England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE MORLAND)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 October 2001

Lord Justice Pill:

1. These are appeals against orders of Morland J following a three day case management conference in September 2000. The claimants appeal against a ruling given orally by the judge on 14 September 2000 as to the meaning of words complained of in libel proceedings and as to whether they constituted comment. The defendants appeal against the findings of the judge in a judgment handed down on 3 November 2000. The judge struck out considerable parts of the defence and ruled that, notwithstanding the striking- out, there could be a fair trial of the action. Procedurally, the claimants' appeal is straightforward. The defendants' appeal has been conducted in a way which raises procedural issues to which it will be necessary to refer.
2. In November 1995 Euromoney Publications plc published an article in their magazine International Commercial Litigation. It is a comparatively long article, described as a feature, and running to 15 columns of print and 78 paragraphs. It is entitled "Malaysian Justice on Trial". Mr David Samuels wrote the article and Mr Joff Wild and Mr Robert Walker were respectively editor and editorial publisher of the magazine. The article contained statements attributed to Mr Tommy Thomas and Mr K Anantham who were partners in Skrine & Co, a leading firm of Malaysian advocates and solicitors. Thomas, Anantham and the firm are the claimants in the present action. The present defendants are the publishers, author and editor and editorial publisher just mentioned.
3. Five actions were brought in Malaysia against the claimants alleging libel. The article was alleged to have included defamatory imputations against Mr Lingham, Mr Tan and companies associated with Mr Tan. In October 1998, those actions were settled by the present claimants for 17.7 m Malaysian Ringgits, about £2.9 m. Payments were made by the claimants' insurers. In these proceedings, the claimants seek contribution from the defendants under the Civil Liability (Contribution) Act 1978 ("the 1978 Act") with respect to the settlement figure. They were not parties to the Malaysian actions against the claimants.
4. In their defence, the defendants deny that payment was made by the claimants in respect of damage for which the defendants are liable. Points are taken as to the effect of the 1978 Act. It is also submitted that no liability to the Malaysian plaintiffs on the part of the defendants could be established in respect of any such claims as might be brought by or on behalf of the Malaysian plaintiffs by way of an action in England and Wales. It is alleged, amongst other things, that the defendants would be able to rely on defences of justification (defence paragraph 8.2), fair comment (paragraph 8.3), sections 5 and 6 of the Defamation Act 1952 (paragraph 8.4) and qualified privilege (paragraph 8.5). In paragraph 10.2, the claimants are put to strict proof of each and every proposition of Malaysian law upon which they rely and it is submitted, amongst other things, that any liability under Malaysian law would fail to satisfy the requirement, under the 1978 Act, of double actionability, a requirement maintained, in defamation proceedings, by section 13 of the Private International Law (Miscellaneous Provisions) Act 1995.
5. In paragraph 12.1 of the defence, the defendants seek to rely on further facts and matters in extinction or reduction of the claim for contribution. It is alleged that "the laws of defamation in Malaysia, as interpreted and applied by the Malaysian judiciary, are not, or at least not in politically contentious defamation actions, compensatory laws but penal laws applied and/or implemented in a manner which has the object or effect of deterring or punishing the public expression of dissent by critics of the government or its supporters. Further or alternatively, the defendants will say that the laws in question interpreted and applied as aforesaid are inconsistent with the fundamental public policy of English law of protecting the right of the free expression of information and opinions on matters of legitimate public interest without unnecessary interference". Particulars eleven pages long are given. The particulars given in paragraph 8 are also incorporated into 12.1 under the heading "Lack of independence and impartiality of the members of the Malaysian judiciary".
6. It is further submitted (paragraph 12.3), that the amount claimed would, if enforced in whole or in part, constitute an unnecessary interference with the defendants' exercise of their right to freedom of expression protected by Article 10 of the European Convention on Human Rights and the common law and further (paragraph 12.4) that the sums paid to the Malaysian claimants in settlement are grossly excessive and manifestly disproportionate to any conceivable injury sustained. Criticism is also made (paragraph 12.5) of the conduct by the present claimants of the Malaysian action.
7. By consent, the trial of the action is to be by judge alone. On 7 April 2000, Mr Justice Morland nominated himself as the trial judge and ordered that all applications be reserved to himself. It was in that context that the case management conference was held in September 2000. The directions given on 3 November 2000 included an order that all pleaded defences remaining after the striking-out from the pleadings ordered by the judge would continue to be stayed until after the defence of fair comment has been tried or until further order of the Court. That direction is not in itself the subject of appeal. Consideration of the claimants' appeal against the judge's findings on 14 September presents no procedural problems. I will deal with that appeal first.

