Y KHAN v. P.G. O'DEA AND ANOTHER

Action No. 5850 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. In the summer of 1980 all the parties to this suit were members of the Kowloon Cricket Club. The plaintiff was a member of some long standing, and was what was called a special voting member. The defendants were both officers of the Club. The 2nd defendant was the president, and the 1st defendant the vice-president. They are sued personally in this action for conduct they committed as such officers.

2. Now, the membership of the Kowloon Cricket Club is governed by what is called their Memorandum and Articles of Association. There are two important articles for the purposes of this litigation. The first is Article 71 which is in these terms:-

        "If any Member shall wilfully refuse or neglect to comply with the provisions of the Memorandum and Articles or Bye-laws of the Club, or in case his conduct either upon or off the Club grounds shall in the opinion of the General Committee be injurious to the character or interest of the Club, the General Committee shall after due inquiry and after opportunity of making his defence has been afforded to him, recommend such Member to resign, and if the Member recommended to resign shall not comply within two weeks of such communication being addressed to him, the General Committee may erase his name from the list of members."

 

That is followed by Article 72:-

        "Any Member dissatisfied with the decision of the General Committee under the preceding Article may, within two weeks of that decision being communicated to him, appeal to an Extraordinary General Meeting of Members."

 

This litigation arises out of the part that the defendants played as officers and committee members in applying Article 71 to the plaintiff; and the subsequent part they played upon the plaintiff's appeal to an Extraordinary General Meeting of members under Article 72.

3. Now, the plaintiff's case is really quite simple. On the 7th and the 17th July of that year he made two separate anonymous complaints to the ICAC alleging four specific areas of corruption against the then Manager of the Kowloon Cricket Club, a gentleman by the name of Morris. These complaints, he says, he made bona fide and honestly believing them to be well-founded and true. In substance he says that everything went wrong thereafter.

4. He complains, first of all, that the ICAC did not investigate the matters properly and, secondly, behaved improperly in replaying a tape of his two phone calls to the 2nd defendant to enable the 2nd defendant to identify him.

5. This led to concern in the Club. The plaintiff asserts elements of conspiracy between the ICAC and the defendants: that the committee drew certain false inferences and came to false conclusion about what had happened: that libellous letters were written to him by the 1st defendant; that he was brought before the general committee, investigated there and, in his words, 'hammered and slandered', that these slanders were repeated when he then appealed to the members of the Club at an Extraordinary General Meeting; and these slanders, and the libels collectively had a very serious effect upon him because they resulted in his expulsion from the cricket club.

6. The defendants, on the other hand, say that they throughout behaved responsibly and honestly as officers of the Club exercising their functions as best they could. They say that they were concerned (this relates particularly to the 2nd defendant who was the first person to become aware of the plaintiff's complaints) by the fact that the complaints were made; by their apparent lack of foundation when they were first investigated by the committee with the plaintiff; by the fact that no mention was made of any of the subject matters to any member of the committee; and the fact that the cricket club suffered from what they and the committee regarded as a wholly frivolous and completely unnecessary investigation by the ICAC.

7. Now, there is fortunately no issue of fact here as to what was said at either of the meetings at which the plaintiff alleges that the slanders occurred, because tape-recordings were made of the meetings. I have an agreed transcript of those tapes. Nor is there any serious issue in relation to publication of the libels.

8. The principal matters put before the court by the defendants are four. First, they assert that a number of matters of which complaint is made were not in fact defamatory. But they do not dispute that some of the hard essential allegations were capable of bearing a defamatory meaning. By essential allegations, I mean particularly the claim that the plaintiffs behaviour had been contrary to "the character or interest" of the Club in the words of Article 71.

9. Secondly, they say that what they said was true, and they plead justification.

10. Thirdly, they say that the publications throughout were made either to the committee or to the members of the Club, in circumstances where they are entitled to the defence of qualified privilege.

11. Lastly, they assert that the plaintiff has not pleaded nor proved sufficient special damage to support the allegations of slander.

12. I think it is convenient, in those circumstances, at the outset to consider the legal implications of the defences of justifi-cation and qualified privilege.

13. Taking justification first, it is, I think, clear law that a defendant who seeks to justify the use of words which are capable of bearing a defamatory meaning has to prove the truth in substance and in fact of three things: first, the facts alleged; secondly, any imputation which those facts carry in their context; and thirdly, any comments or opinions expressed upon those facts. That law I get from paragraph 1389 in the 8th edition of Gatley on Libel and Slander and particularly from the decision in Sutherland v. Stopes (1925) H.C. 47.

14. The more difficult, and perhaps in the context of this case, significant element here, is the proof of the truth of comment. I do find that a somewhat difficult concept. In the speeches in Sutherland v. Stopes one finds various adjestives used like true, accurate and correct. Speakinq for myself, I have some difficulty in applying those adjectives to comment. I find clearer guidance from two of the speeches in that case. It is in the leading speech of Viscount Cave and also the speech of Viscount Finlay where both the learned Lords put the matter slightly differently, and say that in that case there was no evidence fit to go before a jury to show that the comments complained of were in fact unfair. This is a concept which I find easier to follow. I think it means this, that comment is justified within the meaning of those principles if it follows naturally and reasonably from the proven facts; if given such facts as are proved, it could be seen that upon any reasonable or objective assessment, the comment is well-founded. To put it more shortly and simply in lay language; the facts proved justify the comment. It is upon that basis that I shall look at the opinions and comments made in this case.

15. Secondly, it is, I think, well established that the defendant pleading justification has to prove the sting or gist of the matter complained of and not the letter.  It is a matter of substance, not form. That principle I get from paragraph 1380 of Gatley, and it is of some significance having regard to the semantic arguments which have arisen in this case.

16. The third principle which is relevant is Section 25 of the Defamation Ordinance (Cap. 21) which is in these terms:

"In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."

 

In other words, it is similar to the gist or sting principle - one looks to the substantial not to the particular effect.

17. Turning to qualified privilege, I think one can conveniently start here with the principle of law stated by Lord Finlay in Adam v. Ward (1917) A.C. 309, at 318 where he says this:-

"If the communication was made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving it,  the occasion is said to be privileged. This privilege is only qualified and may be rebutted by proof of express malice."

