in particular, the extent to which the parties have followed any relevant pre-action protocol or practice direction for the time being issued by the Registrar. [emphasis added] 8 | P a g e Costs – Jurisprudence [14] The principles that are germane to the exercise of the Court’s discretion to award (or not to award) costs are quite well settled. The principles in this regard have been distilled and lucidly stated in the following cases. We will start by referring to the case of Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff Bin Shah Mohd & Ors And Other Appeals [1996] 2 MLJ 265, [1997] 2 CLJ 607 (CA). (p.327 MLJ) where the Court of Appeal said: The power to award costs is no doubt discretionary. But like other discretionary powers vested in a court, it must be exercised judicially. The general rule is that a successful litigant must have all his costs unless he has done something or omitted to do something in the conduct of the action by reason of which he should be deprived of his costs, either altogether or partly. A judge when departing from the general rule must give reasons. No reasons have been given by the judge for not adhering to the general rule. This is, therefore, a case in which this court is entitled to exercise its original discretion. The respondents will therefore have the costs of the action as well. [15] The principles in regards to the issue of costs were also neatly summarised by the Hon. Justice Nallini Pathmanathan (now FCJ) in Transmile Group Bhd & Anor v Malaysian Trustees Bhd & Ors [2013] 9 MLJ 43 (HC) where Her Ladyship said: [7] Under the Rules of Court 2012, the general principle that costs follow the event remains, (see O 59 r 3 of the Rules of Court 2012). Order 59 r 2 provides that subject to express provisions of written law and the Rules, the costs of and incidental to proceedings in the court shall be in the discretion of the court which shall have full power to determine by whom and to what extent the costs are to be paid. 9 | P a g e [8] Order 59 r 3(2) stipulates that the court has in the exercise of its discretion in awarding costs shall generally order costs to follow the event except when it appears to the court that the circumstances of the case warrant the making of some other order in respect of the whole of, or a part of the costs. The court therefore has to exercise its discretion judicially in determining whether costs follow the event or whether there should be a departure from the general position. [9] The court is entitled under O 59 r 8 to take into account 'special matters' as specified therein and one of which is the conduct of parties including before and during proceedings. This includes, as submitted by learned counsel for the second to 13th respondents, the manner in which a party has pursued his case or a particular issue, whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and whether the parties attempted to resolve the matter. [16] The next case is Petroliam Nasional Bhd (Petronas) & Anor v Cheah Kam Chiew [1987] 1 MLJ 25 (SC) where the Supreme Court said: In our law the discretion of the court in matter of costs is clearly spelt out. In the Courts of Judicature Act 1964 section 68(1)(c) puts in no uncertain terms that no appeal should be brought to the Supreme Court where the judgment or order relates to costs only, "which by law are left to the discretion of the Court," except with the leave of the Supreme Court or the Judge concerned. Order 59 rule 3(2) of the Rules of the High Court 1980 provides as follows: "If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs." This provision is identical to the English Order 62 rule 3. (See Supreme Court Practice 1979 Volume 1 page 959.) The general principle envisaged in the rule is simply that costs follow the event and that the successful party is entitled to be paid his costs except when it appears to the Court that in the circumstances of the case some other order should be made. The same principle was enunciated in greater detail by Parker LJ. in Ottway v Jones (1955) 2 All ER 585 591: 10 | P a g e "One starts with this, that, as a general principle, costs follow the event, and the successful party is entitled to be paid his costs unless there are special grounds to order otherwise, and those grounds, it is well settled, must be grounds connected with the cause of action. No doubt, also, where a plaintiff has wholly failed to establish his title or his right, it is impossible judicially to order the sucessful defendant to pay the plaintiff's costs. Indeed, as is shown by the cases to which my Lord has referred, it is there said that the occasion for the exercise of the discretion does not arise until the plaintiff has established his right." Because costs is in the discretion of the court there has been a rule of practice of the House of Lords as stated by Viscount Cave L.C. in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that no appeal would lie for costs only but the House will however entertain an appeal from an order of the Court of Appeal as to costs, where it is alleged that the order is founded upon an error of law. To summarise, an appellate court does not interfere in the question of costs without reluctance. This is because the court below has an absolute discretion except that the discretion must be exercised judicially. An appellate court should not interfere unless it can be shown that there has been an error of law or the purported exercise of discretion was based on grounds wholly unconnected with the cause of action. The main thrust of the argument of the appellants would seem to be that there was a total failure on the part of the respondent to establish his title and