preliminary procedural points were also raised by the Contemnors. The COA dismissed this as follows:
[40] Added to that, we find that the Appellants have failed to challenge the leave granted by the High Court, on the procedural issue of service and on the ambiguity of the Statement. The Appellants had the opportunity to make an application to set aside the leave, but they have failed to do so. Since the leave was not challenged directly by an application to set it aside, the Appellants should not be allowed to indirectly attack the grant of leave by way of preliminary points of law.
The interpretation of the undertaking contained in the Consent Judgment
Having dismissed the Preliminary Objections, the COA went on to consider the undertaking contained in the CJ, which read as follows:
c) Defendan Pertama dan Ke-2 aku janji untuk tidak mengulangi atau menerbitkan kenyataan-kenyataan berkaitan dengan kes ini;
The Applicant contended that the CJ meant that the Contemnors were not to repeat the defamatory words. The Contemnors however, took the position that they would not repeat any statements relating to the case.
Ascribing a plain and ordinary reading of the undertaking, the COA held that the same was unambiguous:
[46] Therefore, the Order of the Court, the Consent Judgment herein, is to be ascertained primarily from the language of the order itself. We are of the considered opinion that the Undertaking in the Consent Judgment is not ambiguous as submitted by the Appellants. We find that the Undertaking, in plain and ordinary meaning, simply means that 1st Defendant (Sankaran) and the 2nd Defendant (City Team Media) undertake not to repeat or publish the statements in relation to this case, namely the Defamation Suit. The use of the word “mengulangi” clearly shows there should be any repetition of the Impugn Statements in the defamation suit.
From a reading of the Grounds, the Contemnors were trying to argue that they were only prohibited from repeating statements about the case. However, a plain and simple reading would lead one to the conclusion that the term “repeating” (mengulangi) would mean that the CJ was referring to the subject-matter of the defamation claim (i.e., the Impugned Statements).
The COA proceeded to hold the solicitor personally liable for aiding and abetting the breach (paras. 63 to 71 of the Grounds).
Key takeaways
From the above, it is clear that if procedural points are to be raised, parties are to immediately take-out an application to set-aside ex-parte leave.
The COA did not immediately state that the procedural objections would be dismissed. From a close reading, it would appear that the failure to raise a setting-aside application may almost be equated to a waiver of rights.
Solicitors must also ensure that they do not descend into the arena. A client, acting against advice, may cause a severe blowback. In such a situation, it may be best for the solicitor to withdraw representation to ensure one’s standing as an officer of the Court.
GAVIN JAYAPAL
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