 

18. Secondly, it is, I think, plain that a common interest exists between members of a club in relation to matters concerning that club and its membership. Within the committee the committee members and in general meeting the club members have, in my judgment, a duty and an interest to speak frankly, and to hear others speaking frankly. So in relation to defamatory matters published only to the committee and its members, a defence of qualified privilege plainly arises.

19. Thirdly, this is prima facie also true of an Extraordinary General Meeting of a club. It is subject to the qualification in this case, which I shall consider hereafter, whether the presence of third parties at that meeting had the effect of taking away this particular right.

20. Fourthly, in any case where the defence of qualified privilege is prima facie made out, the question which then arises is whether the plaintiff has proved express malice. The onus is upon him in that respect.

21. Now, 'express malice' in this context means lack of bona fide belief in the truth of what was said, or personal spite or ill will as defined by the House of Lords in Horrocks v. Lowe (1975) A.C. 135. This the plaintiff has to plead and prove. After some encouragement from the Court, I gave him leave to file a reply asserting malice on I think the third day of the case.

22. Those then are in my judgment the relevant legal principles upon those two issues. I return now to the facts.

23. The plaintiff's complaints were, as I have said, made anonymously by telephone to the ICAC on the 7th and the 17th of July. Corruption was alleged by him against the Manager, Mr Morris, in four separate aspects: first, in relation to the towels in use in the Club; secondly, in relation to the construction of a new car-park which was then nearing completion at a cost of over five million dollars; thirdly, in relation to the catering services and fourthly in relation to the hiring of flowers and fish tanks.

24. He asserted in the course of the telephone call that he was a committee member of the Club and, although asked to reveal his identity and come forward with his evidence, in fact, he did not do so. On those findings, I am accepting what the 2nd defendant told me about what he heard on the tape when it was played to him.

25. Now, in order to investigate the truth of the defamatory matters complained of, it is necessary to consider the basis of these complaints and, more especially, the basis as put forward by the plaintiff to the committee and the members of the Club. Because, having heard that, the 2nd defendant described the plaintiff's suspicions as "fanciful and frivolous" and this is one of the matters complained of as defamatory.

26. Before doing that, it is necessary to say a word about the plaintiff. He has in the course of this case revealed many different sides to his character. First, he has conducted his own case, and he has done so with complete courtesy, very considerable restraint and not a little skill. I am most grateful to him for the way in which he has presented his case. That is if I may put it this way and I hope without offence, the good side of his character.

27. The second side has come through on occasions in the course of the case, but it is revealed most clearly in a number of the documents which have been put before me. This, I am afraid, is a much less attractive side of his character. The documents show him to be a person who is very capable of asserting as fact matters which are not well-founded, indeed allegations which are completely wild in the witness box he referred to it as the animal side of his character taking over. That is something which, as I say, came through from time to time. Unfortunately he is a man who is apparently capable of advancing things, which are wildly untrue, as being true.

28. Thirdly, he mentioned in the witness box that he had had a dispute with the police in 1978. It was in that context that he said that big people often acted against him. They were hostile to him because they were jealous of him it is I think clear that he has some sort of phobia about those that he regards as big people. The committee members of this Club were plainly in that category.

29. He spoke repeatedly both in the witness box and in addressing me about "two-faced traps". This was his way of describing what perhaps is more colloquially known as the "heads-I-lose-tails-you-win-situation". He was repeatedly asserting that in their dealings with him the members of this committee, and the two defendants in particular, were constantly laying these "two-faced traps" for him so that he ended up as the loser whatever happened.

30. The last aspect is perhaps the saddest of all. The plaintiff, in my judgment at least, is clearly obsessed with corruption, but is unfortunately completely unable to distinguish corruption from other more innocent explanations or difficulties. It may well be true that corruption can lead to inefficiency and incompetence, but the converse proposition is completely untrue. No one can reasonably assert that every case of inefficiency or every case of incompetence equals corruption. But that unhappily seems to be the plaintiff's approach. Repeatedly, it seems to me in the course of this case, that, when he was speaking of corruption, he was speaking a language with which the committee were not familiar, and he was speaking a language with which this court is not familiar.

31. The plaintiff had two opportunities of telling the committee why he made his complaints in the first instance.

32. The first opportunity was at a committee meeting held on the 3rd of October, at which it was made clear to him by the 1st defendant that the committee were particularly interested to know what these grounds were, so that they could assess whether in their view he had acted responsibly or not. The explanations that the plaintiff then gave are set out between pages 8 and 10 of Bundle D before me.

33. I have read those passages several times. I think that the committee who heard that explanation must have listened with total astonishment. I think they must have shared the view expressed at the end by the 1st defendant in these words: "You stagger me, Yakub". It may be that the plaintiff was taken by surprise by that question at that meeting and that he did not do himself justice. But not very long afterwards, in fact, on the 8th October he wrote a letter to the 1st defendant which is at Bundle B, page 49. In this he says:-

"I can now substantiate to the General Committee all four areas of my suspected corruption allegations."

 

and then sets out the substantiation. It was in the light of that explanation that the 2nd defendant was to use the phrase which I have already quoted. I am not going to go through them all I am simply picking out two as examples.

34. The first is the towels. The explanation of the allegation then given to the committee is in these terms at the Bundle D, page 8:-

this plainly was his view then, and indeed, still is.

35. He was urging me to find that there were good grounds for complaint in respect of these towels because there was obvious evidence that the towels were dirty. Indeed, the defendants did not dispute this at all. They acknowledged that the towels were dirty. What was in issue was the reason. The reason which is there in the documents is that the towels had become apparently irretrievably stained in use because of their construction. This simply illustrates what I was saying earlier. In this field the plaintiff simply talks a language of his own. He still regarded proof of dirty towels as proof of corruption.

36. The second area I am taking by way of illustration is very much more important. It relates to the car-park. This has importance for two reasons. This car-park, as I say, was going to cost over five million dollars. The committee had set up a system of careful checks and filters, through which all approvals for payment had to pass, to make sure that the money was very tightly controlled indeed.

