FAZNITA BINTI MOHD SALLEH (NO. K/P : 870717-03-5294) ... DEFENDAN-DEFENDAN GROUNDS OF DECISION A. INTRODUCTION [1] This action comes up for pre-trial case management on 13.07.2026, pursuant to directions given at the e-Review of 09.07.2026. The parties have settled a statement of agreed facts. They have not been able to agree on the statement of issues to be tried. The rival drafts, together with the correspondence exchanged between the solicitors, were placed before the court under cover of the Plaintiff's solicitors' letter dated 10.07.2026 (Enclosure 40), and it now falls to the court to settle the issues. [2] A disagreement of this kind arises with some regularity at case management, and it is seldom the product of any genuine dispute about what the trial must actually decide. More often it reflects uncertainty about what a statement of issues to be tried is for, from which documents it is to be drawn, and by what standard a proposed issue is to be tested. These grounds therefore first set out the framework that governs the preparation of a statement of issues under Order 34 of the Rules of Court 2012, and then apply that framework to the rival drafts in this action. B. BACKGROUND FACTS [3] The Plaintiff is an advocate and solicitor practising as the sole proprietor of Messrs Law Chambers of Kharen Jit & Associate. The First Defendant is an advocate and solicitor practising as the sole proprietor of Messrs Nuurul 'Azmi & Rakan-rakan. The Second Defendant is a former client of the Plaintiff. The narrative that follows is drawn entirely from the statement of agreed facts dated 21.03.2025 ("the Agreed Facts"), annexed as Lampiran A to Enclosure 40. [4] On 19.12.2023 the Second Defendant appointed the Plaintiff to act for her in a road accident claim involving vehicles bearing registration numbers MDR 5869 and JWA 2574. The Plaintiff accepted the appointment without any getting-up fee or advance payment, and herself advanced the expenses of the intended action. [5] On 06.08.2024, at 11.11 in the morning, the Plaintiff filed the claim in the Sessions Court (1) at Melaka as Suit No. MA-B53KJ-18-08/2024 ("the RTA action"). The interest of the defendant in the RTA action was handled by MSIG Insurance (Malaysia) Bhd ("MSIG"). [6] On 07.08.2024 the First Defendant, on the instructions of the Second Defendant, issued to MSIG a notice of the change of the Second Defendant's solicitors from the Plaintiff to the First Defendant. MSIG wrote to the First Defendant on 08.08.2024, and that letter called for an answer. [7] In answer to MSIG's letter of 08.08.2024, the First Defendant, on the instructions of the Second Defendant, issued a letter dated 26.09.2024 to MSIG ("the Letter"). Paragraphs 9.1 and 9.2 of the Agreed Facts record that the Letter contained the following statements: "As of recent dealings with Law Chambers of Kharen Jit & Associate, our client's previous legal representation has breached the Legal Profession (Practice & Etiquette) Rules 1978, therefore we are writing to reiterate that we are the legal representation of Ms. Faznita binti Mohd Salleh (NRIC No.: 870717-03- 5294).” "In the police report attached herewith, our client has detailed her deep dissatisfaction with the legal service of Law Chambers of Kharen Jit & Associate and therefore decided a legitimate change of legal representation to our goodselves. We hope for your goodselves to be well informed with the status quo." [8] Enclosed with the Letter were, first, a copy of a police report bearing Report No. MALIM/004054/24 dated 06.08.2024 made by the Second Defendant, and secondly, a copy of the Plaintiff's letter to the First Defendant dated 07.08.2024, in which the Plaintiff objected to the takeover of the RTA action until her disbursements and legal fees of RM200,000.00 had been paid in full, and gave notice that in default of payment within seven days she would proceed to recover directly from the client. [9] The Plaintiff, through her solicitors, Messrs Law Chambers of Maya Khalid, issued a notice of demand dated 25.11.2024 to the First Defendant. This writ followed. The Plaintiff sues both Defendants in defamation upon the Letter. It is common ground on the rival drafts before the court that the Defendants resist the claim on the footing, among others, that the Letter is not defamatory of the Plaintiff, that it was published on an occasion of qualified privilege, and that its contents are justified. C. THE RIVAL POSITIONS [10] The Plaintiff's proposed statement of issues (Lampiran B) frames four principal issues: first, whether the Letter contains statements defamatory of the Plaintiff, with sub-issues 1.1 to 1.4; secondly, whether the Letter is protected by qualified privilege, with sub-issues 2.1 and 2.2; thirdly, whether the defence of justification applies to the contents of the Letter, with sub-issues 3.1 to 3.3; and fourthly, whether the Plaintiff is entitled to the reliefs sought, with sub-issues 4.1 and 4.2. [11] By their responsive proposal transmitted by e-mail on 25.05.2026 and reproduced as Lampiran C, the Defendants struck out four items from the Plaintiff's draft: (i) the opening words of sub-issue 1.1, "sewaktu perwakilan Defendan-2 oleh Plaintiff" that is, the words confining the alleged breaches of the Legal Profession (Practice and Etiquette) Rules 1978 to the currency of the Plaintiff's retainer; (ii) sub-issue 1.2, which asks whether the Second Defendant terminated the Plaintiff's retainer by reason of the breaches alleged; (iii) sub-issue 2.1, which asks whether the First Defendant's representation of the Second Defendant is conclusive ("muktamad"); and (iv) sub-issue 3.1, which repeats sub-issue 1.2 under the