[Editor's note: The following document is posted in the from received.]

NOTES OF ARGUMENT ON THE COMBINED APPEALS ON BEHALF OF JOSHUA BENJAMIN JEYARETNAM (JBJ)

1. The eight defamation suits

1.1 The motive underlying these suits and the present appeal by Mr Goh Chok Tong (PM)

JBJ maintains that the reason why these eight co-ordinated suits were brought against him is crystal-clear : the PM and his co-plaintiffs are working to a political agenda, namely to suppress political opposition and drive him from politics. Why else sue on a handful of innocuous words in a political speech? Why start 8 separate actions using separate and costly firms of lawyers? Why else oppose consolidation? Why target JBJ and let the more pecunious republishers of the so-called slander escape scot-free? If ever there were doubts about the Plaintiffs' motivation, it is removed by the bringing by the PM of this appeal. It is unprecedented for a successful defamation plaintiff to come to the Court of Appeal asking, like Oliver Twist, for more damages. JBJ will revert to the issue of motive on the issue of damages and costs. In the meantime, he submits that politics should be left to the hustings, leaving the courts free to adjudicate upon cases genuinely concerned with honour and reputation.

1.2 The significance for JBJ of the outcome of the present appeal The consequences for JBJ of his appeal being dismissed and the PM's appeal being allowed would indeed be calamitous. The PM recovered $20,000-00 damages and now wants a substituted figure of at least $200,000-00 damages. In addition, the PM seeks all his costs paid, totalling probably in the region of $100,000-00. Bearing in mind that 7 other suits will (subject to the issue of identification) abide the outcome of the present case, JBJ is facing a liability in the region of $2,250,000-00. This is not mere special pleading. The plaintiffs well know that such an outcome would spell bankruptcy for JBJ. They know equally well the consequence of his bankruptcy would be JBJ's mandatory disqualification as an MP by virtue of Article 46 of the Constitution. JBJ, now aged 72, is one of only three Opposition MPs. The Plaintiffs are intent on his political liquidation. That is not a legitimate function of a defamation suit.

2. The issues raised by the appeals of the PM and JBJ respectively

2.1 It is logical to take first JBJ's appeal on liability. The major ground of that appeal (viz the issue of meaning) arises also on the PM's appeal on quantum. In this note the issues arising on the two appeals will be addressed together in what is hoped to be a sensible order.

2.2 The first and foremost issue is the meaning of the words complained of. JBJ contends that the Judge was wrong to find the words defamatory either in their natural and ordinary meaning or by innuendo. If that contention is correct, JBJ's appeal succeeds and the PM's appeal must be dismissed. See para 3 below.

2.3 The next issue is whether the words admittedly spoken by JBJ were actionable per se, so as to entitle the PM to damages for slander despite the absence of any claim for special damage. JBJ maintains that his words were not calculated to disparage the PM in any office held by him on 1.1.1997.

2.4 In regard to damages, the issue raised by the PM's appeal is whether the Judge's award of $20,000-00 was too low and the issue raised by JBJ's appeal is whether the award was, in the circumstances of the case, too high. JBJ contends that the PM should have been awarded no more than nominal damages.

2.5 A specific subsidiary issue relating to damages is whether the PM is entitled to additional damages by reason of the republication of JBJ's words in the Straits Times and the Business Times on 2.1.1997. JBJ's case is that the PM is not so entitled, not least by reason of his own surreptitious leaking of the contents of Tang's police reports to the press.

2.6 The final issue is whether the Judge's decision to award the PM 60% of his costs of the action was justified. The PM asserts that he should have been awarded a higher proportion : JBJ asserts the converse.

3. The meaning of the words spoken by JBJ

3.1 General approach to interpretation of the words complained of: before turning to the distinction - crucial in these appeals - between the natural and ordinary and innuendo meaning of words, JBJ has brief submissions as to how the court should determine meanings.

3.1.1 JBJ has no quarrel with the citations from Lewis v Daily Telegraph (ABA Vol 1 tab 3) at paras 47(3) and 51 of the PM's Case in Civil Appeal No. 205). He relies in addition on :- Gatley 9th edition para 2.1; 2.19 (218 ABA Vol 3 tab 15). Berkoff v Burchill (218 ABA Vol 1 tab 1) at pp 1011-3. Skuse v Granada (218 ABA Vol 1 tab 2) at p 285. Capital & Counties Bank v Henty (218 ABA Vol 1 tab 3) at p 744.