37. The 2nd defendant's reaction, therefore, when he heard that this complaint apparently emanated from a committee member, was one of acute concern. He took the view that if there was corruption in respect of this car-park, that corruption had to affect one or more members of the committee. There was no possible way in which the manager, Mr. Morris, could be behaving corruptly in that context unless one or more committee members was involved. This somewaht surprisingly was a view which was totally shared by the plaintiff. At a very early stage in this case he told me that this was the reason why he made his complaints anonymously. He himself was convinced that one or more committee members were involved in his complaint of corruption with respect to the car-park. At one stage in his evidence he went a great deal further than that. Perhaps that was confused and related to a later period in time. He also felt that unless he made the complaint anonymously, it would be suppressed by the committee. He was hoping that if the complaint was made anonymously, it would be under way before his identity emerged.

38. That evidence to my mind made it quite clear that the plaintiff himself felt first that one or two members of this committee were implicated in corruption in respect of the car-park and, secondly that the bulk of the committee members would have been quite ready to cover up the allegation if it was made known to them.

39. I emphasize those facts because it seems to me to demolish one of the plaintiff's main complaints about the conduct of this committee. He repeatedly made the point to me that his only specific complaint to the ICAC was against Mr. Morris, which is true. Likewise that he made no specific complaint against any committee member; that was also true. But those answers make it quite clear that he did suspect the committee; that he intended the committee to be investigated because of those suspicions; and that his complaint deliberately did implicate the committee in one way or the other. It is also the complete answer, in my judgment at least, to his allegations that the committee were inventing charges against him falsely, when there was no substance in them.

40. That is the first important feature of the car-park.

41. The second is seen when one considers the basis of it. This is set out in some questions and answers which one finds on page 9 of Bundle D.

I emphasize that sentence, which I think largely encapsulates the plaintiff's approach to these allegations.

I find it almost incredible that anyone could possibly think that four periods of delay in the opening of the car-park necessarily lead to suspicions of corruption.

43. Then if one adds in the further justification which appears in the letter of the 8th of October, one finds this:-

"The car-park was opened abruptly even though the front entrance was in a mess."

 

It seems to me that those facts do not start to constitute any basis for any charge of corruption, and still less one leading and intended to lead directly to the committee.

44. I am not going to deal at any length with the course of the ICAC investigation. Its history is set out at length by the 2nd defendant to the Extraordinary General Meeting. It is there in the transcript and I accept it as correct. It is sufficient to say first that the ICAC approached an ex-secretary for a general overall view. They then brought in the 2nd defendant and asked him a number of questions particularly the names of the committee members. Either on that visit or the second visit, they played him the tape that they had taken of the two telephone calls, from which he was able to identify the plaintiff as the informant.

45. Later they called in another committee member, a Mr. Armitage, who was particularly concerned with the construction of the car-park. They also called in for investigation, Mr. Morris, the manager, and a gentleman by the name of Epstein, who was the architect advising the Club in respect of the car-park construction.

46. As result of their investigations, the ICAC plainly came to the view that the charges made had not been substantiated. Indeed, it was seriously considering, at one stage at least, the possibility of charging the plaintiff with knowingly making a false charge.

47. On the 26th August they saw the plaintiff for the first time and gave him this information. He offered the names of three witnesses, whom they later investigated but from when they were able apparently to obtain no help. During this time the 2nd defendant had been pestering the ICAC personnel concerned with the result of the enquiry. He did his best to keep the matter confidential within the Club. I would have thought that was an almost impossible task within any club in Hong Kong, and I do not suppose the Kowloon Cricket Club was any exception. I do not accept what was being submitted to me this morning about the leaks all coming from the committee of the Club. The result was that the matters were discussed in the committee, and the view was taken that the plaintiff's account should be obtained with a view to considering the application of Article 71 to him.

48. It was in those circumstances that the first letter which is complained of as a libel was written. That is at D1. The letter is dated the 25th Sepetmber. There are four sentences specifically complained of. The first sentence reads:-

"As you are undoubtedly aware the General Committee and management of the club were the subject of a recent investigation by the independent Commission Against Corruption.''

 

This is one of the matters of, which the plaintiff particularly complains. He says that there was no investigation of the General Committee, only of the Manager. He complained only about the Manager and not about the General Committee. He relies particularly upon what Mr. Harknett is recorded as having said on the telephone to the 2nd defendant in a telephone conversation which was tapped sometime after the 2nd of October. Mr. Harknett apparently said this:-

"You see the club itself at this moment or at least the committee of the club is not accused and never has been accused of any malpractice whatsoever."

 

Over the page one finds the 2nd defendant assertions to the contrary.

49. The position here seems to me to be quite simple. The direct complaint was certainly against Morris. There was no direct complaint against any members of the committee. But by Article 7 of the Articles of Association, the management of the affairs of the Club is vested in the General Committee. They had the general responsibility. Morris could not have been corrupt on his own. For the reasons which I have already given, everybody concerned in this case knew that the car-park complaint, if made out, must inevitably lead to the committee. It, therefore, seems to me that that first sentence is totally correct.

50. The second sentence reads like this:-

"We have since been advised that the complaints which caused the enquiry are considered to be unfounded and without merit."

 

This gives rise to the semantic arqument I already referred to.

51. The ICAC in this context used the word "unsubstantiated" on all occasions. As far as I can judge, they are very sensitive about it. They say that any other phraseology used is different to the word "unsubstantiated". The plaintiff particularly relies here upon what is said by Mr. Chow in a letter to the South China Morning Post published on the 15th October 1980. Where this appears:-

"The ICAC informed the committee of the KCC that the complaints were considered to be unfounded and without merit."

 

Mr. Chow says:-

                "This is wrong.

        The president of the club was informed that the ICAC had not been able to substantiate the allegations - something very different."

 

52. The plaintiff further submits that indeed it is something very different. He says that "unsubstantiated" in this context means that there were grounds for suspicion but the case was not strong enough to succeed or to be pursued.

53. The defendants for their part meet this criticism head on. They submit, as I think rightly, that the question is what was that word likely to mean to a person in their position - to a reasonable man in their position - hearing it being used by the ICAC in this context. They submit, first, that all these various terms they have used are synonymous. There are simply various ways of describing the same concept. If you look at the word "substantiate" or "unsubstantiated" you can see straightaway that they are both derived from the same word "substance". That gives you the clue to the meaning. Is there any substance in the complaint or is there no substance in the complaint? The word "unsubstantiated" means: "we have found the complaint to have no substance". This is identical in meaning, in my judgment at least, to "unfounded and without merit"

54. I think that there are really only three possible categories of complaints that can be made in this sort of field. First, there is a complaint which has substance; secondly there is a complaint which has no substance; and thirdly, there is the sort of a complaint which not only has no substance, but is actually known by the complainant to have no substance, i.e. is malicious.