Meaning

8. The judge decided that he should "determine the actual defamatory meaning or meanings contained in the article complained of forthwith". He expressed a provisional view and in a short judgment delivered after hearing the submissions of counsel he confirmed that view. He also decided that the statements complained of constituted comment.
9. The judge did not refer to the article in any detail in his judgment. In his later reserved judgment on other issues, he set out the title of the article and the sub-headings within it. Under the title "Malaysian Justice on Trial" was a headnote stating that "Malaysia's reputation for judicial integrity is being questioned. David Samuels reports that a string of controversial court decisions is the cause of mounting concern among the country's lawyers and foreign investors". In sub-headings, two cases, the Ayer Molek case and the Tan libel case are mentioned. Other sub-headings include "Something Rotten", "Privileged Scheduling", "More Concerns", "Procedural Gymnastics", "Terrible Situation", "Economic Consequences", "Defying the Odds", and "Behind Closed Doors". The name of one of the Malaysian plaintiffs, Mr V K Lingham, is the sub-title for another section. The course of several actions in the Malaysian courts is described. A series of statements made by the claimants in the present action are recorded. The present defendants submit that these were comments. References are made, in relation to the conduct of the proceedings, including proceedings involving Mr Vincent Tan, to the conduct of Mr V K Lingham. The Malaysian proceedings were brought not of course by the Malaysian judiciary but by Mr Lingham and others.
10. Before the judge in the present action, both parties submitted that an element of corruption was a component of the article's defamatory sting. It was however for the judge, in this case sitting without a jury, to identify the single meaning the words should, for the purposes of the action, bear. In Slim v Daily Telegraph Ltd [1968] 2 QB 157, Diplock LJ stated:

"But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single 'right' meaning as 'a natural and ordinary meaning' of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one 'right' meaning which they do bear disappears "

11. Salmon LJ stated, at p 186:

"No doubt, even when a libel action has been tried by a judge alone an appellate tribunal may sometimes approach the case by considering, as a matter of law, whether the words complained of are capable of the defamatory meaning which they have been found to bear. If they are, the appellate tribunal will not lightly interfere with the judge's finding of fact. If, however, the appellate tribunal is satisfied that the judge's finding of fact is wrong, it is its duty to reverse him. There is no sensible reason why a judge's finding of fact in a libel action should be more sacrosanct than in any other action."

12. In Skuse v Grenada Television Ltd [1996] EMLR 278 this Court considered the approach a judge should take when considering the meaning of the words complained of and the approach this Court could adopt when his decision is challenged on appeal. The publication was in a television programme. Giving the judgment of the Court, Sir Thomas Bingham MR stated propositions which, by summarising them, I hope I do not distort them or diminish their effect. The court should give to the material complained of the natural ordinary meaning which it would have conveyed to the ordinary reasonable viewer of the television programme. That viewer was not naive but he was not unduly suspicious. He could read between the lines. He could read in an implication more readily than a lawyer and might indulge in a certain amount of loose thinking. But he was to be treated as being a man who was not avid for scandal and someone who did not select one bad meaning where other non-defamatory meanings were available.
13. The court should be cautious of an over elaborate analysis of the material in issue. It was entitled (if not bound) to have regard to the impression made on it. The court should not be too literal in its approach. In determining the meaning of the material complained of the court is not limited by the meanings which the parties sought to place on the words though the defamatory meaning pleaded by the claimant was to be treated as the most injurious meaning the words were capable of conveying. The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. That principle was less compelling where the material before the appellate court is exactly the same as was before the judge. This Court should not disturb the judge's finding unless its members are quite satisfied the judge was wrong.
14. In Skuse, this Court did adopt a meaning different from that found by the judge. Skuse was applied in Gillick v British Broadcasting Corporation [1996] EMLR 267.
15. The judge referred to Skuse and plainly applied the correct test. He stated that he had excluded the potential consequences of any meaning on the future conduct of the litigation, in particular the admissibility of evidence, proof of justification and problems of justiciablity. The judge stated:

"I put myself in the position of the ordinary, reasonable reader of the article in Malaysia such as a hypothetical investor, business or professional man. I gave the words their natural and ordinary meaning and read between the lines. I bore in mind it was really a matter of impression, not an analysis and dissection. I did not give the words an artificial or strained meaning. Because the meanings I have spelled out came out clearly to me, I did not give the words the worst possible meaning involving an allegation of corruption or suspected corruption. I read the article as a whole, and read and considered the allegations against the Malaysian plaintiffs in the context of the article as a whole. The main thrust of the article is that the integrity of the Malaysian judiciary has been questioned and [was] becoming a matter of concern. … ."

