Shanmugam Kasiviswanathan v Lee Hsien Yang and another matter [2023] SGHC 331

These were the claimants’ applications in HC/OC 496/2023 (“OC 496”) and HC/OC 497/2023 (“OC 497”) for judgments in default of a Notice of Intention to Contest or Not Contest (the “Notice of Intention”) (collectively, the “Applications”). In sum, although the claimants served their claim papers on the defendant, the defendant has not exercised his right of contesting the claims. In these circumstances, the Rules of Court 2021 (the “ROC 2021”) raises the question of whether this court can enter judgment, including injunctive relief (the “Injunction Order”), against the defendant, solely on the basis of his failure to file a Notice of Intention, or whether this court needs to be satisfied that the claimants have, in the absence of any Defence filed, made out a prima facie case under their respective Statements of Claim (“SOCs”).

At the end of the hearing before me on 2 November 2023, I allowed the Applications and entered judgment against the defendant in the following terms. In relation to OC 496:

(a) judgment in default of a Notice of Intention be entered against the defendant with damages to be assessed;

(b) the hearing of an assessment of damages be fixed for hearing before a Judge of the General Division of the High Court;

(c) the defendant be restrained, and an injunction be granted restraining him, from publishing or disseminating the false and defamatory allegations that the claimant acted corruptly and for personal gain by having the Singapore Land Authority, which is under his control, give him preferential treatment by felling trees without approval and illegally and give him preferential treatment by paying for renovations to 26 Ridout Road or any words to the same effect by any means whatsoever; and

(d) the defendant shall pay to the claimant costs to be fixed at the assessment of damages hearing.

In relation to OC 497:

(a) judgment in default of a Notice of Intention be entered against the defendant with damages to be assessed;

(b) the hearing of an assessment of damages be fixed for hearing before a Judge of the General Division of the High Court;

(c) the defendant be restrained, and an injunction be granted restraining him, from publishing or disseminating the false and defamatory allegations that the claimant acted corruptly and for personal gain by having the Singapore Land Authority give him preferential treatment by felling trees without approval and illegally and give him preferential treatment by paying for renovations to 31 Ridout Road or any words to the same effect by any means whatsoever; and

(d) the defendant shall pay to the claimant costs to be fixed at the assessment of damages hearing.

Since the Applications raised, among others, the novel issue of the extent of the court’s power to grant injunctive relief in an application for a judgment in default of a Notice of Intention under the ROC 2021, I provide these grounds to explain my decision. In particular, I will explain the following aspects of my decision: (a) why the claimants satisfied the requirements for default judgments pursuant to O 6 r 6(5) of the ROC 2021; (b) why this court has the power to grant injunctive relief in an application for judgment in default of a Notice of Intention under the ROC 2021, and the extent of such power; and (c) why I granted the Injunction Order on the facts of the present case.

Background facts

I begin with the background facts. In OC 496, the claimant, Mr Shanmugam Kasiviswanathan, claims against the defendant, Mr Lee Hsien Yang, for defamation. In turn, in OC 497, the claimant, Dr Vivian Balakrishnan, claims against the same defendant for defamation. For convenience, I will refer to both of the claimants, collectively, as “claimants”.

Both claims are founded on a Facebook post that the defendant published on the “timeline” on the Facebook profile page “Lee Hsien Yang” (at https://www.facebook.com/LeeHsienYangSGP) (the “Page”) at or around 7.10pm on 23 July 2023 (the “Post”). The Post contained, among other things, the following words (the “Offending Words”):

On 2 August 2023, the claimants commenced OC 496 and OC 497 in the General Division of the High Court. On 14 August 2023, the claimants filed HC/SUM 2460/2023 and HC/SUM 2459/2023, respectively, seeking permission to serve sealed copies of the Originating Claims (“OCs”) and SOCs in OC 496 and OC 497 out of jurisdiction on the defendant. On 16 August 2023, an Assistant Registrar granted those applications. On 28 August 2023, the claimants filed HC/SUM 2607/2023 and HC/SUM 2608/2023, seeking permission to effect substituted service of the abovementioned OCs and SOCs on the defendant out of Singapore by Facebook messenger. On 13 September 2023, an Assistant Registrar granted those applications.