therefore it would be impossible for the court to order costs against the appellants. This argument does not however give a correct picture of the situation before the learned judge. The respondent was an account holder with the Bank and he thought he had sufficient interest to come [1987] 1 MLJ 25 at 27 to the court and apply for the declarations. What actually happened was not that there was a failure on his part to establish his title but that the government had successfully taken a Bill through Parliament which altered the very basis on which he relied for his application for the declarations. It was said by counsel for the first appellant that the learned judge had made the remark "this is not cricket" during the argument before him. We feel that the remark if made would be hardly surprising. The circumstances were materials available to the learned judge. Thus as an appellate court we are unable to say that the learned judge had under the circumstances exercised his discretion wrongly. Lord Halsbury in Civil Service Cooperative Society v General Steam Navigation Co [1903] 2 KB 756 765 said: 11 | P a g e "No doubt, where a judge has exercised his discretion upon certain materials which are before him, it may not be, and I think is not, within the power of the Court of Appeal to overrule that exercise of discretion. But the necessary hypothesis of the existence of materials upon which the discretion can be exercised must be satisfied." The White Book says at page 938: "On an appeal as to costs where the costs are in the discretion of the Judge the C.A. will assume that he exercised his discretion unless satisfied that he did not do so (Re Rotch (1909) 54 SJ 30). A fortiori it will not interfere where he assigns reasons therefor which are perfectly germane and not based on any false principle (Lever Bros v Masboro' Equitable etc Society (1912) 28 TLR 294); nor where there are also other possible grounds for his discretion (Societe des Hotels Reunis v Hawker (1914) 30 TLR 423 CA). Wee Chong Jin C.J. in KE Hilborne v Tan Tiang Quee [1972] 2 MLJ 94 99 said: "It has long been well settled that costs are in the discretion of the court. It has also long been well settled that an appellate tribunal is not entitled to interfere with a discretion exercised by a lower court unless it is clearly shown that the discretion has been exercised on wrong principles. It has also long been well settled that in the exercise of its discretion a court may, if in its opinion there are grounds for it to do so, refuse to award costs to a party who establishes that he has a good cause of action." Public Interest Litigation [17] As stated earlier, the Judge declined to award costs to the successful parties because she came to her own conclusion that the defamation suit was a public interest suit. Thus, it becomes necessary for us to refer to the Court of Appeal’s decision in QSR Brands Bhd. v Suruhanjaya Sekuriti and Anor. [2006] 3 MLJ 164, [2006] 3 AMR 320, [2006] 2 CLJ 532 (CA) (“QSR”) where the term “public interest litigation” was explained. This is what was said by the Court of Appeal: 12 | P a g e [17] At the other end of the spectrum are cases where the nexus between the applicant and the legality of the action under challenge is so tenuous that the court may be entitled to disregard it as de minimis. In the middle of the spectrum are cases which are in the nature of a public interest litigation. The test for determining whether an application is a public interest litigation is that laid down by the Supreme Court of India in Malik Brothers v Narendra Dadhich AIR 1999 SC 3211, where, when granting leave, it was said: [18] Public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated. [emphasis added] High Court - Decision [18] The Judge’s reasons for dismissing the defamation suit and making no order as to costs may be gleaned from the following paragraphs of the Grounds of Judgment which read as: Keputusan Mahkamah [55] Mengambil kira perkara-perkara di hadapan saya semasa perbicaraan dijalankan. Mahkamah berpuas hati bahawa kenyataan-kenyataan yang dibuat oleh defendan pertama tidak bersifat fitnah. Ianya dibuat dengan justifikasi, fair comment dan perlindungan bersyarat. Defendan kedua dan defendan ketiga telah membuat terbitan dengan bona fide tentang perkara kepentingan awam dan terbitan yang dibuat adalah adil, saksama dan tepat. Oleh itu, tuntutan plaintif terhadap kesemua defendan adalah ditolak, dan mengambil kira kepentingan awam tiada kos diberikan. 13 | P a g e [56] Mengambil kira status yang dihormati yang dipegang oleh plaintif iaitu sebagai seorang Ahli Parlimen dan Timbalan Menteri Pertanian dan Industri Asas Tani dan defendan sebagai Ahli Parlimen Shah Alam dan Ahli Politik Pembangkang yang dikenali sebagai Parti Amanah Negara, mahkamah berpendapat bahawa walaupun isu ini nampak melibatkan individu tetapi mengambil kira tempat kejadian dan latar belakang pihak-pihak isu ini telah menjadi isu public interest yang disiarkan dalam media sosial dan menjadi perbincangan oleh masyarakat awam untuk sekian lama. [57] Dalam kes ini mahkamah merujuk A. 59 k. 8(b) Kaedah-Kaedah Mahkamah 2012 iaitu kelakuan semua pihak-pihak, termasuk kelakuan sebelum dan semasa prosiding yang diambil kira dalam menjalankan budibicara untuk mengawad kos. [58] Oleh itu, mahkamah dibawah A. 59 k. 2 Kaedah-Kaedah Mahkamah 2012 menggunakan budi bicara tidak mengawardkan kos kepada kesemua defendan-defendan walaupun tuntutan plaintif ditolak. [emphasis added] Our Decision [19] It is trite that costs is at the discretion of the court. Thus, where a court of first instance properly exercises its discretion and decides to award, or not to award costs, then