55. The ICAC may well choose to use the phrase "unsubstantiated" clearly to differentiate between the categories two and three. But if they think that because the words used are "unfounded and without merit", it carries a connotation that the informant knew this, I do not agree with them. I accept this submission from the defendants that these phrases are synonymous.

56. Equally, it seems to me that the words cannot bear the meaning given by the plaintiff in this particular context. Because at the same time as ICAC was saying to the 2nd defendant, these claims are unsubstantiated, they were also revealing that they were seriously considering and investigating the question whether the plaintiff had committed an offence under Section 30 of the Ordinance in knowingly making a false complaint. It is totally impossible to put a limited meaning to the word "unsubstantiated" in that context. ICAC could only be considering that, if they were satisfied that there was no substance at all, no grounds at all, for the complaint being made.

57. So again, it seems to me that the second sentence in the letter of the 25th of September is in fact true.

58. The third sentence complained of is admitted to be true, so I need say no more about it.

The fourth is in these terms:-

 

        "We are not fully aware, at this stage, of your motives and whether or not you were acting in good faith but, nevertheless, your actions have had serious implications and caused unjustified harm to the reputation and privacy of the Club and those who serve it as officers and members of the General Committee."

 

I am going to defer consideration of that to a later stage, because that was the subject matter of considerable investigation at the later committee meeting. The letter goes on to invite him to attend the committee meeting on the 3rd October.

59. Before that meeting took place, the plaintiff wrote to the 1st defendant a letter, which is dated the 30th October, but must in fact have been written on the 30th September. It is found in Bundle B at page 35. That was then answered by the 1st defendant with a further letter of the 2nd October which is to be found in Bundle D, page 20. Before that letter was written a telephone conversation had taken place, of which I have a transcript, between the 2nd defendant and Mr. Hemshall of the ICAC. The 2nd defendant was somewhat embarrassed by the fact that he took this tape-recording without Mr. Hemshall's consent. He was in a difficult position. He had been given certain information by Mr. Wong of the ICAC. He wanted to be able to put before his committee something which the committee could hear for themselves. So he made a tape-recording of this conversation for that purpose. At the outset of that conversation Mr. Hemshall says to the 2nd defendant:-

"The first thing is that there will be no problem in you or anybody of the committee saying to this man (that is the plaintiff), that you are aware that he has made an allegation to the ICAC about certain matters relating to the club."

 

and he then goes on: -

"Second point is that the official view ..... of the operations department ..at the moment is, that they are unable to substantiate the allegations made. You may say that."

60. It is, I think, clear at this stage that the defendant was also slightly concerned as to how far he was under any obligation of secrecy. It may be that his attention had been drawn to Section 30 of the Prevention of Bribery Ordinary and he wondered how far the tentacles of that section extended. It made good sense for him to get clearance from ICAC, so that he could say these two things, with their blessing at least, to the defendant.

61. Now, the plaintiff has made considerable complaint about what he regards as the lack of discretion of the ICAC, putting it at its lowest (he was making allegations of illegality) in saying these things to the 2nd defendant on the telephone.

62. I think in fairness to them, I should make two comments about that. The first is that Section 30 does not impose an absolute obligation upon anybody. It is qualified by the words - I am reading from Section 30 of the Prevention of Bribery Ordinance - "without lawful authority or reasonable excuse". The first complaint that the plaintiff makes is that the ICAC should never have played their recording of his tape to the 2nd defendant.

63. It seems to me that the ICAC was put by the plaintiff in this position: Either they had to ignore his complaints completely; or if they were going to make any attempt to investigate them, they had to try to identify him. They adopted the second course. I cannot see any basis of criticism of them for doing that. Plainly they had lawful excuse or good reason for doing what they did. Then when that information was known to the 2nd defendant, as inevitably it had to be, it seems to me that no one can say that they did not have good reason or lawful excuse in giving him the authority or permission that he received on the telephone.

64. Secondly, as far as revealing the results of the enquiry is concerned, I do not myself see any statutory limitation upon that at all. It seems to me that this is the least that the ICAC should do in these sort of circumstances, if they have investigated somebody like a club and they have found no substance in that investigation.

65. I then come to the libels complained of in the letter of the 2nd October. The principal complain here related to the first numbered paragraph in the letter, which answers the first corresponding question in the plaintiff's letter. The paragraph reads like this:-

"The club has been formally advised by the ICAC that after an investigation there was found to be nothing in the allegations made .....

 

That seems to me to be totally true.

 

"....  and the file had been turned over to Legal Department for their consideration of possible criminal proceedings against you."

 

Now, this is something which had also been said by Mr. Wong to the 2nd defendant and it was repeated by M. Hemshall on the telephone.

66. Now, what the plaintiff says about that, first of all, is that this is all untrue. He has the belief that any authority to be valid has to be in writing - a point which he made several times in the course of this case. I am bound to say that this is simply bad law. You can have a good authority given orally. This authority was given orally on the telephone to the defendant. He asserted at one stage that Mr. Hemshall had no authority to give it. There is no evidence of that and plainly the recipient, the 2nd defendant, was entitled to treat Hemshall as having authority.

67. Thirdly, he said the whole thing is illegal. I have already dealt with that.

68. Fourthly, he said the whole thing was a complete fabrication. This was one of the occasions when    what he described as the animal side of his character came through.

69. Finally, he took a rather more subtle point. He says that the paragraph that I have read was misleading, because it failed to go on and say that Mr. Hemshall had said on the telephone, that the advice of Legal Department was against bringing proceedings against him. That he contended made this passage false.

70. It seems to me that there are three observations to be made about that. The first is I do not think that the omission in fact falsifies in any way the words that are in face used. Secondly, I am far from sure that it would have been sensible or other than misleading for the author of this letter to start telling the plaintiff what he had got secondhand about the advice which the Legal Department had tendered. It could have had a very misleading effect upon the recipient who was after all the plaintiff himself. Thirdly, I think the real purpose of these words in the letter is to show that in the view of the ICAO the allegations that had been made had no substance and were completely baseless, because no one in the ICAC could possibly have been considering that step, unless they were first satisfied that the allegations had no substance.