Following this, the claimant in OC 496 effected substituted service of process on the defendant at 4.01pm on 15 September 2023 by Facebook messenger. The claimant in OC 497 did the same at 4.15pm on the same day. The evidence before the court was that the defendant saw the documents that were served on him. Among other things, at around 12.43am on 16 September 2023, the defendant published a post on the Page confirming that he had been served with process in both OC 496 and OC 497.

The defendant failed to file and serve his Notice of Intention within the prescribed 21 days after 15 September 2023 (that is, by 6 October 2023).

It was against the above background facts that the claimants made the Applications to court to obtain the judgments in default of a Notice of Intention.

Whether the claimants have satisfied the requirements for judgment in default of a Notice of Intention

The first question I considered was whether the claimants have satisfied the requirements for judgment in default of a Notice of Intention pursuant to O 6 r 6(5) of the ROC 2021. Having considered the claimants’ submissions, I decided that they have satisfied these requirements.

The applicable principles

To begin with, O 6 r 6 of the ROC 2021 provides for the form and service of a Notice of Intention. The said Notice replaces the memorandum of appearance under the Rules of Court (2014 Rev Ed) (the “ROC 2014”). As Professor Jeffrey Pinsler SC observes in Jeffrey Pinsler SC, Singapore Civil Practice (LexisNexis, 2022) (at para 11-3), this Notice gives the defendant the option to contest or not to contest and, in the case of multiple claims, to differentiate between the claims that he contests and does not contest. Similarly, the Civil Justice Commission explains that a Notice of Intention “will allow the claimant to know whether he should prepare for battle or whether the defendant has surrendered” (see Civil Justice Commission, Civil Justice Commission Report (29 December 2017) (Chairperson: Justice Tay Yong Kwang) at 13). For completeness, O 6 r 6 of the ROC 2021 sets out as follows:

The relevant provision for the Applications is O 6 r 6(5), which stipulates the circumstances in which a claimant may apply for a default judgment against a defendant who fails to file and serve a Notice of Intention within the prescribed time. Since the defendant was served out of Singapore, the prescribed time for the filing of the Notice of Intention was 21 days after the SOCs in OC 496 and OC 497 were respectively served on the defendant (see O 6 r 6(2) of the ROC 2021). Further, O 6 r 6(5) is subject to O 6 r 6(6), which provides that the claimant must file a memorandum of service in Form 12 when he applies for a judgment to be given against the defendant.

As such, it may be surmised that the requirements for the court to enter a judgment in default of a Notice of Intention are as follows:

(a) the defendant has not filed and served a Notice of Intention within the prescribed time, or he has filed and served a notice that he does not intend to contest all or some of the claims (see O 6 r 6(5) of the ROC 2021); and

(b) the claimants have filed a memorandum of service (see O 6 r 6(6) of the ROC 2021).

My decision: the claimants have satisfied the requirements

In my judgment, the claimants have satisfied the requirements in the present case. First, it was clear that the defendant was served out of Singapore with the OCs and SOCs in OC 496 and OC 497 on 15 September 2023, and he did not file a Notice of Intention in OC 496 or OC 497 within 21 days of service (that is, by 6 October 2023). In fact, the defendant has still not filed a Notice of Intention as of the date of the hearing before me. Further, while the claimants did not need to prove that the defendant actually saw the documents that were served on him, the evidence, as I recounted above, showed that the defendant had indeed seen the documents served on him, including the OCs and SOCs.

Second, it was also clear that the claimants’ solicitors, Davinder Singh Chambers LLC (“DSC”), filed the Memoranda of Service in both OC 496 and OC 497 on 21 September 2023. The said Memoranda confirmed, among other things, that the OCs and SOCs in OC 496 and OC 497 were served on the defendant by Facebook messenger.

Accordingly, since the claimants have satisfied the requirements for the entering of a judgment in default of a Notice of Intention in the present case, I concluded that it was appropriate to enter judgment against the defendant in both OC 496 and OC 497. However, apart from the usual consequential orders, the claimants also prayed for the Injunction Order, to which I now turn.