16. The meaning determined by the judge, as summarised in a note submitted to the court by the parties, was:

i) in respect of Mr Lingham, that there were strong grounds for suspecting that he had manipulated the Malaysian court system unethically and unprofessionally;

ii) in respect of Mr Vincent Tan and the Malaysian companies identified by the article, there were grounds for suspecting they were aware that Mr Lingham had manipulated unethically and unprofessionally the Malaysian court system for their benefit.

17. For the claimants, Miss Page QC submits that the judge's meaning so understates the quality or degree of the misconduct which the article imputes to Mr Lingham and his clients as to fall short of the range of permissible meanings of the article or, alternatively, were meanings at the extreme lower end of the range of permissible meanings. The meaning was a wholly inadequate description of conduct which reflects on or implicates the integrity of the judiciary. She further submits that, because the present action is not a libel action but a claim for contribution in respect of libel proceedings in Malaysia, the judge should have selected a meaning which was somewhere in the middle of the range of permissible meanings of the article. The point was not put in this way but implicit in the "middle way" submission may be a submission that the judge should have "second guessed" what a Malaysian judge would have found the meaning to be had the Malaysian cases proceeded to trial.
18. A meaning should have been found, it is submitted, which involved guilt in the Malaysian plaintiffs of the corruption or attempted corruption of members of the Malaysian judiciary. It is submitted that the article is concerned with the integrity of the Malaysian judiciary and not merely its competence. That being so, the words complained of by the plaintiffs in the Malaysian actions should be construed as allegations of corruption or attempted corruption or conniving at and participating in such corruption.
19. At the first stage, the judge must in my view determine the meaning of the words as he finds them to be even though the claim is one for contribution. In the absence of a finding in Malaysia, his task is not to attempt to second-guess what a Malaysian judge would have found the meaning to be. The judge clearly had in mind the Malaysian context of the publication, though it is not suggested that a Malaysian reader would attribute to the words a meaning different from that attributed by an English reader. That determination leaves open the question whether, at a later stage, the judge should consider the factors which led the claimants to settle the actions of the Malaysian plaintiffs and to do so in the sum they did.
20. I do not see any necessary inconsistency between allegations involving the integrity of members of the Malaysian judiciary, who are not plaintiffs, and a finding that allegations against the Malaysian plaintiffs were no more than allegations of unethical and unprofessional conduct. I am not able to conclude that the judge was plainly wrong in the meaning he attributed to the article. It was his duty to find a single meaning in accordance with the principles laid down in Slim and Skuse. He was not bound to accept the submissions of the parties as to meaning. He was not required to find middle ground but to attribute the meaning he thought to be the natural and ordinary meaning which the article would have conveyed to the ordinary reasonable reader. Another judge might have found a stronger meaning but I am not satisfied that the judge was wrong. I would not disturb his finding.
21. The judge was well aware that the issue of meaning was distinct from that of justiciability. In the face of the judge's express statement that he had "excluded the potential consequences of any meaning on the future conduct of the litigation", I reject the submission that the judge was so influenced.