3.1.2 The PM has selected for complaint a few words from a lengthy speech by JBJ. The words should be interpreted in their context. But this simply signifies that the words selected for complaint should be construed against the background of the other words (or gestures - see the judgment at para 116) included in the publication complained of : Gatley para 3.30. The PM's argument at para 75.6 and 78(1) of his Case in Appeal 205 appears to proceed on the wholly fallacious basis that the events of the days preceding the election rally on 1.1.1997 form part of the context. They are nothing of the kind (although those earlier events may constitute extrinsic facts for the purpose of founding an innuendo meaning).

3.1.3 A fortiori, the PM cannot pray in aid as part of the context, words or conduct of Tang to render JBJ's otherwise innocent words defamatory of the PM : Astaire v Campling (218 ABA Vol 1 tab 7).

3.1.4 It has always to be borne in mind that in defamation (or any other tort), it is for the plaintiff to prove that the words bear a specific defamatory imputation. If it is impossible to pinpoint such an imputation, the plaintiff fails to prove his case.

3.1.5 It is trite law that neither the intention of the publisher/speaker nor the understanding of the audience has any relevance to the ascertainment of the meaning. Gatley para 3.11-13 (205 RBA tab 7). Duncan & Neil para 4.07-8 (205 RBA tab 8). The PM cannot derive assistance for his argument on meaning from the motives he (wrongly) imputes to JBJ. The conspiracy theory advanced in paras 67-73 of the PM's Case in Appeal 205 is irrelevant on meaning. So is the audience reaction.

3.1.6 Finally, in regard to the role of the CA in relation to an appeal on meaning, JBJ submits that the CA is in no worse position than the Trial Judge to decide meaning since no evidence is relevant or admissible (at least in relation to the natural and ordinary meaning). The position in regard to the appeal on damages is different.

3.2 The distinction between the natural and ordinary and innuendo meaning of words: because the distinction is so vital in the present case, it is necessary to spell it out.

3.2.1 Words are defamatory in their natural and ordinary meaning where the defamatory meaning can be derived from the words themselves (including the context in the sense specified in para 3.1. 2-3 above).

3.2.2 An innuendo meaning (a so-called "true" innuendo) is entirely different: it is a meaning derived not from the words themselves (which may be wholly innocent) but from the conjunction of the words and extrinsic facts not forming part of the words. Such extrinsic or additional facts convey to the listener/reader who knows of the relevant facts the innuendo meaning, which is a separate cause of action. The distinction is clear, well-established and in no way artificial.

3.2.3 As it happens, in the present case, the PM has asserted in para 32 of the Statement of Case that JBJ's words bore the same natural and ordinary and innuendo meaning. It is nonetheless essential to consider the two separate causes of action independently.

3.3 The innuendo meaning

3.3.1 It is a striking, even unique feature of the present case how great is the weight placed by the PM on events antecedent to and independent of JBJ's words. In the SC, 25 paragraphs are devoted to such events. Over 1000 pages in Vol IV (Part A) and 33 pages of the PM's in 205 are similarly devoted to such events, most of which are the words and conduct of Tang. This suggests an acute awareness on the part of the PM's advisers that, in order to establish that JBJ's words were defamatory, they must look outside and beyond what he actually said. In other words, the PM pleads and argues his case on an innuendo basis.

3.3.2 It is important to note that, in the case of an innuendo meaning, the plaintiff is pinned precisely to his pleaded meaning and proof of a lesser meaning will not assist him : Gatley para 26.24.

3.3.3 The authority cited for this passage is Truth (NZ) Ltd v Holloway (218 ABA Vol 3 tab 17). Despite the composition of the PC in that case, the PM in paras 53-54 of his Case in Appeal 205 airily dismisses the authority as obiter and illogical. The dictum of Lord Denning is not obiter; nor were the decisions in Mountney v Watton (1831) 2 B & AD 673 at 678 and Simmons v Mitchell (1880) 6 App Cases 156, upon both of which JBJ relies for his contention that the law is correctly stated in Gatley.

3.3.4 Nor is it remotely illogical that a plaintiff is pinned precisely to his pleaded innuendo meaning. Where a statement is alleged to be defamatory by virtue of an extrinsic fact (eg. that the house the plaintiff was seen to enter was a brothel), the innuendo meaning is dependent on proof by the plaintiff of that extrinsic fact. If the plaintiff proves the fact, the innuendo meaning is made good; if he fails to prove the extrinsic fact, the whole basis of the innuendo collapses. There is no half-way house.