Whether this court has the power to grant injunctive relief in an application for judgment in default of a Notice of Intention under the ROC 2021

The claimants argued that, unlike the position in the ROC 2014, the court has the power to grant injunctive relief in an application for judgment in default of a Notice of Intention in all categories of claims under the ROC 2021. For the reasons that I will now explain, I agreed with the claimants.

The previous position under the ROC 2014

To begin with, under the ROC 2014, a claimant had to fit his claim squarely within the prescribed categories in O 13 rr 1–5 (that is, for liquidated demand, unliquidated damages, detinue, and possession of immovable property) before he is entitled to enter judgment in default of appearance (the equivalent of a Notice of Intention in the ROC 2014). Thus, if the claimant’s claim fit within these categories, the court could enter judgment in default of the defendant’s appearance. In contrast, if the claimant’s claim did not fit within these categories, then O 13 r 6(1) of the ROC 2014 precluded him from entering judgment in default of appearance. The claimant was instead required to proceed with the action as if the defendant had entered an appearance. Therefore, if the writ were to be endorsed with a claim for, among other claims, injunctive relief (which was not within the prescribed categories), then the claimant could not enter judgment in default of appearance.

The practical effect of these provisions was that the claimant who had sought, among other things, injunctive relief, could only enter default judgment against the defendant who persisted in not filing a defence under O 19 r 7(1) of the ROC 2014. This provided as follows:

Most importantly, O 19 r 7(1) of the ROC 2014 required the statement of claim to show a case for the order that the claimant sought to obtain. In the case of an injunctive relief, the claimant would not only need to show that the requirements for such relief were satisfied, he would also need to show that the statement of claim disclosed a viable cause of action that supported the grant of injunctive relief. In contrast, if the claimant’s claim came within the prescribed categories under O 13 rr 1–5 of the ROC 2014, he would not need to show, in the statement of claim, a case for the order that he sought to obtain. Instead, the claimant would obtain the reliefs he sought simply on the basis of the defendant’s failure to enter an appearance. The question raised by the claimants’ submissions was whether the position under the ROC 2021 is now different.

The new position under the ROC 2021

In this regard, as observed by the learned authors of Singapore Civil Procedure 2022 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2022) (at para 6/6/38), there is no longer a requirement under the ROC 2021 for claims to fit squarely within the old categories of claims found in O 13 rr 1–5 of the ROC 2014. In fact, the ROC 2021 no longer refers to these categories. As such, the learned authors suggest that a claimant may apply for a default judgment in every case where there has been a failure to file a Notice of Intention. Similarly, the learned authors of Singapore Rules of Court – A Practice Guide 2023 Edition (Chua Lee Ming editor-in-chief) (Academy Publishing, 2023) (“Singapore Rules of Court”) point out (at p 82) that, under O 6 r 6(5) of the ROC 2021, “the claimant can apply for [default] judgment … for all types of claims”.

I respectfully agreed with these views. In my view, the new position under the ROC 2021 no longer requires a claimant to fit his claim squarely within the categories found in O 13 rr 1–5 of the ROC 2014. It is clear from O 6 r 6(5), read with O 2 r 4, that the ROC 2021 has abandoned the old categories in the ROC 2014 in favour of the claimant being able to apply for a judgment in default of a Notice of Intention in respect of all types of claims. In this regard, O 2 r 4 of the ROC 2021 provides as follows:

As such, this means that a claimant can, under the ROC 2021, apply for judgment in default of a Notice of Intention even in respect of a claim for injunctive relief. This further means that such a claimant no longer needs to proceed as if the defendant had entered an appearance and wait to enter a default judgment only if the defendant failed to enter a Defence. More practically, this means that the claimant need not seek an injunctive relief under the mechanism provided for by O 19 r 7(1) of the ROC 2014 and prove that the statement of claim showed a cause of action that supported the injunctive relief sought. Instead, the claimant is entitled to proceed on the basis that the default judgment is entered as if the statement of claim is made out, in the absence of any defence or response from the defendant. However, this does not mean that a defendant is without recourse if such a default judgment is entered against him. This is because such a defendant can apply to the court to set aside a default judgment (see O 3 rr 2(8) and 2(9) of the ROC 2021).