Comment

22. The claimants challenge the judge's finding that the words complained of constituted comment. The issue is to be assessed by reference to the meaning found by the judge, as now upheld in this Court.
23. As does Lord Lester upon other aspects of the case, Miss Page on this aspect submits that the law needs clarification. There is a serious lack of clear guidance as to how to determine whether an imputation is a comment or an allegation of fact, she submits. Miss Page accepts that the article contains comments but submits that the article conveys to the reader, first, that there has been a series of cases the outcome of which are in fact incapable of innocent explanation and, second, that the cases have given rise to the sentiments expressed in the article which are a statement of fact. Two states of affairs are alleged which the reader must take as fact. Remarks which gave rise to "strong grounds for suspecting" manipulation convey that grounds in fact exist. There is no room for a range of different inferences but only one conclusion to be drawn and that is the meaning complained of, as found by the judge.
24. I accept that the description of the history of the several pieces of litigation in Malaysia is a matter of fact and as such it is not in dispute. However, I accept the submission of Mr Barca, for the defendants, that the words complained of amount to comments upon those events. Under the heading "Malaysian justice on trial" the author of the article does not reach a conclusion; he poses questions and records the concerns of others. The word "concern" appears a number of time, for example, in paragraph 63 where it is stated that "it would be cause for concern to those in the higher levels of Malaysian public life if the country's justice system had indeed started to go the way of its Asian neighbours …". The next paragraph refers to there being "some concern" among foreign businessmen based in Malaysia and that following refers to a "general concern among foreign clients about the civil justice system". Concern in the form of "real worry" is referred to in the concluding paragraph of the article.
25. Mr Tommy Thomas, referring to the course of one court case, is reported as stating that the conduct of MBfH during the dispute raised "questions that cry out for answers" (paragraph 49). Referring to another decision (paragraph 75), Mr Thomas is quoted as "believe[ing] that the decision looks incorrect". There are similar references in the article though there are also others of a more categorical kind such as Mr Thomas's statement (paragraph 51) that an "irresistible inference" had to be drawn.
26. The article contains a series of statements of fact, which are not in dispute, as to the course of Court cases. The words complained of amount to a commentary upon those facts, ranging from the posing of questions to more affirmative remarks. Reading words in the context of the article as a whole, they can in my view properly be categorised as comment rather than as statements of fact. They come within the sense of comment as defined by Cussen J in Clarke v Norton [1910] VLR 494 at 499:

"something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc"

Defendants' appeal

Procedure

27. What the defendants seek, as stated in section 9 of the Notice of Appeal in answer to the question "What decision are you asking the Appeal Court to make?" is that "the decision of the learned judge dated 3 November 2000 be set aside and the claimants' application to strike out parts of the defence be dismissed" or "alternatively, the action be stayed". It is the deletions from the pleadings ordered by the judge which give rise to the defendants' appeal. The claimants seek to delete further paragraphs (8.2.6.1 and 8.2.6.2) and the defendants concede that if the judge's reasoning as to the paragraphs he deleted is accepted, it would follow that the further paragraphs should also be deleted.
28. The judge did go on to make comments as to how he would assess damages. He referred to John v MGN [1997] QB 591 and stated that it "should be a yardstick for use in deciding what amount of contribution is just and equitable". The judge added that the guidelines in John did not "equate to a steel cap but rather a soft cap". In a later paragraph dealing with damages, the judge expressed views which he described as "provisional" and the parties are at odds as to whether the word "provisional" covers his earlier reference to the "yardstick" and to the "soft cap".
29. When giving the defendants permission to appeal, the judge stated, as Lord Lester for the defendants has emphasised, that "the case raises major issues of conflict of laws, comity and the Convention. An authoritative judgment of the full Court of Appeal may facilitate settlement of a potentially costly and time-consuming case". Lord Lester urges the Court to accept the invitation to give a comprehensive judgment on these major issues. The Court is also invited to make rulings upon the operation of the provisions of the 1978 Act in present circumstances. Subject to any further appeal, the Court's rulings would help the parties to settle their differences. Lord Lester also invites the Court to fix the ceiling for damages as being the level awarded in English libel proceedings, having regard to current views upon the Convention and the common law right to free expression. The Court should fix a ceiling or cap below which any claim to contribution would be assessed at the trial of the action.
30. The primary task of this Court is to determine appeals from decisions of trial judges. In this case appeals arise from rulings made following a case management conference. I see real dangers in the Court extending its judgment beyond what is necessary for that purpose. It would be doing so in thin air, if not a vacuum, and without the disciplines imposed by a trial or a formal application to rule on a preliminary point on agreed facts. It would involve, certainly with respect to quantum, speculation as to what the judge had in mind in the statements he made and upon what actual situation a ruling has to be given. Lord Lester's reference to the possibility of a further appeal demonstrates the risk in costs involved. Considerable costs could be incurred unnecessarily. It could, as Mr Geering QC for the claimants put it, be a short-cut which turned into a long journey. It appears to me to be neither in the interests of the coherent development of the law nor of those of the parties to the litigation for this Court to embark upon wide ranging enquiries into topics unnecessary for the resolution of the appeals. Nor is it appropriate for the Court in this case to attempt to state the legal propositions which would govern the conduct of the trial of the major issues said to be involved.
31. I do not exclude the possibility that there may be cases in which, as a matter of good case management, this Court should lay down the framework and legal principles on the basis of which the trial judge should subsequently try the action, as Morland J appears to have contemplated in this case, but I would expect such cases to be rare. The principles stated would not be binding and a readiness on the part of constitutions of this Court to embark upon exercises of this kind would lead to fragmentation and confusion. It would far from assist the principled and orderly development of the law.
32. While, in a particular case it could make settlement easier, as Morland J has contemplated and Lord Lester has argued, it could in a situation such as the present lead to greatly increased costs by way of appeals, with the potential for repeat appeals. In any event, the potential effect for litigants in general and upon the processes of the law is too high a price to pay. Wide ranging arguments have been permitted in this case, subject to the time constraint arising from the time allocated for the appeal. The scope of the submissions addressed to the Court (and their quality) have operated to confirm me in the view I have just expressed.
33. In that respect, the claimants' appeal as to meaning and comment has presented no problems. This Court agreed, at the request of the parties, first to hear submissions on the other more general issues. They wished to make those submissions first in order properly to set the scene as they saw it but those issues must themselves be examined in the context of the Court's rulings upon meaning and whether the words used could be regarded as comment. Indeed, Lord Lester submits that the judge's earlier rulings on meaning and comment plainly influenced his approach to the strike-out and fair trial issues.
34. In that context, the contents of the defence must be scrutinised carefully with a view to considering their relevance to the issues in the case and whether, given those issues, the allegations should be ventilated in a court in England. Paragraph 8.5 begins with the general allegation that since about 1987 the Malaysian Government "has repeatedly acted in a manner intended and/or calculated to interfere with the independence of the judiciary and the integrity of the country's system of government under the rule of law". The particulars given in support of that allegation can be summarised because, for present purposes, a comprehensive account is not required.

