1. ) NOOR LIYANA BINTI AHMAD MARZUKI 2. ) MUHAMMAD NAJIB BIN ABU BAKAR v MOHD FADLI BIN MOHAMED SALLEH @ SALLEH

Case Significance

Confirms, applying Malayan Banking Bhd v Chartered Field Corp Sdn Bhd, that a solicitor may not depose to an affidavit on contentious facts within the client's own knowledge, so that an application supported only by such solicitor affidavits lacks valid affidavit support.

This High Court decision concerns whether a solicitor may swear the affidavit supporting an interlocutory application on facts within the personal knowledge of the client, in the context of a defamation suit between social-media personalities. The plaintiffs had sued the defendant for defamation over postings said to suggest that they were insensitive to matters of their own religion, following articles the defendant had written about radio presenters who had been penalised over religiously sensitive content, and the defendant had counterclaimed in defamation. By the application in question the defendant sought leave under Order 18 rule 4 of the Rules of Court 2012 to file a reply to the defence to counterclaim, pleadings subsequent to a reply requiring the court's leave. Before turning to the merits, the parties agreed that the court should first decide a preliminary objection: the plaintiffs contended that the affidavit in support and the affidavit in reply had both been affirmed by the defendant's solicitor, with no affidavit sworn by the defendant, even though the matters deposed to could be known only to the defendant personally. The defendant argued that the affidavits concerned only issues of law. The court examined the affidavits and, applying the conditions identified in Malayan Banking Bhd v Chartered Field Corp Sdn Bhd for when a solicitor may depose on a client's behalf, held that a solicitor may do so only where the facts are not contentious, are within the solicitor's own knowledge and the solicitor is authorised. Finding that the affidavits rested on contentious facts known only to the defendant, the court held that there were no valid affidavits in support of the application, and dismissed it with costs of RM3,000.00. The judgment is a useful reminder of the limits on a solicitor deposing to affidavits on contentious factual matters that lie within the client's own knowledge.