head of justification. The remainder of the Plaintiff's draft was accepted. [12] By e-mail dated 05.06.2026 (Lampiran D), the Plaintiff's solicitors sought the Defendants' explanation for the amendments to sub-issues 1.1, 1.2 and 3.1, on the ground that those issues are drawn directly from the contents of the Letter, which contents stand agreed at paragraphs 9.1 and 9.2 of the Agreed Facts. No explanation resolving the impasse is recorded, and the deletion of sub-issue 2.1 was not itself the subject of the Plaintiff's request. The disagreement therefore comes to the court unresolved. D. GOVERNING LAW AND FRAMEWORK The Function of the Statement of Issues [13] Order 34 rule 1(1)(b) of the Rules of Court 2012 empowers the court to give such directions as to the future course of the action "as appear best adapted to secure the just, expeditious and economical disposal thereof". At a pre-trial case management directed under rule 2(1), rule 2(2) permits the court to consider any matter towards that same end, including, at subparagraph (j), the filing of a statement of agreed facts and, at subparagraph (k), the filing of a statement of issues to be tried. Rule 7 obliges the court to endeavour to secure that the parties make all admissions and agreements as to the conduct of the proceedings which ought reasonably to be made by them, and permits the court to record any refusal to do so with a view to a special order as to costs at the trial. [14] The two documents contemplated by rule 2(2)(j) and (k) operate as complements. The statement of agreed facts removes matters from contention; the statement of issues defines what remains. Once settled, the statement of issues performs several functions at once: it fixes the ambit of the evidence, so that witness statements are confined to matters genuinely in dispute; it disciplines the preparation of the bundles; it supplies the yardstick against which objections to relevance are measured at trial; it structures the closing submissions and, ultimately, the judgment; and it enables the court, where appropriate, to direct under Order 33 rule 2 that a discrete question or issue be tried before the others, with the consequence provided by Order 33 rule 5 that a decision which substantially disposes of the cause may bring it to an end. Order 33 rule 2 itself confirms that the court "may give directions as to the manner in which the question or issue shall be stated" the manner of statement is therefore not a matter of style alone, but of the court's supervision. [15] It is equally important to be clear about what the statement of issues is not. It is not a pleading, and it cannot amend, enlarge or supplant the pleadings. A proposed issue which finds no foundation in the pleadings must be struck from the list, however attractive it may seem; conversely, the settlement of the list does not confer on any party a cause of action or defence that was never pleaded. The statement is an instrument of case management: authoritative as to the focus of the trial, but never a source of substantive rights. [16] A statement of issues is drawn from three sources, and in this order. The first and controlling source is the pleadings. Order 18 rule 7(1) requires every pleading to contain, and contain only, a summary statement of the material facts relied on, and not the evidence by which those facts are to be proved. An issue of fact arises where a material allegation in one pleading is traversed by the opposite party in accordance with Order 18 rule 13, or is the subject of a joinder of issue, express or implied, under Order 18 rule 14. The exercise is therefore one of reading the statement of claim against the defence, and the defence against any reply: every material allegation denied or not admitted is a candidate issue; every allegation admitted is not. [17] The second source is the statement of agreed facts, whose function is subtractive. Whatever the parties have agreed there has ceased to be in issue, whatever the pleadings may earlier have put in contest. It follows that the two documents must be prepared together, and the statement of issues read against the agreed facts before it is finalised: a question whose answer is already supplied by an agreed fact has no business appearing in the list. [18] The third source is the law itself: the elements of each cause of action sued upon and of each defence pleaded. These supply the grid upon which the surviving factual disputes are arranged. In an action for defamation, the elements of the claim are that the words were published by the defendant, that they refer to the plaintiff, and that they are defamatory; the pleaded defences here, on the material before the court, justification and qualified privilege then raise their own constituent questions, including, in the case of qualified privilege, the further question of express malice; and the reliefs claimed raise the questions of injury and quantum. The issues should march through that sequence. [19] Three things are not sources. Witness statements are not, because they come after the issues are settled and are shaped by them, not the reverse. Correspondence between solicitors is not, save insofar as a letter is itself the subject matter of the action. And the submissions or aspirations of counsel about how the evidence will unfold are not. Issues drafted from these materials tend to be evidential or argumentative in character, and both are objectionable for the reasons that follow. The Method of Preparation [20] Reduced to its essentials, the preparation of a statement of issues is a mechanical exercise in eight steps, undertaken with the pleadings and the statement of agreed facts at hand: