Indran A/L N.Jeganathan v Nithiyani A/P K.Kulaveerasingam, 01-03-2010

• Judge: SURAYA OTHMAN
• Judgment Date: 01 March 2010
• Court: High Court (Malaysia)
• Record Number: S8-24-74-2009

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(FAMILY DIVISION)

ORIGINATING SUMMONS NO: S8-24-74-2009

BETWEEN

INDRAN A/L N.JEGANATHAN … PLAINTIFF/HUSBAND

(NO I/C: 560817-10-6295)

AND

NITHIYANI A/P K.KULAVEERASINGAM … DEFENDANT/WIFE

(NO I/C: 640901-05-5785)

GROUNDS OF JUDGEMENT

INTRODUCTION

This is an application under Order 41 Rule 6 of the Rules of High Court 1980 ("HCR 1980") by the defendant wife by way of a summons in chambers (enclosure 4) praying to expunge and/or strike out two (2) "without prejudice" letters contained in the plaintiff's affidavit ("plaintiff's affidavit No.1") affirmed by the plaintiff, Indran a/l N Jeganathan on 8.6.2009 and its corresponding paragraphs in the said affidavit.

The details of the defendant wife's application prayed for are as follows:

(1) that paragraph 15.2.3 and the letter dated 20.11.2008 which is contained in exhibit “INJ-4” and paragraph 15.2.6 and the letter dated 24.12.2008 which is contained in exhibit “INJ-4” both contained in the plaintiff's affidavit no.1, affirmed by Indran a/l N.Jeganathan on 8.6.2009 be expunged and/or struck out;

(2) that the plaintiff is ordered to file and serve a new affidavit which does not include and contain those paragraphs as stated in (1) in the above together with the letters as stated in(1) in the above within 14 days from the order of this honourable court;

(3) that all proceedings in this action be stayed while waiting for the filing and service of the new plaintiff's affidavit no. 1 referred to in paragraph 2 herein; and

(4) that costs for this application be borne by the plaintiff.

GROUNDS FOR THE APPLICATION

The defendant wife's grounds in support of the application to expunge and/or strike out are as follows:

(1) that the letters dated 20.11 2008 and 24.12.2008 ("said letters") form part of a series of correspondence between the plaintiff's and the defendant's solicitors that contain various settlement proposals and that the negotiation were at all material times carried on a without prejudice basis;

(2) that the said letters are "without prejudice" communications and as such are not admissible evidence;

(3) that the defendant wife has been prejudiced by the inclusion of the said paragraphs and the said letters.

FACTS AND BACKGROUND

From the pleadings and evidence adduced by both parties in court, the facts of this case are as follows:

The plaintiff and the defendant were married on the 8.12.1995 and they were blessed with two (2) children, a girl, Raenuga a/p Indran, aged 11 years and a boy, Vishnudev a/l Indran, aged 9 years.

The marriage encountered difficulties and the husband left the matrimonial home on 23.11.2007. The husband alleged that the wife has denied him access to both the children.

On 10^th Jun 2009, the husband filed an originating summons (enclosure 1) praying for, inter alia, guardianship, custody, care and control of the two children and the defendant wife be given visitation rights.

In the affidavit in support of enclosure 1, affirmed by the husband on 8 June 2009, the husband referred to two (2) without prejudice letters (“said letters”) between solicitors for the husband Messrs K.F. Yoong and the former solicitors for the wife, Messrs Rusmah, Arunan & Associates.

The wife alleged that these said letters form part of a series of correspondence between the plaintiff's and the defendant's solicitors that contained various settlement proposals and that the negotiation were at all material times carried on a without prejudice basis. Since the said letters are "without prejudice" communications they are as such not admissible evidence.

Unhappy with the inclusion of the said letters which she contended is prejudicial towards her case, the wife filed this application in enclosure 4, to expunge the said paragraphs and the two without prejudice letters between the solicitors from the plaintiff’s affidavit No.1 and in effect from these proceedings.

The wife subsequently filed an Originating Summons, inter alia, praying for guardianship, custody, care and control of the said two (2) children, vide suit No. S8-24-118-2009. These two (2) suits by the husband and wife are being heard in tandem.