71. The last two paragraphs in that letter are again acknowledged to be true by the plaintiff, and only are said by him now to carry a sting by reason of what he considers the omissions in the first paragraph.

72. It was in those circumstances that the plaintiff duly appeared before the committee at a general committee meeting on the 3rd of October. This gives rise to the first slanders complained of.

73. There are two slanders specifically complained of as having been uttered at the meeting itself.

74. The first is to be found on page I where in opening the meeting the lot defendant says:-

"we have been authorised specifically by the ICAC to advise you in or about the month of July this year you telephoned the Commission and made four specific allegations of corruption occurring within the Club.

 

That, for the reason I have already given, is simply true

And the second is:-

"We have also been authorised by the ICAC to say to you that every one of these allegations have been found by the Independent Commission Against Corruption to be completely unsubstantiated."

 

That again is true. I do not see any reason for faulting the word "completely" when you can see the context in which this phrase "unsubstantiated" was used by ICAC.

75. There are no other specific complaints of slander made in the pleadings in relation to that committee meeting as such, but there are many complaints of slander made at the Extraordinary General Meeting of the Club which followed, when the 2nd defendant was giving an account of what took place at that committee meeting. Those complaints I am going to deal with now. They start at page 40 of Bundle D and are all pleaded in paragraph 9 of the Statement of Claim.

76. The meeting started with the 1st defendant, who was put up as the spokesman of the committee, making an opening statement to the plaintiff, plainly intended to tell him what it was that was concerning the committee about his conduct so that he knew where he stood. That was the intent of this statement, and I think, in fairness to both parties I should read most of it. It starts like this:-

"I felt it fair to you to explain firstly why we have called you here this evening. In our letter to you of 25th September, ... "

 

that is the first libel letter-

"I have advised you that you have been identified as the person who made certain allegations of corruption to the ICAC. It was said that we were not fully aware at that stage of your motives. I have indicated to you that we are not aware as to whether or not you were acting in good faith, but I have said that nevertheless your actions have had serious implications and caused unjustifiable harm to the reputation and privacy of the Club and those who serve it as officers and members of the General Committee."

 

That was the fourth sentence in the first libel letter, and it is complained of in paragraph 9(a) of the Statement of Claim.

"I am aware that you have questioned that statement, indeed you questioned it in your letter which you wrote to us requesting certain information and 1 now propose to justify the remarks that I made in that letter. What we are basically concerned this evening with is whether certain action taken by you amounts to conduct which is, in the opinion of the committee, injurious to the character or, I stress the word "or", interest of the Club."

 

77. Those last words are complained of in paragraph 9(b) of the Statement of Claim, but in the fact are simply introductory. The pleading goes on to cite the two passages I have already dealt with, and the earlier part dealing with the authority specifically given by the ICAC I pass over those.

And then I come on to the matter complained of in 9(e).

 

"As a result of your actions in making these allegations or complaints, an investigation was instituted into the Club, its management and, of course, those elected to exercise overall supervision, namely the members and officers of this Committee."

 

Pausing there for a moment, I cannot see what is false about that allegation "An investigation was instituted into the Club, its management and, of course, those elected to exercise overall supervision." For the reasons that I have already given, that seems to me to be true.

"I would like to stress this from the outset, Yakub, we are not in the slightest concerned as to whether your allegations were directed at one particular person, namely the Manager or the management generally, as it must be patently obvious to any reasonable person having at least an iota of intelligence, that it is the committee, this committee, and only this committee that is finally accountable for the actions of senior employees and the overall management of the Club."

 

That is complained of in paragraph 9(f). It seems to me equally to be true, it simply echoes Article 7.

The the 1st defendant went on,

 

"Now 1 propose to justify what I said in my letter to you. In the course of the investigations instigated by your allegations the names of all Committee Members were required to be supplied to the Independent Commission Against Corruption for investigation purposes."

 

That is 9(g). Now it is true that the names of all the Committee were supplied to the ICAO. Why were they supplied? For the purposes of their investigation. It seems to me that those words are, again, true.

"Several members of this Committee were summoned to the ICAC Headquarters and were subjected to questioning. Now the next point is important - "

 

and it is 9(h) of the Statement of Claim -

"As is normal procedure, the affairs of the office bearers and committee members of the Club were, as a consequence, and pursuant to Section 13A of the Prevention of Bribery Ordinance vulnerable -"

 

I emphasize that word -

"in that Bank accounts, both private and business, were subject to investigation and inspection by officers of the ICAC, without our prior persmission, approval or knowledge."

 

Now, the plaintiff invited me to read those words as meaning "had been inspected" not "liable to", not "subject to inspection". That seems to me impossible in the context particularly when in the course of the E.G.M. What the 2nd defendant goes on to say is this:

"Gentlemen, I repeat what Mr. O'Dea said. The affairs of the office bearers and committee members of the Club, were vulnerable in that Bank accounts, both private and business, were subject to, in other words, were liable to inspection and investigation."

 

This meaning was spelt out to all the members. Those facts are true. I then come back to the quotation, the last sentence is this:

"Yakub, this we regard as an intolerable threat to our privacy."

 

Now, this is the comment of the 1st defendant upon that situation. It seems to me to be justified in the sense of my definition of that word earlier in this judgment.

I then go on to the bottom of page 42 and 9(i).

 

"As a result of your action, each serving member of this Committee her had his name plus whatever additional information was complied on him placed on the records of the ICAC."

 

This seems to me another way of saying that the ICAC now have in their records the names of all the committee members of the Club. That is the explanation of those words given by the 2nd defendant in the words that follow in the transcript, and it seems to me the meaning that the words normally have. That is true.

And then I come on to 9(j).

 

"I need hardly remind you that without exception, each member of this committee assumes responsible and in some cases highly sensitive positions, both in the public and private sector."

 

that is admittedly true -

"On the grounds of accountability each one of us, solely as a result of your action, have come under suspicion of corrupt acts or of condoning them through neglect."

 

Those words seem to me precisely accurate. This was precisely what the plaintiff intended, certainly with respect to the carpark complaint, and the reason why he made his complaint anonymously. Then the 1st defendant goes on,

"It is, however, not only the committee that has suffered, but also the good name of the Club, because the Kowloon Cricket Club is of the Independent Commission Against Corruption, as is senior employees and we believe, the members."

