PP - Cases - Material - Ethics of The Legal Profession and Duties of Counsel 20-4-2020

CLP Cases & Materials
Practice
PROFESSIONAL PRACTICE
ETHICS OF THE LEGAL
PROFESSION AND DUTIES
OF COUNSEL / ADVOCACY
Surdev Singh @ Sukhdave Singh Gill

ii
Published by Brickfields Asia College

www.bac.edu.my
©Brickfields Asia College Sdn Bhd
First edition: 2012

Updated February 2014
January 2015
February 2016
February 2017
February 2020
S/N: 20193973
L/B: YAN U/B:YAN/02/20
All rights reserved. No part of this publication may be reproduced, or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording, or any information storage or retrieval system
without the written permission of the copyright holders, application for which should be addressed to Surdev
Singh @ Sukhdave Singh Gill.
Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil
claims for damages.
You must not circulate this book in any other binding or cover and you must impose this same condition on any
acquirer.
Although every reasonable effort is made to present current and accurate information, the author makes no
guarantee of any kind. In no event shall the author be responsible or liable, directly or indirectly, for any damage
or loss caused or alleged to be caused by or in connection with the use of or reliance on such content in this
publication.
Disclaimer:
Materials have been extracted from various sources for classroom purposes only.
Printed by TBC
© Brickfields Asia College
CONTENTS
Ethics (Cases & Materials)
1. SOLICITOR’S LIABILITY AS FIDUCIARY AND CONFLICT OF INTEREST

(DEALINGS WITH CLIENTS)......................................................................................................1
2. ETHICS OF THE LEGAL PROFESSION (CASES)...........................................................................5
3. DISCIPLINARY PROCEDURE (OLD PROCEDURE).....................................................................61
4. THE PREVIOUS POSITION DISCIPLINE OF ADVOCATES AND SOLICITORS...............................63
Advocacy & Duties Of Counsel (Cases & Material)

1. DUTIES OF COUNSEL.............................................................................................................81
Contents
ETHICS
(CASES & MATERIALS)
1

Solicitor’s Liability as Fiduciary and Conflict
of Interest (Dealings with Clients)
Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

i) LAW SOCIETY OF NEW SOUTH WALES v HARVEY [1976] 2 NSWLR 154
Court of Appeal
It is case where clients lent money to three companies where the solicitor was
a director and shareholder of. The court held that the solicitor was guilty of
improper conduct as he had mixed his clients’ affairs with his own, had grossly
preferred his interests to those of his clients and had failed to advise his clients
to seek independent legal advice.
Street CJ
“A conflict of interest which is avoidable, and ought to be avoided, is that which
arises from a deliberate proposal of the solicitor that his client deal with him.
If, for example, a client seeks aid or advice from a solicitor concerning lending
or borrowing, or the acquisition or disposal or dealing with assets, the solicitor
will disregard his primary duty as a solicitor referred to so trenchantly by Lord
Westbury, if he uses the occasion to become the party who deals with his
client. It can make no difference if he is not a party directly, but the transaction
is with a company in which he has an interest. Even the tender of advice to
his client to have independent legal advice, although of importance, does
not really overcome the objection to the solicitor having proposed, invited
or encouraged the client to deal with him or his company in the proposed
transaction. We need not pause to analyse the differing problems which arise
where the client rejects the advice to seek such independent advice, and
the solicitor continues to act, or the client acts for himself or where he has
independent legal advice either just for the transaction or has a permanent
new solicitor. In varying degrees the trust of and reliance upon the solicitor
to act fairly and independently arising from the initial preparedness of the
solicitor and client to trade may remain as the reason why the client ultimately
deals with the solicitor and not somebody else. It is difficult to be sure it does
not. In the absence of very special circumstances, a solicitor who promotes
himself as the dealer with his client misuses his position … The price of being
a member of an honourable profession, whose duty to his client ought not to
be prejudiced in any degree, is that a solicitor is denied the freedom to take
the benefit of any opportunity to deal with persons whom he has accepted as
clients. Therefore he ought neither to promote, suggest, nor encourage a client
to deal with him, but rather should take all reasonable steps positively to avoid
dealing directly, with his client. There are of course exceptional cases where
the transaction may be in the special interest of a particular client, but such
cases will be isolated and need to be dealt with conscientious regard for the
procedures referred to”.
ii) LAW SOCIETY OF NEW SOUTH WALES v MOULTON [1981] 2 NSLR 736
A similar case dealing with the misconduct of a solicitor who conducted business
CASES & MATERIALS
dealings with his clients. The solicitor borrowed money from his clients at a
lower rate than he would otherwise have obtained if he had borrowed from a
finance company. The security given by the solicitor was inadequate to justify
the loan, and the solicitor failed to give full disclosure of the security given to
the clients.
Hope JA, delivering the judgment of the Court of Appeal, had the following to
say
CLP
1
2
“In cases such as the present one, it is essential to remember, indeed to

emphasize, that a solicitor stands in a fiduciary relationship to his clients. If he
is to have business dealings with them on his own account, and in particular
if he is to borrow money from, the requirements of the law are rigorous. The
need for that rigour is obvious. Commonly to a great extent, always to some
extent, the solicitor is in a position of special influence in respect of his client.
Clients must be able to rely upon the professional advice of their solicitor and
to place him in the fullest confidence that he will protect them and handle their
affairs in their interests. When a solicitor wishes to borrow from a client, the
client must be put in a position to make a free and informed decision about the
proposed transaction. Since in these circumstances the interests of the client
and of the solicitor can and generally must conflict, the best and easiest way
to achieve this result is to insist that the client have independent and informed
advice. If this does not happen, a heavy burden indeed lies upon the solicitor
to show that he has done everything in his power to protect the interests of his
client and to ensure that the client is aware of every circumstances that is or
might be relevant to his decision. If a solicitor wishes to use his client’s money
to finance some business he is carrying on, it is almost impossible to see how
the client can be adequately protected and advised without insisting that he
gets independent advice. Moreover it must be borne in mind that many clients
are not able effectively to decide whether an investment is a prudent one, no
matter what information is given to them, and that the greater the trust of the
client in the solicitor the greater is the need for independent advice where
a conflict if interest may arise … (It) is also necessary to say that none of the
propositions I have stated is new law; they were not established for the first
time by the decision in Harvey [1976] 2 NSWLR 154. Indeed they are expressive
of a standard of behaviour which members of the public should be entitled to
expect without recourse to legal precedent of those whose probity as well as
skill has been certified by the court. It is no answer to a charge of professional
misconduct in relation to transactions with his clients’ money that the solicitor
did not appreciate that what he was doing constituted misconduct”.
iii) RE BEARD [1918] NZLR 202
Where a solicitor proposed to purchase his clients’ property.
Hosking J, who delivered the judgment of the Court of Appeal, laid down
several principles in relation to solicitors entering into transactions with their
clients it was held:
“Before entering upon the facts in detail it is desirable to refer to the law
which we consider relevant to the matter. As the relationship of solicitor
and client necessarily renders the solicitor more or less conversant with the
client’s private affairs, and as the trust which the client comes to repose in
the solicitor gives the solicitor a position of influence over the client, the law,
in the interests of the profession and the public, has in many ways sought to
ensure that solicitors shall not abuse the confidence reposed in them. Thus
courts of equity have always examined with great strictness any transaction
in the nature of a purchase by a solicitor of a client’s property. The law does
not absolutely forbid a solicitor from acquiring property from his client, but it
does so relatively, and the onus of supporting the transaction if it should be
attacked lies upon the solicitor. Lord O’Hagan, in Macpherson v Watt states the
position with great force: ‘If he (the solicitor) becomes the buyer of his client’s
property he does so at his peril. He must be prepared to show that he has

acted with the completest faithfulness and fairness; that his advice has been
free from all taint of self-interest; that he has not misrepresented anything or
concealed anything; that he has given an adequate price; and that his client
has had the advantage of the best professional assistance which if he had been
engaged in a transaction with a third party he could possibly afforded. There
must be uberrima fides between the attorney and the client, and no conflict
of duty and interest can be allowed to exist.
3
The cases in which the onus is cast on a solicitor to see that the client is put
at arm’s length comprise those in which a personal ascendancy of influence
has been acquired over the client, or in which the solicitor has gained some
knowledge of the client’s property in virtue of his having acted for the client,
or in which the circumstances of the transaction are such as to render it his
duty to give advice or information to the client in regard thereto. We thus
summarize what is laid down by Lord Blackburn in the same case. ‘In Holman

v Loynes Lord Justice Turner mentions, among the instances in which an
attorney cannot be allowed to deal with his client without divesting himself
of his character, all cases in which the circumstances are such as to make it his
duty to give advice to his client. When that is the case he cannot make a bargain
without putting himself, as it has been commonly phrased, “at arm’s length”
from his client. From the very nature of things, where the duty exists that be
should give his client advice, it should be disinterested advice. The mere fact
that you, being in the circumstances which made it your duty to give your
client advice, have put yourself in such a position that, being the purchaser
yourself, you cannot give disinterested advice, your own interests coming in
conflict with his, that mere fact authorizes him to set aside the contract if he
chooses so to do. ‘In Macpherson v Watt, although the solicitor could not be
said to have been the general solicitor of the sellers, and although there was
no ground for suggesting undue influence, yet he was held to have placed
himself in that fiduciary relation requiring the utmost good faith because he
volunteered advice as to the value of the property, and the circumstances were
such that those advised were entitled to look upon his advice as a solicitor’s
advice given in their interests.”
On the other hand, if a solicitor has once been employed, say, to manage his
client’s real estates, then, although the employment may have entirely ceased,
yet there may still be a duty on the solicitor’s part towards his client – for
example, that of possibly advising or possibly communicating information
which he has obtained while acting as solicitor and the existence of such a
duty may bring the ordinary rule into operation and make the solicitor in hac
re if he subsequently purchased the real estates from his client, although as a
matter of fact the relationship of solicitor and client in strict sense had cased
to exist altogether.
Hosking J in Re Beard (at p 211) held that
“Each case must depend on its circumstances. The principle, however, which
the case illustrates is that, where a solicitor has out of a transaction with is
client gained advantages at the expense of his client in circumstances which
called for the advice and information which the client did not get when it was
the solicitor’s business to see that he got it, the solicitor has transgressed a
very plain duty essential for the maintenance of that honourable confidence
which is a characteristict of the solicitors’ profession. Where a solicitor’s
personal interests come into conflict with the duty of protecting the client,
and he sacrifices his duty to his personal interests, he is guilty of professional
misconduct”.
Note the principles:
a) In the light of the above cases, the principle is this: in general, a solicitor
CASES & MATERIALS
ought not to put himself forward as a prospective principal to deal with

his client, and to purchase the client’s property. This however was not
an absolute rule. Should the solicitor choose to do so, he must ensure
that his client received the most disinterested advice possible, as if the
client was transacting with a third party. In this respect, it is thought the
best form of disinterested advice was to advise the client to seek other
independent advice, legal or otherwise. In fact, the most appropriate
action to take would be to discharge himself as solicitor for the client
and to advise the client to appoint new solicitors. But at the very least,
the solicitor ought to ensure that the client has had the benefit of truly
independent legal advice.
CLP
4
b) Because of the principle that a solicitor owed a fiduciary duty to his

client, if he entered into any transactions with his client, the law would
be ‘rigorous’ on him, and any benefit received thereof by him must be
fair and informed. This applied whether the solicitor was still acting for
the client, or whether he had discharged himself, as was consistent with
the case of Re Beard. Each case depended on its very own nature and
facts. The solicitor must not take advantage of his influence on his client
to obtain the slightest benefit which he would otherwise not obtain.
It is no answer to a charge of misconduct that the solicitor thought it
was not a misconduct or if he failed to appreciate the unsatisfactory or
objectionable nature of his conduct.
5

Ethics of the Legal Profession (Cases)

RE SUNIL SINGH GILL [1998] 2 AMR 1357
The petitioner applied to be admitted as an advocate and solicitor of the High Court
of Malaya. He satisfied all the criteria imposed by the Legal Profession Act 1976 (the
LPA) and was a “qualified person” to read in chambers. He completed his pupilage in
the chambers of his Master in Labuan. An objection however was raised by the Bar
Council as to whether the petitioner’s Master could be deemed to have been in “active
practice in Malaysia” within the meaning of S13(1) of the LPA.
The issue was raised as the Master, an advocate and solicitor of the High Court in
Malaya, who practised before the High Court in Borneo, had his practice limited to
matters which arose in the Federal Territory of Labuan. It was therefore submitted on
behalf of the Bar Council that the Master could not be said to be “in active practice in
Malaysia”, and could not take on the petitioner as his pupil.
Section 13 of the LPA provides that the Master must be an advocate and solicitor
within the meaning of S3 of the 1976 Act; and the Master must be or had been in
active practice in Malaysia.
Held
(Abdul Kadir b Musa, J) (Appellate and Special Powers Division)
An examination of the applicable laws indicates that Labuan, being a Federal
Territory is a part of “Malaysia”. Further, as the Master has been issued with a valid
practising certificate for a period of not less than seven years prior to the petitioner’s
commencement of his pupilage, the Master was, at all material times in law and in fact,
“in active practice in Malaysia” within the legislative meaning of S13(1) of the LPA.
Neither was there any dispute that the Master was an “an advocate and solicitor” in
the context of S3 of the LPA. The Master was therefore lawfully qualified and justiciably
able to be a “Master” for the petitioner who was a “qualified person” within the
meaning of S13(1) of the LPA. Petitioner to be admitted and enrolled as an advocate
and solicitor of the High Court of Malaya.
NOTE: MAJLIS PEGUAM v SUNIL SINGH GILL [2004] 4 AMR 1
Gopal Sri Ram JCA
Applying the ordinary canons of construction to S13(1) of the Act, the Master at the
material time had an active practice in Malaysia, namely in the Federal Territory of
Labuan. Although Labuan became a Federal Territory with the commencement of
the Constitution (Amendment) (No 2) Act 1984, it remained, and remains a part of
Malaysia. Applying the authority in Samantha Murthi v A-G of Malaysia & Ors [1982] 2
MLJ 126, the respondent had satisfied the requirements of S13(1) of the Act.
Appeal dismissed.
AKBERDIN BIN HJ ABDUL KADER & ANOR v MAJLIS PEGUAM MALAYSIA [2001] 4 AMR
4425
CASES & MATERIALS
The 1st P was admitted as an advocate and solicitor on 1st March 1991, practiced for
a period of 3 months until 31st May 1991. On 1st June 1991 he entered the judicial
and legal service as a magistrate and resigned on 2nd June 1997. On 1st July 1997 he
resumed practice as an advocate and solicitor.
The 2nd P served her pupilage beginning 17th August 1998 under the 1st P and 2nd P was
admitted as an advocate and solicitor. The AG and Bar Council did not object to the
admission. On 26th August 1999 Bar Council wide a letter inform the 1st P that based
on their records he was not qualified under S13(1) to act as a Master for the 2nd P as
he was not in active practice for seven years. The Bar Council was of the opinion that
the service in the judicial and legal service is not active practice as an advocate and
solicitor.
CLP
5
6
Held
1. Upon a reading of S13(1) of the Act on its own, the word “practice” therein,
is understood to mean private practice and hence service in the judicial and
legal service cannot be termed as a practice. “Active practice” in S13(1) of the
Act therefore must mean active private practice or, practice as an advocate &
solicitor.
2. The jeopardy that the 2nd P will face as a result of the interpretation of S13(1)
of the Act, would be a removal from the Rolls under S17(3), and not a reversal
of the order of admission.
CLYNE v THE NEW SOUTH WALES BAR ASSOCIATION 1960 CLR 186
The appellant a barrister acted for Mr J who is the husband in a divorce proceeding
instituted by Mrs J who is the wife and was represented by Mr Mann (also a solicitor).
The appellant on the instruction of the husband, launched an attack on the professional
character of Mr Mann. The allegations raised against Mr Mann was very serious, inter
alia that Mr Mann is guilty of “unlawfully maintaining” the wife’s litigation, Mr Mann is
in financial difficulties, his partner and the firm was investigated for embezzlement, Mr
Mann is protracting litigation and refuse to negotiate for a settlement. The intention
of the appellant to do so was to intimidate Mr Mann so that he will cease to act for
the wife. Complaint was lodged to the New South Wales Bar Association and the
Bar Association found that the appellant have made a vigorous public attack on the
professional character of Mr Mann. The Bar Association then moved the Supreme Court
of NSW for a declaration that the appellant is guilty of professional misconduct and
the consequential order. The Supreme Court found the appellant guilty of professional
misconduct and order him to be struck out of the rolls.
The appellant appealed to the High Court of Australia. The High Court upheld the
order of the Supreme Court and dismissed the appeal. The High Court decided that the
Bar Association is a recognised body which exercise supervision over the conduct of
members of the Bar and lays down rules and decides questions of professional conduct
and etiquette.
On the facts of the case there was nothing specific in the State Bar rules at the material
time regulating such a behaviour but the High Court said that there is a need to maintain
a generally accepted standard of common decency and fairness.
The High Court said
“The rules which governs the conduct of members of a body of professional men, such
as the Bar of New South Wales, may be divided roughly into two classes. In the one
class stand those rules which are mainly conventional in character. To say this is not
to deny their importance from the point of view of the client. But they are designed
primarily to regulate the conduct of members of the profession in their relations with
one another. Many of these rules are reduced to writing, and they are from time to time
interpreted, and perhaps modified to fit specific cases, by resolutions of the governing
body of the profession. Examples of this class in the case of the Bar are the rule which
forbids advertising, the rules with regard to retainers,….. A breach of any of these rules
is treated seriously, but would not warrant disbarment at least unless it were shown to
be part of a deliberate and persistent system of conduct.”
“Rules of the other class are not merely conventional in character. They are
fundamental. They are, for the most part, not to be found in writing. It is not necessary
that they should be reduced to writing, because they rest essentially on nothing
more and nothing less than a generally accepted standard of common decency and
common fairness. To the Bar in general it is more a matter of “does not” than of “must
not”. A barrister does not lie to a judge who relies on him for information. He does
not deliberately misrepresent the law to an inferior court or to a lay tribunal: He does
not, in cross-examination to credit, ask a witness if he has not been guilty of some
evil conduct unless he has reliable information to warrant the suggestion which the
question conveys.”
7
AG v ARTHUR LEE (SC) [1987] 1MLJ 291

In this case, the advocate who criticized a judgment of the Supreme Court in which
he had appeared as counsel for the party who had lost was found to have been in a
position of conflict of interest. The court referred to rule 3(b)(ii) of the Legal Profession
(Practice and Etiquette) Rules, 1978 which provides that an advocate and solicitor
should not accept a brief where there is some personal relationship between him and a

party or a witness in the proceedings. Rule 5(a) also prohibits acceptance of a brief if it
renders or would render it difficult for him to maintain his professional independence
or is incompatible with the best interest of the administration of justice.
In that case, the advocate had failed to disclose that his family company were the
purchasers of the property which formed the subject matter of the litigation, the loss
of which led to his criticism of the court’s decision. According to the Supreme Court,
failure to observe the Rules resulted in “every likelihood that the advocate has allowed
his duty towards the court to become subordinate to that owed to his clients with
whom he has a common interest in the subject matter of the litigation”.
VIJAYALAKSHMI DEVI A/P NADCHATHIRAM v SARASWATHY DEVI A/P NADCHATIRAM
(BERAMAL UNDANG-UNDANGNYA DI BAWAH NAMA DAN GAYA TETUAN N.
SARASWATHY DEVI) [2000] 4 AMR 4243 Federal Court
This court granted the appellant (plaintiff in the Lower Court) leave to appeal. It
was against the decision of the Court of Appeal, which had allowed the appeal of
respondent. The leave granted was limited to the following issue:
“Whether the Court of Appeal was correct in law in their interpretation of the proper
construction for Rules 3 and 27(a) of the Legal Profession (Practice & Etiquette) Rules
1978 and their application of the same against the respondent, in the particular:
(a) the proper construction and meaning of the words “personal relationship”
within Rule 3 of the Legal Profession (Practice & Etiquette) Rules 1978; and
(b) the proper construction and meaning of the words “directly pecuniary interest”
within Rule 27(a) of the Legal Profession (Practice & Etiquatte) Rules 1978.”
At the High Court, the learned trial Judge granted all the orders sought against the
respondent thus preventing her and her firm from acting in all the matters referred
to in the Judge’s order. The respondent then appealed to the Court of Appeal, after
hearing arguments, allowed the respondent’s appeal and the appellant now appeal to
this court on the questions already framed.
Reading Rule 3(a) of that Practice and Etiquette Rules, it is clear how the rules are
meant to regulate the conduct of advocates and solicitors. It has been so drafted
to regulate Rules, and by which the members of that profession are injuncted from
accepting a brief if he would thereby be embarrassed by it. The Rules had defined what
amounts to embarrassment. The meaning of embarrassment is spelt out in Rule 3(b)
(ii) of the Rules “where there is some personal relationship between him (the advocate
and solicitor) and a party or a witness in the proceedings”
What does come within the ambit of “personal relationship”?
By its ordinary Concise Oxford Dictionary meaning of relationship is “the fact or state of
being related” and “personal” is relating to or connected with the person.
CASES & MATERIALS
On the subject of personal relationship, learned counsel cited to us the authority of

BLACK v TAYLOR [1993] 3 NZLR 403, a Court of Appeal decision in New Zealand. In
this case a solicitor had previously acted for several members of a family including
the plaintiff and the deceased. The plaintiff brought proceedings against the estate of
the deceased alleging breach of an agreement etc. The plaintiff sough an injunction
to restrain the solicitor from acting as either solicitor or counsel for the estate. The
application was made on the ground of conflict of interest based on the solicitor’s
receipt of confidential information relevant to the issues in the proceeding. The High
Court had made a declaration that the solicitor should not act further as counsel in
the proceeding. The solicitor appealed and the plaintiff cross-appealed. The Court of
CLP
8
Appeal held the court’s power to restrain a barrister from acting arose from the Court’s
inherent Jurisdiction where the interests of Justice so required. It may further held
that the Court may prevent a barrister acting as counsel in a matter in which he had
a conflict of interest, or in which he appeared to have a conflict of inherent such that
Justice would not be seen to be done.
As for the meaning of pecuniary interest, counsel cited to us the case of HAJI ABDUL
GHANI BIN ISHAK & ANOR v PUBLIC PROSECUTOR [1981] 2 MLJ 230 where at page
235 where Wan Yahya J (as he then was) after discussing other relevant authorities
said:
“In my view any interest relating to money or money’s worth, any interest that could
be converted into money, or any interest the object of which is to make money falls in
the category of pecuniary interest.”
Counsel urged that this definition be used.
How do this Court view the decision of the Court of Appeal?
The Court of Appeal hearing the appeal from the decision of the lower court was by way
of re-hearing and had all the powers and duties of the High Court. In our case, however,
our powers to hear this matter was by way of leave. An appeal from the Judgment of
the Court of Appeal to this Court in civil matters are now controlled by the new S96(a)
of the Courts of Judicature Act 1964.
In DATUK SYED KECHIK BIN SYED MOHAMED & ANOR v THE BOARD OF TRUSTEES
OF THE SABAH FOUNDATION & ORS AND ANOTHER APPLICATION [1999] 1 MLJ 257
Edgar Joseph Jr FCJ held at page 261:-
“The Federal Court as an apex court is a court apart, in the sense that over and above its
role as a tribunal of review, it performs the vital function of supervising the process of
judicial lawmaking which is such an integral part of our common law system modified
by statute.”
Once we are seized of this matter by way of leave Section 96(a) of the Courts of
Judicature Act 1964 gives us all the powers and duties as enunciated by His Lordship
Edgar Joseph Jr in Datuk Syed Kechik. His Lordship Edgar Joseph Jr said at page 262 of
Syed Kechik’s case:-
“The paramount consideration is, of course, that the Judgment of the Court of Appeal
must, in the language of S96(a), raise a question of general principle not previously
decided by the Federal Court or a decision of importance on which further argument
and a decision of the Federal Court would be to public advantage but these criteria are,
in our view, not exclusive.”
Having considered this appeal before us on the question so framed, we are of the firm
view that having regard to the personal relationship of the respondent to the those
whom she is or was representing and the pecuniary interest she is alleged to have
in those matter, though they were subject to their being litigated in Open Court, the
subject matter of which we express no opinion either way, we are of the firm view
that the respondent is prohibited from acting for those persons in view of her personal
relationship and of her pecuniary interest by reasons of Rule 3 and Rule 27(a) of the
Legal Profession (Practice and Etiquette) Rules 1978.
In saying so we are of the view the Court of Appeal, in their decision to allow the appeal
had erred. The Court of Appeal with respect, erred in not focussing their attention to an
elementary tenet of construction in finding the meaning of “personal relationship” and

“pecuniary interest”. Their approach should have been to ask the relevant question,
which was what is the purpose of the Rule 3 and Rule 27(a)?. We cite Section 17A of the
Interpretation Acts 148-1967:
“17A. Regard to be had to the purpose of Act.
In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act (whether that purpose or
object is expressly stated in the Act or not) shall be preferred to a construction
that would not promote that purpose or object.”
9
The Court of Appeal would have found the answer. The objective of the provision lies
in the fact that the Bar had set a high standard of practice. The Bar requires that an
advocate and solicitor must be able to give an objective and independent Judgment
before he embark on the task of advising a client. Thus the advocate and solicitor
would not be in a position to do so if he is bound by ties of personal relationship to his
client and tied by pecuniary interest. The mischief to be cured and the intention of the