an appellate court will not usually interfere with the court’s exercise of its discretion. But, that is not to say that the court’s decision on costs is always immune from appellate interference. Indeed, in certain well defined circumstances, an appellate Court will interfere. In this regard, the following passage at paragraph 59/2/6 of the Malaysia Civil Procedure (2021) (Vol. 1) (at .854) (“White Book”) states the principle vis-à-vis appellate interference as follows: 14 | P a g e “An appellate court will interfere with a judge's exercise of discretion on costs where there has been an error of law or principle; for example taking into account irrelevant matters; or omitting to take into account relevant matters; or the decision is plainly wrong and must therefore have been reached by a wrong assessment of the factors that had to be taken into account or exercising its discretion based on wrong principles of law…” [20] And further, at p.855 (paragraph 59/3/3) the White Book makes reference to Order 59 r.3 of the Rules of Court 2012 and states that, “…If a successful party misconducts himself, or has been negligent, or guilty of material omission. … The general principle envisaged by the rule is that costs follow the event. They should therefore be awarded to a successful party, unless there are special reasons for depriving him of his costs…” [21] In the same passage, the White Book emphasizes that a successful party is always entitled to costs except where it is shown that the successful party had misconducted himself or was negligent or guilty of material omission. These grounds or factors are not exhaustive and are just some of the examples of possible situations where costs may not be awarded to a successful party. [22] On the issue of public interest litigation, clearly, the Plaintiff’s claim, being one which is for defamation has no public interest element in it, and it was not filed to promote any public interest. Rather, it was filed to vindicate the Plaintiff’s own private and personal reputation. The defamation suit had nothing do with public interest, albeit that the public may be interested in the case. But that does not convert the defamation action into a public interest litigation. In the result, we do not see how the definition of public interest litigation (per the case of QSR) would apply here. 15 | P a g e [23] For the record, counsel for the Plaintiff has very properly conceded that this was a private action and not a public interest litigation. Thus, it is apparent that the Judge had erroneously described the Plaintiff’s defamation action as a public interest suit. [24] For completeness, it is relevant to note the position that was taken by the parties in the High Court in relation to costs. The minutes of the Court’s proceedings for 26 October 2021, show that the parties had asked for costs as follows: Plf - Pohon kos RM 30,000.00 - 50,000.00 untuk setiap Defendan. D1 - Pohon kos RM 50,000.00. D2 - Pohon kos RM 50,000.00. D3 - Pohon kos RM 50,000.00. [25] Before us, counsel for the Plaintiff and for D1 (and D3) confirmed the accuracy of the said minutes. In the circumstances, it is quite clear to us that in all the circumstances of this case, it was plainly and patently wrong for the Judge to have (a) labelled the defamation suit as a public interest action, and (b) to have deprived D1 and D3 from their entitlement to costs when there were no vitiating circumstances or grounds to disentitle them from costs. 16 | P a g e [26] Indeed, since the parties, including the Plaintiff had asked the Judge to order substantial costs in favour of their respective clients, we find it odd that the Judge had taken it upon herself to deprive D1 and D3 qua successful parties, from being awarded substantial costs. And this was done without the parties being given an opportunity to submit on the issue of public interest, and as to why costs should, or should not be awarded. [27] At any rate, there is nothing in the High Court’s grounds of judgment to indicate that D1 and D3 had conducted themselves in such a manner during the proceedings in the High Court as could justify them being deprived of costs, albeit, that they were the successful parties. Thus, as a matter of principle, D1 and D3, as successful parties are entitled to costs in the usual manner and more so since it took five years for the defamation suit to reach finality in the High Court. Outcome [28] For the reasons stated and discussed as above, we are satisfied that there was a misdirection which warranted appellate interference and the Judge was plainly wrong in not granting costs of the action to D1 and D3. Thus, we allowed Appeal 1754 and Appeal 1795. 17 | P a g e [29] The order of the High Court to the extent that costs were not awarded, is set aside. We order the Respondent to pay costs of RM60,000.00 for each appeal, as costs here and below (inclusive of the costs of the leave application). The orders of costs are subject to allocator. S. Nantha Balan, Judge, Court of Appeal, Putrajaya, Malaysia Date: 19 October 2023 For the Appellant in Appeal 1754 S. Sankaran Nair Messrs SN Nair & Partners Suite J-05-01, No. 2, Jalan Solaris, Solaris Mont Kiara, 50480 Kuala Lumpur. Ref: SNN/Khalid-Tajj/Def/2016 For the Appellant in Appeal 1795 K. Shanmuga Messrs. Kanesalingam & Co Unit 3.3, Level 3, Wisma Bandar 18, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur Ref: 2017S/MDSB/1017 For the Respondent (in Appeal 1754 and 1795) Dato’ Hasnal Rezua Merican Bin Habib Merican Muzzammil Merican Bin Hasnal Rezua Merican The Chambers of Kamarul Hisham & Hasnal Rezua No. 36, Empire Residence, Jalan PJU 8/1, Damansara Perdana 47820 Petaling Jaya, Selangor