 

Now, this is part fact, part comment. That the Kowloon Cricket Club is now on the files of the ICAC is a fact. The comment is that the good name of the Club has suffered. Again, that seems to me to be a justifiable conclusion, having regard to the antecedent facts complained of, all of which I have found to be correct.

78. Then the prepared statement goes on to invite the plaintiff to give the grounds of his complaints so that the committee could see that he did not act upon rumour and that he acted responsibly.

79. There are two other complaints arising out of the transcript of that committee meeting, which arc made in the Statement of Claim. They are to be found on page 499(k). The words complained of are,

"You have alleged corruption in the construction of the works outside, on what do you base those allegations."

 

words which are plainly net defamatory and are simply true. And 9(i):

"You have made an allegation about the Catering on what basis do you make the allegation."

 

Now that, again, is plainly not defamatory.

80. So the committee meeting started with this prepared statement which the 1st defendant read. It was intended to warn the plaintiff what the concern of the committee was. The plaintiff claims that he was hammered before that comittee. The transcript seems to me to speak for itself. I do not accept that description.

81. Summarizing up to this point in relation to the two libellous letters that I have dealt with, and to the slanders complained of both at the committee meeting and in relation to the committee meeting at the E.G.M., the position seems to be this. Subject to the point on the E.G.M. which I will deal with in a minute - all these matters were published only to the committee. Both letters were seen only by the committee and by the plaintiff. There is no evidence of publication to anybody else. The slanders were spoken only at a committee meeting, which was attended only by committee members.

82. It is, therefore, plain that in respect of these matters the defence of qualified privilege runs. The only question is whether the speakers were actuated by malice. As far as that is concerned, there is simply no evidence of express malice at all.

83. I find first of all that what was said was true on an objective assessment of the facts - both in respect of the facts and comments. Equally, I find that the speakers honestly believed everything that they said to be true. There is no sort of evidence whatever to the contrary. It was in the context of express malice that the plaintiff was compelled to resort to the same fanciful and extravagant allegations as he put on the letters which I referred to earlier in this judgment. In those circumstances, the complaints in respect of those matters must all fail.

84. Following the committee meeting, a letter was written to the plaintiff by the 1st defendant on the 4th October informing him of the committee decision and inviting him to resign, pursuant to the committee recommendation. That letter is to be found at page 48 of Bundle B. No complaint is, in fact, made that that letter was libellous.

85. There then followed, first, a letter from the plaintiff to the 1st defendant on the 8th October at page 49 of the same bundle to which I have already referred; and another letter on the 10th October, again to the 1st defendant which ends with the words:

"Therefore, I am dissatisfied with the decision of the General Committee influenced by you and under Article 72 of the Articles of Association of the Kowloon Cricket Club, I appeal for an Extraordinary General meeting of members for them to decide if you should resign or I."

 

That letter was not treated by the committee as an effective appeal under Article 72. I think they may also have felt that it was premature under Article 72. But that is neither here nor there. Under the rules of the Club, the committee's views on these matters are decisive, Article 92.

86. After the expiration of the 14 days, another letter was written to the plaintiff which is page 21 of Bundle D. This time it is signed by the 1st defendant. This is the third letter which is said to constitute a libel. The offending sentences read like this:

"Following the interview which the General Committee had with you on 3rd October last and the decision of the Committee that it recommend you resign, we note that you have failed to comply with that recommendation." -

 

that is a plain statement of fact -

"You are formally advised that, in accordance with Article 71 of the Articles of Association, the Committee has resolved that your name be erased from the list of members forthwith." -

 

The committee had so decided; this was the notification. The third sentence:-

"You are, consequently, now unable to use the facilities of the Club and we would ask that you surrender your membership card and car-park permit and settle your accounts as soon as possible."

 

I confess I do not think I have ever really understood how this letter could be complained of as a libel. Everything in the letter is simply true. The real complaint which the plaintiff was seeking to make here is that the committee's ruling on his letter of the 10th October was wrong. They should not have struck him off and they should have called the Extraordinary General Meeting at an earlier date. But this, as I have already indicated, is a matter for them. Anyhow it is not the subject matter of these proceedings.

I should say in fairness the letter goes on,

 

"Should you wish to appeal to members at an Extraordinary General meeting pursuant to Article 72, please advise us in writing and we will take the necessary steps to notify all members."

 

Advice in writing duly followed and the Extraordinary General Meeting duly took place. So as far as this alleged libel is concerned, it seems to me to be clearly factual, wholly true and quite impossible to regard it as in any way defamatory.

87. Before coming on to the E.G.M., I think it is pertinent to notice one thing. Having written the letter of the 10th October, the plaintiff, in my judgment at least, plainly decided to go public. I think he felt that he had lost the first round with the committee of the K.C.C. He would only win the next round if he could obtain some public sympathy.

88. The first thing he did was to give an interview to a reporter of the South China Morning Post who duly wrote an article which appeared on the 12th October. The significance of this really is this. It was in that article that one finds quotations from the letters which were impugned. A number of the matters complained of in the earlier letters as defamatory first reached public knowledge in that article. That was because either the letters were shown to the author of the article or were, as the plaintiff says, simply quoted to him. The matter then went public. Mr. Chow replied with his letter, which I have already referred to, on the 15th October.

89. The plaintiff wrote again to the South China Morning Post on the 4th November in which he gave further quotations from the letters complained of.  That, in return, produced yet another answer from Mr. Chow on the 10th November. So that before the E.G.M. took place, it was the defendant himself who firmly put these matters in the public sector.

90. The Extraordinary General Meeting took place on the 10th November. I must first consider the effect of the presence of a number of persons at the meeting, to whose presence the plaintiff now objects, although no objections were made at the time.

91. First of all, it seems to be common ground that between twenty-five and thirty ladies attended the meeting. At one stage the plaintiff was contending that this was a piece of deliberate psychology on the part of the committee to put him at a disadvantage - another example of his two-faced trap. This was largely based upon the contention that they all sat together in one part of the hall. That was true. They did all sit together in one part of the hall simply because there were three categories of members who attended this meeting. There were ordinary members who, by reason of the length of their membership, had five votes in the General Meeting. There were ordinary members who, by reason of their membership, had only one vote, and there were the ladies. They were all kept separate in different parts of the rooms to facilities the count at a later stage.