3.3.5 In regard to the innuendo meaning, the question can be put thus : was the PM able to prove relevant extrinsic facts which conferred upon JBJ's words (ie. that Tang had made two reports to the police against the PM) the meaning pleaded in para 32 of the Statement of Claim (ie. that the PM was guilty of criminal offences punishable with imprisonment, namely criminal defamation and criminal conspiracy)?

3.3.6 The extrinsic facts prayed in aid by the PM are those pleaded at paras 3-24 plus Tang's speech pleaded in para 25. But those facts consist entirely of words or conduct on the part of Tang. There is clear authority a defendant cannot be made liable by pleading innuendoes for defamatory statements made by another person which are not expressly or by implication approved : Astaire v Campling (218 ABA Vol 1 tab 7). (It would be particularly repugnant to allow the PM to recover against JBJ on this basis given that the PM together with his co-plaintiffs have already recovered massive damages from Tang for the same libel). The hypothesis in para 65 of the PM's Case in Appeal 205 is absurd.

3.3.7 It follows that the PM would succeed, if and only if, it could be shown that JBJ by what he said on 1.1.1997 expressly or impliedly adopted or endorsed assertions by Tang that the PM was guilty of the specified criminal charges. The Judge addressed this issue at paras 105 and following of his judgment. He correctly concluded at paras 114, 115, 116 and the opening words of 117 that JBJ had not so adopted or endorsed Tang's words.

3.3.8 The Judge then fell into error : having held that JBJ had not adopted or endorsed Tang's allegations that the PM was a liar, JBJ was "in effect" saying that the issue was of sufficient gravity, that the police would not dismiss it as a mere nuisance. This conclusion is inconsistent with the conclusion in paras 114-116 and paras 161c-e. Moreover, the Judge did not (and on the facts could not) hold that JBJ was impliedly adopting or endorsing Tang's statements that the PM was guilty of the specified criminal offences. Nothing less than this would suffice to enable the PM to establish the innuendo meaning because the plaintiff is pinned precisely to his pleaded innuendo (ie. actual guilt).

3.3.9 Besides the fact on which the Judge relied for his finding that JBJ impliedly adopted what Tang had said (namely JBJ's "proclamation" that Tang was not anti-Christian or a Chinese chauvinist) was not pleaded by the PM as required by RSC Order 78 rule 3(1) (218 ABA Vol 1 tab 8) : see para 32 of the S/C Particulars.

3.3.10 The PM also relied as an extrinsic fact supporting the pleaded innuendo upon JBJ's gestures. The video demonstrated the hollowness of this claim, as the Judge found at paras 116 and 161(a).

3.3.11 For the above reasons, the innuendo meaning found by the Judge at para 104 is unsustainable (as well as being obscure because of the interpolation of the words "in Tang's view"). The innuendo meanings contended for by the PM at para 63(a) of his Case in Appeal 205 is equally hopeless because it cannot be said that JBJ endorsed any allegation that the PM was guilty of criminal defamation and criminal conspiracy.

3.4 The natural and ordinary meaning

3.4.1 A threshold question is whether the PM was also tied to the natural and ordinary meaning pleaded in para 32 of the S/C. It is accepted that Diplock LJ in Slim v Daily Telegraph (218 ABA Vol tab 9) held at pp 175-6 that it was a "high water mark" but Salmon LJ at p 185B took a different view. It is submitted that the present practice, at least in actions heard by a judge without a jury, is to confine the plaintiff to his pleaded natural and ordinary meaning : Hadzel v de Waldorf (218 ABA Vol 3 tab 16) at 176, 177, 179; Tarkanyi v Mirror Newspapers (218 ABA Vol 3 tab 17) at 706; Broadcasting Corporation of NZ v Crush (1988) 2 NZLR 234, cited in Gatley para 26.25 note 91.

3.4.2 To permit the plaintiff to depart radically from his pleaded meaning makes a nonsense of the requirement to plead the meaning (which in effect the defendant is now also required to do : Lucas-Box v News Group Newspapers (1986) 1 WLR 147 cited in Gatley at para 27.7 note 26). In the present case, the PM in effect invited the Judge to find whatever meaning he saw fit. In the event, the Judge found a meaning which had not been argued before him and as to which JBJ was deprived of the opportunity of making submission. This has created great unfairness and reinforces the desirability of confining the plaintiff to his pleaded natural and ordinary meaning. If the PM had been so confined, this basis for his claim would also have been dismissed.

