Presiding over a three-member panel, Chief Judge of Malaya Hasnah Hashim said S Siva Subramaniam’s appeal lacked merit, leaving the apex court no reason to disturb the Court of Appeal’s findings.
Dismissing the appeal with costs of RM50,000, Hasnah said there was no need for the panel to address the sole question of law framed when leave to appeal was granted.
That question involved a consideration of whether the “reasonable test” in defamation law required the court to consider evidence from the actual recipients of an alleged defamatory publication, especially if they belong to a specialised profession.
Also on the panel hearing the appeal were Justices Vazeer Alam Mydin Meera and Lee Swee Seng.
Lawyers Cecil Abraham, Rishwant Singh and Chia Eng Yi appeared for Siva, while Terence Chan, Tan Keng Teck, Yeap Xi Jin and Oh Kei Zuin acted for the insurance firm.
Earlier this year, the Court of Appeal set aside judgment entered by the Penang High Court in Siva’s favour, ruling that although the email had singled him out for mention, Allianz’s defence of justification succeeded as the impugned words were true.
Siva had asserted that the email had damaged his reputation by implying that he was a confidence trickster.
Justice M Nantha Balan said the court accordingly dismissed Siva’s claim that the contents of the email implied he was a confidence trickster and had damaged his reputation.
“What is important is whether what was conveyed can reasonably be construed in a libellous sense. We do not think so.
“Alternatively, in the event the impugned email is defamatory, we hold that the words contained therein are true in substance, and the defence of justification succeeds,” Nantha Balan said in his 70-page judgment.
He sat with Justices Nazlan Ghazali and Choo Kah Sing.
In the impugned email, Allianz’s senior claims manager, Frances Joycelyn Nathan, had said: “The above lawyer (Siva) is assessing claims without the defendant’s lawyer appointed.”
Frances, who worked under the head of Allianz’s claims division at the time, Jayapragash Amblavanar, had sent out the email dated Dec 15, 2017 to the insurance company’s employees and to its panel of lawyers handling accident cases.
The appeals court also ruled that the impugned email was issued by Allianz on an occasion of qualified privilege.
Nantha Balan said Frances was under a duty to disclose the information to the insurance company’s claims examiners and its panel of solicitors.
He said any reasonable tribunal would have concluded that Frances’s sole reason for sending out the impugned email was to protect the insurance company’s interests by risk-managing the situation.
This, he said, was particularly necessary given the plaintiff’s “tendency to serve (cause papers in a running down case) directly on the insured”.
“Hence the impugned email was in line with (Allianz’s) instructions to their panel (of) lawyers to protect their interests.”
The Court of Appeal ordered Siva to refund to Allianz the sum of RM371,424.66 and costs of RM52,000 previously paid to him under the High Court’s judgment.