Q : In a cause of action of defamation, can the Court grant a Mareva Injunction

to avoid dissipation of assets?

Dato' Kam Woon Wah & Ors V Mohd Abdul Jalil Bin Sarip & Anor [1998] 2 MLJ 201
James Foong [HC]
“Simultaneous to the filling of the writ of summons and statement of claim in this
case the plaintiffs also applied, by way of summons-in-chambers, for a Mareva
injunction. It is to restrain the defendants 'from removing from the
jurisdiction of this court any of the defendants' assets, in particular the
proceeds which they will receive from the sale of the land'.
In my view, when the only reservation against the extension of a Mareva
injunction in a personal injury case is one of solely financial ability then, by the
same token, it must also be the same reason for other causes of action. But
since this factor cannot outweigh the more fundamental consideration that
justice ought to be done, as expounded in Allen's case, the relief in the form
of a Mareva injunction should also be extended to all kinds of cases, be
that of contract, personal injury or defamation. By this, I find that the
defendant's first contention must fail; a Mareva injunction is applicable to
cases where the cause of action is that of defamation…”

However, The New Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36
[SC]
“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 (C.A.) 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 M.K 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.
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 & Ors
[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."

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.

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.”

Lee Kuan Yew v Tang Liang Hong and other suits [1997] 1 SLR(R)
[HC]
“[26] On 31 December 1996 Mr Goh and Mr Lee commenced their actions
against Mr Tang claiming damages for the defamatory remarks made by
Mr Tang in the interview…”

[33] I have set out the principles and the standard of affidavit evidence
required to prove that there is a real risk of Mr Tang, with the help of
Mrs Tang, dissipating his assets, including the property, to defeat any judgment
which all or any of the plaintiffs may obtain against him…”

[40] Having read the affidavit depositions and the submissions of learned
counsel, I was satisfied that there was a real risk that Mr Tang and his wife
would dissipate their assets to defeat any judgment which might be
obtained in the future in these suits.”
Bonnard v Perryman [1891 B. 735.] [1891] 2 Ch 269
[CA]

“…Two questions only is it really necessary to decide - (1) is there jurisdiction in the
Supreme Court to issue an injunction to restrain the publication of an alleged
libel, either at all, or before the libel has been adjudged to be such? And (2) is this
a case in which, as matter of discretion, the jurisdiction should be exercised, if it
exists?...”

“We entirely approve of, and desire to adopt as our own, the language of Lord Esher,
M.R., in Coulson v. Coulson (1) - "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." In the particular case before us, indeed, the libellous character of the
publication is beyond dispute, but the effect of it upon the Defendant can be finally
disposed of only by a jury, and we cannot feel sure that the defence of justification is
one which, on the facts which may be before them, the jury may find to be wholly
unfounded; nor can we tell what may be the damages recoverable. Moreover, the
decision at the hearing may turn upon the question of the general character of the
Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon
affidavit before the trial, - on which further it is not desirable that the Court should
express an opinion before the trial. Otherwise, an injunction might be granted before
the trial in a case in which at the trial nothing but nominal damages, if so much, could
be obtained. Upon the whole we think, with great deference to Mr. Justice North, that it
is wiser in this case, as it generally and in all but exceptional cases must be, to abstain
from interference until the trial and determination of the plea of justification. The
appeal, therefore, must be allowed, and the order discharged; the costs in this Court
and in the Court below to be costs in the cause.”