3.4.3 The question is whether, adopting the approach summarised in para 3.1 above, any defamatory imputaton whatever can be found within the words complained of taken in the context of the rest of JBJ's speech. All that JBJ said was that Tang had filed two police reports against the PM. JBJ did not say (or know) what the reports contained. He said nothing by way of approval of what Tang had done. He simply announced the bare fact of filing by Tang. Such words cannot convey a defamatory meaning.

3.4.4 The following are the possible levels of meaning :

(i) X has been convicted of criminal defamation/conspiracy (ii) X is guilty of criminal defamation/conspiracy (iii) there are reasonable grounds to suspect that X is guilty of criminal defamation/conspiracy (iv) the police are investigating whether or not X is guilty of criminal defamation/conspiracy; and (v) Y has filed a report with the police against X

Of these, (i) - (iii) are defamatory. (iv) may possibly be so, depending on the context. (v) cannot be defamatory without more.

3.4.5 The reason why (v) cannot be defamatory is that it contains no hint that the report is well-founded or that it will merit investigation by the police, still less that the person concerned is guilty. The listener is not even told what the offence(s) alleged are. How can he or she draw any inference adverse to the subject of the report with any semblance of reasonableness or fair-mindedness? The case is analogous to the publication of the contents of a writ. In Cadam v Beaverbrook (218 ABA Vol tab 5), the CA doubted if it would be defamatory to do so : see p 423, and held that such a publication could be justified by merely proving that such a writ had been issued : p 425. See also Stern v Piper (218 ABA Vol 1 tab 6) at p 134F, p 137F.

3.4.6 It appears that the PM is continuing stubbornly to assert that JBJ's words in their natural and ordinary meaning meant that he was guilty of criminal defamation and conspiracy. See para 63 of his Case in Appeal 205. A simple comparison with JBJ's actual words demonstrates the absurdity of this contention. Where is the imputation of guilt? How does the listener gather from JBJ's words what the criminal offences are? To bolster his contention, the PM is driven to advance in paras 67-71 of his Case in Appeal 205, a conspiracy theory, which was wholly unsupported by the evidence and the existence of which would, in any case, be inadmissible on the issue of meaning (see para 3.1.5 above). (Incidentally, in relation to para 70.3 of the PM's case, JBJ would have read of Tang's intention to lodge police reports in the report of the Straits Times on 31.12.1996 : Vol IV Part A p 153). Most of the particulars of the "conspiracy" consist of speculation about JBJ's motives, which are equally immaterial on the issue of meaning (see for example, para 72(7) of the PM's Case).

3.4.7 Another way the PM attempts to make good his natural and ordinary meaning, at paras 75-77 of his Case in Appeal 205, is that Tang was unequivocally asserting the PM's guilt by filing the police reports and that JBJ would not have announced that fact unless there were reasonable/strong grounds for believing the misconduct/crime had taken place. This is sophistry. What Tang might have been asserting is wholly beside the point since JBJ is not answerable for his assertions (see para 3.1.3 above). Furthermore, no member of the audience who saw the reports being pushed under JBJ's nose and listened to the tone and manner in which he made reference to the reports could have understood JBJ to be expressing any view about the merits of Tang's (unspecified) complaints.

3.4.8 To a considerable extent, the Judge accepted the contentions summarised at paras 3.4.3 -3.4.7 above. He rejected out of hand the meaning pleaded by the PM and contended for at para 63 of his Case : see the judgment at paras 81-86. The Judge also rejected the PM's argument that, despite the absence of any hint or grounds for suspicion in JBJ's words, there was nonetheless an implied imputation of suspicion : judgment at paras 87-88. That should have disposed once and for all of the claim that the words spoken by JBJ in their natural and ordinary meaning defamed the PM.

3.4.9 But the Judge proceeded to devise a meaning of his own, miles away from the pleaded meaning, with which JBJ had no chance to deal at the trial. The Judge's meaning is at para 92 of the judgment. That meaning is open to two major objections. The first is that it adds a distinct gloss to what JBJ said : he said nothing to the effect that the PM might have brought an investigation onto his head. The second objection, equally fundamental, is that the Judge's meaning is not defamatory of the PM at all. See the words "may", "possible" and "some offence or other". That may be why the Judge held no more than that the words were capable of bearing his meaning.