Allegations in paragraph 8 of the Defence

35. A large scale security operation (Operation Lallang) was conducted in Malaysia in October 1987 allegedly involving the arrest of 100 people. It allegedly followed severe financial scandals and wrangling within the governing party ("UMNO"). The government lost several High Court cases of considerable political significance. Following those rulings, the government introduced legislation curtailing the power of the courts in relation to judicial review of State power.
36. It is alleged that a dispute arose between the government and some of the judges in the course of which the Lord President of the Supreme Court was suspended in May 1988 following the deliberations of a Tribunal set up under Article 125 of the Constitution. The Lord President sought leave to apply for an order of prohibition against the members of the Tribunal but the Chairman of the Tribunal, purporting to act in his capacity as acting Lord President, closed the Court. Five judges nevertheless met and sought to restrain the Tribunal whereupon a second Tribunal was created to investigate the position of the five judges who, in July 1988, were suspended. The second Tribunal held that the special sitting of the Supreme Court was unlawful. On the recommendation of the first Tribunal, the Lord President was removed from office. Two other judges of the Supreme Court were also removed and the Chairman of the first Tribunal was appointed Lord President of the Supreme Court. It is alleged that "the manner in which the Lord President and two other judges of the Supreme Court were removed from office … fell manifestly below 'established standards of judicial conduct' as defined by Clause 19 of the United Nations Basic Principles on the Independence of the Judiciary and the standards anchored in the Constitution of the Federation of Malaysia and the common law".
37. The general allegation in paragraph 12.1 of the defence has been set out at paragraph 5 of this judgment. The particulars given refer to allegedly "exorbitant awards of damages in politically controversial defamation cases". The two cases cited are The Malaysian Industry Action [1995] 1 MLJ 39 and [1995] MLJ 493 (Court of Appeal) and Mbf Capital Bhd v Skrine and Co [1998] 3 MLJ 649, Skrine and Co in that action being the firm who are claimants in the present proceedings. It is sought to refer at the trial to the full report of the judgments. Particulars are also given of the alleged lack of independence and impartiality of the members of the Malaysian judiciary (12.1.3.5). Reference is first made to the allegations in paragraph 8 already summarised. Secondly, reference is made to reports of the Special Rapporteur on the Independence of Judges and Lawyers to the United Nations Commission on Human Rights, Dr Cumuraswamy, issued on 1 March 1996, 18 February 1997, 12 February 1998, 25 March 1998 and 13 January 1999. Thirdly, it is sought to refer to the history of defamation proceedings brought against the Special Rapporteur in respect of words reported in the magazine article under consideration in this action. Legal counsel to the UN Secretary-General advised that the Special Rapporteur was interviewed in his official capacity and had immunity from legal process in Malaysia.
38. The Malaysian Minister for Foreign Affairs invited the trial court to determine at its own discretion whether the immunity applied. On 28 June 1997, a judge of the Malaysian High Court decided that the Special Rapporteur was not absolutely protected by the immunity. That ruling is alleged to have been upheld in the Malaysian Court of Appeal, which refused a stay of execution. On 10 July 1997, another action was brought against the Special Rapporteur in the Malaysian High Court claiming very large damages and two further lawsuits were commenced later in 1997. The UN Secretary-General requested an advisory opinion of the International Court of Justice. That Court advised, on 29 April 1999, that the Special Rapporteur was acting in the course of performance of his mission and was entitled to immunity from legal process of every kind in respect of those words under the Convention on the Privileges and Immunities of the United Nations. It is alleged that, in the premises, the claim herein "constitutes an indirect attempt to enforce the penal laws of a foreign State and/or to enforce laws inconsistent with the fundamental public policy of English law and the Court should refuse to entertain it" (paragraph 12.2).
39. In that part of the pleading criticising the present claimants' conduct of the Malaysian actions (12.5.4.3), it is sought to allege that the claims were settled for exorbitant sums because of fears that the claimants would "not have received a fair trial at the hands of Malaysia's internationally discredited judiciary and legal system".
40. The judge did not strike out, and the claimants submit he should have struck out, paragraphs 8.2.6.1 and 8.2.6.2 sought to be relied on by way of justification in the third Malaysian action on the basis that there were reasonable grounds to suspect the plaintiffs of having improperly obtained undue advantage in legal actions in Malaysia. Reliance is placed on allegedly surprising decisions and an allegedly exorbitant award of damages in actions identified in the article.
41. The judge amended paragraph 8.2.2.3 sought to be relied upon by way of justification in the first Malaysian action. It had been alleged that the Federal Court in the Ayer Molek case saw fit to criticise the Court of Appeal in a "wholly unorthodox and intemperate manner". That allegation was struck out leaving only an allegation that the defendants would rely on the judgment of the Court of Appeal. The parties agree that, as amended, the allegation is not material and the pleaded paragraph should either stand or fall.