92. The first question I have to consider is whether the ladies should have been there at all. Now, the position of ladies is dealt with in three articles - (50, (51) and (74). (50) simply says:

"Ladies over 21 may apply for admission to the Club as Ladies Subscribers" -

 

with certain qualifications which are immaterial. (51) says that:

"Lady Subscribers should be entitled to such privileges of membership as the General Committee may from time to time determine but they have no voice in the management of the Club."

 

(74) originally read -

 

"Ordinary Members, Lady Subscribers, Junior Subscribers and Visitors shall riot be entitled to vote and in addition Lady Subscribers, Junior Subscribers and Visitors shall not have any voice at any General Meeting of the Club."

 

93. Now, it seems to me plain on those rules that the ladies are entitled to attend a General Meeting. It is quite unnecessary to say "no voice" and "no vote" if they cannot attend. Happily this seems to accord with the practice of the Club. The ladies do regularly attend General Meetings.

94. Equally I am told that the ladies exercise a voice on occasions at General Meetings. Either that is because they have been afforded that by the General Committee or perhaps they just usurp it. I do not know. But that does not arise in this case because it is not suggested that any of the ladies spoke or voted.

95. The question for me is whether they were entitled to be there. The answer to that, in my view, is plainly "yes" for two reasons. First, they were entitled to be there as Ladies Subscribes and Members of the Club. Secondly they were entitled to be there because they had as much of an interest in the outcome of that meeting as did the male members.

96. The second person whose presence is objected to is Mr. Epstein. But he was a member, so he could be there in that category even though he was one of those persons who was under suspicion.

97. The third person who was in and out of the meeting was Mr. Leung, the proprietor of the catering firm. Now, he had two interests in being present. The first was that as caterer he was there looking after the needs of the members, who were present in perhaps unusually large numbers on the occasion of this meeting. Secondly,  interest in the subject matter of the discussion because he was one of the persons whose conduct had been impugned; one of the persons who had been investigated by ICAC; and one of the persons whose name was specifically mentioned on more than one occasion by the 2nd defendant in the course of his address to the meeting.

98. Fourthly, it said the waiting staff were in and out serving drinks, and that I accept as being true.

99. Finally; it said that there were two persons there giving technical assistance. One was the person whom the committee had brought in to make the tape-recording, for which I have reason to be grateful. The second was a lady who was helping the plaintiff and apparently also making a tape-recording.

100. The question of law which arises in those circumstances is - does the presence of those persons prevent the defence of qualified privilege running at this meeting? Now, the law has recognised that commerce and business cannot always go on, behind closed doors. Therefore, there is no absolute requirement of complete one hundred per cent privacy, for this defence to survive. There is, I think, clear authority for the proposition that the presence of additional persons at a meeting like this is neutral, if they are there normally, and in the ordinary course of business, and they do not detract from the occasion.

101. I think the principle here is that one has to keep one' s eye on the occasion. The occasion was the Extraordinary General Meeting specifically summoned at the request of the plaintiff to hear his appeal from the committee's decision. I believe the correct approach is this: Was this meeting always simply an Extraordinary General Meeting? Was it the occasion upon which all speakers were entitled to speak frankly; and the occasion at which the members were entitled to hear frank speaking?

102. It seems to me that when you put the matter in that way, it admits of only one answer. This seems to me to have been the approach of Lord Esher M.R. in Pittard v. Oliver (1891) 1Q.6. 474, at page 478, where he says:

"Was his duty taken away ..... by the presence of those persons? .....The question answers itself; the presence of those persons left his duty to discuss the matter untouched; the occasion was privileged for the performance of that duty, and the privilege was not taken away by the presence of such people under such circumstances."

 

103. That dictum seems to me to apply precisely to the facts of this case in so far as objection might possibly have been taken to the technical assistance, the waiting staff and, I think much more doubtfully, Mr. Leung. This meeting always seems to me properly to have been described as an Extraordinary General Meeting called to hear a particular appeal.

104. I turn finally to the slanders complained of as having been uttered at that meeting. Having already dealt with the repetition of the slanders arising from the committee meeting, I am going to deal only with the passages in a very long transcript which are complained of by the plaintiff in his pleading.

105. In the course of his final speech to me, the plaintiff went on many occasions, well outside that pleading. He made a number of allegations about things which appear on the transcript, which have never been investigated at all at the hearing and were never raised in the pleading. I warned him that I would listen to it, but that I could not possibly treat any of these complaints as part of the case.

106. The pleading for this purpose is paragraph 8 of the Statement of Claim. The first complaint is 8(a) which is to be found on page 37. This is a curious complaint. The facts are not in dispute.

107. Whilst the car park was being built, a number of members used Jordan path as a place for parking their cars. The members apparently came to the conclusion that the local police were turning a Nelsonian blind eye to this state of affairs, because very few people were getting parking tickets or were being towed away.

108. That changed because the plaintiff, who was apparently taking advantage of what might have been regarded a safe parking in Jordan path, was unlucky. He got a ticket himself. He wrote a letter of complaint to the police, whereupon the whole procedure was tightened up. Cars were towed away and members got tickets.

109. The plaintiff said that he did this deliberately to make the law work. Reference was made to this in the passage complained of in paragraph 8(a) of the Statement of Claim. I am not going to read it all out because the whole thing is plainly true. It was true that this had happened, and if reference to this at the Extraordinary General Meeting carried the implication, which I think it probably did, that the person responsible for this phone call was the plaintiff, that was also true. The plaintiff's complaint was this; that this was a malicious irrelevance. It was malicious to introduce the matter at the E.G.M. at all, and was evidence of malice.

110. The same point had, in fact, been touched on at the committee meeting. It seems to me impossible to say that a matter which was obviously regarded by the committee as of significance in this context was a complete irrelevance. One can see the reason why they thought it was relevant. But as a defamatory matter, it seems to me that everything that was said was true, and that the implication which was carried by these words was likewise true.

111. The second point 8(b) is very similar to it. Again, the facts are not in issue. As a result of the police change of policy, members were having the utmost difficulty in parking. There had been some delays in getting the necessary permit to use the car park at the Club. Nothing had come yet from the Building Ordinance Office.

112. As a result of this, the 2nd defendant admits that he took a chance. He told the manager to lift the barrier so that members could then drive their cars in and use the car park. The implication was "with any luck we will get away with it." This the plaintiff objected too. He rang the Building Ordinance Office with a complaint, with the result, not unnaturally, that the Building Ordinance Office came down, like a ton of bricks, and said "no more". This again, was in the plaintiff's' words "making the law work".