3.4.10 The fact that the Judge was constrained to come up with so artificial and nebulous a meaning is the clearest demonstration that JBJ's words lack any defamatory imputation. Notwithstanding the four Opinions said to have been obtained by the PM, the Judge should have rejected the claim that the words used by JBJ were defamatory and dismissed the PM's claim.

4. Whether JBJ's words are actionable per se

4.1 JBJ's argument is at para 5 of his Case in Appeal 218.

4.2 In brief, the PM not alleging any special damage, must prove that the words disparaged him in some office held by him on 1.1.1997.

4.3 In para 34 of the S/C, the PM relies on his offices as the PM and as an MP. But, by virtue of Articles 25 and/or 46 of the Constitution, the PM ceased to hold these offices when Parliament was dissolved on 16.12.1996. C/f Article 40 providing for the Speaker to continue in office after dissolution of Parliament. Article 2 of the Constitution (218 ABA tab 8) does not assist the PM because it relates to the Government. Moreover its reference to the PM taking and subscribing to the Oath of Allegiance confirms that the PM ceased to hold that office on 16.12.1996.

4.4 The only other office relied on by the PM in para 34 of his S/C is that of Secretary-General of the PAP. But that is an office of honour and not of profit, so JBJ's words are not actionable unless they imputed dishonest or corrupt behaviour in that office : Robinson v Ward (218 ABA Vol 3 tab 19); Jeyaretnam v Goh (218 ABA Vol 2 tab 10) at pp 521-2. The PM does not address this point in his Case.

4.5 The PM's claim in slander lacks an essential ingredient and must be dismissed.

5. The quantum of damages

5.1 Compensatory damages

5.1.1 The Judge awarded the PM $10,000-00. JBJ urges the CA, if any damages are payable, to reduce that award in the highly unusual circumstances of this case. The grounds on which JBJ relies for this contention are the same as the grounds on which he opposes the remarkable appeal of the PM seeking higher damages.

5.1.2 If (which JBJ firmly denies) the words were defamatory, some damage is presumed. The factors which determine whether the award should be more than nominal are :

(a) the gravity of the libel/slander; (b) the extent of the circulation of the libel/slander; (c) the extent of any injury to the reputation of the plaintiff; (d) the position of the plaintiff; and (e) the need for vindication.

Obviously, the above fall to be considered in the context of the circumstances of the case and the evidence. The overall purpose is to compensate the plaintiff for the damage to his reputation (if any) flowing from the publication of the defamatory words. See John v MGM (218 ABA Vol 2 tab 14) at 607H. (Aggravated damages are considered separately at para 5.2 below).

5.1.3 Gravity of the slander : JBJ repeats the argument at para 3 above that his words, if defamatory at all, were of the mildest possible variety. Moreover, the words were spoken off the cuff in a wholly political context in the midst of the cut-and-thrust of an election rally. It is submitted that the Court should scrutinise with extreme scepticism a claim arising in such circumstances.

5.1.4 The PM at paras 82-84 of his Case in Appeal 205 suggests that the Judge in effect reduced the damages because the PM had pleaded his case too high. This is nonsense. At para 92 of his judgment, the Judge was simply directing himself that the lower the meaning of the words found by him, the lower should be the award.

5.1.5 The extent of the circulation of the slander/libel : in regard to the claim in slander, the number of listeners at the rally was relatively small. At para 187 of his judgment, the Judge correctly directs himself that such limited publication would at best attract no more than modest damages. In regard to the claim in libel based on the republication of JBJ's words in the press, JBJ disputes any liability to pay damages on this account for the reasons set forth in para 6 below.

5.1.6 The extent of any injury to the reputation of the plaintiff : this factor is of course of overriding importance. It has to be weighed in the light of the evidence and surrounding circumstances. JBJ's contention is that his words did not cause one iota of damage to the reputation of the PM. Objectively speaking, this is demonstrable : the PM did not lose his seat or his office; his party did better in the election than it had done previously : no evidence was adduced that the PM was subjected to any insults or ridicule in consequence of JBJ's words.

5.1.7 JBJ repeats the argument, advanced at para 1 above, that the motive for bringing this action was unrelated to any injury to the PM's good name. That is why claims were advanced in the name of the PM which turned out to be inventions on the part of his advisers. This claim is and was in reality a political device to rid the political scene in Singapore of a perceived trouble-maker. JBJ repeats para 7-9 of his Case in Appeal 218.

