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.
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.
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.