· The Krishnan Case

The court dismissed Mr. Jeyaretnam’s appeal from the bench and reasons for judgment were delivered August 7, 2001.  These reasons are unsatisfactory, in that they do not address the most important argument advanced by Mr. Jeyaretnam, that of abuse of process. 

Mr. Jeyaretnam, in his submission to the Court of Appeal, argued that to put him into bankruptcy would only ensure no further payments, and that the only purpose of the Krishnan bankruptcy proceedings was to remove him from public office by disqualifying him from continuing as a Member of Parliament.  The point being made was that so long as Mr. Jeyaretnam was allowed to make payments on these defamation awards, he could continue to raise funds and make payments.  He argued that the bankruptcy order would serve no useful purpose, because he did not have sufficient assets to pay off the judgements.  It was not as if there were any assets that could be called in by a receiver, in order to pay off this judgement.

English and Canadian courts have the discretion to dismiss a petition if it is brought for some collateral or improper purpose. Canadian courts will not permit bankruptcy legislation to be used for an improper collateral purpose. An improper collateral purpose is one that is contrary or collateral to the purpose for which the legislation was enacted by Parliament.  Where a party is found to be using the bankruptcy legislation for an improper collateral purpose the bankruptcy petition will be dismissed as an abuse of process.  Mr. Jeyaretnam had argued that the only purpose of the bankruptcy petition had to be the political objective of removing him from Parliament. 

The issue of collateral purpose or abuse of process was considered in Canada by the Nova Scotia Court of Appeal in Re Laser Works Computer Services Inc., (1998) 37 B.L.R. (2d) 226. The Registrar who first heard the matter made this finding of fact:

“I can only conclude that the purpose of Datarite was to effect the bankruptcy of LaserWorks.  It is a reasonable supposition that the purpose was to remove a competitor from the marketplace.  I find that it was the intention of Datarite to put LaserWorks in bankruptcy.  I further find that the motive was to lessen competition.”[29]

The Nova Scotia Court of Appeal agreed with the result on the basis that the purpose of the competitor’s actions was to eliminate the bankrupt as a business competitor.

In Re Shepard (1996), 40 C.B.R. (3d) 145 (Man. Q.B.) Registrar Harrison dismissed a petition making the following findings:

“The dominant purpose of this litigation is not to accomplish the aims and purposes of the Bankruptcy and Insolvency Act, but rather to obtain a very important business advantage. It is not appropriate or indeed, correct in law, to have the courts facilitate such an objective.”

To initiate bankruptcy proceedings for the purpose of removing a political opponent from public office is clearly more egregious. 

The same principle of law would apply to Mr. Jeyaretnam, because if the real purpose of the bankruptcy application was to remove Mr. Jeyaretnam from Parliament, then the motivation of seeking the bankruptcy would not be the collection of debt.  It would be a collateral purpose.  The Court of Appeal didn’t consider the importance of this collateral purpose. 

In Canada, proceeding with a bankruptcy for the collateral purpose of having a person removed from a political office would be an abuse of process. The Court of Appeal ought to have considered that legal argument advanced by Mr. Jeyaretnam.

· The Lee Kuan Yew Case

The Court of Appeal found that the delay in proceeding with the defamation suit of two years and four months was both unexplained and inordinate.  The Court of Appeal then had to decide if the delay had caused prejudice that would prevent Mr. Jeyaretnam from having a fair trial.  Aside from the many causes of prejudice that flow from lengthy delay, such as, memory problems, availability of witnesses and the prejudice of having the suit hang over his head, there was the additional problem of having brought  lawyers from England for the first trial.  Mr. Jeyaretnam had been represented in that first trial in 1998 by two of the most distinguished lawyers in the field, George Carman, Q.C. and Charles Gray.  Mr. Jeyaretnam argued in the Court of Appeal that Mr. Carman had died and Mr. Gray had been appointed to the bench in England and, in the result, neither was available to assist him in defending the case brought by Lee Kuan Yew, which would now be heard some four years later.