Conclusion on paragraph 8 of defence

42. The pleaded events of 1987 and 1988 are not in my judgment relevant to the material in an article describing events in the Malaysian Courts in 1994 and 1995. At an early stage in the article (paragraph 6), reference is made to the Court cases having occurred "within the last year". Two points arise. The first is the difference in subject mater. What is alleged to have happened in 1987 and 1988 was a constitutional crisis following challenges to government actions in the courts arising out of arrests, allegedly on political grounds, challenges to the legality of detentions and a financial scandal allegedly involving the governing party. The criticisms in 1994 and 1995 are based on decisions of the Courts in commercial disputes, other disputes arising out of commercial disputes and the conduct of the Malaysian plaintiffs in relation to them. Early in the article it is stated that "it was the culmination of a series of court decisions in commercial cases which have caused many of Malaysia's leading lawyers to raise doubts about Malaysia's legal system". The general concern is said to be "among foreign clients about the civil justice system" and questions have been asked by "multi-national clients". The pleaded events in 1987 and 1988 appear to me to have no significant bearing on the conduct of the parties to the Malaysian actions 6 and 7 years later. I see no connection between the struggle between the Malaysian government and the judiciary (or a part of the judiciary) in 1987 and 1988, pleaded in paragraph 8 of the defence, and the matters raised in the article.
43. The point is strongly reinforced by a second point which is that the concerns expressed in 1995 are said to be of recent origin. Early in the article it is stated that "until now Malaysia … has been able to portray itself as a country largely free from corruption". The cases which "could seriously affect Malaysia's reputation as a major financial centre have all occurred within the last year" and because of the cases, Malaysians have openly "started" to question the independence of their judiciary. Later in the article an economist from one of the international banks with offices in Malaysia is quoted as saying: "At the moment I don't think any general opinion about Malaysia being corrupt has started to crystallize". By reference to the work of a consultancy known as the World Economic Forum, it is stated that "there was no sign of these concerns at the beginning of 1995". The World Economic Forum "ranked Malaysia as one of the top 25 systems in the world and placed it above both the US and the United Kingdom".
44. In those circumstances, I reject the attempt to introduce evidence of events in 1987 and 1988, essentially involving constitutional issues between the courts on the one hand and the Malaysian government and the governing party on the other hand, on the ground that they are not relevant to the issues before the Court. I find no need to go on to consider whether they should also be rejected as matters inappropriate to debate in an English court. To permit evidence of a constitutional dispute in 1988 upon a dispute as to whether a lawyer had years later "manipulated unethically and unprofessionally" a legal system would be to create unfairness and not to remove it. It is irrelevant and its exclusion can have no impact on the fairness of the trial of relevant issues. The judge was correct to require the deletion of substantial parts of paragraph 8 of the defence.