Rules are too clear to be ignored. The provision are too clear to admit of any doubt or
dispute. They had been so framed to preserve the integrity of an advocate and solicitor
so that he may not be in conflict of interest and by the same token ensures that when
he acts for a client he is independent and free vis-à-vis both when representing the
client and performing his duty as an officer of the Court in which he appeared.
In this regard we would apply the decision of BLACK v TAYLOR [1993] 3 NZLR 403
where the Court of Appeal in New Zealand which held that “the Court may prevent a
barrister acting as counsel in a matter which he had a conflict of interest, or in which he
appeared to have a conflict of interest such that Justice would not be seen to be done.”
That being our decision, we would answer the question framed that the Court of
Appeal with respect, has erred in law in the interpretation of the proper construction
of Rule 3 and Rule 27(a) of the Legal Profession (Practice & Etiquette) Rules 1978 and
the application of the same against the respondent. That being our decision we allow
the appeal and restore the decision of the High Court Seremban dated 23/3/1996 that
the respondent be so restrained in all actions.
SARASWATHY DEVI A/P NADCHATIRAM v VIJAYALAKSHMI A/P NADCHATIRAM [1998]
1 AMR 975 Court of Appeal (OVERRULED BY FEDERAL COURT-supra)
Issues
(i) Whether the appellant could be prevented from acting as a solicitor in all the
cases on the grounds that there was personal relationship between her and
the parties she represented.
(ii) Whether the appellant had a direct pecuniary interest in the cases referred to
in the order.
Held
A solicitor and client association is not a personal relationship but a professional
relationship. Rule 3 of the Legal Profession (Practice and Etiquette) Rules 1978, does
not prohibit a solicitor from acting for his client merely because he is related by blood to
his client. For the prohibition to apply, the relationship must be that of a personal one,
meaning an individual or a private relationship which is beyond that of a solicitor and
client relationship. In this case there is no personal relationship between the appellant
and her kin, which is outside that of a professional relationship of a solicitor and client.
For the prohibition in Rule 27(a) of the Rules to apply to these two suits, it must be
shown that the financial benefits of the transaction were received by the appellant
directly in connection with the suits involved. There was nothing in the evidence to
suggest that the appellant had received those alleged financial benefits in 1990 in
contemplation of these two suits.
NH Chan, JCA
A personal relationship between a solicitor and his client can only mean a relationship
CASES & MATERIALS
(meaning an association) which is personal between them. A working relationship

between partners of a firm is not a personal relationship, so that a lawyer can always
act for his firm. A sexual relationship between two people is a personal relationship.
But a solicitor and client relationship is not a personal relationship. However, there
would be a personal relationship between them if their association is something which
is more than that of a professional one. There is nothing to suggest that the relationship
between Saraswathy and her clients is anything but a professional one which is that
of a solicitor and client relationship. There is no personal (meaning individual, private,
one’s own) relationship between Saraswathy and her kin which is outside that of
professional relationship of a solicitor and client. Rule 3 of the Practice and Etiquette
CLP
10
Rules does not prohibit a solicitor from acting for his client merely because he is related
by blood to his client. For the prohibition to apply, the relationship must be that of a
personal one, meaning an individual or a private relationship which is beyond that of a
solicitor and client relationship.
Rule 27(a) of the Practice and Etiquette Rules read: An advocate and solicitor shall not
appear in any matter in which he is directly pecuniarily interested.”
We are unable to see how an arrangement made in 1990 between the shareholders
of the family company Nadchatiram Realities (1960) Sdn Bhd where a reference was
made about Saraswathy’s entitlement to a quarter share of a piece of land and a
statement by her late mother made in December 1985, neither of which were made in
contemplation of these two suits which were filed by Vijayalakshmi against Jegadevan
in 1992 and Suseela Devi in 1993, can have any bearing as direct monetary reward or
payment to Saraswathy in those suits. There is nothing here to suggest that Saraswathy
had received those alleged financial benefits way back in 1990 in contemplation of
these two suits. For the prohibition in Rule 27(a) of the Practice and Etiquette Rules to
apply, it must be shown that the financial benefits of the transaction were received by
Saraswathy directly in connection with the two suits.
RE VICNANDAN MARIA DASS [2000] 3 CLJ 808 High Court
The applicant as administrator of his late father’s estate applied ex parte for the court’s
permission to transfer a piece of land under the estate to a purchaser. This application
under S60(4)(a) of the Probate and Administration Act 1959 was filed by Mr. KP of M/s
KP & Assoc. It was transpired that KP was the solicitor who had acted for the purchaser
in the sale and purchase agreement between the purchaser and the applicant.
Held:
KP who had acted for the purchaser in the sale and purchase agreement could not,
legally, act for the applicant in the instant application. There would be a conflict of
interest. KP should not, having regard to R. 5(a) of the Legal Profession (Practice and
Etiquette) Rules 1978, have accepted the brief from the applicant. It would be difficult
for KP to maintain his professional independence. [Application dismissed; costs to be
borne by counsel for applicant personally.]
RS MUTHIAH v PEMBINAAN FIBA SDN BHD [2004] 4 MLJ 78 High Court
Balia Yusof JC
This was a interlocutory application filed by the plaintiff to disqualify Pn Malliga of
Messrs Malliga & Accosiates from representating the defendant and further and in
the alternative from handling matters of the defendant. The application was filed on
the following grounds: (i) Pn Malliga, an advocate and solicitor was the wife of one
Balachandran, the managing director of the defendant company and also the main
witness for the defendant; (ii) that there arose a conflict of interest on the part of Messrs
Malliga & Associates who has previously acted for the plaintiff; (iii) thirdly, Pn Malliga
was acting as secretary to the defendant company and therefore as a secretary to the
defendant company Pn Malliga would have a pecuniary interest in the said company
and should be barred from acting for the defendant; (iv) and lastly, it was contended
by the plaintiff that on the facts and circumstances of the case, it was difficult for Pn
Malliga to maintain her professional independence in dealing with the matter.
Held
(1) Rule 3 of the LP(P&E) Rules 1978 states that an advocate and solicitor should
not accept a brief if he is embarrassed: Rule 3(b)(ii) of the said Rules further
states that an embarrassment arises where there is a personal relationship
between the advocate and solicitor and a party or witness in the proceedings.
(2) As Mr Balanchandran’s wife, Pn Malliga clearly had a personal relationship
with Mr Balachandran and by virtue of r 3 was thereby prohibited from acting
for the defendant.
11
(3) The fact that Messrs Malliga & Associates had in a previous case acted for the
plaintiff could give rise to the possibility of a conflict of interest as the plaintiff
alleged that Pn Malliga had access to documents and other confidential
documents pertaining to the plaintiff. That being the case justice might not
been seen to be done.
(4) The fact that Pn Malliga was a secretary to the defendant company and might

have a pecuniary interest in this case must be taken into consideration. Rule
27(a) of the LP(P&E) Rules 1978 clearly spells out that an advocate and solicitor
shall not appear in any matter in which he has a direct pecuniary interest.
(5) Pn Malliga, being the secretary of the defendant company, was pecuniarily
interested in the defendant company and ought to be prohibited from acting
for the company in this instance. Maintaining professional independence has
always been the hallmark of a solicitor in handling a matter, and it was for that
reason that r 5 of the LP(P&E) Rules 1978 had been legislated. Sub-rule 5(a)
of the said Rules prohibits a solicitor from accepting a brief if such acceptance
renders it difficult to maintain professional independence or is incompatible
with the administration of justice.
It would be impossible for Pn Malliga to maintain her professional independence
considering her relationship with the main witness of the case and her position as
secretary of the defendant company. Based on the reasons aforesaid, the application
by the plaintiff for Pn Malliga to withdraw herself from handling the matter was allowed
with costs.
AW SING MOEY & ORS v MELOMBONG PERUMAHAN SDN BHD [1999] 4 MLJ 721 High
Court
This was an application by the defendant for an order that one Lim Chong Leong (‘Lim’)
and his legal firm Ahmad Daud, Selve and Pang (‘ADSP’) be disqualified from acting
for the plaintiffs. The defendant contended that there would be a conflict of interest
if Lim were allowed to act for the plaintiffs as Lim was privy to certain confidential
information in respect of the plaintiffs present suit.
Held:
[1] Lim and ADSP should not have accepted instructions or a retainer on behalf of
the plaintiffs because of the special circumstances that would make it difficult
for them to either maintain professional independence or project a course of
conduct compatible with the best interest of justice. Lim should have refused
the brief as he had advised another party on the same matter and because he
was in possession of confidential information.
[2] A counsel who receives briefs for both sides in the same case should not accept
one if he has already read the other. Here, Lim had acted for both sides and
now wanted to act for one against the other in the same matter. Clearly, Lim
and ADSP would be embarrassed.
[Application allowed.]
SINWARA SDN BHD v MARIS HOUSING SDN BHD [2003] 6 MLJ 771
Abdul Wahab J
CASES & MATERIALS
Held, allowing the objection, barring Mr L from representing the plaintiff.

“If counsel were in an objective position, courts would have a greater confidence in the
sincerity and candour of the assessment of facts by counsel. Such an objective counsel
was in fact in a better position to represent his client’s interest to obtain a fair and
just decision. Failure to act in an objective manner would contribute substantially to
confusing the issues and lead to lengthy and expensive litigation resulting in a decision
that is less right, fair and just.”
CLP
12
SEEMA DEVELOPMENT SDN BHD v FAH KIN PANG [1997] 2 CLJ 571
The Court will, unless otherwise proven, assume that a Counsel is so authorised to
appear in court to represent a party to the proceedings. His appearance must therefore,
at first instance, be presumed to be regular and beyond reproach. It is settled law that
the plaintiff may ratify the act of its solicitor and give further instruction at any time
although such ratification is not applicable retrospectively to acts done by a solicitor
before the action was filed.
TUNKU MOKSIN BIN TUNKU KHALID v BUKIT BARISAN SDN BHD & ORS (2009) 9 MLJ
528 High Court
Conflict of interest
The petitioner applied for an injunction (‘encl 3’) to stop the respondents from
disposing its immovable and movable asset. The injunction was also to stop the
respondents from transacting with Khidmat Sentiasa Sdn Bhd and Marvellous Century
Sdn Bhd in respect to the sale of the first respondent’s assets. However the petitioner’s
counsel raised preliminary issues to be adjudicated by the court before hearing the
petitioner’s submission in encl 3. The petitioner agreed that the firm representing the
first, second and seventh respondents was placed in a position of conflict of interest.
The petitioner submitted that the third respondent had given the managing director of
the respondents’ solicitors (‘the solicitor’), a proxy to vote in an extraordinary general
meeting (‘EGM’). The solicitor presided in an EGM which was held to pass resolution
on the sale of the first respondent’s assets, and giving authority to Khidmat Sentiasa
Sdn Bhd by passing of an ordinary resolution to, inter alia, authorize any one director
to sign and execute all relevant documents on behalf of the company. The petitioner
averred that by virtue of the appointment of the solicitor as chairman of the company
to preside in the EGM, he and his legal firm should be barred from representing the
first, second and seventh respondents. the petitioner further argued that the solicitor
presiding as chairman would give him unlimited access to all information pertaining
to the crucial resolution at the EGM meeting. Hence, the solicitor by presiding in the
EGM had contravened r 3 of the Legal Profession (Practice and Etiquette) Rules 1978
(‘Rules’). The Petitioner relied on RS Muthiah v Pembinaan Fiba Sdn Bhd [2004] 4 MLJ
78 and Paruvathy a/p Palany v Sathiasealan a/l Govindasamy [1999] 5 MLJ 151. The
respondent distinguished the cases by submitting that both the cases were related in
respect to the personal relationships between counsel involved and the party in the
proceedings.
Held, allowing the preliminary objection.
Personal relationship existed between the solicitor and the third respondent. The
solicitor would be caught under r 3 of the rules. The solicitor and his law firm and his
partners and his legal assistants should be barred from representing the respondents
or any one or more of them.
Noraini Abdul Rahman JC:
“I am of the view that since Dato’ Manjit Singh, who held a proxy and who
was also voted to preside over the crucial and hotly contested EGM, it is very
likely that he would be called to testify at the proceedings. So, following the
decisions in cases cited before me, where even though there is no personal
relationship in the nature as described in the case of RS Muthiah v Pembinaan
Fiba Sdn Bhd (where the wife of managing director of the defendant company
act as solicitor for the defendant company) or in Paruwathy a/p Palany v
Sathiaseelan a/l Govindasamy where Abdul Malik Ishak J (as he then was) held:
“It was clear that Mr T Rajagopalu was personally involved in the whole
episode. There was a possibility that Mr T Rajagopalu might be cross-
examined on his affidavit ... Further the court had a discretion to allow
a party to cross-examine a deponent. Mr T Rajagopalu may end up as a
witness for the defendant and he would be caught under r 28(a) of the
Legal Profession (Practice and Etiquette) Rules 1978. When he affirmed
the affidavit, he was no longer acting as counsel for the defendant but
as witness. Therefore, his law firm and his partners and legal assistants
should be barred from representing the defendant.”
13
I am of the opinion that there is a personal relationship between Dato’ Manjit

Singh and the third respondent. Because of this relationship, Dato’ Manjit
Singh was given the proxy to vote. It is not an ordinary relationship at all. This
is a proxy to vote at hotly contested RGM and so, the person given the proxy
must be someone the third respondent personally trust.
Having found that there is a personal relationship between Dato Manjit Singh

and the third respondent, Dato Manjit Singh would be caught under r 3 of the
Legal Profession (Practice and Etiquette) Rules 1978.
Therefore, his law firm and his partners and his legal assistants should be barred
from representing the respondents or any one or more of them. I therefore allow the
preliminary objection raised by counsel for the petitioner.
DR TRILOCHAN KAUR MOHAN SINGH v THE MALAYSIAN DENTAL COUNCIL & ANOR
[2010] 2 CLJ 1037 High Court Malaya
Whether improper for solicitor, his firm or anyone else in his firm to act as counsel in
present case.
In this application for judicial review seeking to challenge the proceedings of the
Malaysia Dental Council and its Preliminary Investigation Committee, the participation
of one Mr Rajasingam, a partner in the firm of Messrs Lewis & Co, as the legal advisor
and advocate and solicitor to the Dental Council had been raised by the applicant as
one of the issues on which the decision of the Dental council was being challenged.
Mr Rajasingam was the advocate and solicitor advising the Committee, and later the
Council, on all questions of law in the course of their disciplinary enquiry under reg.
30(2)(a) and (b) of the Dental Regulations 1976. He was also the legal adviser assisting
the Committee and the Council under reg. 3(1) of the same regulations. Further,
Messrs Lewis & Co, Mr Rajasingam’s firm, were the solicitors to the Preliminary
Investigation Committee and the Dental Council during the disciplinary enquiry stage.
The applicant raised a preliminary objection and a narrow question posed by said
preliminary objection, namely, whether Mr Rajasingam, Messrs Lewis & Co or anyone
else from Messrs Lewis & Co could act as counsel for the Dental Council in light of Mr
Rajasingam’s participation during the disciplinary proceeding being challenged, was
what required determination.
Held (allowing the applicant’s preliminary objection):
(1) In the circumstances of this case, it was clear that Mr Rajasingam himself
could not act as counsel in this judicial review application. Since he had
been implicated directly, it would be very difficult for him to maintain his
professional independence, and to act in a manner compatible with the best
interests of the administration of justice as required under r. 5 of the Legal
Profession (Practice and Etiquette) Rules 1978 (‘Rules’). Likewise, he would be
embarrassed if he accepted the brief within the meaning of r. 3 of the Rules
and, similarly, under r. 4 of the Rules, which requires that an advocate and
solicitor shall not accept a brief if he knows or has reason to believe that his
own professional conduct is likely to be impugned. In principle, Mr Rajasingam’s
position was akin to someone who is a witness, or likely to be made a witness
or party, in proceedings. Such a person cannot act as counsel in the very same
proceedings as it will be very difficult to maintain the required professional
CASES & MATERIALS
independence to act in the best interests of the administration of justice.

In principle too, any other person from the same firm of solicitors would
be unable to maintain the very same degree of professional independence
and avoid embarrassment. Thus, the preliminary objection was allowed and
another firm of independent solicitors would be appointed to represent the
Dental Council. Such a course would be in the best traditions of the Bar and
would serve the proper administration of justice.
Mohamad Ariff Md Yusof JC:
The general pronouncements on bias, the presence of the secretary and legal adviser
to a disciplinary body during the course of disciplinary proceedings, and the nature of
CLP
14
a disciplinary body as a body which does not need to follow all the trappings of a court
of law, and the acceptable position of such body being both accuser, prosecutor and
judge, bearing in mind its character, are matters which appear to have been clarified
by the Federal Court. So, given this clarification, it would appear that any argument,
or objection, based on the presence of the legal adviser and his participation during
the course of disciplinary proceedings will now have to be carefully considered on the
merits of this judicial review proceedings.
In principle, the position of Mr. Rajasingam is akin to someone who is a witness, or likely
to be made a witness or party, in a proceeding. Such a person cannot act as counsel in
the very same proceedings for obvious reasons. It will be very difficult to maintain the
required professional independence to act in the best interest of the administration of
justice. In principle too, I should think any other person from the same firm of solicitors
will be unable to maintain the very same required degree of professional independence
and avoid embarrassment. The approach adopted by Abdul Malik Ishak J (as he then
was) in the High Court Johor Bharu in Sykt Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing
t/a Bengkel Sen Tak [1997] 3 CLJ 754 is an appropriate one. The issue in this High Court
case relates to whether a law firm shall remain on record as solicitors when one of its
lawyers is required as witness. Abdul Malik J, after an exhaustive reference to several
jurisdictions, had this to say on the matter:
“To allow (counsel) or his legal assistance to appear in chambers or in open court when
the former would be a witness in the case would simply mean flying in the fact of the
clear words in section 94(3)(n) and (o) of the Legal Profession Act 1976. As advocates
and solicitors, they should have due regard to the client’s interests and must conduct
themselves with decorum so as to bring the legal profession into disrepute. The law
firm ... would equally be infected and should not remain on record as solicitors for the
plaintiff for the simple reason that (counsel) owes that law firm. (This last observation,
I must add, is peculiar to the facts of that case, but does not detract from the general
principles.”
PERBADANAN PEMBANGUNAN PULAU PINANG v TROPILAND SDN BHD [2010] 2 CLJ
1061 High Court
Conflict of Interest – Rule 5(a)
This was an application by the plaintiff seeking to disqualify one Dato’ RK Nathan from
appearing as leading counsel for the defendant in the two consolidated suits herein.
The plaintiff’s objection was premised primarily on the ground that Dato’ RK Nathan
had been substantially involved in the case while serving as a judge of the High Court in
Penang. It was further contended that there was a great risk that the impartiality of the
court as an institution might be questioned because of an appearance of impropriety.
Held (allowing the application):
(1) What the court was more concerned with in this case was not whether there
was any conflict arising in the handling of the matter by Dato’ RK Nathan but
the perception of the general public and whether there was any appearance
of impropriety n the matter being handled by him. To seek and maintain “the
best interest of the administration of justice” as envisaged in r. 5(a) of the Legal
Profession (Practice & Etiquette) Rules 1978, it is necessary to adopt the strict
approach. The solemn oath of upholding justice to both parties taken by Dato’
RK Nathan when he was the presiding judge in this very matter must in the
circumstances of the case be maintained. While there was no doubt that the
role of counsel is to seek justice and Dato’ RK Nathan was no exception, what
would be the general public’s perception of him fighting for the cause of only
one of the parties now? Thus, the appearance of impropriety was real and
this was sufficient to disqualify Dato’ RK Nathan from acting as counsel for the
defendant in this case.
15
CHIN SIEW CHIN (f) v LIM HENG CHOO [2009] 8 AMR 681 High Court
Application to disqualify counsel from acting for defendant
On February 18, 2005, an advocate named Fabian Lim was murdered. Fabian Lim and
the defendant were equal partners in the law firm of Lim and Lim Advocates (“the said
law firm”). The plaintiff, the widow of Fabian Lim, alleged that the defendant breached

an oral agreement he made to her whereby in consideration of her transferring her
half share of the law firm to the defendant, she was promised half of all fees that are
collected or will be collected by the law firm in respect of all files opened or retainers
received. The plaintiff filed a suit for an order that the defendant give an account of the
same, damages interest and costs. Defence counsel, Anthony Tai, filed an application
to strike out the plaintiff’s suit under Order 18 r19 of the Rules of the High Court 1980
(“RHC”).
This is the plaintiff’s application under rules 3, 4, 5, 16, 17, 18, 31 and 35 made under
S17(a) of the Advocates Ordinance of Sarawak, as well the under the inherent jurisdiction
of the court, to disqualify Anthony Tai from representing the defendant. The plaintiff
contends that Anthony Tai was an old family friend and that during a friendly discussion
with Anthony Tai when she went to visit him at his office during November 2007, she
had imparted to him confidential information and details of her contemplated claim
against the defendant. The plaintiff argues that Anthony Tai had taken instructions
from her and that as a result, he was in possession of confidential information which
could be used by the defendant against her. She alleged that although she had wanted
to pay Anthony Tai for his professional advise, he had declined to accept payment on
the ground that he knew her late husband very well. Anthony Tai denied that he took
instructions or that he gave advice to the plaintiff, stating that the plaintiff came to see
him to discuss the progress of the criminal case concerning the murder of her husband.
Issue
Whether Anthony Tai has placed himself in a position of conflict of interest by advising
the plaintiff or has come into possession of any confidential information or has acted
unfairly and flouted any of the Advocates (Practice and Etiquette) Rules 1988.
Held, dismissing the application with costs
1. An advocate’s duty to the administration of justice supersedes his duty to his
client, and if an advocate and solicitor has previously acted for the opposing
party and was in possession of confidential information, or where he would be
a potential witness, he should not accept a brief to act as counsel in the same
case or a related case.
2. The affidavit evidence indicates that the meeting between Anthony Tai and the
plaintiff was not one from which a retainer can be implied, given the fact that
at the time she met with Anthony Tai, the plaintiff had already instructed her
present solicitors and the fact that in her affidavit in support, she described
Anthony Tai as an old friend with whom she had a friendly discussion. Anthony
Tai never acted for the plaintiff and is not a potential witness in the case. The
plaintiff never said that she met with Anthony Tai for the purpose of instructing
him to act for her.
3. There was no evidence to support the plaintiff’s assertion that Anthony Tai had
CASES & MATERIALS
come into any confidential information pertaining to the plaintiff’s suit against
the defendant which may be used against her. The plaintiff could not have
visited Anthony Tai for a professional consultation as in her affidavit in support,
she refers to having a friendly discussion with an old friend.
4. Right of counsel of choice is an important aspect of litigation and the courts
will be slow to interfere with this right without good grounds. Despite having
already instructed solicitors, the plaintiff allegedly, of her own volition,
discussed her case with another solicitor and now sought to disqualify him
on the ground that she passed confidential information to him. There was no
evidence that at that time she met with him, Anthony Tai was already acting
for the defendant as the plaintiff only filed her suit against the defendant after
visiting Anthony Tai at his office.
CLP
16
AWALUDDIN BIN SURATMAN & ORS v PP [1991] 3 CLJ 2459

The defence counsel discharge the accused persons in the midst of a criminal trial. The
court of first instance convicted the accused persons and on revision the High Court set
aside the conviction on the ground that there was a mistrial.
Mohtar Abdullah J held
(i) “The courtroom is not a stage for counsel to play-act, to appear, disappear,
reappear and disappear at his whim and fancy. A defence counsel is also an
officer of the court – he owes a duty both to the court and his client. If a
defence counsel wants to discharge himself from further acting for an accused
person, the decent and honourable thing for him to do is to inform the court
accordingly. Etiquette would demand that he appears in court to formally
discharge himself. If that is somewhat difficult for him to do, then he should at
least write to the court or inform the other counsel accordingly”.
(ii) The conduct of defence counsel, … is, to put it bluntly, quite disgraceful and
has, to my mind, prejudiced the interests of his clients, ….
(iii) I sincerely hope that the Bar Council or the Selangor and Federal Territory Bar
Committee will seriously look into this matter and take appropriate disciplinary
action to protect the integrity of the honourable legal profession and the
dignity of the courts.
WEE CHOO KEONG v PP [1990] 2 MLJ 239.
The Counsel was retained by the family of a deceased detainee to hold a watching
brief at the inquest. At the inquest, the prosecuting officer objected to the petitioner’s
presence in Court as Counsel on a watching brief as his statement had been recorded
and he would be called as a witness. The learned Magistrate upheld the objection in
accordance with r. 28 (a) of the Legal Profession (Practice and Etiquette) Rules 1978. On
revision his Lordship Wan Yahya J (who later rose as FCJ) varied the learned Magistrate’s
order and observed:
Wan Yahya J watered down the rigours of r. 28 of the Legal Profession (Practice and
Etiquette) Rules 1978.This was what his Lordship said:
“This section to my mind does not envisage that an advocate and solicitor is
ipso facto excluded from appearing as such in Court, the moment he believes
that he will be a witness. That ethical restriction will only arise if he is likely
to be a witness of any material or disputed fact. Rule 28 is a rule of ethics
and the magistrate should not have applied it totally with the stringency of
the force of law.”
“In a case like this, the rule of common sense and fair play in keeping with
our tradition of maintaining as fair and impartial adversarial system should
be observed.
The only matter which appears to be in conflict with the petitioner’s presence is the
allegation that he and not the witness wrote the report. The problem could be fairly
solved by confirming the order of the learned Magistrate on the exclusion of Counsel
only to that stage of the proceeding if and when the deceased’s son is about to give
evidence and it is hereby so ordered.”
SYARIKAT PENGANGKUTAN SAKTI SDN BHD v TAN JOO KHING t/a BENGKEL SEN TAK
[1997] 3 CLJ 754
In this case, the defendant’s Counsel raised a preliminary objection to the effect that
the law firm of M/s Gana Muthusamy should not appear on record as solicitors for the
plaintiff since Mr. Gana Muthusamy would be called as a witness by the defendant.
The defendant’s Counsel also argued that not only Mr. Gana Muthusamy ought not to
appear for the plaintiff but the law firm as a whole including the legal assistants of the
law firm of M/s. Gana Muthusamy and Co should not appear or act for the plaintiff in
the present case – be it in chambers or in open Court.
17
The crucial question in this case was: would Mr. Gana Muthusamy jeopardise his client’s
interests by continuing to act for his client when it had become apparent that he would
be called as a witness by the opposing party?
Held
[i] An advocate and solicitor is under a professional obligation to observe the
standard of conduct required of members of his profession and to conform

to the disciplinary rules as set out under the Legal Profession (Practice and
Etiquette) Rules 1978. A failure to observe the rules will subject the advocate
and solicitor to the possibility of punitive action at the instance of the client.
[ii] Where a lawyer is required to testify, that lawyer should withdraw and entrust
the conduct of the case to another lawyer. A lawyer should not simultaneously
serve as Counsel and witness as to do so will put the lawyer’s own credibility
at stake and at issue.
[iii] The law firm of M/s of Gana Muthusamy & Co, should not remain on record as
solicitors for the plaintiff for the simple reason that Mr Gana Muthusamy owns
that law firm.
[iv] The Courts have an inherent power to refuse to permit a particular advocate
and solicitor from appearing on behalf of a particular individual in a particular
case. The right of a particular individual to be represented by an advocate and
solicitor of his own choice is not absolute as it is the Court that will determine
that right.
[v] By virtue of r 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978,
Mr Gana Muthusamy was ordered to be barred from representing the plaintiff
be it in open Court or in Chambers.
[vi] The law firm of M/s Gana Muthusamy was ordered not to appear on record as
the solicitors for the plaintiff in the present case.
[vii] Mr R Paramanandan and all other legal assistants of M/s Gana Muthusamy and
Co, were also ordered to be barred from appearing or acting for the plaintiff in
the present case – be it in Chambers or in open Court.
[viii] The plaintiff was allowed to seek another advocate and solicitor from another
law firm to take over the case and pursue the matter further.
[Preliminary objection upheld. No order as to costs.]
Abdul Malik J (High Court)

“My fear is this. There may come a time when Mr. Gana Muthusamy may be placed
by circumstances in a position where he fails in his duty if he does not advise his client
to take independent advice.One must not forget that Mr. Gana Muthusamy and Mr. R
Paramanandan like other practising advocates and solicitors are bound by the Legal
Profession Act 1976 (Act 166) and the Legal Profession (Practice and Etiquette) Rules
1978. Put in another way, an advocate and solicitor is under a professional obligation to
observe the standard of conduct required of members of his profession and to conform
to the disciplinary rules as set out under the Legal Profession (Practice and Etiqquette)
CASES & MATERIALS
Rules 1978. A failure to observe the rules will subject the advocate and solicitor to the
possibility of punitive action at the instance of the client. For this exercise, rr. 3, 4, 5, 27
and 29 of the Legal Profession (Practice and Etiquette) Rules 1978 must be referred to
and they are quite self-explanatory:
3(a) An advocate and solicitor shall not accept a brief if he is or would be
embarrassed.
(b) An embarrassment arises-
(ii) where there is some personal relationship between him and a party or a
witness in the proceedings.
CLP
18
4. No advocate and solicitor shall accept a brief in a case where he knows or has
reason to believe that his own professional conduct is likely to be impunged.
5(a) No advocate and solicitor shall accept a brief if such acceptance renders or
would render it difficult for him to maintain his professional independence or is
incompatible with the best interest of the administration of justice.
27(a) An advocate and solicitor shall not appear in any matter in which he is directly
pecuniarily interested.
(b) This rule does not apply to the case of an advocate and solicitor appearing
himself to tax his own costs.
29. Except when essential to the ends of justice or as to merely formal matters,
an advocate and solicitor appearing in any cause shall not testify in Court on
behalf of his client only in that cause.
ASIA COMMERCIAL FINANCE (M) BHD v BANK BUMIPUTRA MALAYSIA BHD [1988]
1 MLJ 33 it was held that the only effect of a breach of these rules was in relation to
discipline. In that case there was a failure to serve the appropriate notice on solicitors
on the record when entering a judgment by default, which was a breach of r. 56. Zakaria
Yatim J (now FCJ) refused to hold that the failure to comply with r. 56 made the default
judgment an irregular one. This was what his Lordship said:
“In my opinion, the Practice and Etiquette Rules 1978 only regulate the
professional practice, etiquette, conduct and discipline of an advocate and
solicitor. The Rules do not regulate the procedure of legal proceedings in the
High Court. Indeed, the Bar Council has no power under the Legal Profession
Act to make rules to regulate procedure of legal proceedings”.
Stern warnings have been issued by the Malaysian Courts in regard to non-compliance
with the Legal Profession (Practice and Etiquette) Rules 1978. Salleh Abas LP has
occasion to say in CHEAH YOKE THONG v PP [1984] 2 MLJ 119, to the following effect:
“We think lawyers should refrain themselves from briefing the press on
matters pending before the Court, especially when they have not been
properly before it. We would like to remind them of the rr 45, 46 and 47 of
the Legal Profession (Practice and Etiquette) Rules 1978, which seem to us
to be relevant in the circumstances of this case. We hope that the rules are
not dead letters.”
At page 774, the judge said
“To allow Mr. Gana Muthusamy or his legal assistants to appear in chambers
or in open Court when the former would be a witness in the case would
simply mean flying in the face of the clear words in s. 94(3) (n) and (o) of the
Legal Profession Act 1976 (Act 166). As advocates and solicitors they should
have due regard to their client’s interests and must conduct themselves with
decorum so as not to bring the legal profession into disrepute. The law firm
of Messrs Gana Muthusamy & Co., would equally be infected and should not
remain on record as solicitors for the plaintiff for the simple reason that Mr
Gana Muthusamy own that law firm.”
At page 775, the judge said
“By virtue of r. 28(a) of the Legal Profession (Practice and Eiquette) Rules
1978, Mr Gana Muthusamy should be barred from representing the plaintiff
be it in open Court or in Chambers. There are no concessions to be offered.