113. Again, I cannot see how it can be said that this is so irrelevant to the conduct of that meeting, that its mention by the 2nd defendant was itself an act of malice. Subject to that, everything that he said was true. The imputation that it was the plaintiff who was responsible for this state of affairs was true and was expressly revealed at a later stage at the meeting.

114. The third matter of which complaint is made and is page 39. 8(c). It reads like this:-

"Thirdly, the Police had received anonymous telephone calls that the Club was wasting water on its premises. Inspections by the Police department revealed no such wastage in the Club."

 

Now, this is a different matter because the telephone calls, I have no doubt, were made, but they were not made, on the evidence, by the plaintiff. So that if those words used at this meeting carry the implication that it was the plaintiff who made those calls too, that implication is false. To that extent this allegation is not true. It is in respect of this that the defendants rely particularly upon Section 26 of the Defamation Ordinance, and invite me to say that this is a triviality as compared to the other matters complained of at this meeting which they say they can justify. I have no doubt that it was, in fact, a trifle by comparison.

115. The next matter of which complaint is made is on page 45, 8(d), where the 2nd defendant is making a comment upon a complaint by the plaintiff. The plaintiff had complained in the course of the committee meeting of a failure by the ICAO to contact him after his initial telephone call. What the 2nd defendant then said is this:-

"Incidentally, it is difficult to see how he could expect them to contact him when he made the phone call anonymously.

 

This, it seems to me, is a fairly obvious point of criticism. It is really impossible to criticize. I need say no more about it.

116. Then one comes on to 8(e) where the 2nd defendant is quoting from the Chow letter to the South China Morning Post. It is simply true.

117. The next complaint is 8(f) where the 2nd defendant talks about five people who had been invited to give signed statements to the ICAC. That again is true.

118. One then goes on to page 52, 8(g). The comment complained of is this:-

"Perhaps I am in old fashioned Gentlemen but I honestly believe that the Kowloon Cricket Club deserved better treatment from the plaintiff."

 

This is a comment by way of summary, and I think, in fairness to the 2nd defendant, I should read the summary which immediately preceded it because what he said was this:-

"Gentlemen, your General Committee comprises of five officers and seven committee members, nearly all of whom play either Hockey, Tennis, Lawn Bowls or Squash, regularly with or in the same side as Mr. Khan, yet without first approaching any member of the General Committee, Mr. Khan masquerading as a member of the General Committee made two separate anonymous telephone calls to the Independent Commission Against Corruption reporting corruption in his club, our club, the Kowloon Cricket Club on the evidence that you have heard of dirty towels, not hiring a plant Fah Wong, delay in opening the car park and eliminating serial numbers on chits."

 

Those facts were all true. Is this a justified comment in the light of those facts? I cannot see how it can be complained of.

119. The same, I think, is true of what is complained of at page 53, 8(h) which is the report of the conclusion of the committee.

"Gentlemen, after considering all the facts and Mr. Yakub Khan's explanation, your General Committee were once again unanimous in their opinion that Mr. Yakub Khan's s conduct was injurious to the character or interest of the Club."

 

I think I have to ask myself. Was that a conclusion which no reasonable man could have reached in the light of the facts which have been proved before me? I cannot possibly say that that is so.

120. I then come on to page 54 which is 8(i) of the Statement of Claim. I do not think I need worry about reading any of this because it is all true. The plaintiff, said in terms that he was proud of the fact the he had accused the President of having misled the Vice-president and other committee members, by giving them false information.

121. I then come on to page 57. The first is (j) in the Statement of Claim. This is, in fact, not a quotation at all from the meeting, it is a separate assertion. The charge in 8(i) is:-

"That professional malpractice against David Epstein of Concept Consultants was unsubstantiated."

 

I find it very difficult to regard that as defamatory. It was said that no charge of professional malpractice was made against David Epstein. The plaintiff's words to me were "I did not say that, I just said he was corrupt in his dealings." It seems to me to amount to exactly the same thing.

122. This charge had, therefore, been made against David Epstein. What the 2nd defendant had done had been to rehearse the evidence which I have already dealt with in relation to the car park and questions how can that possibly amount to profession malpractice? This again seems to me to be fair convent.

123. 8(k) and 8(1) both related to the car park and are simply true.

124. The next one which I can pick up here is 8(m), which, again, one cannot find in terms in the transcript. The complaint in the pleading is "claimed to be authorised to speak on behalf of all the suspects." It is true that on several occasions in the course of the meeting the 2nd defendant said he was authorised to speak or give certain information to the meeting on behalf of varying people. The only two people who could possibly be called suspects were Leung and Epstein. He said that in respect of them. They were both present at the meeting; Epstein apparently throughout, Leung in and out.

125. I can see no justification at all for saying that that is false and that the 2nd defendant did not have that authority. It is perfectly true that the authority was oral. It need not be in writing.

126. Finally, the very last allegation of slander, it is the one which I dealt with at the commencement of this judgment, having gone through the plaintiffs justification for his charges, where the 2nd defendant says this:-

"While you might well now consider that the fanciful and frivolous suspicions on which Mr. Khan based his allegations of corruption do indeed render them unfounded and without merit nevertheless"

 

The sting of that is the phrase "fanciful and frivolous suspicions" I have already expressed at an early stage of this judgment my concurrence with that view on the material which Mr. Khan put before the committee.

127. There was simply, in my judgment, never any sort of substance whatever in the complaints that he was making to ICAC. It follows in my judgment that in respect of what was said at this Extraordinary General Meeting, first, that the defence of justification is made out and secondly, the defence of qualified privilege is made out.

128. In the course of his address to me this morning, the plaintiff advanced a number of extravagant propositions to suggest that the speaker, the 2nd defendant, at this meeting was actuated by express malice. Those allegations really came within the same sort of category as those things which he puts in some of the letters, and are plainly without any sort of foundation at all.

129. In my judgment, therefore, the two main defences of justification and qualified privilege raised by the defendants in this case are established. It is quite unnecessary for me to deal with the highly technical point on special damage which might well have caused some problems to the plaintiff if I had done.

130. It is sufficient for me to say that the claim must fail and that it is, one hopes the last step in a very unhappy story, which has had disastrous consequences for the plaintiff.