5.1.8 But the most telling point arises from the PM's own mouth in the witness box. The PM was constrained to admit that his reputation was unblemished by anything JBJ had said. The references in the transcript of the PM's evidence are Vol III Part B pp 543-8, 550-551. The Judge rightly attached importance to this aspect : see judgment para 155. But at paras 156-7, the Judge erroneously refuses to accept that the inevitable consequence of the PM's evidence is that the damages should be nominal.

5.1.9 The position of the plaintiff : the Judge at para 154 rightly took account of the PM's reputation and standing. But the Judge was wrong to reject in paras 86-7 the argument that this factor was negatived by the PM's own evidence (see para 5.1.8 above).

5.1.10 Vindication : both at trial and in para 47(4) and (7) of his Case in Appeal 205, the PM seeks damages to vindicate his reputation. This submission is wholly misconceived and betrays a misapprehension what is meant by "vindication". It must have led the Judge into error.

5.1.11 There was no plea of justification. No suggestion was made at trial that PM was in truth a criminal defamer or conspirator. It was public knowledge that JBJ had offered an apology which made this clear. Besides the Judge in his reasoned judgment made clear that no one sought to impugn the PM's good name. There was simply no place for any award to include the element of vindication.

5.1.12 Moreover, the PM had already sued Tang for the publication of words to a similar effect as the words used by JBJ (in the meaning put on them by the PM) and had recovered the princely sum of $600,000-00. The Judge's rejection at para 184 of JBJ's argument based on section 16 of the Defamation Act is wrong in law. The damages fall to be reduced under that section irrespective of whether the damages already recovered were awarded against the current defendant. The Tang award should extinguished or sharply reduced the award against JBJ.

5.2 Aggravating/mitigating factors

5.2.1 The Judge made a separate award of aggravated damages of $10,000-00. It was wrong in principle to make a separate award. Aggravating factors are no more than an aspect of compensatory damages : Gatley 9.14 (218 ABA Vol 3 tab 15). Television of NZ v Quinn (218 ABA Vol 3 tab 21) at p 36. The Judge impermissibly doubled up the award of damages.

5.2.2 It is convenient to take altogether any aggravating and mitigating factors because they need to be balanced against each other. JBJ's overall contention is that nothing was done by him or on his behalf to exacerbate the injury (if any) to the PM's feelings or "put salt in the wound". To the contrary, JBJ manifested a sincere desire to mitigate the injury (if any) by the terms of his letter of 29.1.1997 (set out in the judgment at para 169). Having regard to the terms of that letter, the PM's suggestion that damages be inflated by the reason of JBJ's failure to apologise is preposterous. The refusal of JBJ's offer illuminates the PM's ulterior motive in his conduct of this litigation. The Judge's self-direction on this aspect at paras 171-181 of the judgment is impeccable.

5.2.3 However, the Judge arrived at a perverse and contradictory conclusion in regard to the PM's claim that JBJ spoke the words intending to injure the PM or recklessly. Having found that JBJ had not adopted Tang's allegation and the meaning of what JBJ said to be anodyne in the extreme and having accepted that JBJ's letter of 29.1.1997 was "placatory" and rejected the allegation of malice (para 162), the Judge went on to conclude inconsistently at para 189(i) and 200 that JBJ had acted recklessly. The Judge's characterisation of the conduct of JBJ is self-contradictory. There was in any event, no evidence that the feelings of the PM were injured by the matters urged in aggravation.

5.2.4 In para 92 of his Case in Appeal 205, the PM accused JBJ of dishonesty or extreme recklessness. None of the facts relied on is reflected in the PM's pleading : see the S/C at para 34. Besides, JBJ's position in relation to the allegations of chauvinism, etc, against Tang was made clear : he personally disagreed with the allegations and knew of no basis for them but, if they were proved, he would have ensured Tang was expelled from the WP. JBJ at no time allied himself with Tang's counter-attack upon the honesty of the PM and his co-plaintiffs. There is nothing dishonest or reckless about JBJ's stance.