The Rules must be complied with for an orderly conduct of litigation and to
maintain and observe the standard of conduct required of members of this
august profession. The Courts have an inherent power and authority to refuse
to permit a particular advocate and solicitor from appearing on behalf of a
particular individual in a particular case. Faced with this sanction it would be
a gross misconduct on the part of that particular advocate and solicitor to so
appear. The right of a particular individual to be represented by an advocate
and solicitor of his own choice is not absolute. It is the Court that will determine
19
that right. There is a passage appearing in the judgment of Humphreys J in R v

SECRETARY OF STATE FOR INDIA IN COUNCIL AND OTHERS, EX PARTE EZEKIEL
[1941] KB D 546 that merits reproduction. It is this:
“There is short observation which other members of the Court desire me to
make and with which I agree. It has been brought to the attention of the Court
that, on the hearing at Bow Street, junior Counsel on one side was called as

a witness to prove certain aspects of Indian law and continued thereafter to
act as Counsel in the case. No objection was taken to this by Counsel on the
other side. We think it right to point out that this was irregular and contrary
to practice. A barrister may be briefed as Counsel in a case or he may be a
witness in a case. He should not act as both Counsel and witness in the same
case.”
Applying that passage to the present case, as a fused profession Mr. Gana Muthusamy
cannot be a witness for the defendant and Counsel for the Plaintiff. That would be
wrong and contrary to r. 28(a) of the Legal Profession (Practice and Etiquette) Rules
1978.”
LEE KAM SUN v HO SAU LIN [1999] 4 MLJ 509
A dispute arose out of an Sale and Purchase Agreement prepared by the P’s solicitors.
P’s solicitors appeared for the P in the suit and D objected.
Held
It is a well-established principle that lawyers should not act as counsel and witnesses
in the same proceedings. The reason, as expounded by Beaumont CJ in EMPEROR
v DADU RAMU AIR 1939 Bom 150, is: ‘An advocate cannot cross-examine himself,
nor can he usefully address the court as to the credibility of his own testimony, and
a court may feel that justice will not be done if the advocate continues to appear’.
There are exceptions to this rule. It does not apply if the testimony of the advocate
and solicitor so acting relates to matters which are formal and non-contentious such
as identification, attestation, custody of documents and the like. In fact the Etiquette
Rules r 28(a) only prohibits such advocate and solicitor from appearing in respect of a
‘material and disputed question of fact’. The reason for this limitation is best illustrated
in the case of EMPEROR v DADU RAMU, where again Beaumont CJ proceed with: ‘On
the one hand, an accused person is entitled to select an advocate whom he desires to
appear for him, and certainly the prosecution cannot fetter that choice. On the other
hand, the court is bound to see that the due administration of justice is not in any way
embarrassed.
Both Ms Koe and Mr Su were not the solicitors involved in the conveyancing of the
property and for this they should be allowed to act for the plaintiff here, I am afraid
that they have not considered the fact that it is not they who were retained by the
plaintiff in this suit. The firm of CTS was the retainer, the proximity and relationship of
partners and legal assistant in the same firm is too close for comfort to ensure that a
conflict of interest will not be practised. And for this, without casting any aspersion to
the integrity of both Ms Koe and Mr Su, I am not convinced by the argument advanced
on this point.
In some cases, counsels may subpoena the counsel for the other side in order just to
frustrate the other party.
CASES & MATERIALS
PP v MOKHTAR B. ABDUL LATIFF

Facts: The Defendant was alleged to have committed CBT. The Hearing was fixed on 4th
October 1979 for trial. Counsel for Accused asked for a postponement to 4th February
1980 to September 1980 and subsequently on the grounds that he was engaged
elsewhere.
Held: The High Court called up record of the case wherein Harun J exercised powers of
revision. The Court felt that the counsel should not have accepted the brief or should
not accept those other briefs which necessitated the postponements. Harun J also
CLP
20
referred to S77 LPA, the source of power to make the rules and reminded the counsel
of the effect of non compliance of the Legal Profession (Practice & Etiquette) Rules.
QUAH POH KEAT & 27 ORS v RANJIT SINGH A/L TARAM SINGH [2009] 6 AMR 330
Court of Appeal
Disqualification as solicitor – Rule 28
The plaintiff (“the respondent”) had filed an action against the defendants (“the
appellants”) for unlawfully and illegally excluding him from the partnership of KPMG
pursuant to an allegation of sexual misconduct and rape by a female employee of the
appellants against him. The respondent contended, inter alia, that solicitors from the
firm of Lee Hishamuddin Allen & Gledhill (“the firm”) were material witnesses in the suit
and should be disqualified from acting as solicitors for the appellants. The appellants
argued that the solicitors had never advised or acted for them and therefore rule 5 of
the Legal Profession (Practice and Etiquette) Rules 1978 (“the Rules”) was inapplicable.
The trial judge ruled that the firm is disqualified from acting for the appellants in this
action and that it was reasonable to presume that the appellants’ action against the
respondent reflected the advise given to them by the firm. Aggrieved by that decision,
the appellants appealed to the Court of Appeal.
Issue
Whether solicitors from the firm were potential witnesses and are disqualified from
acting as solicitors for the appellants.
Held, dismissing the appeal with costs
1. Since the firm had been involved in all the processes leading to the appellants’
executive committee’s decision against the respondent, culminating in his
expulsion from the partnership of KPMG, the firm thus was not independent.
By their involvement, the solicitors from the firm were potential material
witness in the suit and had to be disqualified from acting as solicitors for the
appellants.
2. Under rule 28(a) of the Rules, an advocate and solicitor shall not appear in a
case if he has reason to believe that he will be a witness in respect of material
and disputed questions of fact. The reason for this rule is the avoidance of
any conflict of interest or embarrassing ethical issues. To avoid unnecessary
problems, prevention is better than cure and in such a scenario, an advocate
and solicitor must be restrained at the outset.
3. In the instant case, two solicitors from the firm were alleged to have been
actively involved in the fate of the respondent. Any reasonable man armed
with those facts would anticipate calling these two lawyers as witnesses.
4. There existed in this case, material and disputed facts, which would entail the
necessary calling of the two solicitors as witnesses. It was implausible that one
member of the firm who had sat through the meeting and another who is a
bearer of bad tidings, be not called as witnesses. Anything less would be an
unreasonable expectation.
MIRZA MOHAMED TARIQ BEG BIN MIRZA HH BEG v MARGARET LOW SAW LUI & ORS
[2009] 4 MLJ 671 Court of Appeal
Application to disqualify solicitor from acting for plaintiff (Rule 28)
The plaintiff and the first to sixth defendants were directors and shareholders of
the seventh defendant company (‘the company’). On 9 March 2008, a meeting (‘the
meeting’) was convened to advise the company and its board of directors about an
investigation mounted against the company by the Anti-Corruption Agency. Miss
Renu Zechariah (‘MRZ’) and one Ragumaran, both advocates and solicitors, attended
this meeting and the latter recorded the minutes of that meeting. Subsequently,
the plaintiff represented by MRZ filed a civil suit against the defendants when a
21
shareholder’s dispute arose between them. The second and third defendants applied
to disqualify MRZ from acting for the plaintiff in the civil on the grounds that as MRZ
had formerly acted for the company it would be a conflict of interest for her to now
act for the plaintiff against the company. The High Court granted the application to
disqualify MRZ. It found that since MRZ had attended the meeting she was privy to the
confidential information that was disclosed at the meeting and therefore there was a

potential conflict of interest if she were to represent the plaintiff in the civil suit. Being
dissatisfied with this decision the plaintiff had appealed and at the same time filed a
notice of motion to stay the High Court’s order.
Held, allowing the appeal with costs:
(1) In order for the principle of confidentiality to apply warranting a court to
intervene, there must first be established a relationship of solicitor and client
or some fiduciary relationship. However, in the present case there was no
evidence by any party that MRZ had acted for the company. The only evidence
put forward was the single attendance of MRZ at the meeting on 9 May 2008
but the minutes of that meeting showed that Ragumaran was the company’s
solicitor and MRZ herself gave evidence that she was acting for the plaintiff
when she attended the meeting. Accordingly, the relationship of solicitor and
client or other fiduciary relationship was absent in this case.
(2) Further, to bar a solicitor from acting, the applicant must place before the
court full particulars of the relevant confidential information that was allegedly
disclosed to the solicitor. In the instant case, the only evidence to support
disqualifying MRZ form acting for the plaintiff in the civil suit was the minutes
that was recorded by Ragumaran and which was available to all members of
the company including the plaintiff. As such, even if MRZ was not present at the
meeting, there was nothing to prevent the plaintiff from revealing the contents
of the minutes to MRZ to enable the latter to prepare the plaintiff’s case. As
such, the principle of breach of confidential information had no application to
the facts of this case.
(3) The issue of MRZ being a potential witness to the civil suit was a non-issue since
none of the defendants raised it as an issue in their application to disqualify
MRZ. In any case since MRZ had no real involvement in the content of the
minutes recorded by Ragumaran. There was nothing useful that she could add
to the minutes if she should be called as a witness.
(4) A strong case must be made out to prevent a solicitor from acting on a
particular case on the grounds of conflict of interest. The onus of proof lies on
the party alleging the conflict, ie, the second and third defendants and in this
case they had not discharged this onus.
Raus Sharif JCA:
“Two important prepositions emerge. First, for the principle of confidentiality to
apply warranting a court to intervene, there must first be established a relationship
of solicitor and client or some other fiduciary relationship. In the absence of such a
relationship, the principle does not apply. The facts of Hardless v Hardless AIR 1932
Allahabad 536 provide a good example as to how the principle is to be applied. In that
case, the respondent to a divorce petition wrote to a counsel referring to complaints
CASES & MATERIALS
that he has against his wife and stating that he desired to take action so that he might
obtain custody of the children. However, the letter did not definitely engage counsel’s
services. Later, the said counsel was engaged by the petitioner to act for her and the
respondent husband made application to prohibit him from acting in the matter. The
court dismissed the application and held as follows:”
“A great ideal has to take the place before counsel san be said to be engaged by a party
to a suit, so that it would be unprofessional for him to appear on the other side. In order
to prevent counsel appearing for the other party, he must have a definite retainer with
a fee paid or he must have had such confidential information from one of the parties as
CLP
22
would make it improper for him to appear for the other party. Nothing of this sort has
occurred here. There is nothing of a confidential nature in the letter of 24 December
which would prejudice the respondent if Capt Carleton appears for the petitioner. If this
sort of letter acted as a bar to counsel appearing for the opposite party, nothing would
be simpler for a prospective litigant than to write to all the leading counsel in the court
a letter such as this. He need not have the slightest intention of engaging any of them.
The petition is rejected.”
Second it depends on the facts of each case whether confidential information was
conveyed. In order to bar a solicitor or other fiduciary from acting, the applicant must
place before the court full particulars of the relevant confidential information that was
allegedly disclosed to the solicitor or fiduciary. Mere general or vague allegations are
insufficient. As was stated in State v Lalit Mohan Nanda AIR 1961 Orissa 1:
“... the onus of proving that confidential information was conveyed lies heavily upon
the applicant.”
Wan Yahaya J (as he then was) in the case of Wee Choo Keong v Public Prosecutor
[1990] 3 CLJ 346 in interpreting r 28 of the Practice and Etiquette Rules held that the
court should not apply the Rules with the stringency of force of law but rather should
instead utilise the rule of common sense and fair play in keeping with the tradition of
maintaining a fair and impartial adversarial system.
KARAM SINGH v P.P. 1974 1 MLJ 229 Federal Court
Raja Azlan Shah F.J.
This is an appeal by an advocate & solicitor against summary conviction and sentence of
two weeks’ imprisonment. The facts so far disclosed in the record are that there was a
heated argument between the magistrate and the learned counsel who was appearing
on behalf of a defendant in a case concerning impersonation under Section 170 of the
Penal Code. The learned magistrate adjourned into chambers for 15 minutes and after
considering the matter returned to the Bench and decided to deal with the appellant
summarily. The question here is whether the facts are sufficient to warrant summary
committal for contempt. Insulting behaviour by counsel, however reprehensible, may
or may not be contempt depending on the surrounding circumstances. But, in my view,
a magistrate’s summary power to proceed of his own motion must never be invoked
unless the ends of justice really required such drastic means. No doubt it appeared
to be rough justice, it is contrary to natural justice and can only be justified if nothing
else would do. Therefore this power must be exercised with scrupulous care and only
when the case is clear beyond reasonable doubt. In my view, it is only in urgent cases a
magistrate should take on himself to move. He should, in my view, leave it to the local
Bar Committee to move in accordance with Section 27 of the Advocates & Solicitors
Ordinance, 1947. The magistrate should not appear to be both prosecutor and judge -
a role which does not become him well. In my opinion, it was not a case for summary
punishment because it was not sufficiently urgent or imperative. He would have done
well if he had adjourned the case and reported the matter to the local Bar Committee.
The power which a magistrate possesses is both salutary and dangerous. The present
appeal gives an opportunity to make clear that it should be used reluctantly but
fearlessly when and only when it is necessary to prevent justice from being obstructed
or undermined. That is not because judges, witness and counsel who are officers of the
court, take themselves seriously, but because justice, whose servants we all are, must
be taken seriously in a civilized society if the rule of law is to be maintained. Therefore
in this case the learned magistrate should have adjourned the matter and reported it
to the local Bar Committee, which I propose to do now. However, I would set aside the
conviction and sentence. Conviction and sentence set aside.
RE KUMARAENDRAN, AN ADVOCATE & SOLICITOR 1975 2 MLJ 45 High Court
Abdoolcader J.
I have called for and examined the record of these proceedings in the Session Court
at Taiping in the exercise of my powers of criminal revision under Section 323 of the
Criminal Procedure Code for the purpose of satisfying myself as to the correctness,
legality and propriety of the summary order of committal for contempt of court made
by the learned president against K. Kumaraendran, an advocate and solicitor of the
23
High Court in Malaya, the advocate was defending an accused person charged with
an offence under Section 4 of the Corrosive and Explosive Substances and Offensive
Weapons Ordinance, 1958, in the course of cross-examination of the second witness
for the prosecution by the advocate made the following note:
“[The defence counsel was shouting and behaving in a manner which is most
unexpected as he keeps on shouting throughout the whole proceedings, both

to the witness and to the court. In this case, the learned defence counsel has
very unjustifiably shouted at the witness and notwithstanding the advice of the
court has failed to conduct the case with decorum.]”
The learned defence counsel has absolutely no regard for both the court, the witness
and above all the sense of justice. Indeed the court has been most restrained in allowing
a great deal of latitude to the learned defence counsel. In spite of this, the shouting
potentialities of the learned defence counsel has been increasingly manifested.
“If you say this outside the court, I will take on (sic) you certainly. The counsel
is committing contempt of court and I am exercising my summary power and
commit him to two days’ imprisonment.”
I must accept the last remark of the advocate as recorded by the learned president,
which apparently led to the summary order he made, as the unbiased truth in view of
the fact that this statement was made in open court in his presence and in his hearing
and indeed directed at and to him. There is no doubt that these words ascribed to the
advocate certainly constitutes insulting and contumacious behaviour in outrageous
and provocative language tantamount to a deliberate challenge to the authority of a
learned president and clearly a gross contempt in the face of the court. Contempt in
the face of the court has been, in my view, aptly defined by Laskin J., in his dissenting
judgment in the Canadian Supreme Court case of McKeown v The King when he said:
“Contempt in the face of the court is, in my view, distinguished from contempt
not in its face on the footing that all the circumstances are in the personal
knowledge of the court.
In BALOGH v ST. ALBANS CROWN COURT, the Court of Appeal in England held that
because the power to summarily punish a contemnor for contempt is arbitrary,
contrary to natural justice, and far removed from the ordinary process of the law, it
is to be exercised with scrupulous care and only when it is imperative for the court
to act immediately; and it must never be invoked unless nothing else will do to
protect the ends of justice. The power to take cognisance of any contempt of court
connotes summary disposal of the matter as an offence without the formality of a
charge or complaint. Punishment for contempt in the face of the court which may be
imprisonment or a fine can be imposed immediately and without notice but it has
however been firmly established that:
“no person should be punished for contempt of court, which is a criminal
offence, unless the specific offence charged against him be distinctly stated,
and an opportunity of answering it given to him.”
I would add that the court’s power to imprison should only be exercised in serious
cases of contempt. In deciding whether a contempt is serious enough to warrant
imprisonment, two factors should be taken into account, first, the likely interference
with the due administration of justice and, secondly, the culpability of the offender.
CASES & MATERIALS
Where the imposition of a fine would meet the circumstances an order of committal
should be avoided, if at all possible the learned President as a result of the statement
attributed to the advocate in the record of the proceedings, perhaps understandably
acting in the heat of the moment, immediately committed him to imprisonment for 2
days without distinctly stating the specific offence charged against him and without
giving him an opportunity of showing cause or answering that charge, in breach of the
rules of natural justice. The order of committal made must accordingly be unsustainable
in law and invalid. But let me add this. Presidents and magistrates must accept the fact
that it is duty of counsel appearing before them to act fearlessly and with all the force
and vigour at their disposal in the interest of the cause they represent but wholly
within the bounds of propriety and courtesy in the discharge of their duties as officers
of the court. Counsel appearing before these courts must equally remember that in the
CLP
24
discharge of their duties they must judiciously use the right and privilege of appearing
as such in these courts and not abuse it, and that their conduct must at all times accord
with that decorum and dignity which is absolutely essential to the administration of
justice and above all, however frustrated or provoked they may be, they must pay
that respect due to the court which is the embodiment of the institution of justice
in the machinery of which both the courts and the Bar are interdependent and vital
components. If counsel has any complaint of unfair treatment then his recourse should
not be a challenge to the authority of the court but must of necessity be to direct
it to the proper quarters either personally or perhaps more appropriately through
the appropriate Bar Committee. Mutual respect and courtesy should always prevail
and the utmost restraint exercised from overacting, even at the most trying times.
Occurrences of the nature before me will only tarnish the image of justice which we all
seek to administer and mar the smoothness of its administration. If this admonition is
adhered to then there will be no danger of a repetition of the unhappy events which
have culminated in today’s proceedings. For the reason I have given I am constrained
to exercise my powers of revision to set aside the order of committal made against the
advocate. However the order I have just made should not be allowed to obfuscate the
gravity of the statement attributed to the advocate in the record of these proceedings,
and I think this is a proper case for a reference to the appropriate Bar Committee for
an enquiry into the conduct of the advocate by his peers in relation to that statement,
and I so direct.
P.P. v SEERALAN 1985 2 MLJ 30 Supreme Court
Salleh Abas L.P.
The Magistrate, was holding an Inquest. The respondent Mr. Seeralan, a member of
the Bar was in court holding a watching brief and conducting the inquest was P.O.
Inspector Arvinder Singh. During the course of the inquest, witness No. 8 became
unduly difficult. At this juncture, the respondent (advocate) stood up and without
asking the permission of the court objected to the course which the P.O. intended to
take and accused him and the Bench of unnecessarily tormenting the witness. He was
reminded by the magistrate that he had no right to address the court unless permitted
to do so; whereupon, the respondent became emotional and made several allegations
of bias against the magistrate. In order to continue the proceedings, the magistrate
ordered the respondent to leave the court but he refused to comply with the order
saying that he had every right to be in court. He continued to make allegations of
bias against the Bench saying that the Bench was unfair and prejudiced against the
witness, and he would apply to have another magistrate to hear the inquest.
As a result of this the Magistrate told the respondent that he was in contempt and that
the respondent was then under arrest and was to be moved out from the court. When
the respondent refused to leave the court, and said that he had to be carried away,
the court adjourned. The magistrate said that he took cognizance of the contempt
committed by the respondent and informed him of his acts and statements which,
in the opinion of the magistrate, constituted a contempt and required him to show
cause why he should not be punished. The acts and statements were:
(1) as he was only holding a watching brief in the matter, the respondent had to
ask the court’s permission before addressing it, and he had not done so;
(2) he accused the Bench of being unfair and biased against witness;
(3) he refused to leave the court when ordered to do so;
(4) by his continued unbecoming behaviour the respondent had disrupted the
court’s proceedings.
He denied the charge and claimed to be tried before another magistrate because the
magistrate being himself, the complainant was therefore biased. The magistrate then
fined the respondent of $150/=. The respondent refused to pay the fine. The next day,
the Seremban High Court exercising his powers of revision reversed and set aside the
magistrate’s order.
25
The P.P now refers three questions to us (on appeal to Supreme Court):-
(1) Whether or not in law criminal contempt has been committed in the face of
the court by the respondent by accusing the presiding magistrate being biased,
unfair and prejudiced and by refusing to leave the court when ordered to do so
by the learned magistrate;
(2) Whether it is right in law for the learned magistrate in the circumstances of this

case to exercise his powers of punishment for contempt of court summarily;
(3) Whether it is right in law for the learned Judge to set aside the Order of
the learned magistrate committing the respondent for contempt of court in
chambers without giving due notice or the right to be heard to the P.P.
The First question:
Did the conduct and behaviour of the respondent constitute a contempt of court?
Merely to address the court without getting its permission did not constitute a
contempt, especially when the respondent in this case had the courts indulgence
to cross-examine practically every witness. An inquest is not like a trial. It is only an
inquiry by a magistrate as to the cause of death and the prosecuting officer is there not
to prosecute anyone but only to assist the court with the examination of witness for
the purpose of giving evidence. A defence counsel present at an inquest is not there to
defend anyone, but only to look after the interests of those who engage him. However,
although addressing the court without permission is not a contempt it is certainly
not polite to do so without permission. In polite circles such as the legal profession,
this simple etiquette is expected. Whilst the respondents objection to the proposed
course of action in order to protect the witness may not amount to a contempt, having
been reminded that he had no right to make such objection as of right, he should not
have made the situation more difficult by an allegation of bias against the court. There
is absolutely no justification for him to make the accusation. Whilst we accept that
counsel can plead for his client without fear and favour, he certainly has no right to
abuse the court and interrupt the proceedings. An allegation of bias, in our opinion,
is not just a mere act of discourtesy, but a contempt of court. The Privy Council’s
decision in MAHARAJ v A.G. FOR TRINIDAD AND TOBAGO, their Lordships held that
an allegation that a judge is guilty of “unjudicial conduct” is not a contempt of court.
The trial judge took the allegation to be a “vicious attack on the integrity of the court”,
but their Lordships were satisfied that there had been no such attack, and allowed the
appellant’s appeal against his conviction. What Maharaj’s case established is that the
phrase “unjudicial conduct” does not amount to a vicious attack on the integrity of
the Court. In any event, what vitiated the committal for contempt was the failure of
the trial judge to make plain to the appellant the specific nature of the contempt with
which he was being charged. Reverting to the case under reference, the words uttered
by the respondent are not “unjudicial conduct” but “biased, unfair and prejudiced”
and, therefore, in our opinion, constitutes a contempt of court. The record clearly
reveals the uncompromising attitude of the respondent and his unabashed arrogance
and insolence towards the magistrate. His continued accusations that the court was
biased, unfair and prejudiced clearly amount to a contempt of court. This contempt
had become all the more serious by his defiant attitude towards the court. When
asked to leave the court, he refused, and when told that he was under arrest, he replied
that he had to be carried away. The record shows that this abusive conduct had in fact
CASES & MATERIALS
interrupted the inquest proceedings which the Court should be concerned with and
which, therefore, had to be postponed to another date. Under such circumstances
what else could the magistrate do in order to restore the dignity of the court and bring
order to it? We are of the view that it was correct and proper for him to invoke para
26 of the Third Schedule to the Subordinate Courts Act to deal with the situation. But
this legitimate step was only met by continued defiance of the respondent who kept
on repeating the same allegations of bias against the magistrate, saying that he would
show cause only before another magistrate. He showed absolutely no remorse or
regret over what had happened. In our view, such conduct and behaviour was not just
a disorderly act, nor a mere use of unbecoming language. They constituted a contempt
of court of a serious kind, i.e. without any mitigating factor.
CLP
26
The second question:

Many cases of contempt of court have been reversed because of the failure of the
court to give the contemnor an opportunity of being heard before he is punished,
Re Kumaraendran and Maharaj v A.G. for Trinidad and Tobago. In the case under
reference the record clearly shows that the elements of contempt were fully set out
and that the contemnor was asked to show cause. He did not attempt to reply to
the charge but instead demanded that another magistrate should hear it. In support
of Mr. Ramachandran’s submission, Mr. Param Cumaraswamy urged us to hold that
once the respondent had required the contempt of court to be dealt with by another
magistrate, the request should be granted; otherwise all subsequent proceedings
would be held to be null and void. With respect, we cannot infer such a construction in
para 26 of the Third Schedule to the Subordinate Courts Act. In our view, therefore, the
fact that the contempt may also amount to an offence under Section 228 of the Penal
Code does not in any way deprive the magistrate of the power to punish for contempt.
In this situation, the magistrate has a choice of either proceeding under para 26 of the
Third Schedule to the Act or of authorizing a prosecution.
RE TAI CHOI YU 1999 AMR 895 (High Court)
Counsel (the counsel) for the defendant in a matter before the High Court had applied
to disqualify the trial judge of this court, from presiding in the said case in which the
counsel was retained as the solicitor for the applicant and the plaintiff respectively. The
counsel alleged that the trial judge had ruled unfavourably on the counsel’s credibility
in another suit in which the counsel was a witness and therefore there was a likelihood
of the trial judge being biased or impartial against the counsel in the material suit
and in all future suits and which would result in the counsel’s clients being prejudiced
by such biasness and impartiality. By the said allegations, the counsel had expressly
implied that the trial judge would be deciding upon the said cases, without any regard
to the evidence and the law. The court acted summarily and found the counsel guilty
of contempt. The court through its own motion then convened on September 25,
1998 to allow the counsel an opportunity to make representations on the charge of
contempt, before imposing sentence. At the said hearing, the counsel elected not to
call any evidence but submitted that the court had no jurisdiction to initiate contempt
proceedings on its own motion. The counsel also submitted his action were not in
contempt of court.
Issue (s)
1. Whether the court had the jurisdiction and could on its own motion, institute
contempt proceedings.
2. Whether the “finding” of contempt made by the court was an abuse of the
process of the court.
3. Whether the allegations made by the counsel amounted to a contempt of
court.
Held
1. Based on the Supreme Court’s decision in ARTHUR LEE MENG KWANG v
FABER MERLIN MALAYSIA BHD & ORS [1986] 2 MLJ 193, this court had the
jurisdiction to, and could on its own motion initiate contempt proceedings
notwithstanding the counsel’s request for this matter to be referred to the
disciplinary committee set up under the Sarawak Advocates Ordinance.
2. It is not hypothetical nor conjecture but a natural consequence of any

allegation of bias or impartiality against a judge that public confidence in the
administration of justice would be impaired.
3. In the circumstances, the counsel’s allegations of biasness or partiality of
the trial judge as a ground for disqualification, was baseless and unjustified,
bearing in mind further that the said allegations were made in reference to the
decision of the trial judge in another suit, the grounds of decision of which the
counsel had yet to obtain when making such allegations.
27
4. On the facts therefore, the counsel had failed to cast any doubt that the
allegations made by him were in contempt of court.
5. The nature of the contempt committed by the counsel, if condoned or trivialised
would impair the public’s confidence in the integrity of the judiciary and
consequently imperil the administration of justice in this country. In view of
the seriousness of the blatant and unrelenting contempt of the counsel, which

was in the face of the court, a mere fine would only have the perverse and
unintended effect of trivialising such contempt.
6. Counsel sentenced to one month’s imprisonment; Sentence stayed pending
filing of the counsel’s appeal within the time stipulated for by the rules;
Warrant of committal to be issued upon failure to file appeal within time.
KOPERASI SERBAGUNA TAIPING BARAT BHD v LIM JOO THONG 1999 6 MLJ 38
High Court
This was a contempt proceeding instituted by the court on its own motion against
the defendant and his solicitor. The defendant’s solicitor had written letters to the
deputy registrar of the High Court and to the chief registrar of the Federal Court. The
defendant had written an undated letter to the Chief Justice of the Federal Court. The
court had come to a finding that the contents of the three letters when read together
contained elements which constituted an act of contempt of the court and had issued
show cause letters to the defendant and his solicitor as to why they should not be
cited for contempt of court for writing the three letters. At the outset of the contempt
proceeding, the court informed the alleged contemnors that the court was proceeding
with the contempt proceeding in a summary manner on the basis that the court found
prima facie the act and conduct of the alleged contemnors based on the contents of
the letters constitute contempt in the face of the court. However, counsel for the
contemnors sought the court’s indulgence to make a submission on the point of
procedure to be adopted in this contempt proceeding. It was submitted that in so far as
the letters were concerned, they were written not with regard to something occurring
in the face of the court.
Held, finding the defendants guilty of contempt:
(1) The act and conduct of the alleged contemnors based on the letters written by
them in respect of matters arising from this case constituted a contempt in the
face of the court. It was a contempt in the cognizance of the court as such acts
and conduct took place during a pending proceeding and when the case had
not been finally disposed of by the court. Hence, it was contempt which the
court could punish on its own motion.
(2) The circumstances and categories of facts which may arise and which may
constitute contempt in the face of the court in a particular case are never closed.
Contempt in the face of the court may arise from any act, any slander, any
contemptuous utterance and any act of disobedience to a court order. Any of
these acts in varying degrees that affects the administration of justice or may
impede the fair trail of subjudice matters, whether for the time being pending
in any court, can be deemed to be contempt in the face of the court. Any
comment or views expressed on a pending legal proceedings as in the present
CASES & MATERIALS
case which purports to prejudge the issues which are to be tried by the court
is intrinsically objectionable as being an usurpation of the proper function of
the court. This may be punished or restrained as contempt irrespective of the
effect or likely effect on the particular proceeding in question. In the present
case, the defendant’s solicitor in their letter to the Chief Registrar of the High
Court had not only prejudged the issues to be tried by the court, but had
thought it fit to direct the deputy registrar to fix a new auction date as soon as
possible defying the order of stay made by this court.
CLP
28
(3) To constitute contempt in the face of the court, it appears to be unnecessary

that the act of contempt should take place wholly or in part in a court room
itself nor does it seem to be necessary that all the circumstances of contempt
should be within the personal knowledge of the judicial officer dealing with
the contempt.
(4) The court had the jurisdiction to proceed to institute the contempt proceeding
against the alleged contemnors based on the show cause letter sent out to the
alleged contemnors. The court had the jurisdiction by virtue of the fact that
the show cause letter had instituted three charges and that the elements of
contempt were fully set out and the court had decided that both the defendant
and his solicitor were to show cause. The alleged contemnors therefore should
give explanations to the court and that would tantamount to show cause.
(5) In a contempt proceeding initiated by the court on its own motion and to
determine at the end of the day whether the explanation given ought to be
accepted or rejected, the court must and can question the alleged contemnors
in order to satisfy itself whether the explanation was made in good faith or
malice and to determine whether to accept or to reject the explanation given.
(6) Having heard and studied the explanation given by the defendant and his
solicitor, the court found that both the alleged contemnors had failed to give a
sufficient explanation to the said show cause letter. Therefore, the court found
both the defendant and his solicitor to be guilty of contempt of the court.
(7) The question of mens rea or intention in a contempt proceeding is not a
relevant consideration. The test was whether the matter complained of had
the tendency or was calculated to interfere with the due administration of
justice, not whether the perpetrator had intended that result. Contempt in the
face of the court is an offence of strict liability in which intention on the part of
the contemnor is irrelevant.
(8) On the sentence to be meted out, the court had to take into consideration of
the fact that contempt in the face of the court that had been committed in this
case was a serious offence. However, after having heard the plea in mitigation
made by counsels of the respective contemnors and having considered the
facts and the circumstances under which the letters were written together
with the willingness of the contemnor to unreservedly tender their apologies
to this honourable court, the court found that it was not inappropriate for
the court to pass a sentence of merely admonishing and discharging both the
contemnors.
ZAINUR ZAKARIA v PENDAKWA RAYA [2001] 3 AMR 3149 Federal Court
The appellant was one of the defence counsel in the trial of DSAI who was charged
with the commission of four offences of corrupt practice. In the course of the trial, the
appellant filed an application to disqualify two of the prosecutors. The application was
based on a letter written by one MSD to the AG and a statutory declaration made by
MSD. MSD was then counsel for one Nalla who was charged with an offence under the
ISA. In the SD, MSD alleged that if Nalla wanted his charge to be amended from one
under the ISA to one under the Arms Act 1960, then Nalla must give information and
testify against DSAI concerning DSAI’s illicit relationship with five women.
The trial Judge found that the request for information from Nalla was an exercise
of lawful powers with no understones of impropriety. The trial Judge held that the
application was an interference with the course of justice, baseless and was a pre-
emptive step to undermine the trial. He proposed to cite the appellant for contempt. The
appellant refused to apologise and explained that the application was made following
DSAI’s instruction, and after counsels for DSAI’s had studied the relevant documents.
The trial Judge then cited the appellant for contempt and imposed a sentence of three
months imprisonment.
The appellant appealed to the Court of Appeal but his appeal was dismissed and the
trial Judge’s decision upheld. This is the appellant’s appeal against the Court of Appeal’s
decision.
29
Issue(s)
1. Whether the appellant, in filing the application, was reckless, negligent and
had acted in bad faith, tantamount to an abuse of the process of the court
and/or interference with the course of justice.
2. Whether the trial Judge had correctly adopted the summary procedure in
convicting the appellant for contempt.

Held
per Steve LK Shim CJ (Sabah & Sarawak)
(1) Whether the conduct was a contempt
(a) Given the stand taken by DSAI throughout the trial denying any
extramarital affairs, it was reasonable that he should allege that the
request made by the prosecutors at the meeting was an attempt to
get Nalla to fabricate evidence against him. Looking at the situation
from DSAI’s standpoint , and given the fact at the material time he had
not as yet been charged with sexual involvement with any woman, his
complaint that prosecutors’ conduct at the meeting was an attempt to
fabricate evidence against him was prima facie justified.
(b) In the absence of any evidence explaining this matter, the motive or
motives of the prosecutors in resorting to seek Nalla’s co-operation was
questionable.
(c) Taking into consideration all the circumstances in which the meeting
was held, MSD was justified in concluding or perceiving that there was
an attempt to induce Nalla to fabricate evidence against DSAI. In the
circumstances the trial Judge’s view, which was endorsed by the Court
of Appeal, that the request for information by the prosecutors was
an exercise of lawful powers with no understones of impropriety, was
clearly misconceived.
(d) Therefore, the High Court and Court of Appeal was wrong in holding the
appellant had acted recklessly, negligently and in bad faith in filing the
disqualification application. The appellant was prima facie justified in
filing the application. There could not therefore have been any abuse of
the process of court. Consequently, the charge of contempt against the
appellant had not been proven beyond reasonable doubt.
per Abdul Malek Ahmad, FCJ
(e) There was evidence to support the application to disqualify the two
prosecutors. The letter and SD showed that the allegation in the affidavit-
in support could not be a baseless allegation. Consequently, there was
really no basis to find the appellant had acted in bad faith in filing the
application on behalf of his client.
(f) Being aware of MSD’s letter, it was only natural for the appellant’s client
to be suspicious about the proceedings against him. In making the
application on behalf of his client, the appellant could not be said to be
interfering with the administration of justice.
CASES & MATERIALS
per Haidar b Mohd Noor, FCJ

(g) In answering to the charge for contempt, merely saying that he was
acting on the instructions of his client, without anything more, was
not good defence for the appellant. However, if the appellant had
reasonably satisfied himself that there were adequate grounds to file
the application, then that would be a good defence as long as he did not
overstep the mark between his legal duty and contempt.
(h) In the circumstances of this case, the appellant was prima facie justified
in filing the application. Accordingly, the appellant could not be said to
have acted recklessly, negligently and in bad faith in filing the application.
CLP
30
(2) In respect of the Procedure

per Steve LK Shim, CJ (Sabah & Sarawak)
(a) In contempt proceedings, the alleged contemnor must be given a
reasonable opportunity to prepare his case. In the present case, the
trial Judge had refuse the appellant’s application for an adjournment
to prepare his defence to the charge for contempt and to call witness.
Having regard to the very serious nature of the charge, the appellant
should have been given the opportunity of calling witness to rebut the
allegation that the affidavit-in-support of the application to disqualify
the two prosecutors contained scandalous matters. The adjournment
too should have been allowed so that the appellant could prepare his
defence fully. In this case, the appellant had in effect deprived of the
opportunity of answering the charge against him. In the circumstances,
the summary procedure invoked by the trial Judge had not been correctly
applied resulting in justice to the appellant.
(a) The conduct of the trial Judge himself had vitiated the proceedings. The
manner he conducted the proceedings, in particular the interrogation of
the appellant and the speedy finding of guilt without even allowing the
appellant to call any witness, gave the picture the he was behaving as
though he was acting as counsel for the two prosecutors in the motion.
Appeal allowed; Conviction quashed; Sentence set aside.
ZAINUR ZAKARIA v PENDAKWA RAYA [2000] 4 AMR 4117 Court of Appeal (OVERRULED)
The appellant was a defence counsel in a criminal trial involving the former Deputy
Prime Minister of Malaysia, Dato’ Seri Anwar Ibrahim (DSAI). During the course of the
trial, DSAI applied to disqualify two Deputy Public Prosecutors (DPPs) from continuing
as prosecutors for the trial. The affidavit-in-support of the application displayed a
statutory declaration (SD) of Manjeet Singh Dillon (MSD), counsel in a case involving
one Dato’ Nallakaruppan in KL High Court Criminal Trial. In the SD, MSD referred to a
letter (MSD-1) written by him to the Attorney-General. According to MSD-1, during a
meeting between MSD and one of the DPPs named in DSAI’s application, AGP, AGP
has expressed that he wanted Dato’Nallakaruppan “to co-operate with them and to
give information against Anwar Ibrahim, specifically on matters concerning several
woman”, in exchange for a reduction of the charge against him in the Criminal Trial.
Having referred to the SD and MSD-1, DSAI’s affidavit stated that AGP “had indicated
that he would consider the request if Datuk Nallakaruppan was prepared to co-operate
with the AG’s Chambers by falsely implicating me in the commission of sexual offences
with various married and unmarried women”. The High Court Judge was of the view
that the application was baseless and unsupported by the documents exhibited by the
appellant, and was an attempt to undermine the integrity of the trial of DSAI and also
an abuse of the process of the court. The learned Judge then informed the appellant
that he would be cited for contempt unless he tendered and unconditional apology to
the court. The appellant refused to apologise, and the court cited him for contempt
and requested him to show cause. The appellant gave evidence from the witness box
and stated that the application was filed upon instructions of his client, DSAI, and that
he was only discharging his professional duty. The High Court Judge subsequently
found the appellant guilty of contempt, convicted the appellant and sentenced him to
three months imprisonment. This was the appellant’s appeal against conviction and
sentence.
Issue(s)
1. Whether the appellant was in contempt of the court.
2. Whether the charge against the appellant lacked adequate particulars.
3. Whether the sentence was excessive.
31
Held
1. Clearly, the appellant’s allegations against the DPPs were not supported by the
SD and MSD-1. The appellant’s intention, namely that he was only carrying out
his duty in accordance with his client’s instructions, was immaterial, as mens
rea is immaterial in a contempt of court offence. The appellant should have
advised his client against filing the application. Consequently, this act of the

appellant was an act of bad faith and under such circumstances, the appellant’s
application was an attempt to undermine the integrity of the trial of DSAI and
abuse of the process of the court and the learned Judge was correct in holding
that the appellant was in contempt of the court.
2. The court was satisfied that the charge contained in clear terms “the gist of
the accusation” against the appellant. The charge, in the circumstances of the
whole proceedings as pictured in the learned Judge’s notes of evidence, had
distinctly specified the offence against the appellant.
3. The learned Judge had not taken into consideration any irrelevant matters
when passing sentence. The appellant had twice refused to apologise when
invited to do so by the learned Judge. In the circumstances, the three months
imprisonment sentence was not excessive.
Extracts of the judgment in Court of Appeal
A. Honest intention is no defence to a contempt of court charge.
YUSOF ALI KHAN v STATE PLD 970 SC 350 in Hamoodur Rahman CJ, said –
“No one can be allowed to defame, ridicule or abuse a judge in his public
capacity even with the best of motives because if that sort of thing were once
held to be permissible the whole judicial system would readily be brought
into utter contempt.”
B. The evidence given by the appellant from the witness box to the effect that the
application was filed by him on his client’s instructions. On this, the Appellate
court refered to the case of MY SHAREEF v JUDGES OF NAGPUR HIGH COURT
(AIR) 1955 SC 19, where Mahajan CJ, said – “It cannot be denied that a section
of the Bar is under an erroneous impression that when a counsel is acting
in the interests of his client, or in accordance with his instructions he is
discharging his legitimate duty to his client even when he signs an application
or a pleading which contains matter scandalising the court. They think that
when there is conflict between their obligations to the court and their duty
to the client, the latter prevails. This misconception has to be rooted out by a
clear and emphatic pronouncement, and we think it should be widely made
known that counsel who sign applications or pleadings containing matter
scandilising the court without reasonably satisfying themselves about the
prima facie existence of adequate grounds therefor, with a view to prevent
or delay the course of justice, are themselves guilty of contempt of court,
and that it is no duty of a counsel to his client to take any interest in such
applications; on the other hand, his duty is to advise his client for refraining
from making allegations of this nature in such applications.”
C. It was also submitted by the appellant that the learned Judge was wrong in
CASES & MATERIALS
adopting the summary procedure when dealing with the alleged contempt by
the appellant. The learned respondent’s counsel argued otherwise. On this
issue the Appellate court found that the learned Judge had reminded himself
of the principles pertaining to the exercise of the summary procedure as laid
down by the cases of JAGINDER SINGH & ORS v ATTORNEY-GENERAL [1983]
1 MLJ 71, CHEAH CHENG HOC v PP [1986] 1 MLJ 299 and KARAM SINGH v PP
[1975] 1 MLJ 229. The Supreme Court had in Cheah Cheng Hoc’s case (supra)
said, at p 301 – “This power must be used sparingly but fearlessly when
necessary to prevent obstruction of justice. We feel that we must leave the
exercise of this awesome power to the good sense of our Judges. We will
interfere when this power is misused.”
CLP
32
The High Court of Australia in BELL v STEWART [1920] 28 CLR 419 had said, at
p 428 – “The only justification for the summary process of a court punishing
a person for contempt is to protect the public by guarding the administration
of justice from any obstruction or interference which might affect its purity,
its impartiality or its effectiveness.”
Blackburn J in Skipworth & the Defendant’s case (1873) 9 LRQB 230, at p 233,
said – “When an action is pending in the court and anything is done which
has a tendency to obstruct the ordinary course of justice or to prejudice the
trial, there is a power given to the courts, by the exercise of a summary
jurisdiction, to deal with and prevent any such matter which should interfere
with the due course of justice; and that power has been exercised, I believe,
from the earliest times that the law has existed.”
K. RAJASEGARAN V BAR COUNCIL MALAYSIA (No 2) 2000
This was an application for an injunction to stop EGM of the Malaysian Bar. At the
hearing, counsel for the Bar made an application that the judge discharge himself as
he had come to certain conclusions in the first injunction case last year and also on
the ground that his son was a member of the Bar. When the judge asked the counsel
that if all the Defendants had instructed counsel to cite the case of LOCABAIL UK LTD
v BAYFIELD PROPERTIES (English Court of Appeal decision), the Chairman of the Bar
Council admitted that he as the CEO of the Bar instructed counsel to submit on this
points. The judge cited the Chairman for contempt of court.
Held
Datuk RK Nathan said that since Bar Council argued the conduct of the Chief Justice
is of public concern which relates to the public’s right to discuss, there is no reason
for him to discharge himself on the ground that his son is a member of the Bar. He
accepted Haji Sulaiman’s explanation on the interpretation of the case and said that
it was nothing personal. Having heard the counsel’s argument and explanation of the
Chairman, Datuk RK Nathan discharged Haji Sulaiman of the contempt charge. Datuk
Nathan however reminded that it should never be the case that having a son in the Bar
be used to hold against a Judge unless there is some interest in the case and that in
future lawyers with any problems with Judges should approach them without making
any wild allegations.
RE LEE CHAN LEONG; EDDIE LEE KIM TAK & ORS v JURUTERA KONSULTANT (SEA) SDN
BHD & 5 ORS (No 3) [2002] 3 AMR 3607 Court of Appeal
The appellant, an advocate and solicitor together with a senior counsel were engaged in
a matter before the High Court at Kuala Lumpur. There were some parallel proceedings
at Shah Alam High Court, the finding of which the appellant contended were binding
on the parties in the Kuala Lumpur proceedings (the said proceedings). At a meeting
with the Registrar of the High Court, the appellant gained the impression that the
Judge hearing the said proceedings had taken the position that he was not bound by
the findings of the Shah Alam High Court.
The appellant, being anxious as to the future course of the said proceedings and
thinking that the matter was one upon which the learned Judge had made up his mind,
wrote to the Chief Justice of Malaya for a transfer of proceedings. The letter did not
cast any aspersion either on the integrity or on the person of the learned Judge in
the said proceedings. However it gave rise to much acrimony and a notice to show
cause was issued. Both the appellant and senior counsel had to appear before the
learned Judge and both tendered their apologies. They were excused and the notice
was discharged. Subsequently a meeting between the appellant and the learned Judge
took place whereby the Judge gave an assurance about the future conduct of the case
before him and the conclusion of the meeting informed the appellant that he would be
making a full report to the Chief Justice of Malaya.
The appellant then wrote a very brief letter to the Chief Judge to explain that he did
not wish to put anything more in his letter as it might conflict with the report that
the learned Judge was proposing to make. However the learned Judge took umbrage
with the contents of the letter and issued a notice to the appellant to be examined.
33
The appellant responded to the notice and appeared before the learned Judge. The
appellant meanwhile did write to the Chief Justice of Malaya clarifying his position.
The letter was highly complimentary of the learned Judge and contained an entirely
satisfactory explanation as to why the letter was written. The appellant apologised to
the learned Judge but to no avail. The appellant was found to be guilty of contempt
and was sentenced to a fine of RM10,000 in default three months imprisonment. An

extraordinary order was made that required the appellant to pay the fine by 1.30 p.m.
on the same day however it was paid before the set hour. This is the appellant’s appeal
to this court to quash the conviction and to set aside the sentence.
Issue(s)
1. Whether there was a formal charge formulated and framed against the
appellant.
2. Whether the appellant had committed contempt of court.
Held
1. The notice to show cause did not allege any misconduct or criminality on the
part of the appellant requiring an answer and did not set out any charge. It
did not say that if the appellant could not satisfactorily explain his conduct,
he would be punished for contempt. These are essential ingredients in the
summary proceedings for contempt, however no particulars of the charge
were given to the appellant. As no charge was properly framed and no
sufficient particulars were given, the conviction for contempt must have
come as a complete surprise to the appellant at the conclusion of the show
cause proceedings. The notice merely required the appellant to appear and
to be examined. There was not a word that he was liable to be punished at
the conclusion of the inquiry. On this ground alone, the proceedings before
the learned Judge were a nullity and entirely void and in breach of the rules
of natural justice. It violated the appellant’s fundamental rights under Article
5 and 8 of the Federal Constitution, namely the right to a fair procedure
before being punished. Therefore there should be no lingering doubt that the
appellant was guilty of any offence, let alone contempt of court.
2. There was nothing in their letter which either impeded or obstructed the
course of justice. Neither was there any express or implied libel against the
learned Judge. The letter merely says that the matter had been resolved or
words to that effect. There was no suggestion that learned Judge acted with
any impropriety. It was no contempt. If only the learned Judge had the restraint
to appreciate the explanation given by the appellant, he would have realized
how wrong his perception of the entire matter was.
Appeal allowed; Conviction quashed, sentence set aside and fine paid to be
refunded
Gopal Sri Ram JCA

“…… there was no formal charge formulated and framed against the appellant. This,
of course, is a very important point. The notice to show cause did not allege any
misconduct or criminality on the part of the appellant requiring an answer. It did not
CASES & MATERIALS
set out any charge. It did not say that if the appellant could not satisfactory explain
his conduct, he would be punished for contempt. These are essential ingredients in
summary proceedings for contempt. In the judgment of Lord Salmon in MAHARAJ v
ATTORNEY-GENERAL OF TRINIDAD AND TOBAGO [1977] 1 All ER 411 said:
“In charging the appellant with contempt, Maharaj J did not make plain to him
the particulars or the specific nature of the contempt with which he was being
charged. This must usually be done before an alleged contemnor can properly
be convicted and punished (RE POLLARD [1868] LR 2 PC 106)”.
CLP
34
Since no charge was properly framed and no sufficient particulars were given the
conviction for contempt must have come as a complete surprise to the appellant at
the conclusion of the show cause proceedings. It is not to be forgotten that the notice
merely required that the appellant to appear and to be examined. There was not a
word that he was liable to be punished at the conclusion of the inquiry. On this ground
alone, the proceedings before thelearned Judge were a nullity. They were entirely
void. They were in breach of the rules of natural justice. They violated the appellant’s
fundamental rights under Articles 5 and 8 of the Federal Constitution, namely the right
to a fair procedure before being punished. The appeal should succeed on this ground
alone”.
RE LEE CHAN LEONG; EDDIE LEE KIM TAK & ORS v JURUTERA KONSULTANT (SEA) SDN
BHD & ORS (No 3) [2000] 1 MLJ 371 High Court (OVERRULED)
Lawyers Mr Lee Chan Leong (‘Lee’) and En Yusuf Khan (‘Khan’) were ordered to
show cause why they should not be dealt with for contempt for making serious and
unwarranted allegation against the court and the deputy registrar. Both Lee and Khan
apologized unreservedly. Upon both lawyers accepting full responsibility for their
conduct and expressing their contrition, the court accepted their apologies and vacated
the order to show cause. Lee then informed the court that he had in fact written a
letter to the Chief Judge of Malaya seeking disqualification of the High Court judge. He
then indicated that since he and Khan had apologized for their conduct and that since
the letter to the Chief Judge of Malaya to disqualify the High Court judge was based on
ill-founded reasons, and for which he had apologized, he would be writing to the Chief
Judge of Malaya withdrawing the said letter. Lee’s letter to the Chief Judge of Malaya
gave the impression that the High Court judge had settled the matter with him and he
had failed to state that he had made false allegations against the court and the deputy
registrar. The court then issued a notice for Lee to show cause why he should not
be cited for contempt. Lee apologized to the court and conceded that the letter and
the second letter sent in substitution of the earlier letter had not fully reflected what
actually happened in court.
RK Nathan J
Held, finding Lee guilty of contempt of court:
(1) Having heard him fully and having allowed his counsel to fully address the
court and considering the fact that he offered no defence and had apologized,
the court found Lee guilty of contempt of court of failing to tell the Chief Judge
of Malaya the truth as to what actually happened and suggesting insidiously
that the High Court judge had settled the matter with him.
(2) Lee’s conduct was so obnoxious and reprehensible that a warning or a caution
was totally inappropriate. He had completely forgotten the magnanimity of
the court earlier when it forgave him for a more serious charge and which he
admitted to by tendering his full and unreserved apology. Having considered
all matters, the court found it appropriate to impose a fine of RM10,000 in
default three months’ imprisonment.
COPELAND v SMITH 2000 1 AER 457
The issue here arose over the interpretation of s 14 of the Limitation Act 1980: whether
the knowledge of the solicitor or his action or inaction was attributable to, or be deemed
to be that of, the client. The trial judge needed assistance. Counsel advised him,
despite short adjournment, that the point was free of authority. The judge expressed
surprise that there was no authority on the point despite the Act having been in force
for some time. However, the judge concluded in the plaintiff’s favour. On appeal it
was freely conceded by Counsel (who did not appear before the judge) that the judge
was wrong. There was indeed binding decisions of the Court of Appeal contrary to the
judge’s decision. In the Court of Appeal, Counsel produced a copy of the transcript, not
the law report, of that earlier authority. That authority had indeed been reported in
35
the Weekly Law Reports some four and a half months before the hearing in the court
below. Both Brooke and Buxton LJJ expressed their disappointment at Counsel who
appeared before the trial judge. Buxton LJ said:
“It is not only extremely discourteous to the judge not to inform him properly
about the law, but it has also been extremely wasteful of time and money in
this case, because not only did the judge have to deal with the matter, but it

has also formed an issue in the appeal to this court. I have, I fear, to say that
the advocates who appeared below did not discharge their duty properly to
the court in that they have apparently failed to be aware of the existence of
that authority”.
Brooke LJ prescribed the norm:
… it is quite essential for advocates who did hold themselves out as competent to
practice in a particular field to bring and keep themselves up to date with recent
authority in that field. By ‘recent authority’ I am not necessarily referring to authority
which is only to be found in specialist reports, but authority which has been reported in
the general law report.
DARSHAN SINGH KHAIRA v ENBISHI (M) SDN BHD [1999]1 AMR 1131 High Court
The appellant, an advocate and solicitor of the High Court of Malaya, had been
suspended from practice for a period of six months by an order of the Disciplinary
Board of the Bar Council. The appellant was the solicitor on record for a company
(Alloy) in two proceedings before the High Court. In the first proceedings, the “ENKEI”
trademark originally registered under Alloy’s name was expunged from the Register of
Trade Marks. In the second proceedings, which was an ex parte application for a Trade
Description Order, the appellant knowingly failed to disclose the existence of the order
of the court in the first proceedings. The appellant subsequently obtained the Trade
Description Order. The Investigation
Tribunal found the appellant guilty of misconduct on the following counts;
(a) Breach of solicitor’s duty to be honest at all times to the court in the discharge
of his professional duties.
(b) Violation of Rules 17 and 31 of the Legal Profession (Practice and Etiquette)
Rules 1978 directly and Rules 12 and 16 of the same indirectly.
(c) Conduct unbecoming of an advocate and solicitor and which was calculated to
bring the legal profession into disrepute.
(d) The decision of the Tribunal was affirmed by the Disciplinary Board which
suspended the appellant for six months from practising law. The appellant
appealed against both the findings and the sentence.
Held
1. The appellant should have been fully aware that as an advocate and solicitor
and an officer of the court, he ought at all times conduct his case fairly and
honestly and should not at any time mislead the court. In this case, he had
deliberately and knowingly failed to disclose the existence of the order made
in the first proceedings when making the application for the ex parte Trade
Description Order. There is no doubt that the subsequent order would have
CASES & MATERIALS
been made had the appellant disclosed the existence of the earlier order.
Therefore, there was no reason for the court to disturb the finding of the
Investigation Tribunal as affirmed by the Disciplinary Board.
2. The six months suspension imposed by the Disciplinary Board was not
excessive. The appellant must be made to realise the consequence of his
wrongful acts which were made deliberately and knowingly. Appeal dismissed.
CLP
36
RE J. L. P. HARRIS AN ADVOCATE & SOLICITOR 1953 19 MLJ 161