Paragraph 12 of defence

45. Before a conclusion can be reached on the deletions from paragraph 12, the scheme of the paragraph needs to be considered. It is governed by the opening words which are set out in paragraph 5 of this judgment. The allegation is made in different words in paragraph 12.2 of the defence:

"In the premises, the Claimants' claim herein constitutes an indirect attempt to enforce the penal laws of a foreign state, and/or to enforce laws inconsistent with the fundamental public policy of English law, and the Court should refuse to entertain it"

46. The state of affairs described in the general words of paragraph 12.1 of the defence is said to be demonstrated by the "exorbitant awards of damages" made in the politically contentious Malaysian Industry action and the principle held by the Malaysian courts in that case and in Mbf Capital Bhd "to be applicable to the quantum of damages in defamation actions". That allegation is supported by particulars setting out what happened in the two cases.
47. The second reason for the existence of the state of affairs is said to be the "lack of independence and impartiality of members of the Malaysian judiciary when adjudicating on cases concerning allegations made by critics of the government or its supporters, and of the judiciary". The particulars given are first by way of incorporation of particulars in paragraph 8, now deleted. These are followed by detailed reference to Reports of the Special Rapporteur to the UN Commission on Human Rights and a dispute between the Special Rapporteur and the Malaysian courts. On the first of those subjects, apart from cataloguing the reports, the only particulars are a reference to a "critical press statement" made by the Bar Council of Malaysia on 21 August 1995 and a statement that "complaints are rife that certain high placed personalities in Malaysia including those in business and corporate sectors are manipulating the Malaysian system of justice and thereby undermining the due administration of independent and impartial justice by the courts". The reports do not prove themselves. We have not been referred to their contents but subject to the other objections made to them, it would be necessary to call evidence of matters referred to.
48. It is possible that the Special Rapporteur could, if he saw fit, give admissible evidence of the way in which Malaysian courts operate but that possibility does not at present arise. The only particulars given, already cited, do not even encourage the view that he would give relevant and admissible evidence because the Special Rapporteur refers not to his own observations but to a press statement made by the Bar Council of Malaysia. That document would not prove itself. On the case as pleaded, and quite apart from comity and other objections made, it would not be right for an English court to reach conclusions about a foreign legal system by reference only to documents such as these, however distinguished their author. That is particularly so when the conclusions, if any, which the Special Rapporteur has reached are not pleaded.
49. There is even less basis for admitting evidence of the history of the defamation proceedings brought against the Special Rapporteur. The status of his reports, and whether their author can claim immunity in national courts is a discrete issue and a potentially difficult one as to the merits of which we have not been addressed. Even if it could be shown that Malaysian law has been misconstrued by the Malaysian judges or, if correctly applied, puts Malaysia in breach of international law or of her Treaty obligations, that does not bear upon the issue whether other aspects of Malaysian law ought or ought not to be enforced in the English courts. There is no novelty in there being a dispute as to the position of an international civil servant, or a representative of another state, in domestic law. A refusal to grant immunity in Malaysia to an international official does not in itself require that no part of Malaysian law is to be recognised in England and the view of the Malaysian courts on the discrete issue of immunity does not determine the issue as to the status Malaysian libel law ought to be given in the English courts. It would be unacceptable to base a blanket disapproval of Malaysian law and decisions on this ground. The judge was in my view correct to strike out 12.1.3.5 to 12.1.3.6.14 of the defence, and the general allegation at 12.1.2 particularised in those paragraphs (paragraph 12.1.3.5.2 is considered specifically at paragraph 54).
50. At paragraph 12.2 of the defence, the particulars in paragraph 12.1 are relied on in support of an allegation that the present claims constitute "an indirect attempt to enforce the penal laws of a foreign state and/or to enforce laws inconsistent with the fundamental public policy of English law and the court should refuse to entertain it". That is an allegation the defendants are entitled to pursue by reference to the reports of the Malaysian cases mentioned in paragraphs 12.1.1 of the defence, and on the basis of the particulars in paragraphs 12.1.3.1 to 12.1.3.4.
