Defamation Suit: High Court Blocks the Defendants’ Late Bid to Rewrite Their Defence Three Weeks Before Trial

Case Background & Strategy

Courts in Malaysia allow pleadings to be amended at any stage if no injustice is caused, but they will refuse an amendment that is not made in good faith, withdraws admissions or causes prejudice that costs cannot cure. In Eric Boon Chuan Kit lwn Metronic Global Bhd dan lain-lain [2021] MLJU 2903, our partner Khoo Ai Theng acted for the plaintiff, Eric Boon Chuan Kit, in his defamation suit against the listed company Metronic Global Bhd and others, and successfully opposed the defendants’ attempt to rewrite their defence three weeks before trial.

Case at a Glance

The Problem: A New Defence on the Eve of Trial

Our client, Eric Boon Chuan Kit, a former group financial controller and chief financial officer, sued Metronic Global Bhd, a listed company, together with its subsidiary and a former executive director over statements about his dismissal that were announced to Bursa Malaysia and reported in the financial press. The defendants filed their defence in April 2020, relying on qualified privilege, fair comment and justification. Our client had already succeeded in his unfair dismissal claim in the Industrial Court, which awarded him RM178,000.

In August 2021, after changing solicitors and only three weeks before the trial, the defendants applied to amend their defence substantially. They sought to add new background facts, to withdraw positions they had taken in the original defence and to raise new defences of laches, abuse of process and duplication of the Industrial Court claim.

Our Strategy: Expose the Purpose and the Prejudice

We opposed the application on the three questions the court asks: whether the amendment is made in good faith, whether any prejudice can be compensated by costs, and whether it changes the character of the case. We showed that every fact the defendants now wanted to plead had been within their knowledge since 2017, that the amendments were designed to withdraw admissions and remove facts unfavourable to them after they had seen our client’s documents and submissions, and that the application was very late. We also showed that the new laches and duplication arguments were misconceived, because the Industrial Court case concerned unfair dismissal while this action claimed damages for defamation.

The High Court’s Decision

The High Court dismissed the application with costs of RM6,000 to our client. It found the proposed amendments wide-ranging, changing a large part of the original defence, and held that they were made in bad faith: their purpose was to withdraw earlier admissions and remove relevant facts adverse to the defendants. Allowing them would move the defendants from their original position to a very different one, causing serious prejudice to our client that costs could not compensate.

The court noted that the application was filed more than a year after the defence, after a failed striking-out application, after pre-trial directions had been complied with and three weeks before trial, and that a change of solicitors was no reason for the delay. The proposed defences of laches and duplication did not apply, because the Industrial Court claim for unfair dismissal and this defamation action were different.

The Law in Brief: Amending Pleadings Under Order 20

Under Order 20 rule 5 of the Rules of Court 2012, the court may allow a party to amend its pleadings at any stage of the proceedings on just terms, and leave is generally given readily, however late, if no injustice is caused. The court asks whether the application is made in good faith, whether the prejudice to the other side can be compensated by costs, and whether the amendment would turn the case into one of a different and inconsistent character.

An amendment that withdraws admissions, or that is made late without good reason after the applicant has seen the other side’s case, is likely to be refused.

Key Takeaways

• Amendments are readily allowed only if they are made in good faith and cause no injustice that costs cannot cure.
• Using an amendment to withdraw admissions is a strong sign of bad faith.
• Facts known from the start should be pleaded from the start.
• A change of solicitors does not justify a late amendment.
• A defamation claim is distinct from an unfair dismissal claim, even where both arise from the same termination.

Frequently Asked Questions

Related reading: We successfully defended a defamation claim and secured RM40,000 costs; Negative reviews and defamation in Malaysia.

Considering a defamation claim, or defending one? Book a consultation with NZSK so we can review the publication and advise on your options. Learn more about our defamation practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts in defamation, employment and other civil disputes in the High Court and the appellate courts.