This case was concerned with the professional conduct of the respondent, an advocate
and solicitor of this Court. The respondent was engaged in the defence in Police Court
proceedings of a person charged with permitting another person to drive a car whilst
not covered by the necessary insurance. On March 25th, Heyes was brought to the Court
by the respondent and left waiting in a parked motor car some distance away from the
Court. When the case was called the respondent said that the case on March 20th had
been adjourned because Heyes as a witness was not available. The respondent also
said that even now Heyes had not been subpoenaed by the prosecution and that he
was not wanted by them as a witness. But the prosecuting officer, replied that Heyes
was wanted as a prosecution witness. The Disciplinary Committee which inquired into
the matter found that the respondent had been grossly guilty of improper conduct. He
had deliberately arranged for Heyes to be kept out of the way of the prosecution.
Murray-Aynsley, C.J. To the Disciplinary Committee the respondent admitted that
he had not been sufficiently frank. The Disciplinary Committee made the following
findings of fact. “That the respondent did not bring Heyes into the Court but instructed
Heyes to wait in a motor car which was parked on the road a few yards from the Court
house.” “In conclusion, whilst we consider it is not incumbent on defending counsel
to help the Prosecution to prove its case we express the opinion that the defending
counsel should not do any act or thing to obstruct or prevent the Prosecution from
calling a witness. And we find that the respondent deliberately made arrangements for
Heyes to be kept out of the way of the Prosecution and that in doing so he was guilty
of grossly improper conduct. We wish to record that we do not think the respondent
fully realised that he was acting improperly or dishonourably and that he allowed his
zeal for his client’s interests to obfuscate his better instincts.” We agree that probably
the respondent did not realise at the time the gravity of his misconduct.
We consider that his conduct was entirely unworthy of a member of the Bar and that
it was irresponsible to a degree that cannot be passed over. Our order is That John
Lawrence Pool Harris be suspended from practice for three months and pay the costs
of these proceedings.
CHEAH CHENG HOC v P.P. 1986 1 MLJ 299
In this case the appellant, an advocate and solicitor was charged and committed for
contempt and sentenced to three days’ imprisonment by the learned judge. The charge
arose out of an alleged breach of duty as counsel in a civil case, the allegation being
that the appellant concealed a document as to affect the credibility of a witness in a
civil suit. The appellant appealed.
Lee Hun Hoe C.J. The court has power to punish as contempt any misuse of the court’s
process, e.g., forging or altering of court documents or other deceits of the kind or
deceiving the court by deliberately suppressing a fact or giving false facts. Whether
the court should deal with the contempt summarily would depend upon the situation
in each particular case. In JAGINDER SINGH & ORS v ATTORNEY GENERAL the Federal
Court made clear that the summary contempt procedure should rarely be resorted to
expect in those exceptional cases where it is urgent and imperative to act immediately
to preserve the integrity of the trial in progress. Denning L.J., said in Tombling ‘s case
relating to the duty of counsel:
“The duty of counsel to his client in a civil case - or in defending an accused
person - is to make honest endeavour to succeed. He must not, of course,
knowingly mislead the court, either on the facts or on the law, but, short of
that, he may put such matters ... as in his discretion he thinks will be most to
the advantage of his client.......”
It is very important for a counsel to remember that whatever may be his duty to his
client his duty to the court remains paramount in the administration of justice. The
power of summary punishment is a necessary power to maintain the dignity and
37
authority of the Judge and to ensure a fair trial. It should be exercised with scrupulous
care and only when the case is clear and beyond reasonable doubt. As Lord Denning,
M.R. said in Balogh v Crown Court:
“It is to be exercised by the judge of his own motion only when it is urgent and
imperative to act immediately - so as to maintain the authority of the court -
to prevent disorder - to enable witness to be free from fear - and jurors from

being improperly influenced - and the like ...”
This power must be used sparingly but fearlessly when necessary to prevent obstruction
of justice. We feel that we must leave the exercise of this awesome power to the good
sense of our Judges. We will interfere when this power is misused. We consider that the
learned Judge was right in this case to find the appellant guilty. However, we thought
the penalty imposed was rather harsh in the circumstances and therefore varied the
sentence with the option of a fine.
SYED MUBARAK BIN SYED AHMAD v MAJLIS PEGUAM MALAYSIA [2000] 3 AMR 3048
Court of Appeal
The short question for decision in this appeal is whether an advocate and solicitor
may simultaneously practice another profession. The factual background from which
that question arises is as follows. The appellant is a public accountant and has been
practising as such since 1979. In 1997, the appellant was admitted and enrolled as an
advocate and solicitor of the High Court of Malaya. He then applied to the Bar Council
for a Sijil Tahunan or Annual Certificate. His application was rejected. He then applied
to the High Court under s 34 of the Legal Profession Act 1976 for the certificate. The
High Court refused his application. He then appealed to us. We heard and dismissed
his appeal.
Gopal Sri Ram, JCA
(1) The Bar Council refused to issue the Annual Certificate to the appellant on the
sole ground that he was disqualified under s 30(1)(c) of the Act. That provision
reads:
“30. (1) No advocate and solicitor shall apply for a practising certificate–
(a) …
(b) …
(c) if he is gainfully employed by any other person, firm or body in a
capacity other than as an advocate and solicitor.”
… (if) you look at the decision of our courts over the past few years, you will
notice that we no longer resort to the literal rule when interpreting statutes.
We will not use it when it will produce an absurd result. Neither will we use
it if it does not advance the aim or object of a statute. Indeed, Parliament has
notices the change in our attitude and given express effect to it in s 17A of the
Interpretation Acts 1948 & 1967. That section reads:
“17A. In the interpretation of a provision of an Act, a construction
that would promote the purpose or object underlying the Act
(whether that purpose or object is expressly stated in the Act or
not) shall be preferred to a construction that would not promote
CASES & MATERIALS
that purpose or object.”

To return to the present instance, there can be little argument that the primary
purpose of the Act is to regulate the legal profession. The object of Parliament
is to maintain high standards in the profession. That is because the general
public must have confidence in the integrity and the independence of the legal
profession. It is obvious that Parliament intended that persons who choose
to be advocates and solicitors must exclusively practice as such. If Parliament
intended that an advocate and solicitor should be permitted to practice more
CLP
38
than one profession, one should be able to find clear language in which such
permission is to be found.
If we were to accede to the appellant’s invitation and apply the literal rule
to s 30(1)(c) the ultimate result would not accord with the true intention of
Parliament. It will result in people being able to argue that one could practice
both as an advocate and solicitor and, say, a doctor and as an architect as
well. That would drive a coach and four through the Act. It would defeat the
purpose for which the Act was passed. We cannot therefore accede to the
appellant’s arguments.
It is apparent from the passages that we have already quoted from his judgment,
that the learned Judge adopted a purposive approach to the construction of
s 30(1)(c). He was entirely correct in doing so. We would therefore affirm his
decision.
(2) There is one last point. In his written submissions lodged in the court below,
the appellant relied on Article 8 of the Federal Constitution. He argued that
the decision of the respondent had deprived him of his livelihood. The learned
Judge rejected the constitutional argument. We agree with him.
We said that we agreed with the learned Judge’s rejection of the argument based on
the Federal Constitution. That is because this is not a case where the appellant had
been deprived of his livelihood. The appellant already had a means of livelihood as
a public accountant. Nobody deprived him of that livelihood. So the constitutional
arguments does not bite.
RE LAU LIAT MENG (1992) 2 SLR 203 (Singapore High Court)
A compliant of overcharging was made against the respondent, who had charged the
complainant $23,604.60 (later reduced by 5% to $22,454.60) as fees for professional
services rendered by him in obtaining letters of administration to an estate with assets
of $68,394. The respondent claimed to have based his charges on a time-sheet which
he kept of the work done. A disciplinary committee of the Law Society found that the
respondent had in several instances grossly exaggerated the time appearing in the time-
sheet, and that this conduct amounted to grossly improper conduct in the discharge of
his professional duty within the meaning of s 83(2)(b) of the Legal Profession Act (Cap
161, 1990 Ed) (‘the Act’). Accordingly, upon application by the Law Society to the Court,
the respondent was asked to show cause why he should not be dealt with under s 83
of the Act.
Yong Pung How CJ
(a) The disciplinary committee having found that the time recorded in respect of
some attendances was grossly exaggerated, was of the view that the time-
sheet was accordingly false and totally unreliable.
(b) The disciplinary committee was satisfied beyond a reasonable doubt that there
was evidence of dishonesty and deceit in that the respondent had dishonestly
blown up his fee note and put a false time-sheet to support it.
(c) The disciplinary committee found the respondent guilty of the charge. Upon
application by the Law Society the respondent was ordered by the court to
show cause why he should not be dealt with under the provisions of s 83 of the
Legal Profession Act.
(d) The question is whether such overcharging, if proved, amounts to grossly

improper conduct in the discharge of his professional duty. On the evidence,
the disciplinary committee had no difficulty in answering both questions and
finding that the charge had been proved beyond reasonable doubt.
It is settled law that solicitors rendering exorbitant or excessive bills lay
themselves open to disciplinary action (see RE ABDUL RAHIM RAJUDIN [1989]
1 MLJ 289) for they have abused the trust and confidence reposed in them.
39
In our opinion, the disciplinary committee’s findings were completely justified, and we
agree that the charge had been proven beyond reasonable doubt.
It cannot be emphasized too strongly that the work of lawyers touches upon the daily
lives of lay persons in significant and intimate ways. At the same time, subject to the
supervisory jurisdiction of the Supreme Court, the legal profession as an honourable
profession is given the duty and responsibility to regulate itself, a responsibility made

all the heavier in view of the trust necessarily placed by lay persons overhelmed by
the intricacies of the law. For these reasons, the standards of honour and behaviour
expected of members of the profession are high, and lay lapse calls for the imposition
of a correspondingly severe penalty.
In all the circumstances, we order that the respondent be suspended from practice for
a period of three months, and that he should pay the costs of the application.
AWWARD v GERAGHTY & CO (a firm) [2000] 1 All ER 608
Court of Appeal
A was a plaintiff in libel proceedings ion which he was represented by G, a solicitor.
In 1993, before the introduction of orders authorising conditional fee agreements in
such proceedings, G orally agreed with A to charge him at her full rate only if he won
the case, and to charge him at a lower rate if he lost (a conditional fee agreement).
After A accepted a payment into court by the Defendant, G sent him a bill at the lower
rate. A refused to pay, and brought taxation proceedings against G’s firm. The judge
held that the agreement was unlawful and unenforceable, and that accordingly G was
not entitled to recover any of her costs. G’s firm appealed, contending that sums due
under such an agreement were not irrecoverable at common law. Alternatively, the
firm contended that G was entitled to remuneration on a quantum merit basis if the
agreement was unenforceable.
Held – It was against public policy for a solicitor to act for a client under a conditional
normal fee agreement, save in circumstances sanctioned by statute. Such an
agreement would not be enforced by the courts, and there could be no questions of
a quantum merit where public policy refused to enforce an agreement that a solicitor
should be paid. Moreover, such an agreement would be in breach of the prohibition
on contingency fees in the Solicitors’ Practice Rules 1990 as they had stood in 1993.
Those rules, made by the Law Society under the Solicitors Act 1974, were delegated
legislation having the force of statute, and it was therefore unlawful to breach them.
Although not every trifling breach of those rules would render unenforceable a
transaction concerned with it, an arrangement to receive a contingency fee contrary
to the rules made unenforceable the fee agreement which it comprised. In the instant
case the agreement between G and A had been unlawful when made and would not
be enforced.
Arguments against contingency fees.
(1) If allowed, it is likely to encourage persons to persist in suits that they will
otherwise NOT maintain. It is said to promote vexatious litigation.
However it is felt by some that there is nothing wrong with a matter going
to court when someone has done some wrong. It is further felt that in the
interest of justice, the rules of locus standi should be relaxed to allow more
CASES & MATERIALS
suits.
(2) On grounds of public policy-champerty-litigation promoted by person with no
interest in the proceedings.
This is a common law legacy that may not be relevant in the Malaysian context.
Champerty and maintenance have been decriminalised but contingency fees
still remain. The original purpose of the condemnation of champerty and
maintenance was to prevent the King and corrupt Court from misuse of the
Judicial system.
CLP
40
(3) Leads to the deterioration of ethical standards. RE TREPCA MINES LTD. It is

feared that with a purchase of interest in the matter it will lead to suppression
of evidence, coaching of witnesses, and other unethical practices.
This argument is countered with the proposition that with the purchase of
interest, the lawyer is motivated to give his best. Any unethical practices
should be countered by strict enforcement by the authorities.
(4) It is likely to promote touting and ambulance chasing.
(5) Most compelling reason is that contingency fees is contrary to basic principal
of morality. The process of assessment of damages for example depends on
actual amount of damage suffered.
(6) It can be said to result in ‘unjust enrichment’ as the fees collected does not
commensurate with the work done. Rule 11 of the 1978 Rules
(7) It can result in lawyers refusing many cases as the lawyers may consider it to
be a weak case and therefore consider the chances of getting paid is bad.
This problem can be solved by strict enforcement of rule 2.
(8) Contingency fee structure put the Plaintiff in an advantageous position vis a vis
the Defendant cannot avail himself to the same as contingent fee structure is
based on the prospect of recovery. Unless the Defendant has a counterclaim,
there is no basis to enter into contingency fees with a solicitor.
(9) It may cause fees to rise in other matters. This is because the Advocate and
Solicitor may have to the raise the fees to cover all the cases where he cannot
collect any fees because the outcome was not in his client’s favour.
(10) The contingency fee arrangement can cause a peculiar problem in that if costs
is ordered against the Plaintiff to be paid to the Defendant. The Plaintiff may
be unwilling to pay the same as part of the contingent arrangement.
Arguments in favour of contingency fees
(1) Whilst contingency fees stirs up litigation it can also result it a great number of
cases appearing in the court that would not have otherwise appeared.
(2) Accessibility to justice for the poor: Every person, regardless of wealth, shall
have access to legal representation. This is a basic human right as stipulated
in Article 8(1) and 5(3) UN Declaration of Human Rights. With the current legal
fees it is felt by some that the cost-sanction operates as a denial of this right.
It is undeniable that without a comprehensive Legal Aid, there is a vacuum
that can only be filled by contingency fee. It is felt that in Malaysia that legal
fees are high and that there are inadequate support for commencing legal
proceedings. The avenues for non-legal remedies and informal channels for
settling disputes are restricted. The means Test for Legal Aid is pegged too low.
The bulk of the population is not poor enough to qualify for Legal Aid but not
rich enough to afford lawyers. This compounded with the problem of legal
illiteracy make the population easy targets for oppression. Contingency Fees
is a form of ‘privatisation’ of the legal field. There are proposals to amend the
Legal Aid Act to increase Means Test to RM3000.00 a year. It remains to be
seen what effect this will have. There is also an inherent distrust in the efficacy
of the Legal Aid Bureau.
(3) It encourages early advice: Such arrangements encourage persons to seek legal
advise early and this greatly improves the chances of success as information
can be collected when it is fresh and available.
(4) Coming to terms with reality: Contingency fees are very much a part of the
nature of our legal system. It is said that it is desirable to recognise reality,
understand reasons for its existence and to impose statutory control over its
operations.
This argument is countered by those who hold the opposite view as merely
moving the battle lines but does not resolve the battle, which is the morality
41
of the Bar. Whilst there is some sense in the maxim ‘if your can’t lick it, joint
it’ some effort must be made to lick it first.
(5) Revenue for the Government: The illegality of contingency fees require that
the government does not know of this money which therefore remains black
money.
(6) The reputation of the Bar Malaysia: It is an open secret that the Bar Council

has not succeeded in eliminating the problem.
(7) UK attitudes are not relevant here : Even in England there is no provision for
conditional fee.
(8) In the US contingency fees is considered a useful social devise as it encourages
economy, efficiency and speed. It makes it possible for anyone in society to
get ‘best lawyers’. It motivates lawyers to give their best.
SYKT PENGANGKUTAN SAKTI SDN BHD v TAN JOO KHING 1997
In this case, the defendant’s Counsel raised a preliminary objection to the effect that
the law firm of M/s Gana Muthusamy should not appear on record as solicitors for the
plaintiff since Mr. Gana Muthusamy would be called as a witness by the defendant.
The defendant’s Counsel also argued that not only Mr. Gana Muthusamy ought not to
appear for the plaintiff but the law firm as a whole including the legal assistants of the
law firm of M/s. Gana Muthusamy and Co should not appear or act for the plaintiff in
the present case – be it in chambers or in open Court.
The crucial question in this case was: would Mr. Gana Muthusamy jeopardise his client’s
interests by continuing to act for his client when it had become apparent that he would
be called as a witness by the opposing party?
Held
[i] An advocate and solicitor is under a professional obligation to observe the
standard of conduct required of members of his profession and to conform
to the disciplinary rules as set out under the Legal Profession (Practice and
Etiquette) Rules 1978. A failure to observe the rules will subject the advocate
and solicitor to the possibility of punitive action at the instance of the client.
[ii] Where a lawyer is required to testify, that lawyer should withdraw and entrust
the conduct of the case to another lawyer. A lawyer should not simultaneously
serve as Counsel and witness as to do so will put the lawyer’s own credibility
at stake and at issue.
[iii] The law firm of M/s of Gana Muthusamy & Co, should not remain on record as
solicitors for the plaintiff for the simple reason that Mr Gana Muthusamy owns
that law firm.
[iv] The Courts have an inherent power to refuse to permit a particular advocate
and solicitor from appearing on behalf of a particular individual in a particular
case. The right of a particular individual to be represented by an advocate and
solicitor of his own choice is not absolute as it is the Court that will determine
that right.
[v] By virtue of r 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978,
CASES & MATERIALS
Mr Gana Muthusamy was ordered to be barred from representing the plaintiff

be it in open Court or in Chambers.
[vi] The law firm of M/s Gana Muthusamy was ordered not to appear on record as
the solicitors for the plaintiff in the present case.
[vii] Mr R Paramanandan and all other legal assistants of M/s Gana Muthusamy and
Co, were also ordered to be barred from appearing or acting for the plaintiff in
the present case – be it in Chambers or in open Court.
[viii] The plaintiff was allowed to seek another advocate and solicitor from another
law firm to take over the case and pursue the matter further.
CLP
42
[Preliminary objection upheld. No order as to costs.]

Abdul Malik J (High Court)
“My fear is this. There may come a time when Mr. Gana Muthusamy may be placed
by circumstances in a position where he fails in his duty if he does not advise his client
to take independent advice. One must not forget that Mr. Gana Muthusamy and Mr.
R Paramanandan like other practising advocates and solicitors are bound by the Legal
Profession Act 1976 (Act 166) and the Legal Profession (Practice and Etiquette) Rules
1978. Put in another way, an advocate and solicitor is under a professional obligation to
observe the standard of conduct required of members of his profession and to conform
to the disciplinary rules as set out under the Legal Profession (Practice and Etiquette)
Rules 1978. A failure to observe the rules will subject the advocate and solicitor to the
possibility of punitive action at the instance of the client. For this exercise, rr. 3, 4, 5, 27
and 29 of the Legal Profession (Practice and Etiquette) Rules 1978 must be referred to
and they are quite self-explanatory:
3(a) An advocate and solicitor shall not accept a brief if he is or would be
embarrassed.
(b) An embarrassment arises-
(i) where there is some personal relationship between him and a party or a
witness in the proceedings.
5. No advocate and solicitor shall accept a brief in a case where he knows or has
reason to believe that his own professional conduct is likely to be impunged.
5(a) No advocate and solicitor shall accept a brief if such acceptance renders or
would render it difficult for him to maintain his professional independence or is
incompatible with the best interest of the administration of justice.
27(a) An advocate and solicitor shall not appear in any matter in which he is directly
pecuniarily interested.
(b) This rule does not apply to the case of an advocate and solicitor appearing
himself to tax his own costs.
29 Except when essential to the ends of justice or as to merely formal matters,
an advocate and solicitor appearing in any cause shall not testify in Court on
behalf of his client only in that cause.
RAKUSEN v ELLIS, MUNDAY AND CLARKE (1912) 1 Ch 831 (Court of Appeal)
M and C were the only partners in a firm of solicitors named E. M. & C and were in the
habit of doing business separately and without any knowledge of each other’s clients.
R consulted M with reference to an action for wrongful dismissal which he desired to
commence against a company. He then changed his solicitors and issued his writ, and
the matter was referred to arbitration, the proceedings in which were still in progress.
C was away at the time and knew nothing of the consultations between R and M,
and whilst the arbitration was going on the firm of E. M. & C was appointed to act as
solicitors for the company in the arbitration. R applied for an injunction to restrain E.
M. & C from acting for the company.
Held, that there was no general rule that a solicitor who had acted for some person
either before or after the litigation began could in no case act for the opposite side; the
Court must be satisfied in each case that mischief would result from his so acting; that
there could be no danger of any breach of confidence if C acted for the company and
that the injunction must be refused.
TRIKKON SDN BHD v MAHINDER SINGH DULKU [2010] 3 AMR 166 High Court
Solicitor withholding files, failing to carry out taxation of costs and not providing
breakdown of fees - Whether solicitor in breach of rule 55 of the Legal Profession
(Practice and Etiquette) Rules 1978.
This is an appeal against the dismissal of the appellant’s complaint to the Bar
Council’s Advocate and Solicitor’s Disciplinary Board (“the board”) on the basis that
43
the complaint had no merit. The appellant wrote to the board complaining that the
respondent is withholding their files in which he had acted for them, had failed to
carry out the taxation of costs and had not given them a breakdown of his charges. The
board informed the appellant that its complaint was considered at the board’s meeting
and was dismissed for want of merit. Hence appeal.
Issue

Whether the respondent has violated any of the disciplines under the Legal Profession
Act 1976 and the Legal Profession (Practice and Etiquette) Rules 1978 to warrant
disciplinary action being taken against him.
Held, dismissing the appeal with costs to the respondent
1. On the facts, the respondent had been discharged by the appellant after
conclusion of the two cases in which he had acted for the appellant and had
not been paid his fees which are to be derived from the taxed costs. Thus the
respondent is entitled to a lien to retain the papers in the two files for taxation
of costs due to him. There was no obligation, in the circumstances, for the
respondent to return the files to the appellant. The respondent’s action was
within the permissible purview of the law and cannot be held to be in breach
of rule 55 of the Legal Profession (Practice and Etiquette) Rules 1978 so as to
justify any disciplinary action being taken against him.
2. The respondent had within four days remitted to the appellant’s new solicitor
all relevant papers and documents, pertaining to the arbitration matter at the
appellant’s request. The appellant, having been able to proceed with the said
arbitration with all these relevant documents having been duly supplied by the
respondent, there was therefore no detriment to the appellant, resulting from
the respondent’s retaining of the two files which involved concluded matters.
3. The reason given by the board that there is no merit in the appellant’s
complaint, although brief, was sufficient. It is the discretion of the board as to
how much they feel necessary to advance their grounds or otherwise for their
decision or order, and the court cannot usurp their functions. The board in this
instance, had neither erred in law and in fact in deciding that there was no
merit in the appellant’s complaint against the respondent.
Chew So Ho JC
The law
In dealing with appeal of this nature involving the decision of the Disciplinary Board of
the Bar Council against a member of its own profession, the courts have consistently
held that it is best for the legal profession entrusted with the supervision of advocates
and solicitors to decide on the fate of its own members as members of the same
profession ought to know and appraise better the conduct and the standard
required of their members in the legal profession in the discharge of their duties
and function as an advocate and solicitor; see Trikkon Sdn Bhd v Dato’ Mahinder
Singh Dulku [2009] 3 AMR 345 where His Lordship Ghazali Cha J had cited the
principles of law and the approach as well as the role of the court in dealing
with cases involving the decisions of the said Disciplinary Board as laid down in
Gana Muthusamy v Tetuan LM Ong & Co [1998] 4 AMR 3391; Au Kong Weng v Bar
CASES & MATERIALS
Committee, Pahang [1980] 2 MLJ 89 and Marzaini Zainuddin v Majlis Peguam Malaysia
[2007] 10 CLJ 339. Save as to concur with the law cited by His Lordship Ghazali Cha, I
shall not repeat them herein except to emphasise that unless there are most compelling
reasons for the court to do so, the decision of the Disciplinary Board should no have
been interfered.
Rule 55 provides:
“Except by way of securing his first to a lien, and advocate and solicitor shall
not otherwise withhold the client’s papers to the detriment of the client”.
In Hughes v Hughes [1958] P 22A – CA (a petitioner in divorce proceedings discharged
his solicitors and instructed a second solicitor, who obtained the papers in the suit from
CLP
44
the first solicitors subject to his undertaking to respect their lien for costs. The petitioner
subsequently discharged the second solicitor and instructed his present solicitors. On
the application of the petitioner the registrar made an order that his second solicitor
should deliver up the papers to the petitioner or his present solicitors within 14 days on
the undertaking of the present solicitors to respect the lien of the first and the second
solicitors. From this order the second solicitor appealed. Wrangham J dismissed the
appeal.
On a further appeal, the English Court of Appeal in allowing the appeal held, inter alia,
that:
“Held, that the general rule - that a solicitor who was discharged by his client
during a civil action, otherwise than for misconduct, was entitled to retain, as
against his client any papers in the case in his possession until his costs had
been paid - applied whether the client’s papers were of any intrinsic value or
not, and that while divorce proceedings inter partes were still civil litigation,
and there was no reason why the rights of solicitors in such cases should differ
from their rights in other cases. Accordingly, the second solicitor was entitled
to his lien”.
Hodson LJ, in delivering the judgment of the Court of Appeal said at p 227 as follows:
“There is no doubt that a solicitor who is discharged by his client during an
action, otherwise than for misconduct, can retain any papers in the cause in
his possession until costs have been paid: see In re Rapid Road Transit Co.
This rule applies, as the authorities show, whether the client’s papers are of
any intrinsic value or not, although it would seem that so far as the solicitor’s
working papers are concerned, where the work has not been paid for by the
client, the solicitor would not be compelled to hand over his work unless it had
been paid for, apart altogether from the lien”.
In the case of In Re Faithfull 1868 Equity Case Vol V1 325 on the issue of solicitor’s lien
for costs, it was held:
“Although a solicitor who discharges himself cannot set up a lien for costs as a
reason for not delivering up papers necessary to enable his client to proceed
with pending matters in litigation to which they relate, yet a solicitor who has
been discharged by the client may set up such lien, and will not be ordered
to produce or deliver up to the client the papers on which he claims the lien,
although his not doing so will embarrass the client in prosecuting or defending
his claims. Such lien is a general one and extends to all costs due from the
client to the solicitor”.
The principle of law quoted above in tantum is in line with Rule 55 above which permits
a lien to be claimed by an advocate and solicitor.
YIP SHOU SHAN v MAJLIS PEGUAM [1994] 3 MLJ 82
High Court
The plaintiff was a partner in the firm of Yip Yeo and Nasrim but had left the firm on 1
October 1990. The accounts of the plaintiff’s previous firm had not been resolved for
the year 1990 and no accountant’s certificate could be issued because of unfavourable
comments made therein by accountants. It is also undisputed that the plaintiff had
been issued with the sijil annual for 1992 and 1993 but they were issued on condition
that the plaintiff deposited with the defendant, RM350,000, which reflected an amount
which could not be reconciled in the plaintiff’s previous firm. The plaintiff accepted
those terms and paid the sum demanded and the sijil annual for 1992 was issued. This
was followed by the sijil annual for 1993, but when the plaintiff applied for the issuance
of the sijil annual for 1994, the Bar Council refused to issue the sijil annual for 1994 to
him.
The plaintiff applied for the defendant to be directed to issue the sijil annual for 1994
to him; costs of the application; and other orders which the court deems fit and
appropriate.
45
Held, dismissing the application:.