5.2.5 The PM wants additional damages because of the way in which he was cross-examined : see his Case in Appeal 205 at paras 98-105. The Judge scrupulously analysed the nature of the cross-examination, the extent to which objection was taken to it and whether it should result in extra compensation : see his judgment at paras 190-199. The criticisms of the Judge are misplaced. With respect to the PM's claim that the Judge wrongly held the wounding cross-examination was permissible because the PM's Counsel had not objected to it, the Judge made no such finding. He simply observed, correctly, that the PM's Counsel could have sought a ruling as to the permissible ambit of the questioning but omitted to do so.

5.2.6 Far from erring in favour of JBJ, the Judge wrongly accepted that the cross-examination of the PM did aggravate the damage: see para 199 of the judgment. The Judge was wrong to do so because the PM is a highly experienced politician, not thin-skinned or too feeble to stand up to aggressive interrogation. The PM's Counsel expressly accepted the propriety of the line of cross-examination : Vol III Part B p 610. The PM did not testify that his feelings were injured by the cross-examination : see Vol III Part B p 619.

5.2.7 The argument that damages should be increased by reason of the republication of JBJ's words is dealt with at para 6 below.

5.3 Conclusion

5.3.1 Far from being too low, the award of $20,000-00 was in the circumstances, wholly excessive. The appropriate award (if any) is one of nominal damages only : Gatley para 36.28 (218 ABA Vol 3 tab 15); Dennison v Sanderson (218 ABA Vol 3 tab 23).

5.3.2 JBJ invites the CA firmly to reject the PM's invitation at paras 114-119 of his Case in Appeal 205 to award extravagant damages in this political libel action in order to bring the damages up to the exorbitant levels of award in previous, mostly political, libel actions. The Judge was of course right to hold at para 150 that each case turns on its own facts.

5.3.3 Apart from the danger that massive awards of damages in libel actions against political opponent will foster the impression that such actions are being used to serve political ends, there is the additional danger that the tariff in Singapore (at least in political actions) is altogether out of line with current authority in other common law jurisdictions : Rantzen v Mirror Newspapers (205 RBA tab 9); John v MGM (210 ABA Vol 2 tab 14); Television NZ v Quinn (218 ABA Vol 3 tab 22); Carson v Fairfax (205 ABA Vol 1 tab 5).

6. Republication of JBJ's words

6.1 The alleged liability of JBJ for the damage (if any) done to the PM by the republication of JBJ's remarks in the Straits Times and Business Times straddles the appeals on liability and damages, because the PM claims at para 28 of the S/C that JBJ was responsible in libel for the republication and also at para 36 of the S/C relies on the republications in support of his claim for aggravated damages in slander. The PM cannot have it both ways : he is bound to elect between the two.

6.2 Taking first the claim in libel, the principles on which the original publisher will be held liable for republication are summarised in Gatley at paras 6.30-6.36 (218 ABA Vol 3 tab 15). See Speight v Gosnay (218 ABA Vol 3 tab 20); Slipper v BBC (218 ABA Vol 2 tab 11).

6.3 There can be no question on the evidence of JBJ having intended or authorised the newspapers to republish or of the newspapers having been under a duty to republish, as the Judge rightly held at para 132.

6.4 So the only live issue was whether the republication was the natural and probable result of JBJ's uttering the words. The evidence, summarised at para 161 of the judgment, was that Tang approached JBJ unsolicited in mid-speech and placed some documents before JBJ saying that he had lodged the police reports. Tang pressed JBJ to tell the audience. JBJ did so by way of aside, not wishing to be distracted from his theme. On those facts, the republication was not the natural and probable consequence of JBJ's few impromptu words.

6.5 The Judge's contrary conclusion at para 137 is wrong in law. A speaker who knows journalists are present will not on that account and without more be liable for the republication of his words : McWhirter v Manning (218 ABA Vol 3 tab 24): Tang Liang Hong v Lee Kuan Yew (218 RBA …). The original publisher will not be liable where, as in the case of the Straits Times and the Business Times, the republication was the independent voluntary act of a third party over whom the original publisher had no control : Weld Blundell v Stephens (218 ABA Vol 2 tab 12).

6.6 As regards the claim in slander, the republication can sound in damages only if it was the reasonably foreseeable consequence of JBJ speaking the words that they would be republished in the two newspapers. The test is the same as that set out in para 6.4 above. By parity of reasoning, any damage arising from the republication is irrecoverable.