Accordingly, I decided that this court has the power to grant injunctive relief in an application for judgment in default of a Notice of Intention under the ROC 2021. I therefore proceeded on such a basis for the Applications.

Whether the Injunction Order should be granted

The applicable principles

However, the claimants still had to show that there existed facts which made it appropriate to grant the Injunction Order. In this regard, I did not think that the claimants were entitled to the Injunction Order solely because they had prayed for it and the defendant had not filed a Notice of Intention. In my view, given the potentially draconian effects that an injunction can have on a defendant, a court needs to be independently satisfied that it was appropriate to grant injunctive relief.

As to the applicable principles for the granting of an injunction, the High Court held in Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230 (“Roy Ngerng”) (at [55]–[58]) that, where the court finds that the defendant is liable for defamation, the court will grant a final injunction restraining further publication of a libel where there are reasons to apprehend that the defendant will repeat the defamatory allegations. In particular, in determining whether a defendant will repeat the defamatory allegations, a court will consider the defendant’s conduct, including his conduct after being asked to remove the defamatory material and after being sued.

The court has granted final injunctions in the following cases. In the High Court decision of Lee Hsien Loong v Xu Yuan Chen and another suit [2022] 3 SLR 924 (“Xu Yuan Chen”), the defamatory words concerned were contained in an article that was published on a publicly available website. The article remained available as at the date of the judgment. The High Court granted an injunction to restrain the defendant from further publishing or disseminating the defamatory allegations or any other words to that effect (see Xu Yuan Chen at [125]). Similarly, in Roy Ngerng, although the defamatory words were removed from the blog where they had initially appeared in, the court found that there were reasons to apprehend further publication by the defendant. This was because, among other reasons, the defendant had republished links to the defamatory material after the claimant’s lawyers had sent him a letter of demand requiring him to remove the said material. This was even after the defendant had published an apology on his blog and given an undertaking not to make any further allegations (see Roy Ngerng at [58]).

My decision: the Injunction Order should be granted

There were strong reasons to apprehend that the defendant will repeat the defamatory allegations

In the present case, I was satisfied that there were strong reasons to apprehend that the defendant will repeat the defamatory allegations. First, the defendant has refused to remove the Post despite being asked to do so by DSC by a letter of demand on 27 July 2023. As of the date of the Applications, the Post continued to be published, accessible, and available on the Page to persons in Singapore.

Second, the defendant has continued to refer, draw attention to, and invite readers in Singapore to read the Post. He has done this through a series of Facebook posts made on 25 July 2023, 29 July 2023, and 31 July 2023. Further, the defendant has also repeatedly published Facebook posts on the Page to persons in Singapore that refer to and provide updates on these proceedings. By doing so, the defendant has drawn attention to these proceedings and therefore to the Post that is the subject of these proceedings. The defendant has done this through Facebook posts made on 4 September 2023, 16 September 2023, and 5 October 2023.

As such, similar to the cases of Roy Ngerng and Xu Yuan Chen, the Post remains published, accessible, and available. The defendant has refused to remove it. Instead, he has continued to refer to, draw attention to, and invite readers in Singapore to read the Post. As such, I found that there was good reason to apprehend that the defendant will repeat the defamatory allegations by continuing to draw attention to them and/or publish further defamatory allegations against the claimants. I therefore granted the Injunction Order sought by the claimants.

In any event, the SOCs disclosed a cause of action in the tort of defamation

For completeness, even if I was wrong on my interpretation of the ROC 2021, such that the claimants had to show that the SOCs disclosed a cause of action in the tort of defamation to support the Injunction Order sought, I would have found that the claimants had made out a cause of action in the tort of defamation in their SOCs, which remain unchallenged since the defendant had not filed a Notice of Intention. The implication of the defendant’s choice not to file a Notice of Intention is that I was unable to take into account any countervailing material regarding the claims, and I was confined to assessing whether the claimants have, on their pleaded case, made out a cause of action in the tort of defamation.