(1) The plaintiff must satisfy the Bar Council that he had a clean accountant’s
report for 1990. The court found that the plaintiff had gone back on his word
of producing to the Bar Council a clean accountant’s report of his previous firm
for 1990. To allow the plaintiff’s application for a sijil annual now is to allow
him to misuse the accommodation given to him by the Bar Council, who had

clearly stipulated that in the event the plaintiff could not produce his 1990
clean accountant’s report, he was to surrender his 1993 practising certificate.
In the face of such a clear undertaking, the court would not assist him to
commit that breach as if it was nothing of importance.
(2) Also, to allow the plaintiff’s application for a sijil annual would be to encourage
the opening of floodgates, because, should the plaintiff be granted this
application, he would be able to walk away from a joint responsibility in the
management of his previous firm.
(3) The taking of a disciplinary action under s 88A of the Legal Profession Act
1976 (“the Act”) was inappropriate as the plaintiff was not in possession of
a practising certificate and the proper step to be taken was a prevention one,
and until he accepts his responsibility to furnish a clean accountant’s report
as required by the Act, he should be denied the sijil annual and a practising
certificate.
YIP SHOU SHAN v MAJLIS PEGUAM [1994] 3 MLJ 82
SUPREME COURT (KUALA LUMPUR) Eusoff Chin SCJ
The appellant was admitted as an advocate and solicitor of the High Court on 17
November 1975. The Bar Council (the respondent) had refused under s 32 of the
Legal Profession Act 1976 (hereinafter ‘the Act’), to issue a sijil annual for the year
1994. Under s 29 of the Act, the registrar of the High Court will not issue a practising
certificate to an advocate and solicitor unless the advocate and solicitor submits to the
registrar the last sijil annual issued to him by the Bar Council. Under s 32 of the Act,
the Bar Council is empowered to issue a sijil annual to an advocate and solicitor if his
application complies with the requirements of that section. One of the requirements is
that the advocate and solicitor must deliver with his application an accountant’s report
prepared in accordance with s 79 of the Act. It was in 1985 when the appellant went
into partnership with Margaret Yeo Eng Hong and Nasrim bin Dato’ Salleh to establish a
law firm called Yip Yeo and Nasrim in Petaling Jaya with a branch office in Kuala Lumpur.
On 30 September 1990, the appellant left his firm, and practised under the name of
Peter Yip & Young in Petaling Jaya. In 1991, the appellant applied for a sijil annual for
1992. On 22 November 1991, the Bar Council asked the appellant for the accountant’s
report of Yip Yeo and Nasrim in respect of their Petaling Jaya and Kuala Lumpur offices
for the period 1 January to 30 September 1990. The appellant replied that since he had
left his former firm, he had no control over the auditing of the firm, and that his former
partners should be responsible for the finalization of the accounts of that firm. The Bar
Council wrote to the appellant and his former partners on 6 December 1991 advising
them to meet and resolve all outstanding issues so that a clean accountant’s report
could be issued to enable them to obtain their sijil annual for 1992. Following further
correspondence, the appellant, Margaret Yeo and their auditor Christopher Chooi
CASES & MATERIALS
appeared before the sijil annual committee of the Bar Council on 15 January 1992 to
give their views. Margaret Yeo said she was responsible only for the running of the Kuala
Lumpur office of the firm and could produce the account of that office but was unable
to produce the accounts for the Petaling Jaya office over which she had no control and
the appellant was not co-operative. At the meeting, the committee was informed that
an accounts clerk of the firm had paid in some of the clients’ moneys. Their auditor
told the committee that with the files made available to him, he still could not reconcile
a figure amounting to RM341,095.30. The respondent decided that the appellant be
given up to 29 July 1992 to submit the accountant’s report. However, the appellant
required more time, and the date was extended to 31 December 1992. The appellant
CLP
46
and Margaret Yeo agreed that auditors be appointed by the Bar Council to examine
the accounts of the firm. Abu Bakar Rajuddin & Co was appointed as independent
auditors for that purpose. The auditors asked for three months’ extension beyond 31
December 1992. Meanwhile the Bar Council decided, in the circumstances, to issue the
sijil annual for the years 1992 and 1993 to the appellant pending the production of the
accountant’s report. There was no progress on the auditors’ work, and the Bar Council
agreed to the appointment of another firm of accountants, Messrs Monteiro and Heng,
who started work in July 1993, and they were given up to 31 December 1993 to finish
their report. On 18 November 1993, the appellant made an application for a sijil annual
for the year 1994. On 30 December 1993, the Bar Council received Messrs Monteiro
and Heng’s report on the audit of the appellant’s former firm at the Petaling Jaya office
showing clients’ accounts for the period 1 January to 30 September 1990. The report
stated that on the dissolution of the firm on 30 September 1990, the appellant took
some of the files while Margaret Yeo took other files. It also stated that the former
partners had not complied with the Solicitors’ Account Rules 1978. As at 1 January
1990, numerous clients’ accounts were overdrawn amounting to RM1,000,648.61.
The report concluded as follows: “On completion of the audit examination of the
accounting records of the above stated firm and having enumerated the deficiencies
and anomalies in the accounting system, I endeavoured to effect a reconciliation of the
clients’ ledger balances with the bank balances as at 30 September 1990 resulting in a
total deficiency in the clients’ accounts of RM705,091.89”. The Bar Council was shocked
to see this report as the apparent deficiency in the accounts had risen tremendously
from RM341,095.30 to RM705,091.89. The Bar Council asked both the appellant and
Margaret Yeo to explain how the shortfall came about so as to enable the Bar Council
to consider whether or not to issue their sijil annual for 1994. The appellant could not
offer any explanation as he said he had left the firm in 1990. He asked to meet the
sijil annual committee which was agreed, and the meeting was held on 16 February
1994. The chairman of the committee explained that unless the appellant could
produce a clean accountant’s report, the Bar Council would not issue the sijil annual
to the appellant for 1994. The appellant pleaded with the Bar Council to give him an
exemption under r 6 of the Accountant’s Report Rules 1978, but the appellant’s case
did not appear to fall under any of the conditions specified in r 6 which would enable
the exemption to be granted. The fact that the sijil annual was issued for 1992 and
1993 should not be treated as an exemption under r 6 because the sijils were issued
pending the completion of audit and submission of a clean report by the accountant
for the period 1 January to 30 September 1990.
The evidence shows that the Bar Council had sent to every member of the Bar including
the appellant a circular titled ‘Application for sijil annual’ on 4 January 1985, which
reads:
“Law firms may have branches. Obviously a partner of the main office would
also be a partner of the branch and vice versa. In making your application for
the sijil annual the accountant’s certificate of the main office as well as the
branches will have to be submitted. Some members have argued that they
are partners of branch office only and not the main office or vice versa and
[are] therefore not required to submit the accountant’s certificate in respect
of offices where they claimed they do not have any interest. Such contention
is not acceptable. The Bar Council hereby notify you that the above rule would
[be] strictly observed when considering applications for the sijil annual 1986
and non-compliance will result in your application being rejected”.
“We agree with the views expressed by the Bar Council that an advocate
and solicitor is in a position of a trustee vis-a-vis his client’s money
and must therefore produce a clean accountant’s report in respect of
all moneys handled by any office of his partnership during any period
for which he is a partner. The Bar Council is not concerned with the
internal financial and other arrangements between partners inter se.
It is up to every partner to ensure that the partnership accounts are
in order at all times, in particular before leaving the partnership or
before the partnership is wound up”.
47
In the High Court and before us, the appellant’s learned counsel argued that under
s 32 of the Act, the Bar Council cannot insist on a clean accountant’s report. So long
as an accountant’s report is submitted together with the application which complies
with s 32(2) of the Act, the Bar Council must issue the sijil annual to the applicant. If
the accountant’s report shows that clients’ moneys had not been accounted for, the
Bar Council should apply ex parte under s 88A of the Act to the Chief Justice for an

order suspending such advocate and solicitor from practice until further order. The Bar
Council cannot refuse to issue the sijil annual because this would amount to suspending
the advocate and solicitor concerned from practice. The learned counsel submitted
that the power to suspend is given only to the Chief Justice. For ease of reference we
quote the relevant provisions of ss 32 and 88A of the Act:
S32 Issue of Sijil Annual
(1) Subject to this section and sections 33 and 34, the Bar Council shall at
any time after the month of June in the preceding year issue a Sijil Annual
to an advocate and solicitor within twenty-one days of the receipt of an
application under subsection (2) if -
(a) the Bar Council is satisfied that the application complies with that
subsection and any rules made under this section;
(b) the advocate and solicitor has delivered or is exempted from
delivering an accountant’s report in accordance with s 79; …
S88A Suspension of advocate and solicitor
(1) Where an advocate and solicitor -
(a) has been found guilty by a court of law of any offence involving
dishonesty, misuse of his client’s moneys or dishonesty towards a
client or in respect of any property belonging to a client;
(b) in respect of whom a complaint has been made to the Bar Council
concerning any dishonest act or acts committed by him in his
capacity as an advocate and solicitor; …
and the Bar Council considers that it would be in the public interest
or in the interest of his clients or of the profession that such advocate
and solicitor be suspended from practice, the Bar Council may apply
by summons to the Chief Justice ex parte for an order suspending such
advocate and solicitor from practice until further order. “We are of the
view that s 32 of the Act imposes a duty on the Bar Council to process
and scrutinize every application for a sijil annual. It is the Bar Council’s
paramount duty to ensure that only an honest, trustworthy, fit and
proper advocate and solicitor should be allowed to practise. Any act
of dishonesty on the part of an advocate and solicitor would bring the
Bar Council and the legal profession into disrepute. The issuance of a
sijil annual by the Bar Council is its recommendation to the registrar
that such advocate and solicitor is a fit person to be issued a practising
certificate”
If the Bar Council finds that an advocate and solicitor has failed to keep
proper accounts of all moneys received by his firm and therefore he
CASES & MATERIALS
cannot deliver a clean accountant’s report, the Bar Council is entitled to

refuse to issue a sijil annual and consequently will not recommend to the
registrar for the issuance of a practising certificate to the advocate and
solicitor concerned. It is, therefore, clearly misconceived to interpret the
role of the Bar Council as merely a rubber-stamping process, it having
no discretion to refuse to issue a sijil annual in circumstances where
clearly it should not be issued in the public interest. To agree with the
appellant’s argument would render s 34 otiose in its application to s 32,
bearing in mind that s 32 is expressly subject to s 34.
CLP
48
34 Applicant to apply to Court.

(1) An advocate and solicitor who is required to make an application
under this section or any advocate and solicitor who is dissatisfied
with the refusal, neglect or delay in the issue to him of a Sijil
Annual may apply to a Judge by originating summons for an order
directing the Bar Council to issue him with a Sijil Annual.
The appellant’s application to the High Court has been filed under s 34
of the Act and the High Court has refused to direct the Bar Council to
issue the sijil annual. [See [1994] 2 MLJ 149 .]
The fact that the Bar Council had issued sijils annual to the appellant for the
years 1992 and 1993 does not mean that the Bar Council was satisfied with the
accountant’s report for the period 1 January to 30 September 1990. As earlier
stated, the Bar Council did so to enable the appellant to continue practising
while the firm’s accounts were being audited. If, therefore, the Bar Council
has erred, it has done so in favour of the appellant. On the facts, we are of
the view that the Bar Council had acted fairly in this case by refusing to issue
the sijil annual to the appellant for the year 1994. The appellant must submit
an accountant’s report showing that he had kept his accounts in accordance
with the Solicitor’s Account Rules 1978. The Bar Council was also correct in
refusing to give an exemption from delivery of an accountant’s report under r
6 of the Accountant’s Report Rules 1978 simply because the appellant could
not establish that his case comes within any of the matters enumerated under
para (2) of that r 6. We also agree with the Bar Council that this is not a proper
case to grant an exemption under r 6 because the deficiency in the clients’
accounts of RM705,091.89 is quite substantial, notwithstanding that no clients
of the appellant’s former firm had made any complaint.
We, therefore, dismiss this appeal with costs.
CHOONG YIK SON v MAJLIS PEGUAM MALAYSIA [2008] 7 MLJ 215 High Court
Solicitor Accounts Rules 1990
On 26 March 2005, the disciplinary committee recommended that the appellant be
struck of the roll of Advocates and Solicitors of the High Court in Malaya which the
disciplinary board affirmed the recommendation pursuant to s 103D (1) (a) of the Legal
Profession Act 1976 (‘the Act’). Aggrieved by that decision, the appellant filed a notice
of appeal to the court constituted under the then s 103E (2) of the Act. The appellant
admitted withdrawing money from the client’s account of the Taiping branch office
to cover medical bills incurred by the appellant and his late wife. This ran counter to
r 7 of the Solicitors’ Account rules 1990. The appellant eventually repaid the sum of
RM16,950 to the client. It was submitted that what the appellant did not intentional;
that it was not fraudulent and it was not calculated to cheat and take flight; and that
it had happened during a most trying time where the appellant had to cope with the
physical and emotional hardships and short term financial pressures.
Held, dismissing appellant’s appeal with costs:
(1) The withdrawal and utilization of client’s moneys notwithstanding the
circumstances under which the acts were committed were nothing short of
dishonest and fraudulent conduct within the meaning of s 94 (3) (c) of the Act.
The appellant’s conduct was also contrary to s 94 (3) (k) of the Act.
(2) The court took into account the appellant’s plea but decided that interest of
the public must be put in the forefront. Certain standards must be maintained
by the legal profession. The confidence in the profession must be upheld and
could not be compromised.
(3) The rules made under the Act were meant to ensure fidelity in dealing with
client’s moneys. Moneys received by an advocate and solicitor on behalf of
a client must be banked into the client’s account. These moneys must be
kept strictly separate from the solicitor’s own moneys. According to r 6 of the
Solicitors’ Account Rules 1990, no money other than money which under the
49
foregoing rules a solicitor is required or permitted to pay into a client’s account

shall be paid into a client’s account, and it shall be the duty of a solicitor into
whose client’s account any money has been paid in contravention of the
Solicitors’ Account Rules to withdraw the same without delay on discovery.
There is a duty imposed by r 3 of the Solicitors’ Account Rules 1990 to put
all moneys into the client’s account without delay. Any advocate and solicitor
caught meddling with the client’s account must face the wrath of the law.

Abdul Malik Ishak J
“With respect, the appellant ought to have known that the clients’ moneys must be
separated from his own moneys. But from the available evidence it was clear that the
appellant’s conduct left much to be desired. An advocate and solicitor has a duty to keep
strict and accurate accounts of his clients’ moneys (Re An Advocate and Solicitor [1940]
MLJ 253). The court in Re Lim Keng Kooi [1941] MLJ 217 held that the rule requiring
separate accounts imposed a legal obligation and not merely a moral obligation to
comply. It is a correct to say that any breach of any of the rules made under the Legal
Profession Act would constitute a misconduct, Every practicing advocate and solicitor
ought to know of the necessity of keeping separate clients’ accounts (Re Cashin [1988]
1 MLJ 380) and a breach of it, like what the appellant here has done, would per se
amount to an improper conduct (In Re S Fung, A Solicitor). In Re A Solicitor [1962]
3 MC 323, where a very large sum of the client’s money in the hands of the lawyer
could not be accounted for, the lawyer in question was struck off the roll. The net
is thrown wider where there is a breach of the Solicitors’ Account rules. Thus, if a
solicitor does not keep his client’s money intact (like in the present case) but instead
uses it for his own purpose notwithstanding the fact that the solicitor has no intention
of permanently depriving his client of the use of that money and later on the solicitor
repays the money, the solicitor will still be held guilty of professional misconduct (In Re
S Fung, A Solicitor).
The fact that the appellant was 65 years of age and that his sole source of revenue was
from his law practice were also considered by us. We also noted that the appellant had
to support two of his children in the pursuit of their tertiary education overseas - in
Australia and in the United Kingdom. All these factors were considered by us. But the
interest of the public must be put in the forefront, which we accordingly did. Certain
standards must be maintained by the legal profession. The confidence in the legal
profession must be upheld and cannot be compromised, for example the respondent
in Law Society of Singapore v Ravindra Samuel [1999] 1 SLR 696 had acted dishonestly
and he was accordingly struck off the roll.
It is obvious that the conduct of an advocate and solicitor must be judged by the rules
of his profession and by the standard which its members set up not only for their
brethrens but also for themselves. We were therefore of the unanimous view that the
findings of the Disciplinary Committee were entirely supported by the evidence. It was
a case, pure and simple, of an improper act amounting to dishonest conduct within the
meaning of s 94 (3) (c) of the Legal Profession Act.
G. T. RAJAN v LEE YOKE LAY 1994 2 MLJ 315
The appellant, GT Rajan (‘Rajan’), had acted as the respondents’ solicitor in a sale and
purchase transaction in which the respondents sold a piece of land to two purchasers.
The sale and purchase agreement (‘the agreement’) provided that Rajan was to
CASES & MATERIALS
forthwith present the memorandum of transfer for adjudication after it was executed
by the purchasers or their nominees and that Rajan was to hold the balance purchase
price of RM750,000 until the memorandum of transfer was registered in favour of the
purchasers.
However, Rajan only forwarded the memorandum of transfer for adjudication and
stamping after the balance purchase price was paid, which caused a delay of four
months before the respondents received the money. When the balance purchase price
was paid by the purchasers to Rajan, the respondents requested that the amount be
deposited into a fixed deposit interest earning account. Rajan was of the view that as
he was a stakeholder of the money, he need not accede to the respondents’ request.
CLP
50
Eventually when the balance of the purchase price was released to the respondents
some four months later, it was without any interest. This prompted the respondents
to complain to the State Bar Committee about the conduct of Rajan which resulted in
an enquiry by the Disciplinary Committee under s 99 of the Legal Profession Act 1976
(before its amendment in 1992). The issues before the Disciplinary Committee were,
inter alia: (1) whether Rajan was a solicitor for the respondents or a stakeholder; and
(2) whether Rajan was late in sending the memorandum of transfer for adjudication
and stamping. Disciplinary Committee answered both questions in the affirmative and
found Rajan guilty of ‘conduct otherwise unbefitting an advocate and solicitor’ under
s 93(2)(b) of the Legal Profession Act 1976 (before its amendment in 1992). Rajan
appealed against that decision.
Held, allowing the appeal:
(1) It is without doubt that Rajan first acted as a solicitor for the respondents. In that
capacity, he was an agent of the respondents. However, when the agreement
was executed, Rajan’s role as an agent was transformed. The provision that
Rajan shall receive the balance purchase price and not to release the same
until the registration of the transfer in the names of the purchasers or their
nominees placed a responsibility on Rajan to keep the money in his own hands
or to put it on deposit with a bank. In the event that registration of the transfer
could not be registered, he had to return the money to the purchasers. On
the other hand, without the money being placed with him, the respondents
would have refused to allow the release of the document of title and the
memorandum of transfer to the purchasers. Rajan was therefore placed in the
position of a trustee where he was accountable to both the purchasers and the
respondents and in order to protect both their interests, Rajan was clearly a
stakeholder.
(2) From decided authorities, it is clear that if a person is a stakeholder then he is
not accountable to any party for any interest gained while holding the money
on trust. As Rajan was a stakeholder of the balance purchase price, he was
entitled to keep for himself any interest earned on the sum. Based on the
aforesaid, the Disciplinary Committee had erred in fact and law in arriving at
their finding on the first question.
It was not disputed that the memorandum of transfer was executed by the purchaser’s
nominees only after the balance of the purchase price was received. Under normal
conveyancing practice, a memorandum of transfer is not forwarded for adjudication
and stamping until and unless all required particulars of the purchase are completed
and the purchaser has executed the same. Any memorandum of transfer which does
not fulfil this requirement is considered incomplete and is likely of being rejected by
the relevant authorities. Under such circumstances, Rajan could not possibly have
forwarded the memorandum of transfer for adjudication immediately after execution
of the agreement as the memorandum had first to be signed by the parties and he
could not be blamed for sending the memorandum of transfer late for adjudication
and stamping. The Disciplinary Committee had therefore erred in arriving at their
conclusion on the second question.
YONG & CO v WEE HOOD TECK DEVELOPMENT CORPORATION [1984] 2 MLJ 39
(Federal Court)
The appellants – solicitors acted for all three parties in a loan transaction, that is, the
developer, the purchaser and the respondents – financiers. The learned Judge held
inter alia that it was apparent the appellants had acted in favour of the developers
whose instructions directly conflicted with those of the respondents. Being a common
solicitor for two different clients whose interests were directly in conflict, the appellants
acted at their own peril and the onus of showing that the conflicting interests did not
prevent them from doing their duty to both clients rested firmly on them. In this case,
the appellants as common solicitor had charged the land concerned to Bank B, under
the directions received from the developers, resulting in the respondents finding
themselves without any security for the $70,000 – loan they had advanced to the
purchaser.
51
Being in an invidious position and on discovering that they were unable to properly
discharge their duties fairly, the appellants should have consulted the respondents
as to whether their instructions to charge the land (to the respondents) had been
superceded or had come to an end. This they had failed to do. As the learned Judge
puts it:
Perhaps the appellants had put their finger in more than one pie and found

it difficult if not impossible to strike a proper balance in treating their clients
without prefering one to the detriment of the other because they should be
fully aware of the conflicts of interest and the risks involved in being a common
solicitor for more then one client.
This Federal Court judgment clearly places on the common solicitor, the burden of
proving impartiality. While it is often argued that this practice saves time and money,
the actual situation may be otherwise. Any such benefit, if it truly exists, has to be
weighed against the inherent dangers arising from a conflict of interests. As Chang
Min Tat FJ said in ONG KIM KHOON v GAYA FILEM BHD, “it is impossible for the same
person to give satisfactory service as the confidential and expert adviser of both parties
with conflicting interests. The man who undertakes to serve two masters may easily
find himself in the position where he must be false to one and possibly to both…”
At present, there is only one provision, Section 84 of the Legal Profession Act 1976,
which prohibits a common solicitor from acting for both parties, that is, in a transaction
involving the sale of immovable property developed under a housing development,
an advocate and solicitor cannot act for the housing developer and the purchaser of
that property at the same time. It is provided that a written agreement prepared by an
advocate and solicitor for the housing developer in respect of such transaction must be
scrutinised by an advocate and solicitor acting for the purchaser.
However, there is also a proviso to the effect that if such written agreement is not
scrutinished by an advocate and solicitor acting for the purchaser, then the advocate
and solicitor for the housing developer shall obtain a certificate signed by the purchaser
showing that he does not intend to engage an advocate and solicitor to scrutinise the
agreement for him.
For what it is worth, this protection of the parties from a common solicitor does not
extend to subsequent sale and purchase transaction in respect of the same property.
ORIENTAL BANK BHD v ABDUL RAZAK ROUSE [1986] 1 MLJ 509
The defendant, an advocate and solicitor, was acting for the plaintiff bank which
instructed him to prepare and register two charges against two plots of land. The
charges were security for a loan of $5 million granted to a borrower who was a client
of the defendant.
In the course of the transaction, the defendant had taken instructions from the
borrower and acted for the borrower in complete disregard of his duties to the plaintiff.
The plaintiffs submitted that the defendant had therefore broken a cardinal rule of
profession by acting for two parties whose interests conflict, ie he tried to serve two
masters.
The defendant argued that since he was acting for both parties he had the duty to
protect both parties’ interests in the matter. In his view, his conduct had satisfied this
CASES & MATERIALS
requirement.
The High Court applied the Privy Council case of T DAMODARAN v CHOE KUAN [1971]
and found that on the balance of probabilities the defendant had breached his duty
towards the plaintiffs.
Abu Mansor J stated that in using his discretion to protect the interests of both
the clients, the defendant had in fact gone ‘into deeper waters and breached his
undertaking to the plaintiffs’. It was when the defendant tried to act for two masters
he found himself in that predicament. It was a fault brought by him upon himself. The
learned judge reiterated the words of Raja Azlan Shah FJ (as he then was) in ONG KIM
KHOON v GAYA FILEM BHD [1979] 1 MLJ 79:
CLP
52
It is impossible for the same person to give satisfactory service as the

confidential expert adviser of two parties with conflicting interests. The man
who undertakes to serve two masters may easily find himself in a position
where he must be false to or possibly to both.
TAMAN ZAHARI ZABIDI SDN BHD v ADNAN SUNDRA LOW & ANOR [1990] 1 MLJ 424
Supreme Court
[i] In this case, the appellant had retained the first respondent (‘the respondent’)
to negotiate the purchase of lands at Telok Intan, Perak. The purchase of the
land was financed by Bank Bumiputra Malaysia Bhd by a bridging finance of
$20,000,000. The bank retained the respondent to prepare the necessary
documents for the loan. In pursuance of the loan, the bank issued a letter of
undertaking in favour of the vendor. The appellant subsequently sent a cheque
for $210,000 to the vendor’s solicitors for registration fees on the transfer of
the lands to it and it also requested the bank to pay a sum of $126,207 to
the respondent as registration fee to charge the lands as security for its loan
with the bank. The lands were transferred to the appellant and building plans
in respect of the development of the houses on the lands were approved by
the relevant authorities. The vendor’s solicitors demanded for the release of
the balance of the purchase price for the land. At this stage, the appellant
changed its mind and decide not to proceed with the purchase. In order to
abort the purchase, the appellant sent a letter to the bank to countermand
its instructions to pay the registration fees for the charges. No copy of this
letter was sent to the respondent. The vendor’s solicitors offered a loan to the
respondent for the sum required for the registration fees and the respondent
secured the loan from the vendor’s solicitors, registered the charges and
instructed the bank balance of the purchase price amounting to $17 m to the
vendor. The respondent brought an action to claim disbursement of the sum
of $126,200 which they had made on behalf of the appellant. The appellant
refused to pay, contending that the respondent had acted against its interests.
The learned judge found that the appellant’s contention was baseless and
awarded judgment for the respondent . The appellant appealed.
Held, dismissing the appeal:
On the facts of this case, the respondent had not at any time acted in
contravention of any instruction from the appellant. All along, the respondent
was acting in accordance with the instructions of the appellant regardless of
the fact that the sum required for the stamp duty had not been paid by the
bank but advanced by the solicitors for the vendors.
THAVANATHAN A/L BALASUBRAMANIAM v MAJLIS PEGUAM MALAYSIA [2003] 4
AMR 665 High Court
The respondent’s disciplinary board, under powers conferred by the legal profession
Act 1976 (the Act), struck the appellant off the rolls for professional misconduct.
The appellant now appeals against this decision. The striking off was carried out
after the relevant stages of inquiry as prescribed by the Act were duly observed. The
disciplinary board made the decision to strike the appellant off the rolls contrary to the
recommendations of the disciplinary committee constituted for the purpose of dealing
with the matter of the appellant’s misconduct. The charges were brought pursuant to a
conviction and sentenced recorded against the appellant for an offence under S4(a) of
the Prevention of Corruption Act 1961, committed whilst serving as magistrate.