6.7 The PM and the SM leak the police reports to the press : there is a further and overriding reason why it would be preposterous to permit the PM to recover any damage for the repetition of JBJ's words in the Straits Times and Business Times. For it has emerged that on the very same day that JBJ's reference to the police reports was published in those newspapers, the SM, with the consent of the PM, had, for their own ends surreptitiously released to the press the contents of the police reports, including the details of Tang's charges of criminal misconduct. Having permitted this to be done, it would be wholly unconscionable for the PM to recover any damages for the republications or indeed for the original alleged slander. The SM and the PM were for their own presumably political reasons content that the details of Tang's charges should be published to hundreds of thousands of readers. See para 36 of the PM's Case in Appeal 205.

6.8 The conduct of the PM and the SM is the more reprehensible (and hence their entitlement to damages pro tanto reduced) because they sought to conceal the fact that it was they who released the contents of Tang's police reports. They sought damages from Tang on the footing that he had procured the republication for which in truth, they had been responsible. In the present action, the PM concealed what he had done and went so far as to seek Particulars from JBJ when and how the contents of the police reports were made known to the newspaper offices : see Record Vol II p 248.

6.9 The conduct of the PM is a further reason for reducing any award to vanishing point.

7. Costs

7.1 For the reasons carefully spelled out in paras 202-213 of the judgment, the Judge awarded the PM 60% of his costs. Costs are pre-eminently a matter for the discretion of the trial Judge, especially where the Judge has presided over the trial and so is uniquely placed to judge the reasonableness of the parties' conduct of the litigation.

7.2 The factors which induced the Judge to deprive the PM of 40% of his costs included :

(i) the cavalier and altogether unfounded way in which damage was pleaded (para 203). Contrary to the assertions in para 132 of the PM's Case in Appeal 205, pleadings in defamation actions are not formulaic incantations but should reflect the party's true case

(ii) the pursuit of an absurdly overstated and baseless case of malice against JBJ (para 204). For the reasons given in para 5.2 above, the case against JBJ was utterly hollow. Where a party raises a hopeless issue, he does so at his peril on costs

(iii) the false claim that JBJ held up or brandished the police reports (para 205). The video scuppers this claim. The comment at (ii) above applies

(iv) the concealment of the fact that the PM and the SM leaked the contents of the police reports to the press (para 206). JBJ repeats para 6.7 and 6.8 above. The PM's excuse, set out in para 137.1 of his Case, simply does not hold water. A plaintiff who seeks damages for the publication of material which he has himself covertly disseminated to millions is not entitled to any sympathy from the court

(v) finally and paramount, the overstatement of the PM's case (para 207). No doubt, the Judge had in mind the oppressive and cost-consuming manner in which the litigation against JBJ had been conducted. This was inexcusable given that the cases could have been honourably compromised at virtually no cost on the terms of JBJ's letter of 29.1.1997. Para 130 of the PM's Case provides no answer to this criticism. (The PM has waived privilege in the opinions there referred to and an order for their production is sought).

7.3 An additional consideration which rightly weighed with the Judge was the vehement objection of the PM and his co-plaintiffs to consent to consolidation (para 12). It is incomprehensible why all the plaintiffs did not sue in a single suit, rather than employ several duplicated teams of expensive lawyers. It is simply incomprehensible why it should be said that a party must appeal the order refusing consolidation before he can seek a reduction in the level of costs awarded against him. With respect to para 142(5) of the PM's Case, it was not until a late stage of the trial that the other plaintiffs agreed to be bound by the judgment in the instant case. By that time, huge costs had been incurred by each of the plaintiffs. In depriving the PM of only 40% of his costs, the Judge was being over-generous to him.

7.4 The Judge's self-direction on costs in paras 208-209 of the Judgment is impeccable. He had well in mind that he was departing from the usual rule that costs follow the event. He felt, for the cogent reasons explained in the judgment, that the unusual circumstances of the case required him to exercise his discretion to depart from that rule. If the Judge erred, it was in depriving the PM of too small a proportion of his costs.

7.5 It is accepted that the Judge did not invite argument on the question of costs, as the PM complained in paras 127-8. JBJ answers that the Judge was entitled to make the order he did make. If the PM considers it "unjudicial" and "contrary to elementary fairness" for the Judge not to have given him the opportunity to address him on the proposed costs order, then the PM no doubt accepts the validity of JBJ's criticism at para 3.4.2 above that it was wrong for the Judge to devise his own meaning without letting JBJ address him on it. The issue of meaning is and was after all, the decisive question on liability.