51. The defendants are entitled in present circumstances to prove Malaysian law in the English courts. They seek to give particulars of the Malaysian cases mentioned in paragraph 12.1 in support of the general proposition contained in that paragraph and stated at paragraph 5 of this judgment and the further proposition just cited in paragraph 12.2. They are entitled to refer to cases which appear in a Malaysian set of reports. Indeed, it was indicated on behalf of the claimants, that they also would seek to refer to the reports at least to demonstrate the high level of damages in defamation cases in Malaysia. The Malaysian statute mentioned in argument, the Printing Presses and Publications Act 1984, may also be cited. If a Malaysian lawyer is required formally to prove the reports and statute as part of Malaysian law, or to prove any other relevant provisions of Malaysian law, so be it, but it is open to the parties to make an agreement in this respect.
52. First, in my judgment, the defendants should be permitted to refer to Malaysian law in support of the general submission at paragraph 12.1 which governs the whole of paragraph 12 of the defence, namely, that it constitutes a matter they can rely on to support a submission that the claim for contribution should be extinguished or reduced. On the basis of the substance of Malaysian law, as declared by the Malaysian judges, they may argue that the Malaysian settlement figure should not be permitted to form the basis for a claim to contribution in England or that, if it is permitted, the size of the award is a factor in deciding what, if any, contribution from the defendants is just and equitable under the 1978 Act. On the same basis, the claimants should be permitted to argue that a party publishing defamatory matter in Malaysia, where a strong view may be taken of the value of reputation, should expect to make a contribution in England which reflects, as one factor in the decision, the large amount of the Malaysian award, as itself reflected in the settlement figure. Questions may arise as to the effect of provisions of section 1 of the 1978 Act in present circumstances.
53. The defendants should also be permitted to argue that, in determining what is just and equitable by way of contribution, the Court should consider submissions that the claimants did not act reasonably in settling the Malaysian actions in the sum they did. They may do that on the basis of Malaysian law as it appears from the cases. Indeed, that allegation is contained in paragraphs 12.5.3, 12.5.4.1 and 12.5.4.2 which have not been struck out. It is however also pleaded in paragraph 12.5.4.3 of the defence that the claim was settled at an exorbitant sum because "they [the claimants' insurers] apprehended that the claimants would not have received a fair trial at the hands of Malaysia's internationally discredited judiciary and legal system". That allegation, preceded by the expression "in the premises" depends on particulars I have already considered. Save on the basis already approved, the allegation is unsupported by surviving particulars. The defendants may argue that the settlement ought not to form the basis for a claim to contribution in England by reason of the allegation at paragraph 12.2. There is no surviving basis for wider attack upon the conduct of the Malaysian judiciary.
54. Save insofar as matters are admissible on the basis already stated, I would uphold the claimants' submission that paragraphs 8.2.6.1 and 8.2.6.2 of the defence, incorporated into paragraph 12.1 at 12.1.3.5.2 should be deleted. The Court decisions which allowed a case to come speedily to trial in Malaysia and which provided that Malaysia was the appropriate forum for a trial do not provide any basis for a ruling by an English court that claims settled in Malaysia cannot be the subject of a claim for contribution in England under the 1978 Act. Paragraph 8.2.2.3 should be struck out entirely. Reference may be made to Malaysian case law but remarks by members of one Malaysian court about another Malaysian court do not provide a relevant free-standing allegation.

Conclusion

55. Beyond that I would not go for present purposes. For reasons given earlier, it is not appropriate for this Court to lay down the law in advance of the trial by way of an appeal from a case management conference. The judge should consider whether it should in the circumstances be open to the claimants to obtain a contribution in England, and, if so, what amount is appropriate in all the circumstances. There can be a fair trial of the action. A fair trial is not prejudiced by the deletions from the defence which have been upheld, given the reasons for which the deletions have been upheld. It will of course be necessary for the judge to consider the question afresh when he has heard submissions upon the issues which remain open for argument.
56. I am not of course discouraging the parties from settling their dispute in advance of the trial.
57. It follows that I would dismiss the claimants' appeal and allow the defendants' appeal in part and hear counsel on any consequential matters which arise.

Lord Justice May:

58. I agree.

Mr Justice Rimer:

59. I also agree.

Order:

60. Claimants' appeal dismissed.
61. Defendants' appeal allowed in part.
62. Claimants to pay defendants' costs of claimants' appeal. Claimants to pay 25 per cent of the cost of their appeal. Judge's order below to be reversed to make a global order (ie not order for costs below).
63. Detailed assessment of costs.

(Order does not form part of approved judgment)