The appellant submitted that the punishment meted out by the disciplinary board
differed from that handed down in similar cases and that the decision to do so was
contrary to the recommendations of the disciplinary committee charged with the
conduct of the matter. The appellant contended that this was unjustified and violated
the equality provision of article 8 of the Federal Constitution. The appellant also sought
a more lenient punishment for the reason that the offence was committed whilst he
(the appellant) was outside of the profession, i.e. a magistrate. The court was also urged
to exercise leniency for the fact that, inter alia, the appellant had been suspended from
public service; he had already served his sentence; for the anguish, mental agony, and
53
humiliation suffered by him for a lengthy period of time and for the stigma he would
carry for the rest of his life. The appellant further submitted that the gravity of the
offence did not warrant depriving him of his livelihood, especially so in light of the fact
that he was the sole support for his gravely ill 70 year old mother.
The respondent submitted that in such circumstances, the respondent should be
allowed to regulate itself and that it would be inappropriate for the court to interfere,

whilst also pointing out that it was open to the appellant to apply to be enrolled.
Issues
1. Whether the appellant’s misconduct was grave enough to warrant the
punishment meted.
2. Whether the mitigating factors adduced by the appellant were sufficient to
warrant a lenient sentence.
3. Whether the disciplinary board had discriminated against the appellant.
Held
[1] The appellant has been shown to be wanting in all qualities of integrity,
honesty, impartiality, propriety and further, has breached the trust place upon
him, falling well below the standards required of a person acting in a judicial
capacity. Further, public interest demands that justice be meted out to the
wrongdoer in accordance with the law. The nature of the misconduct was such
that requires the highest penalty to be imposed upon him as he is unfit to
remain a member the profession.
[2] The fact that the professional misconduct occurred at a point when the
appellant was a judicial officer, and thus outside the profession, was a factor
to be construed against him rather than a mitigating factor is his favour.
Contrary to submission adduced on behalf of the appellant, the (the appellant)
had committed a serious offence. The conduct of the appellant who chose
to challenge the criminal and disciplinary proceedings against him until all
avenues were exhausted have clearly contributed to the lengthy time frame
for the conclusion of this matter. This was not necessarily a mitigating factor
in his favour but is of a neutral nature. The stigma and remorse the appellant
feels, as well as the fact that he has and aged mother to care for are all factors
that should have been considered before he committed that act he was found
guilty of.
[3] From the cases cited for comparison, and where the misconduct involved
elements of dishonesty, the disciplinary board has been consistent in directing
that the person concerned be struck off the rolls. The misconduct in this
case was committed by an officer acting in a judicial capacity and merits
the severest sanction. There was ample material to distinguish the facts of
the instant case with those where the parties were treated with indulgence
and leniency. Further, the orders generally meted out are not primarily
directed at punishment but at the need to maintain public confidence in the
trustworthiness of all members of the legal profession.
Appeal dismissed with costs
CASES & MATERIALS
The Federal Court had upheld the High Court decision in Oct 2003.
MESSRS CHOONG & CO v ADVOCATES & SOLICITORS’ DISCIPLINARY BOARD [2004] 1
MLJ 385 High Court
Raus J
The Bar Council Malaysia (‘the Council’) lodged a complaint to the Advocates and
Solicitors Disciplinary Board (‘the Disciplinary Board’) under S99 of the LPA 1976 (‘the
Act’) against the plaintiffs. The Council alleged that the plaintiffs had breached the no-
CLP
54
discount rule under the SRO (‘the Order’). The DB asked the plaintiffs for an explanation,
which was given by the plaintiffs. The plaintiffs were informed that the DB had
appointed an Investigating Tribunal (‘the Tribunal’) and on the same day, the Tribunal
wrote to the plaintiffs enquiring if they had any explanation to the said complaint. The
plaintiffs contended that the delay in appointing the Tribunal had rendered it void and
illegal. The Tribunal then fixed a hearing whereby the plaintiffs declined to attend. The
Tribunal requested further information from the plaintiffs, which was furnished. The
Tribunal made a recommendation for the appointment of an Advocates and Solicitor’s
Disciplinary Committee (‘the Disciplinary Committee’), to make a formal investigation
against the plaintiffs in which the plaintiffs were notified of. Following by a letter, the
plaintiffs were notified that the complaint was fixed for hearing. The plaintiffs filed an
application seeking the High Court to restrain the DC from hearing the complaint.
Held, dismissing the application with costs:
(1) The plaintiffs should first exhaust their domestic remedies. Their arguments as
to the validity of the complaint should be raised before the DC at the hearing
of the complaint. They also have the right to appeal to the High Court and a
further right to appeal to the Federal Court.
(2) The DC and the DB should be allowed to proceed with the disciplinary
proceedings against the plaintiffs.
NGEOW YIN NGEE v MAJLIS PEGUAM MALAYSIA [2004] 3 AMR 476 High Court
Azmel, Zulkefli, Zainun Ali JJ
The appellant appealed pursuant to the provisions of S103 of the LPA 1976 (the Act)
against the Advocates and Solicitors Disciplinary Board’s (DB) decision to reject the
findings of the Investigating Tribunal (IT) and that of the Disciplinary Committee (DC)
set up under the provisions of the Act. The appellant contended that the decision of
the DB was null and void for being in breach of the rules of natural justice and ultra
vires for being in contravention of the LP (Disciplinary Board) (Procedure) Rules 1994
(DB Rules). The complainant subsequently withdrew the complain, which was then
pursued by the Bar Council pursuant to rule 8(1) of the LP (Disciplinary Proceedings)
(Investigating Tribunal and Disciplinary Committee) Rules 1994 (DC Rules). Having
completed its investigations into the complaint the IT recommended to the DB that
a formal investigation was not required. The DB disagreed with the DC’s findings and
requested that the appellant make representations as to why he should not be found
guilty of misconduct. The appellant made various requests to the DB for, inter alia, the
grounds for the DB’s disagreement with the DC, which it complied with by supplying
the main grounds for the same. The appellant also requested that the date the DB
took the decision to disagree with the DC’s report and the names of the members of
the DB who had attended the meeting be supplied. The DB supplied the date of the
meeting but declined to provide the names requested and informed the appellant that
it would proceed with the hearing, and that it would consider any representation the
appellant would put before it. When the DB convened, the appellant challenged the
legality of the DB’s decision to reject the DC’s report and withdrew the same. The DB
continued with the hearing in the appellant’s absence and made a finding against the
appellant, ordering him to pay a fine. The appellant subsequently discovered that the
vice-president of the Malaysian Bar as well as several members of the Malaysian Bar
had been present at the said meeting, thus, the appellant submitted, contravening rule
4(1) of the DB Rules, and in contravention of the rules of natural justice.
It was the respondent’s contention that although the vice-president had been present
at the meeting, he did not take part in the proceedings. It was also the respondent’s
contention that in considering the scheme of the Act and the rules made thereunder,
the common law requirements of natural justice did not apply to the appellant’s case.
Issue
Whether the presence of the vice-president of the Bar Council at the meeting in
question was ultra vires rule 4(1) of the DB Rules and/or in contravention of the rule
of natural justice.
55
Held
The presence of the vice-president of the Bar Council at the DB’s meeting where the
recommendations of the IT and DC were discussed and deliberated upon, and where
the decision to reject the said recommendations or findings were clearly ultra vires
rule 4(1) of the DB Rules, which clearly prohibits or disqualifies the said vice-president
from attending the board meetings. The intent and purport of rule 4(1) the DB Rules

are clear, especially so in this instant where the complaint was subsequently pursued,
after being withdrawn by the complainant, by the Bar Council under the DC Rules.
The vice-president’s presence at the said meeting was also contravention of the rules
of natural justice in that “no man shall be a judge in his cause” as enumerated by
ROHANA BTE ARIFFIN & ANOR v UNIVERSITI SAINS MALAYSIA [1989] 1 MLJ 487. It
would have been difficult to accept that there had been no opportunity for the DB
members to be influenced in their judgment and it would appear that justice would
not seem to have been done.
Appeal allowed with costs; DB order set aside.
MALAYSIAN BAR v DATO’ KANAGALINGAM A/L VELUPPILAI [2004] 5 AMR 441 Federal
Court
PS Gill, Rahmah Hussain FCJJ, Hashim Yusoff JCA
The appellant had lodged two complaints against the respondent with the disciplinary
board (DB) and the DB subsequently determined that there was merit in the said
complaint and decided to constitute an investigating tribunal to enquire into the said
complaint (the DB decision). The respondent then filed an appeal to the High Court
against the DB decision pursuant to S103D of the LPA 1976 (the Act). The High Court,
comprising 3 judges, allowed the respondent’s appeal and the appellant appealed to the
Federal Court. Counsel for the appellant submitted that the court had no jurisdiction to
entertain the appeal against the DB decision because such a decision was not final, but
merely preliminary. In so submitting, counsel called for a purposive interpretation to
be given to S103E. it was also submitted that the respondent’s allegation of breaches
of natural justice and bias was unfounded because no relevant evidence was produced
before the court.
Issues
1. Whether the High Court had jurisdiction to hear the appeal against the DB
decision.
2. Whether there were breaches of natural justice and bias.
Held
1. There was no ambiguity in the wording of S103E of the Act. Any party aggrieved
by any decision or order made by the DB shall have the right to appeal to the
High Court. The DB decision was therefore appealable to the High Court under
S103E of the Act.
2. Under rule 4(1) of the LP (Disciplinary Board) (Procedure) Rules 1994, the
president of the Bar Council or his alternate was disqualified from forming
the quorum of the DB where the Bar Council was the complainant, as was the
situation in this case. According to the facts, when the respondent requested
CASES & MATERIALS
from the DB the names of the members of the DB who sat and decided to
institute the investigating tribunal, the DB refused to entertain his request
even though a similar request had been entertained in another case. The
High Court was not in error when it invoked S114(g) of the Evidence Act 1950
against the appellant under the circumstances, thus raising the presumption
that the president of the Bar Council or his alternate was present at the said
meeting.
Appeal dismissed.
CLP
56
JERALD ALLEN GOMEZ v SHENCOURT SDN BHD; MAJLIS PEGUAM (INTERVENOR)

[2006] 1 CLJ 88
HIGH COURT MALAYA
The respondent property developer had lodged a complaint against the appellant
solicitor for acting in conflict of interest, negligence and overcharging. An Investigating
Tribunal recommended to the Disciplinary Board that a formal investigation be
conducted only in respect of the overcharging complaint. The Disciplinary Committee
was then appointed and subsequently found the appellant guilty of the overcharging
charge. The Disciplinary Committee recommended that the appellant be fined
RM3000. The Disciplinary Board then imposed the fine of RM3,000, which fine the
appellant duly paid. The appellant then lodged an appeal to the High Court. On appeal,
appellant’s counsel raised two points. On the first point, counsel submitted that the
Disciplinary Board was in breach of the rule of procedural fairness when it refused
to accede to the appellant’s request to be supplied with the notes of proceedings of
the Investigating Tribunal, which notes the Disciplinary Committee had referred to
during its hearing. On the second point, counsel submitted that the procedure adopted
by the Disciplinary Committee was irregular and unfair. Counsel contended that the
Disciplinary Committee had acted unfairly when in rejecting the respondent’s request
for an adjournment, and in the absence of the respondent’s evidence, it had instead
called on the appellant to first rebut the allegations.
Held (allowing the appeal on the first point):
The High Court would agree with appellant’s counsel that there was a breach of the
rule of natural justice.
The appellant had complained about the Disciplinary Committee making reference
to the Investigating Tribunal’s notes of proceedings when making its decision and
recommendation to the Disciplinary Board, which notes were not, made available to
the appellant. The Disciplinary Committee’s recommendation was not on a preliminary
point or one to decide on a prima facie case against the appellant. Its finding and
recommendation was fully affirmed by the Disciplinary Board without any further
deliberation by the Board. Unlike the enquiry at the Investigating Tribunal stage where
its role was to determine a prima facie case against the appellant and recommend a
formal investigation, the proceedings at the Disciplinary Committee stage was more
determine and telling in scope.
The Disciplinary Committee may proceed to hear, investigate and determine a complaint
in the absence of either party. Thus, there was nothing inherently in reaching a decision
in the absence of one of the parties in the instant case. There was nothing irregular or
unfair in the procedure adopted by the Disciplinary Committee. It was not necessary
for the quasi-judicial proceedings to emulate the strict adversarial procedure practiced
in a criminal court.
Where a domestic body such as the Disciplinary Committee exercises its power for
which the procedures in its proceedings are not provided for by law, the Court will
assume that in following its ad hoc procedure, the domestic body has exercised that
power in a regular manner. The only requirement is that there be no violation of the
rules of natural justice.
LEMBAGA TATATERTIB PEGUAM-PEGUAM v WAN MOHD NAZRI BIN WAN HASSAN
[2007] 2 AMR 417 Federal Court
Pursuant to a complaint concerning the respondent’s conduct as an advocate and

solicitor, the disciplinary board appointed a disciplinary committee by virtue of
paragraph (a) of s 103A of the Profession Act 1976 (the Act) without constituting an
investigating tribunal under s 100 to investigate into complaint and report its findings to
the disciplinary board. The respondent, taking the stand that this was wrong, after the
disciplinary committee had commenced to hear the complaint brought proceedings
in the High Court declaration to invalidate the disciplinary proceedings brought
against him so far and for an injunction to stop further proceedings against him by
the disciplinary committee. The respondent succeeded in the High Court and also, on
57
appeal by the appellant disciplinary board, in the Court of Appeal. Hence this appeal.
Issue
Whether on the express provisions under ss 103A and 103B of the Act, the disciplinary
board was vested with an independent and distinct power to appoint a disciplinary
committee forthwith under any of the circumstances set out in s 103A of the Act.

Held, allowing the appeal
1. Pursuant to paragraph (a) of s 103A, the disciplinary board is vested with “an
independent and distinct” power to appoint a disciplinary committee that is, a
power that is independent of and distinct from its power or duty under s 102(2)
to appoint a disciplinary committee, which arose only after the investigating
tribunal had made its report and which therefore could not arise unless an
investigating tribunal had been constituted.
2. The independent and distinct power of the disciplinary board to appoint a
disciplinary committee in the circumstances of paragraph (a) of s 103A
means that where the disciplinary board receives a complaint concerning the
conduct of an advocate and solicitor it has unfettered discretion to determine
that there should be a formal investigation and to straight away appoint a
disciplinary committee for the purpose and is not bound under s 100(1) to
“forthwith constitute an investigating tribunal” to make recommendations to
it as to whether or not there should be a formal investigation by a disciplinary
committee.
3. It was true that the provisions that involve the investigating tribunal would
become a dead letter if in every case the disciplinary board chooses to act
under s 103A (a), but that was the inevitable consequence of the manner in
which the section had to be construed, and such a consequence ought not to
inhibit such a construction.
AZIANA BINTI UDA BAHARI v GAN KONG YOU [2009] 2 AMR 814 High Court
Disciplinary Board disagreed with findings and imposed penalty of RM500.00
The appellant in this instance was an advocate and solicitor and against whom a
complaint of misconduct was lodged with the Advocates and Solicitors Disciplinary
Board (“DB”) in relation to a tenancy agreement pursuant to which a writ of
distress was executed by the landlord against the complainant (“respondent”). The
respondent had alleged inter alia that he had forwarded a cheque for RM3,600
(“cheque”) to the appellant which was the amount due under the writ of distress
which the appellant refused to accept and threatened to proceed to auction off
the distrained goods unless he also paid the appellant’s solicitor client costs, the
security guards charges, the deposit paid towards the expenses for the execution,
the appellant’s costs for attendance in court, affirmation and filing fees as well as
the amount due for further arrears of rental. The respondent refused to pay the
additional sums on the basis that the amount due under the writ of distress was
RM3,600 only. The distrained goods were then auctioned off and the respondent
evicted from the premises” Subsequent thereto, the appellant banked in the
cheque and issued a receipt for the same. In reply to the respondent’s complaint,
the appellant stated that she was merely carrying out her duties as the solicitor
CASES & MATERIALS
for the landlord and that the distress order as well as the writ of distress clearly
provided that the respondent was pay for the costs of the application as well as the
costs for the execution.
The Investigating Tribunal (“the Tribunal”) that was setup to hear the complaint,
determined that the complaints by the respondent of misconduct by the appellant,
were unsubstantiated and that the respondent’s real grouses were misdirected at the
appellant. The Tribunal also recommended that a formal investigation pursuant to
S102(1)(a) of the Legal Profession Act 1976 (“the Act”), was in the circumstances, not
necessary.
CLP
58
The DB however disagreed with the findings of the Tribunal and pursuant to
S103(1) of the Act (pre-amendment) gave notice to the appellant for a further
hearing of the matter before the DB itself. A finding of misconduct on the part of
the appellant was subsequently made by the DB. The decision was unanimous and
a penalty of RM500 was imposed against the appellant and in default of payment of
which the appellant was to be suspended from practice until payment of the penalty
was made. Being dissatisfied with the said decision, the appellant lodged an appeal
pursuant to s 103E of the Act and applied for an order that the decision of the DB be
set aside. In support thereof, the appellant contended that there were no merits in the
respondent’s complaint and that there was no basis to support the imposition of the
penalty by the DB. It was further contended that there was also no basis for the DB to
disagree with the findings of the Tribunal.
Issue
Whether on the facts, the decision of the DB was correct in law and ought not to be
interfered with by the court.
Held, dismissing the appeal with costs to be paid by appellant to the Advocates and
Solicitors’ Disciplinary Board
1. The duty to decide whether the conduct of the appellant was unbefitting of an
advocate and solicitor or had brought or was calculated to bring disrepute to
the legal profession, lies with the DB and other than in very exceptional cases,
the courts should be slow to interfere with the decision of the DB.
2. It was obvious from the letters of complaint of the respondent that there was
some misconduct on the part of the appellant. Misconduct in this instance
was “something ... which would reasonably be regarded as disgraceful or
dishonourable by his professional brethren of good repute and competency”.
3. S102 of the Act which was applicable at the material time specifically provides
under sub-section (2)(b) of s 102 that the DB may if it disagrees with the
recommendation of the Tribunal, appoint a disciplinary committee. By virtue
thereof, the DB clearly was not bound by the recommendation of the Tribunal.
Based on the records, there was no reason for the court to disagree with
the DB’s decision. In deciding whether an advocate and solicitor is guilty of
professional negligence and as was laid down in Marzaini Zainuddin v Majlis
Peguam Malaysia [2008] 10 CLJ 339, “both the Bar Council and the DB are
required to balance the interest of the appellant with the interest of the
public at large as well as the interest of the legal profession. They owe a duty
to protect and safeguard the members of the public by maintaining a high
standard of conduct amongst legal practitioners”.
4. Dishonesty may be inferred from the surrounding circumstances and in this
instance, it was not necessary that there was an intention on the part of the
appellant to retain the cheque permanently. There need not be direct proof
of intention as intention can be inferred from the surrounding circumstances.
In this respect, the appellant rejection of the respondent’s cheque and
subsequent banking in of the same, showed dishonest conduct on her part.
The appellant should have returned the cheque. The appellant had not acted
in accordance with the standards of a reasonable and honest counsel.
Kamardin Hashim JC
It is the duty of the DB to decide whether the conduct of the applicant in this case is
unbefitting of an advocate and solicitor or which brings or is calculated to bring the
legal profession into disrepute. The court should be very slow in interfering with what
had been decided by the DB except in very exceptional cases only. In Gana Muthusamy
v Tetuan LM Ong & Co [1998] 4 AMR 3391; [1998] 3 MLJ 341, His Lordship Gopal Sri
Ram JCA penned the following:
59
It is primarily for members of the Bar to decide what amounts to conduct

unbecoming of an advocate and solicitor in particular circumstances, according
to standards established by members of that honourable profession, Courts
must necessarily exercise caution when entertaining on appeal in which the
control question is whether particular conduct in unprofessional and cases
meriting curial interference will be rare. Otherwise it will be the court and not
the profession that will determine the yardstick of professional behavior. We

would, in this context, express our agreement with the following passage in
the guide to the professional conduct of solicitors issued by the Council of the
Law Society in 1974, quoted by the learned judges of the High Court in their
judgment:
“One of the hallmarks of a developed profession is that it should lay
down and maintain standards of professional conduct for its members
based upon the best thinking of those members as to what constitutes
proper conduct for a member of that profession.”
In our judgment, a court will be entitled to interfere only if what has been found by
a disciplinary committee to be unprofessional conduct will not be considered to be
such by the best thinking members of the profession. The present case does not come
within the reach of that test and accordingly this appeal fails.
By looking at the two letters of complaint from the respondent, to my mind it is
obvious that there is some misconduct on the part of the applicant. Misconduct here
is “something ... which would be reasonably regarded as disgraceful or dishonourable
by his professional brethren of good repute and competency”. (see Re Advocate &
Solicitor [1949] 1 LNS 72). As stated in their order, the DB before deciding that there
was misconduct on the part of the applicant, took into consideration the respondent’s
letters of complaint, the decision of the investigating tribunal and the applicant’s
representation at the hearing. Borrowing the words of Thomson J in Re An Advocate
and Solicitor (supra), “... it is not open to me at this stage to go behind the findings of
fact of the disciplinary committee, I have to accept them”.
In deciding whether an advocate and solicitor is guilty of professional misconduct,
“both the Bar Council and the DB are required to balance the interest of the applicant
with the interest of the public at large as well as the interest of the legal profession.
Both the Bar Council and the DB owe a duty to protect and safeguard members of the
public by maintaining a high standard of conduct amongst legal practitioners”. (See
Marzaini Zainuddin v Majlis Peguam Malaysia [2008] 10 CLJ 339). Further, his Lordship
Abdul Malik Ishak J (as he then was) said in the same case:
It goes without saying that the legal profession in this country must observe
the highest possible standards of conduct. Nothing short of that would suffice.
Disciplinary proceedings against recalcitrant advocates and solicitors are
designed to enable members of the same profession to decide on the fate
of their fellow practitioners. This is simply because members of the same
profession should know and appreciate better than anyone else the standards
of conduct expected of the legal profession. The DB, which consists of senior
members of the Bar appointed under s 93(3) of the Act, thought it fit to suspend
the appellant based on the evidence presented to them. The DB should know
better. In the words of Raja Azlan Shah CJ (Malaya) in Au Kong Weng v Bar
CASES & MATERIALS
Committee, Pahang [1980] 1 LNS 4:

“Statutes relating to the legal profession now entrust the supervision of
advocates and solicitors’ conduct to a committee of the profession, for
it knows and appreciates better than anyone else the standards which
responsible legal opinion demands of its own profession.”
CLP
61

Disciplinary Procedure (Old Procedure)

i] Under the old disciplinary system, advocates and solicitors are subject to the
control of the Bar Council and may be disciplined if “due cause” is shown.
Every complaint shall in the first place be made to the Bar Council. Four
bodies, each having separate powers and functions, exist. They are the Bar
Council, the State Bar Committee, the Inquiry Committee and the Disciplinary
Committee. All these bodies comprise solely and exclusively of practioners,
hence the self-regulatory aspect of the profession. Appeals lie to the High
Court and thereafter to the Supreme Court.
ii] For the purpose of a better understanding of the old system the various stages
involved under Part VII of the Legal Profession Act 1976, are as follows.
[a] Any complaint shall in the first place be made to the Bar Council [Section
95(1)]
[b] The Bar Council shall refer every complaint to the State Bar Committee
having jurisdiction over the advocate and solicitor concerned for
investigation and inquiry [Section 95(3)]
[c] Every investigation and inquiry by the State Bar Committee shall be
carried out in such manner and to such extent as it deems fit [Section
96(1)]
[d] The State Bar Committee is expected to complete its investigation and
inquiry within a period of three months from the date that the complaint
is referred to it. If the State Bar Committee fails to complete the same
within such period the Bar Council should then refer the complaint to
the Inquiry Committee [Section 96(3)]
[e] The Inquiry Committee is then required to investigate and inquire into
the complaint and in turn, is expected to complete its investigation and
inquiry within three months of the complaint being referred to it and to
report to the Bar Council with a recommendation whether the matter
should be referred to the Disciplinary Committee for a formal inquiry
[Section 97(1)]
[f] If the State Bar Committee or the Inquiry Committee, as the case may
be completes its tasks within the specified period of three months it
should furnish its report to the Bar Council and recommend whether
the matter should be referred to the Disciplinary Committee for a formal
inquiry [Section 96(2)]
[g] Upon receipt of the report from the State Bar Committee or the Inquiry
Committee, as the case may be, the Bar Council should within six weeks,
determine whether a formal investigation and inquiry into the complaint
by a Disciplinary Committee is necessary [Section 98(a)]
See: MAJLIS PEGUAM MALAYSIA v AU KONG WENG JOSEPH [1993] 2
MLJ 57 (The time period is mandatory)
CASES & MATERIALS
[h] If the Bar Council so determines, it would have to apply to the Chief
Justice to appoint a Disciplinary Committee to conduct a formal
investigation and inquiry [Section 99(1)]
[i] The Chief Justice is expected within 14 days of an application by the Bar
Council to appoint a Disciplinary Committee consisting of three lawyers
of not less than seven years standing [Section 99(1)]
[j] The Disciplinary Committee so appointed then has to meet in order to
determine its procedure and fix dates of hearing convenient to all parties.
The Disciplinary Committee is expected to complete its investigation
and inquiry and file with the Bar Council its order within three months
CLP
61
62
of the date of its appointment or within such longer period as the Chief
Justice may allow [Sections 100 and 101]
[k] The function of the Disciplinary Committee is to conduct a formal inquiry
(in the nature of judicial proceeding) into the complaint and it may make
such order as it thinks “fair and reasonable” including suspension from
practise and striking off the Roll [Section 100(1) and 101(1)]
VADIVELOO v THANALECTHUMY [1992] 1 MLJ 623
Once the disciplinary committee appointed by the Chief Justice have
delibrated and dismiss a complaint, the disciplinary committee is functus
officio. A subsequent disciplinary committee cannot be appointed to
delibrate the complaint
Standard of Proof required to make a finding of guilty
BHANDARI v ADVOCATES COMMITTEE [1956] 3 AER 742
In every allegation of misconduct involving elements of deceit or moral
turpitude, it is the duty of domestic tribunal investigating the complaint
to apply a high standard of proof. Such committee must not condemn
on mere balance of probabilities.
AU KONG WENG v BAR COMMITTEE OF PAHANG
Standard of proof is beyond reasonable doubt. Affirms the decision of
Bhandari.
[l] A complaintant who is dissatisfied with any finding of the State Bar
Committee, the Bar Council, the Inquiry Committee or the Disciplinary
Committee may within 14 days of receiving notification of such finding
appeal to the High Court against such finding [Section 103(1)]
See: SELVAMANY v RETHINASAMY [1991] 1 MLJ 156
[m] An advocate and solicitor who is dissatisfied with an order of the
Disciplinary Committee may appeal to the High Court within one month
of such order [Section 102(1)]
[n] Any party aggrieved by a decision of the High Court shall have the right
to appeal to the Supreme Court within 6 weeks of such decision [Section
102(3)]
In the event there is an appeal to the Supreme Court on the findings of
the Disciplinary Committee, the Supreme Court will be very reluctant to
interfere with the findings or orders of Disciplinary Committee unless
there has been a grave miscarriage of justice.
FEDERAL COURT CIVIL APPEAL No. 232 & 219 [1979]
“We feel bound to reiterate that the legal profession is a honourable
profession whose members are expected to act honourably. The
appellants were tried by their own process.”
Supreme Court refused to interfere.
63

The Previous Position Discipline of
Advocates and Solicitors

BAR COUNCIL
Under s 93 LPA 1976 all

Advocate & Solicitor were under
the control of the Bar Council
and may be liable on “due
cause” shown to be removed
from the Roll or be suspended
from practice or be censured.
Complaint were made either by COMPLAINTS
a) The Bar Council on its own motion
b) The State Bar Committee
c) Court/AG
d) Other persons
All complaint were referred to the

Bar Council who then referred the STATE BAR COMMITTEE If the SBC fails to report within
Matter to the respective State Bar (SBC) 3 months, the Bar Council
Committee will empanel the inquiry
committee who have another
3 months to complete the
report
State Bar Committee has 3 months

to conduct investigation and report
to the Bar Council as to whether
there is any merit in the complaint
No merit in the complaint Merit in the complaint

(End of matter)
Bar Council apply to the Chief Justice Bar Council has 6 weeks to accept
requesting him to appoint the or reject the findings of the SBC or
Inquiry
Disciplinary Committee in order to Committee. If it accepts, matter must be
conduct a formal inquiry referred to the Disciplinary Committee
CASES & MATERIALS
Disciplinary Committee comprised of 3 members who are A & S of not

less than 7 years’ standing. The proceedings are quasi-judicial.
No merit in the complaint Merit in the complaint
End of the matter but complaint A & S may be suspended for a term not exceeding
has 14 days to appeal to the High 5 years or imposition of a penalty not exceeding
Court RM5,000 or struck off the rolls. A & S may appeal
CLP
to the High Court within 30 days of receiving order.