The Court of Appeal dismissed this argument of prejudice on the basis that there was no evidence that Mr. Jeyaretnam could not simply get another lawyer brought from England to assist him.  This aspect of the judgment ignored the fact that two days before the Lee Kuan Yew appeal was argued, the Court of Appeal has declared Mr. Jeyaretnam to be bankrupt.  To suggest that he could now bring two lawyers from London ignored the fact that as a result of all that went on in the past four years, and  of the bankruptcy petitions brought against him, he would no longer be able to fund bringing lawyers from England. Having been declared a bankrupt, Mr. Jeyaretnam would have no income from being a Member of Parliament and he would no longer be able to practice law as a bankrupt, so he would have no income from that. 

The argument accepted in the Court of Appeal earlier that week in the bankruptcy appeal was that Mr. Jeyaretnam had no assets with which to satisfy these judgements.  How then could he bring any lawyers from London at this late date?  In oral argument, Mr. Davinder Singh, counsel for Lee Kuan Yew, had tried to justify the delay by asserting, “Mr. Jeyaretnam already had judgements against him [in 1998] which he could not pay. Why bring on the action [in 1998] and increase the costs.” But, by the time of this appeal Mr. Jeyaretnam not only had judgements, but was declared a bankrupt, and the only reason for Lee Kuan Yew’s renewed interest in old litigation seemed to be the impending election in 2002.

The Court of Appeal also ignored the fact that Mr. Carman and Mr. Gray had prepared the defence of this case.  Even if Mr. Carman and Mr. Gray had been available four years after the fact to present the defence for Mr. Jeyaretnam, there would be start up costs in the lawyers having to get back into the case.  It is unlikely that even two eminent lawyers such as Mr. Carman and Mr. Gray would remember every detail of the defence four years after the fact. 

Had the case proceeded in 1998 as it was supposed to, and given that the words said to be defamatory are the same in both the action by Prime Minister Goh and in the action by Senior Minister Lee Kuan Yew, there would be savings involved in having Mr. Carman and Mr. Gray  present the defence.  Even if new lawyers could have been brought from London in order to present the defence, they would have lost any of the knowledge and work that Mr. Carman and Mr. Gray had undertaken in preparing in 1998.  They would have to start from scratch and this would add to the cost.  Returning to the bankruptcy, all of the evidence before the Court of Appeal pointed to the fact that Mr. Jeyaretnam would be financially unable to bring lawyers from London.  He would be dependent on finding lawyers who would come pro bono and without payment of disbursements. 

Had Lee Kuan Yew proceeded with his defamation case immediately following the defamation judgement in the case of Prime Minister Goh, Mr. Jeyaretnam would have been defended by Mr. Carman and Mr. Gray. 

It is important to put all of this in a context of why Mr. Jeyaretnam brought Mr. Carman and Mr. Gray from London in order to defend the series of defamation proceedings that had been brought as a result of the Goh/Lee Kuan Yew law suits.  There is fear in the bar in Singapore that makes it extremely difficult for Mr. Jeyaretnam to retain counsel in Singapore. 

As a result of the long history of government members suing in defamation, and the government use of the Internal Security Act in the 1970's and 1980's to arrest amongst other citizens, various members of the bar who would speak out, it may not be possible for Mr. Jeyaretnam to find counsel in Singapore to properly defend him against the Senior Minister and former Prime Minister of the country.  The case brought against Mr. Jeyaretnam is politically charged and that is why it was important for him to have Mr. Carman and Mr. Gray available to assist him in defence of the defamation action brought by the former prime minister of the country.

Perhaps one of the reasons Lee Kuan Yew did not proceed in 1998, is that Justice Ravrindra had only awarded Prime Minister Goh, S $20,000.00, a sum so low that it would possibly embarrass other plaintiffs.  Perhaps the most serious prejudice to Mr. Jeyaretnam was the loss of Justice Ravrindra, as a trial judge.