SUBMISSIONS BY COUNSELS

Counsel for the defendant wife, Ms Sharmini Jayan, submitted that the said letters produced and referred to in the plaintiff husband’s affidavit No 1 clearly are without prejudice communications made with the intention to culminate in a settlement of the dispute between the parties. Regretfully, these negotiations did not crystallize into any settlement and the plaintiff husband proceeded to file enclosure (1) herein.

Defendant's counsel submitted the case of Dusun Desaru Sdn Bhd & Anor v Wang Ah Yu & Ors [1999] 5 MLJ 449, which stated:-

“It is settled law that without prejudice communications are inadmissible in evidence of the negotiations attempted. This is in order not to fetter but to enlarge the scope of negotiation, so that a solution acceptable to both sides can be more easily reached.”

Counsel for the defendant further stressed that in Dusun Desaru Sdn Bhd & Anor (supra) the Court held:

“… the veil of privilege may be waived, but both parties must consent to the waiver.”

By referring to this case, Ms Sharmini Jayan argued that in the case at hand, the defendant wife has not consented, nor has she intimated any waiver, express or implied of this privilege. Hence, the plaintiff husband is not entitled to produce the said letters in court as this has clearly embarrassed the wife and runs counter to the basic and fundamental principle of ‘without prejudice communication’.

Ms Sharmini Jayan further submitted that this court ought to take cognizance of the fact that the two (2) said letters dated 20.11.2008 and 24.12.2008 contained and exhibited in“INJ-4” of the plaintiff’s affidavit No 1 clearly and categorically were made in pursuit of a genuine final settlement which did not actualized, and therefore the plaintiff husband is not entitled to produce these said letters in evidence herein.

In replying to the defendant’s submission, the plaintiff husband's counsels, Mr Ebenezer Ramesh Jaya Raj and Mr Kien Fah Yoong contended that the said letter dated 24.12.2008, which is a letter from the wife's then solicitors, Messrs Rusmah, Arunan & Associates had made serious allegations relating directly to the husband’s fitness to have custody and access to the children, which must be of paramount concern to this court. Thus according to Mr Ebenezer Ramesh, the wife had abused the ‘without prejudice’ rule to make the purported shocking allegation in this letter.

As regard to the letter dated 20.11.2008, which is a letter from the husband's solicitors to the wife's then solicitors, Mr Ebenezer Ramesh submitted that the letter made serious allegations of a quasi-criminal nature against the wife, inter alia, that the wife had converted for her personal use trust monies entrusted by the husband to the wife. Mr Ebenezer Ramesh argued that neither the husband nor his solicitors’ objected to the inclusion of this letter. Therefore, the wife has no right in law to object to the inclusion of the letter.

Mr Ebenezer Ramesh further submitted that the said letters do not constitute “negotiations genuinely aimed at settlement” because none of the plaintiff husband’s proposals contained in the letter dated 20.11.2009 was accepted by the defendant wife’s letter dated 24.12 2008.

Mr Ebenezer Ramesh referred to the case of Rush & Tompkins Ltd v Greater London Council and Another [1998] AC 1280 where the House of Lords held as follows:

“The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon public policy to encouraging litigant to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver L.J. in Cutts v. Head [1984] Ch.290, 306:

… the rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.”

Mr Ebenezer Ramesh further submitted the case of CE Ling Shipping Sdn Bhd v Hoe Seng Huat Hardware Co (Pte) Ltd [2004] 6 CLJ 145, in which the court held:

“… it is settled law that the heading ‘without prejudice’ does not conclusively or automatically render a document so marked privileged, and if privilege is claimed but challenged, the court can look at the document so headed in order to determine its nature (per Parker LJ in South Shropshire DC v Amos [1987] 1 All ER 340 at p.344).”

FINDINGS OF THE COURT

The law concerning "without prejudice" communications is provided under Section 23 of the Evidence Act 1950 which reads:

“In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be …”

The rule applicable for the said prayers is found under Order 41 Rule 6 of the HCR 1980 which states:

“The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.”

In Halsbury's Laws of England, fourth edition at paragraph 212, which contains a concise digest of the law on "without prejudice” communications, it is stated that:

“Letters written and oral communications made during a dispute between the parties, which are written or made for the purpose of settling the dispute,...