In this regard, it is trite law that, to establish the tort of defamation, the claimants must show: (a) a statement bearing a defamatory meaning; (b) reference has been made to the claimants; and (c) publication to a third party (see the High Court decision of Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 at [35]).

First, as to the meaning of the Offending Words, the claimant in OC 496 has pleaded that those words, in their natural and ordinary meaning, by themselves and/or in context, meant and were understood to mean that the claimant acted corruptly and for personal gain by having the Singapore Land Authority (the “SLA”), which is under his control, give him preferential treatment by felling trees without approval and illegally and give him preferential treatment by paying for renovations to 26 Ridout Road. Similarly, the claimant in OC 497 has pleaded that the Offending Words, in their natural and ordinary meaning, by themselves and/or in context, meant and were understood to mean that the claimant acted corruptly and for personal gain by having the SLA give him preferential treatment by felling trees without approval and illegally and give him preferential treatment by paying for renovations to 31 Ridout Road.

Bearing in mind the principle that a court will decide the meaning of the words as they “would convey to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense” (see the Court of Appeal decision of Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 at [27]), I considered the meaning of the Offending Words in the context of the pleaded rest of the Post, as well as the pleaded matters that were widely reported about the claimants in connection with their leasing of 26 and 31 Ridout Road. In light of all of these matters, had it been necessary, I would have concluded that the claimants’ pleaded meaning is the plain and ordinary meaning of the Offending Words. This is because, bearing in mind that the ordinary reasonable reader would, as pleaded in the SOC, have known about the claimants’ leasing of 26 and 31 Ridout Road, respectively, that reasonable reader reading the Post would have discerned that the Offending Words opened by quoting a statement by the Prime Minister Lee Hsien Loong about Singaporeans trusting and respecting the People’s Action Party because of high standards of propriety and personal conduct, together with staying clean and incorrupt. The Offending Words then say that that trust has been “squandered” before referring to “two ministers” (which I have found sufficiently refers to the claimants) having leased state-owned mansions from the agency that one of them controls, felling trees, and getting state sponsored renovations.

In my judgment, a reasonable reader who takes into account the juxtaposition of these words and reference to the claimants would have understood the Offending Words to mean that such trust had been squandered because of the claimants’ allegedly corrupt conduct, from which they gained personally. The reasonable reader would further have understood that the said corrupt conduct and personal gain were on account of the claimants’ lease of the Ridout Road properties from “the agency that one of them controls”, by “felling trees” and “getting state-sponsored renovations”. This would have been sufficient to establish a defamatory meaning, especially since a “libel or slander of [a public leader’s] character with respect to [his] public service damages not only [his] personal reputation, but also the reputation of Singapore as a State whose leaders have acquired a worldwide reputation for honesty and integrity in office and dedication to service of the people” (see the Court of Appeal decision of Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 at [12]).

Second, as to the reference to the claimants, it was clear that the Offending Words referred to the claimants. While the claimants were not expressly named, the claimants have pleaded at para 4 of the SOCs that the Offending Words would have been understood by readers in Singapore to refer to the claimants and the leasing of 26 and 31 Ridout Road, Singapore, which are owned by the State. I agreed that this was sufficient to constitute reference to the claimants.

Third, as to the publication of the Offending Words, the claimants have pleaded that there has been and continues to be substantial publication in Singapore of the Offending Words. Among other things, the claimants pointed out that the Post had received 2,705 “reactions”, 478 comments, and 435 “shares” as at 2.53pm on 2 August 2023. I was satisfied that this was sufficient to constitute publication.

Accordingly, had it been necessary because I was wrong on my interpretation of the ROC 2021, I would have found that the claimants had established the tort of defamation in their unchallenged SOCs, sufficient to support the Injunction Order sought.

Conclusion

For all the reasons above, I entered judgment in favour of the claimants in default of the defendant’s failure to file a Notice of Intention on the terms I set out earlier (at [2]).