seek­ing dam­ages

In defama­tion cases, the claimant may ask for a huge sum, but it is up to the judge to de­cide on the amount to be paid out.

The Star Malaysia - Star2 - - ENVIRONMENT - BHAG SINGH

In defama­tion cases, it is up to the judge to de­cide on the amount to be paid out.

ONE party sues an­other on the ba­sis that it has been de­famed. Mil­lions of ring­git are claimed and some­times in tens and hun­dreds. The party sued does not turn up and the party that has sued ob­tains de­fault judg­ment. Is it so sim­ple to get mil­lions of ring­git just be­cause the other party is ab­sent, asks a reader?

The de­fen­dant may not turn up at var­i­ous stages. It could be at the very ini­tial stage where the de­fen­dant fails to en­ter an ap­pear­ance, re­sult­ing in judg­ment in de­fault of ap­pear­ance. In other cases, it may be that the de­fence is not filed. In such cases, it will be judg­ment in de­fault of de­fence. In other cases, the de­fen­dant does not turn up at the hear­ing.

Our reader’s in­ter­est is piqued by a re­cent re­port in the press of de­fault judg­ment in a defama­tion case in which a large sum was claimed. Does it mean that the plain­tiff will get the mil­lions that he asked for?

Such re­ports of ac­tion be­ing filed and de­fault judg­ment be­ing handed down do not nec­es­sar­ily re­flect a true pic­ture of what ac­tu­ally hap­pened. In ad­di­tion, it is not nec­es­sar­ily in­dica­tive of what the even­tual out­come would be.

To un­der­stand what ac­tu­ally hap­pens, it is nec­es­sary to un­der­stand the pro­ce­dures that are in place. It is based on these pro­ce­dures that the con­se­quences fol­low as a re­sult of steps taken or not taken.

It is also nec­es­sary to be aware of the two types of dam­ages that are usu­ally in­volved in the con­text of civil claims.

One cat­e­gory is spe­cial dam­ages and the other, gen­eral dam­ages. Spe­cial dam­ages con­sti­tute claims that can be quan­ti­fied by the per­son claim­ing. Thus if the car is dam­aged and the re­pair costs are RM2,000, this will be part of spe­cial dam­ages. So, too, where a per­son has to pay for his treat­ment, the hos­pi­tal bill would be part of the spe­cial dam­ages.

On the other hand, the per­son in­volved in the ac­ci­dent may also suf­fer an in­jury such as a frac­ture. There is the el­e­ment of pain and suf­fer­ing here, and in some cases, a dis­abil­ity. The claim for this would be in ad­di­tion to the hos­pi­tal bill, and will be gen­eral dam­ages.

In the case of defama­tion, what is usu­ally asked for is com­pen­sa­tion for dam­age to rep­u­ta­tion; it is not pos­si­ble for the claimant to quan­tify this. Such claims are there­fore for gen­eral dam­ages and this is for the court to as­sess.

Where a per­son suf­fers ac­tual loss be­cause of defam­a­tory state­ments, then if this can be quan­ti­fied in mon­e­tary terms, it would come un­der the cat­e­gory of spe­cial dam­ages.

But in defama­tion cases, such claims are rare and it is usu­ally gen­eral dam­ages that are asked for.

Where the amount sought to be re­cov­ered can be worked out as a spe­cific sum of money, it is also re­ferred to as a liq­ui­dated sum. The word “liq­ui­dated sum” is more fre­quently used in the con­text of con­trac­tual claims, but spe­cial dam­ages would also con­sti­tute a liq­ui­dated sum.

The claim

A plain­tiff ini­ti­ates his claim in the Sub­or­di­nate Court through a sum­mons and in the High Court by a writ of sum­mons. The state­ment of claim will have more de­tails. In so far as spe­cial dam­ages are concerned, an amount will be stated. But for gen­eral dam­ages, this is left to the court to de­cide.

The sum­mons must be served on the per­son sued. It is ba­si­cally a doc­u­ment that di­rects such a per­son to turn up in court to de­fend him­self. If the per­son does not do so, the con­se­quences are that the de­fault judg­ment will be en­tered depend­ing on at what stage he fails to re­spond.

Such a de­fault judg­ment is, in a man­ner of speak­ing, like a walkover in a sports event. The plain­tiff gets judg­ment not be­cause the court has de­lib­er­ated on the mer­its of the claim, but be­cause the de­fen­dant has not turned up to dis­pute the claim.

This does not al­ways mean that the plain­tiff will nec­es­sar­ily be awarded what he has asked for. It will de­pend on whether he has asked for spe­cial dam­ages or gen­eral dam­ages. If it is spe­cial dam­ages, then it is likely that fi­nal judg­ment will be en­tered in de­fault for this sum.

How­ever, if what is claimed is gen­eral dam­ages, then even though the plain­tiff has set out an amount in his state­ment of claim, he is not by the mere fact en­ti­tled to judg­ment on such amount. This is es­pe­cially so with defama­tion claims. The court may only en­ter in­ter­locu­tory judg­ment, mean­ing that li­a­bil­ity is es­tab­lished with dam­ages to be as­sessed.

Op­tion for de­fen­dant

When this hap­pens, the de­fen­dant may – even if he has not ap­plied to set aside the de­fault judg­ment – ap­pear be­fore the court to raise a chal­lenge dur­ing the as­sess­ment process. He could cross-ex­am­ine the plain­tiff as well as ad­duce any ev­i­dence to show the court why dam­ages should be much less than what the plain­tiff is ask­ing for.

Thus at the end of the day, though a claim has been made for mil­lions, the plain­tiff could very well end up – not­with­stand­ing the ear­lier de­fault judg­ment – with a much lesser amount or even nom­i­nal dam­ages where the cir­cum­stances so war­rant.

But a de­fen­dant can al­ways ap­ply to set aside the de­fault judg­ment. If the ap­pli­ca­tion is suc­cess­ful, the whole mat­ter will go back to the stage where the pro­ceed­ings com­menced. The de­fen­dant who sets aside the de­fault judg­ment will be re­quired to pay the costs of the pro­ceed­ings up to that stage.

Of course, it is not in all sit­u­a­tions that judg­ment in de­fault can be set aside. One sure sit­u­a­tion is where the judg­ment is ir­reg­u­lar. This can hap­pen where the sum­mons has not been prop­erly served. It may also be a ba­sis for set­ting aside the de­fault judg­ment that fi­nal judg­ment has been en­tered for the full sum claimed where the law re­quires dam­ages to be as­sessed.

How­ever, where a judg­ment is ob­tained reg­u­larly, mean­ing that it is ob­tained in ac­cor­dance with the rules and pro­ce­dures, the de­fen­dant may yet be able to set it aside where he has good rea­sons for not hav­ing re­sponded and there are mer­its in his de­fence.

Of course, in the later case, if the de­fen­dant has been di­la­tory in mak­ing the ap­pli­ca­tion to set aside the de­fault judg­ment af­ter hav­ing be­come aware of it, this will be a ground for the dis­cre­tion of the court to be ex­er­cised against him.

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