63
64
BAR (DISCIPLINARY PROCEEDING) REVIEW COMMITTEE 1986

Due to the increased public scrutiny of the members’ conduct and the publicity of
indiscipline among members of the Bar, the Bar Council on their own volition resolve
in October 1985 to appoint a Committee to examine the provisions of LPA 1976 relating
to discipline to consider their adequacy and to recommend proposals for reform. The
Committee was headed by Tun Hussein Onn as Chairman. The Committee started it’s
task by commenting as to the shortcoming of the procedure as follows:-
i) “It can be seen from the series of steps referred to in the above which have to
be taken before the matter is finally disposed of (if it goes the whole way) that
a significant passage of time would occur even if all the steps are carried out
within the prescribed period under the Act. If there are lapse on the way as
often happens according to the evidence that we have examined for instance;
[a] where the State Bar Committee does not conduct its investigation and
inquiry within the time limited and fails to report to the Bar Council;
[b] the Bar Council does not keep track or overlooks the reference to the
State Bar Committee so that it does not, immediately upon expiry of
the three months given to the State Bar Committee, refer to the Inquiry
Committee;
[c] the Inquiry Committee does not complete its investigation within three
months and report back to the Bar Council;
[d] the Bar Council is guilty of the same lapse as in the case where the Bar
Committee fails to report within the stipulated period;
[e] the Bar Council, when it does finally get a report from the Inquiry
Committee, does not take a decision within the six weeks limited;
[f] the Chief Justice when requested to appoint a Disciplinary Committee
does not do so immediately and
[g] finally the Disciplinary Committee, when appointed, does not complete
its investigation and inquiry within the stipulated period.
the entire process becomes unduly and unbearably long for the complainant
to endure. Further the complaint may become stale in the process.
ii) Another consequences of this procedure is that the complainant, either
because of the delay or of the procedural steps which have to be taken in
order to reach a conclusion to his complaint which by necessity takes time
and energy, loses interest and abandons his complaint. We are satisfied that
a large number of complaints are abandoned after they are lodged and we
believe one factor responsible for such abandonment is the time taken to deal
with the complaints. Public interest is not served when a genuine and serious
complaint is not proceeded with because the complaint has lost patience with
the system.
iii) The root cause of most delays is the abdication of some State Bar Committee
of their responsibilities conferred by the Legal Profession Act. Their failure to
perform one of the most important functions for which they exist has caused
considerable delay in many a complaint. The situation is often compounded
when the Inquiry Committee, which is intended to serve as a “back-up”, fails
to do its duty. Delay is inevitable with the present system.
iv) It is clear that a balance must be struck between two conflicting interests, that
of the complainant and that of the advocate and solicitor concerned. In our
opinion such a balance is not struck in the present system which is weighted
too much in favour of the advocate and solicitor.
v) Under the system no guidelines are laid down in the Legal Profession Act to
assist the State Bar Committees, the Inquiry Committees and the Disciplinary
Committees in the discharge of their duties. Every committee is master of its
own proceedings. The result is a lack of uniformity between various State Bar
Committees in the manner in which their duties are discharged.
65
vi) Under the system the Bar Council, the State Bar Committee and the Inquiry
Committee cannot mete out any punishment at the conclusion of any
proceedings before it. The Disciplinary Committee is the only body which has
the power to punish (except for the Court) which power is set out in Section
101. Under that section a Disciplinary Committee may make “such order as it
thinks fair and reasonable” including:-

[a] striking off the Roll;
[b] suspension from practice;
[c] imposition of penalty not exceeding $5000/- payable to the
Compensation Fund;
[d] censure;
[e] award of costs
We are of the view that the lack of power of punishment of the three bodies
is a serious disadvantage since it means that all punishment, however trivial,
have to be handed down by the Disciplinary Committee, particularly when
much time and energy has to be expended before a matter finally reaches the
Disciplinary Committee.
THE RECOMMENDATIONS OF TUN HUSSEIN ONN COMMITTEE
1. We propose to summarise our principal recommendations in this.
Our principal recommendations on substantive law are these:-
[a] the substitution of the expression “due cause” by the word “misconduct”
in Section 93 of the Act. [paragraph 23]
The Committee was not convinced of the appropriateness of the term
“due cause”. The term “misconduct” has been used in most often in
other jurisdictions and the Committee felt it is the most appropriate.
[b] the adoption of a new criterion “grave impropriety” as the acid test for
determining misconduct [paragraph 25]
What is “grave impropriety”
A charge of misconduct as relating to a solicitor need not fall within any
legal definition of wrong doing. It need not amount to any offence under
the law. It is enough that it amounts to grave impropriety affecting his
professional character and is indicate of a failure either to understand
or to practice the percepts of honesty or fair dealing in relation to the
Courts, his clients and the public. The particular transaction must be
judge as a whole and conclusion drawn whether it betokened witness
to be held out by the Court as a member of a profession in which
confidence could be placed.
The Committee’s definition of grave impropriety is modelled on Justice
Rich’s judgment in Kennedy v Incorporated Law Institute 13 ALJ 563.
The Committee further recommended that to constitute misconduct
the act (or omission) must be one of grave impropriety.
CASES & MATERIALS
See S94(3) paragraph (a) to (o) – it sets out catalogue of specific

instances which would amount to grave impropriety.
[c] the inclusion of the words “omission to act” in Section 93(2) to remove
any doubt that failure to act in circumstances where action is required
can amount to misconduct [paragraph 26]
[d] Inclusion of the word “or elsewhere” after the word Malaysia. This
is used to cover misconduct committed in foreign country. Having
considered a number of our practioners are members of foreign Bars
and turns in position to practise outside Malaysia and to the fact that
foreign travel is now a common place and frequent the Committee is
of the view that misconduct outside Malaysia should be the subject of
CLP
disciplinary proceeding.
66
[e] the inclusion of the words “or otherwise’ after the words “professional
capacity” in Section 93(2) to expressly cover misconduct committed by
an advocate and solicitor which does not affect his professional capacity
[paragraph 26]
“We are concerned that under the present system disciplinary
proceeding cannot be brought against an advocate and solicitor for any
misconduct which does not affect his professional capacity. This is a
serious lacuna.
See: W.E. Balasingam v The Bar Council 1986 1 MLJ 334
The High Court held that the Advocate and Solicitor concerned
cannot be punished for his personal conduct because of S93(2)
and S100(1) LPA 1976 (NB: This is a case before the Amendment
in 1992)
The Committee was of the view that in most societies an Advocate and
Solicitor are regarded by members of public with esteem and honour
and it is important that Advocate and Solicitor should not conduct their
affairs whether in private capacity or otherwise which could in any
way reflect adversely upon the profession. We are of the view that if
Advocate and Solicitor wish to remain in an honourable profession they
should at all times behave in on honourable way.
[f] the deletion of sub-paragraph (i) of Section 93(2) as presently constituted
(the provision relating to disbarrment in England) [paragraph 27]
The old S93(2)(i) provides that if an Advocate and Solicitor does an act
which if done by a barrister or solicitor in England would render him
liable to be disbarred or removed from the Roll he may be subject to
disciplinary proceeding in Malaysia. The Committee was of the view that
it is unrealistic because a substantial number of practioners today are
trained in countries other than England. Besides as a sovereign nation,
Malaysia should resolve its own system.
[g] the addition of three new categories of misconduct :-
[i] breach of duty to Court [paragraph 28]
[ii] the overcharging of fees or costs by an advocate and solicitor in
respect of professional services rendered by him [paragraph 31]
[iii] any failure by an advocate and solicitor in performing any work
in connection with his practice, being a failure which constitutes
a breach of his duty to his client and which amounts to a gross
disregard of his client’s interest [paragraph 30]
[h] the addition of a wider and broader catch-all provision relating to
misconduct [paragraph 32]
2. Our principal recommendations on procedure are as follows:-
[a] the replacement of the present four stage system by a two stage inquiry
[paragraph 34]
[b] the introduction of lay persons to sit as members at both stages of the
inquiry [paragraph 45]
[c] in respect of the first stage the establishment of Tribunal Panel

comprising of forty-five (45) members, consisting of thirty (30) advocates
and solicitors and fifteen (15) lay persons to sit in Tribunal Committees
of three members, comprising two advocates and solicitors and one lay
person [paragraph 35]
[d] such Tribunal Committees to have limited powers of punishment
[paragraph 37]
[e] in respect of the second stage the establishment of a Disciplinary
67
Panel, comprising of thirty members, consisting of twenty advocates

and solicitors and ten lay persons, to sit in Disciplinary Committees of
three members, comprising of two advocates and solicitors and one lay
person [paragraph 38]
[f] the retention of the right of any aggrieved person to appeal to the High
Court and thereafter to the Supreme Court against any decision of the

Tribunal and Disciplinary Committees [paragraph 39]
[g] the establishment of a Complaints Secretariat as the administrative body
dealing with all complaints against advocates and solicitors such body
being separate from and independent of the Bar Council [paragraph 40]
[h] the appointment of a Director to head the Complaints Secretariat, such
appointment being a full-time one [paragraph 40]
[i] the retention of Section 88A relating to the suspension of advocates and
solicitors [paragraph 56]
3. We believe that our recommendations seen as a whole will enable a fair and
just balance to be struck between the competing interests of a complaint and
the advocate and solicitor against whom the complaint is made. Our aim is to
ensure that an efficient, speedy and fair procedure exists for the disposal of
complaints against advocates and solicitors. We believe that if the Malaysian
Bar is to maintain the honour and prestige traditionally belonging to the
legal profession the need for reform of the disciplinary system is urgent and
imperative.
RE RAM KISHAN 1992 1 SLR 529 (Singapore Case)
[i] The applicant applied under s 61 of the Legal Profession Act (Cap 161, 1990
Ed) to be replaced on the roll of advocates and solicitors of the Supreme Court.
He was struck off the roll on 15 August 1983 by a court order. This followed
the finding of a disciplinary committee of the Law Society that the applicant
had violated the provisions of the Solicitors’ Accounts Rules 1967 and was also
guilty of grossly improper conduct in the discharge of his professional duties.
During the same period he had also pleaded guilty to a charge of criminal
breach of trust. It appeared that the, applicant’s conduct was the result of a
long history of a mental disorder known as manic depressive psychosis. Since
1956, despite various treatments, he had suffered several lapses, particularly
in 1966, 1969, 1973 and 1982. Recent psychiatric reports submitted in relation
to the application stated that the applicant showed no evidence at present of
manic depressive illness. Neither the Law Society nor the Attorney General
objected to the application.
Held by High Court of Singapore
[i] It is clear from the words of this section that the court has full discretion in
deciding whether or not to replace the name of an advocate and solicitor on
the roll. In Re Lim Cheng Peng [1988] 1 MLJ 231 the court of three judges
noted, inter alia, from this section that the discretion must of course be
exercised judicially and, in doing so, the court must consider the views of the
Law Society.
CASES & MATERIALS
[ii] An application for replacement on the roll may be made under the section at
any time, but as a general rule no advocate and solicitor who has been struck
off the roll ought to contemplate taking out an application for replacement on
the roll before the expiration of five years from the date of the order of striking
off. In taking out his application for replacement, the onus will be on him to
convince a court of three judges that he is still a person on whose integrity
and honour reliance may be placed. In exercising its judicial discretion as to
whether or not to replace the name on the roll, the court of three judges must
consider as its primary duty the protection of the interests of the public and
the profession as a whole over and above the interests of the applicant. The
application of a person who has previously been struck off the roll for grossly
improper conduct must necessarily be subjected to stricter scrutiny than that
CLP
68
of a new entrant to the profession who has no adverse record. Unless the court
is completely satisfied on all the material before it that there is no likelihood
that the applicant will repeat the same offence or any other offence of a similar
nature in the discharge of his professional duties, and that he is now deserving
of re-admission to an honourable profession, the court should not replace his
name on the roll.
[iii] In the present case, the applicant has had a long history of mental disorder,
dating from the time in 1956 when he was a student. Although the most
recent reports by the consultant psychiatrists indicate that he does not show
any manic depressive illness at present, it is noted that his medical consultants
have not been prepared to state at least that there is no likelihood of a relapse
in the future. Having regard to all the circumstances of which this court has
been made aware, we are of the opinion that, in the interests of the public and
the profession as a whole, it would be a wrong exercise of our discretion if we
were to order the replacement of his name on the roll. The application should
not be allowed and accordingly it is dismissed.
THAVANATHAN A/L BALASUBRAMANIAM v MAJLIS PEGUAM MALAYSIA [2007] 6
AMR 608 High Court
The applicant by way of a notice of originating motion in encl 1 sought an order that he
be restored to the Roll of Advocates and Solicitors of the High Court of Malaya under
s 17 of the Legal Profession Act 1976 (the Act). The applicant had been found guilty
of offences under the Prevention of Corruption Act 1961 and was sentenced to three
years imprisonment. After his release, the applicant applied to the respondent for his
1999 Sijil Annual in order to resume legal practice. The respondent agreed to issue him
with the said Sijil but reserved its right to lodge a complain against the applicant with
the Disciplinary Board (DB). The respondent by letter dated June 29, 1999 lodged a
complain against the applicant with the DB. The applicant resumed practice from July
3, 1999 to December 21, 2000 and ceased practice on January 1, 2001. Thereafter the
respondent’s record showed that the applicant joined a legal firm as a legal assistant
on January 2, 2002 and later joined another firm from April 17, 2002 to May 15, 2002.
The applicant’s last practicing certificate was for the year 2002 and this showed that
he was in legal practice for slightly over two years. The applicant was struck off the
Roll of Advocates and Solicitors of the High Court on June 12, 2002 by the DB despite a
recommendation by the Disciplinary Committee that he be suspended for six months.
On June 19, 2002 he appealed against that decision to the High Court. The High Court
dismissed the appeal. His appeal to the Federal Court was dismissed on October 30,
2003.
Issue
Whether the applicant was a fit and proper person to have his name restored to the
Roll.
Held, dismissing encl 1
1. The fact that the applicant had served the sentence by itself, was not sufficient
for him to come within the ambit of s 107 (1) of the Act. There was no choice
for the applicant but to serve the sentence. The mere fact of him having served
the sentence, although it was a factor to consider, was not per se sufficient for
him to be reinstated under s 107(1) of the Act.
2. On the facts, the applicant had never accepted the consequences of his
conviction especially the part that he was stuck off the Roll on June 12, 2002.
The originating motion in encl 1 to restore the applicant to the Roll was filed
on July 5, 2005. Calculation wise the applicant filed his originating motion
in encl exactly 1 year 8 months and 5 days after the decision of the Federal
Court. Obviously it was to soon for the applicant to apply for restoration to
the Roll. The lapse of time between the date of the order striking the name of
the applicant off the Roll and the date of the application for restoration was
far too short a time. Further, the applicant too had not averred that he had
repented in his affidavit in support. The applicant’s age also had a bearing
when considering the originating motion in encl 1.
69
ABDUL MALIK ISHAK, J

Section 107(1) of the Legal Profession Act 1976 enacts as follows:
107 High Court may restore an advocate and solicitor
(1) The High court may, if it thinks fair and reasonable, at any time order the
Registrar to restore to the Roll the name of an advocate and solicitor which

has been removed from or struck off, the Roll.
Ultimately, everything would be dependent on the facts of each case (Re Chin Swee Oon
[1964] 30 MLJ 124). According to Harun J, with Vohrah and Zakaria Yatim JJ concurring,
in Chan Chow Wang v Malaysia Bar [1986] 2 MLJ 159, 160 that:
In re-admitting applicants to the Bar, the court has a duty to litigants and to
the legal profession to ensure that such persons are of the highest integrity
and honour. The court must also be satisfied, in the public interest, that the
applicant is not likely to repeat these offences if he is re-admitted. The onus is
therefore on the applicant to show that:
(a) there has been such a change in his character as to make him a fit and
proper person to resume practice at the Bar;
(b) he is truly penitent; and
(c) he has made restitution.
In the present case the applicant has shown that:
(a) After the disbarment from Singapore he practiced in Malaysia and
observed the ethics of the profession;
(b) He has suffered professionally, socially and economically; and is truly
repentent;
(c) He has made restitution.
Barakbah CJ sitting with Ong and Gill JJ and writing for the court in Re Chin Swee Oon,
supra also spoke of the need for the applicant to be “truly penitent” (at p 124) before
reinstatement was allowed. In Singapore, in the case of Re Lim Cheng Peng [1988] 1
MLJ 231, Wee Chong Jin CJ sitting with Lai Kew Chai and Chua JJ construed the words
“if it thinks fit” that appeared in s 99 of the Legal Profession Act (Cap 161, 1985 edn)
to mean (see p 232):
A discretion is conferred by the Legislature, which must of course be exercised
judicially.
His Lordship Wee Chong Jin CJ also spoke of the time factor for reinstatement in these
salient words (see p 233:
We are of the view that unless there are exceptional circumstances, we would
say that, as general rule, no solicitor who has been struck off the Roll ought
to contemplate taking out an application under 99 of the Legal Profession Act
before the expiration of five years from the date of the order of striking off.
The Supreme Court with a coram of Hashim Yeop A Sani CJ (Malaya), Harun Hashim
and Mohamed Yusoff SCJJ In Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ
CASES & MATERIALS
190, 194 sets out the appropriate test, in the words of Hashim Yeop A Sani CJ (Malaya),
in this way:
In the final analysis the question here is simply whetheron the materials
available, it is fair and reasonable for the court to find that the appellant is a
proper person to have his name restored to the Roll and it is not against the
public interest to so order. Considering all the circumstances of the case it was
certainly fair and reasonable to allow the appellant’s name to be restored to
the Roll.
CLP
70
In my judgment, the fact that the applicant had served the sentence, that by itself,
is not sufficient for him to come within the ambit of s 107(1) of the Legal Profession
Act 1976. After being convicted and sentenced, the applicant cannot argue that a
concession should be accorded to him, so that he would come within the purview of s
107(1) of the Legal Profession Act 1976, just because he had served the sentence. Such
an argument cannot be accepted by this court for the following reasons:
(a) there is no choice for the applicant to choose from, he has to serve the
sentence;
(b) the mere fact of him having served the sentence, although it is a factor to
consider, is not per se sufficient for him to be re-instated under s 107(1) of the
Legal Profession Act 1976; and
(c) if it were otherwise, there is no necessity for Parliament to enacts 107(1) of
the Legal Profession Act 1976.
It is often said that to be a member of the legal profession, one has not only to
understand but also to accept the importance of integrity in the administration of
justice and it is this quality that will ultimately endear and serve the public interest.
Sufficient time lapse must prevail between the time the applicant was disbarred to the
time the applicant applied for reinstatement. With the passage of more time and the
growing maturity of the applicant, the applicant may be able to demonstrate to the
satisfaction of the court his sincerity in repenting his past misdeed. Sugerman J, writing
a separate judgment, had this to say in Ex parte Clyne at p 714 of the report:
The first care of the court must be to require a high standard of conduct at the
Bar, to insist upon its maintenance, and to guard against its being imperiled.
Manning J, also writing a separate judgment, aptly sad in Ex parte Cluyne at p 751 of
the report:
It does not by any means follow that disbarment was necessarily intended to
be permanent, but the burden in on the applicant to prove that there has been
such a change in him as to convert him from an unfit person to a fit person in
the relatively short space of time which has elapsed.
On appeal to Federal Court
THAVANANTHAN A/L BALASUBRAMANIAM v MAJLIS PEGUAM MALAYSIA [2010] 2
AMR 634 Federal Court
Advocates and solicitors - Test under s 107 of the Legal Profession Act 1976
Held, allowing the appeal with no order as to costs; appellant restores to the roll
1. (a) The test under s 107 of the LPA is whether, in the circumstances of the case,
it is fair and reasonable that the applicant be restored to the roll. There is no
stipulation under s 107 as to the period of time that must lapse between the
date of the order striking the solicitor off the roll and the date of his application
for replacement on the roll. The courts have the discretionary power to order
restoration as it deems fair and reasonable and this discretionary power must
be exercised judiciously.
(b) The facts of each and every case must be considered on its own special factual
circumstances bearing in mind there is no time frame stipulated under s
107 of the LPA before a disbarred member can be restored to the roll. The
sentences meted out on other similar comparable cases to the appellant’s

case should also be taken into consideration in determining whether it is fair
and reasonable to restore the appellant to the roll.
(c) On the facts the appellant has been duly punished. He had been convicted
of the offence and had served his sentence of three years imprisonment. A
conviction should not be regarded in every case as meaning that the person is
permanently unfit to be readmitted into the roll. Disbarment is not necessarily
intended to be permanent. It is for the appellant in this case to show that he is
now a fit and proper person to have his name restored to the roll.
71
(d) In comparison with PP v Wong Kim Fatt [1999] 3 CLJ 2188 wherein Wong Kim
Fatt was restored to the roll about three years after he had been struck off,
the appellant had also made his application to be restored to the roll about
three years after he had been struck off. There is no reason therefore why the
appellant should be treated differently, especially in view of the fact that both
the Bar Council and the High Court had agreed that the appellant’s case comes
within the ambit of PP v Wong Kim Fatt.

2. (a) The High Court had misdirected in holding that it was too soon for the applicant
to apply to be restored to the roll and that he must be willing to endure the
long wait before he applying to be reinstated.
(b) The findings of the High Court were unreasonable as it had failed to consider
the factors favourable to the appellant, based on which, the appellant had
a very strong basis for his restoration to the roll. The appellant has endured
a longer wait as compared to Wong Kim Fatt who was restored to the roll
after three years of being struck off. It is grossly unfair and reasonable for the
appellant to be made to endure the long wait before being allowed to apply
again for reinstatement to the roll.
(c) The appellant has pursued his rights and legal remedies accorded to him to the
fullest and it should not be construed as a challenge to the court’s integrity and
the system in place under the administration of justice. It is highly unreasonable
and inconsistent to provide the appellant with this right and remedy on the
one hand, and rob it by blaming him for exercising the same right and remedy
on the other hand.
(d) The appellant does not have to prove or show that he was repentant and
that he will maintain the integrity and the standards expected of him as a
practitioner. The fact that the appellant had filed his application to be restored
to the roll which was supported by the various letters of recommendation and
testimonial by senior members of the Bar and the Judiciary are more than
sufficient to show the appellant is now a fit and proper person.
STRAITS TIMES OF SINGAPORE dated August 26, 2005
SINGAPORE: The legal profession received a stinging rebuke from the Chief Justice
yesterday, as three errant lawyers were disciplined for lying, shoplifting and cheating.
“We can’t have lawyers going around telling lies,” CJ Yong Pung How said after hearing
that lawyer Joseph Chen Kok Seng lied to prison officers that he was visiting a prisioner
as a friend.
“It’s becoming a most naughty profession in the world,” he added.
“We have something like 6,000 lawyers here. We should strike them off the moment
they misbehave.”
Mr Chen was one of three lawyers who appeared before a special Court of Three Judges
of the Supreme Court to show cause why they should not be punished for engaging in
unprofessional conduct.
The judges - CJ Yong, Judge of Appeal Chao Hick Tin and Justice Tay Yong Kwang - heard
that Mr Chen misrepresented himself after his request to interview a prisoner was
CASES & MATERIALS
turned down three times by Admiralty West Prison.

The prisoner, Gabriel Baldwin, had been punished by the prison superintendent
for committing an offence while in jail and wanted Mr Chen to appeal against the
punishment. The court was not told why Baldwin was in jail or what his offence and
punishment were.
On Sep 6, 2001, Mr Chen, who is in his early 30s and has been a lawyer since July 1998,
lied to prison officers that he was merely a friend of Baldwin. When the men met,
prison officers saw the lawyer taking notes.
The Singapore Prisons Department complained to the Law Society, but Mr Chen failed
to appear at its disciplinary committee meeting last year.
CLP
72
Nor was he present at yesterday’s hearing.

Shaking his head sadly, CJ Yong said: “He couldn’t care less about appearing before the
disciplinary committee, couldn’t be bothered to defend himself”.
“What is the profession coming to?”
The judges unanimously suspended Mr Chen from practicing for four years. He was
also ordered to pay costs to the Law Society for the proceedings.
CJ Yong noted that there was a similar case in May. Lawyer Ong Ying Ping, 42, was
suspended for two years because he mislead prison officers into believing that a
woman he brought along when visiting a client was his assistant.
She was, in fact, the prisoner’s wife.
Referring to the two-year suspension given to Mr Ong, CJ Yong said his colleagues were
sometimes “too generous”, but the precedent has been set for the next time a lawyer
misleads prison officers.
The two other lawyers dealt with yesterday - a shoplifter and a cheater - were also
ordered to be struck off the rolls.
She stole from store, he stole from clients.
Five years ago, lawyer Lilian Ong walked out of Tangs department store with two
cheese slicers in her handbag and a kettle wrapped in a sweater. She was arrested for
shoplifting.
The lawyer of some 27 years was found guilty in May 2001 and sentenced to two
weeks’ jail.
The prosecution appealed, claiming the sentence was inadequate as Ms Ong, then 51,
was unrepentant and has insisted on a trial despite the overwhelming evidence against
her, including having been caught red-handed.
Hearing the appeal, Chief Justice Yong Pung How said Ms Ong had rather foolishly
claimed trial and doubled her sentence to four weeks.
Yesterday, Ms Ong was one of three lawyers who appeared before CJ Yong and two other
judges to show cause why they should not be punished for engaging in unprofessional
conduct.
The Chief Justice smiled as he said he could not hear Ms Ong’s case because “I’m the
one who increased her sentence”.
Justice Lai Siu Chiu then joined Judge of Appeal Chao Hick Tin and Justice Tan Lee Meng
to hear Ms Ong’s case.
They ruled that Ms Ong be struck off the rolls.
Earlier, the court struck off lawyer Jayaram Bala Subramaniam, who was jailed for 39
months in 2002 for pocketing nearly $238,000 of clients’ money. The court was told he
had made restitution but $128,000 was still outstanding.
The money was intended to pay registration and stamp fees for properties the clients
had bought. But Jayaram, who had been in the legal profession for more than 20 years
and owned a law firm, cashed their cheques to settle his personal bills.
Ms Ong and Jayaram were denied practicing certificates after their convictions.
LAW SOCIETY OF SINGAPORE v RICK THAM 1999 4 SLR 168

A & S of 18 years standing was convicted of a criminal offence under the Residential
Property Act. Law Society proceeded upon the conviction that he was guilty of conduct
implying a defect of character which rendered him unfit for his profession.
73
Held, striking off the A & S

(i) Whether or not the offence was committed in a professional capacity was
irrelevant because “due cause” was based on the nature of the offence
committed. However, if the offence was committed by the offender in his
capacity as an advocate and solicitor, that was an aggravating factor which the
court was entitled to take into account.

(ii) Disciplinary action under the Legal Profession Act served three functions,
(a) punishment of the errant solicitor for his misconduct;
(b) deterrence against similar defaults by other like-minded solicitors in the
future; and
(c) protection of public confidence in the administration if justice.
(iii) Where a solicitor had acted dishonestly, striking off would be the invariable
consequences. If a solicitor had not acted dishonestly, but was shown to have
fallen below the required standards of integrity, probity and trustworthiness,
he would nonetheless be struck off the rolls as opposed to merely being
suspended, if his lapse was such as to indicate that he lacked the qualities of
character and trustworthiness which were the necessary attributes of a person
entrusted with the responsibilities of a legal practitioner.
(iv) The offence of which the respondent was convicted was one involving
dishonesty and was not merely technical in nature. It was tantamount to the
commission of a fraud on the authorities. Abetting the attempted purchase by
a ‘foreign person’ of ‘residential property’ in contravention of the provisions of
the Act was an intentional circumvention of laws which for good reasons, the
legislature had seen fit to enact, laws which it was the duty of the respondent
as an advocate and solicitor to up hold.
LAW SOCIETY OF SINGAPORE v GEOFFREY HENG 2000 1 SLR 361
Facts
The DC found A & S guilty of improper conduct on the ground that
(i) misleading the other partner into releasing sum of RM180,000/- to him from
the firm’s client’s account;
(ii) deceiving others to buy option in property which already been sold;
(iii) withdrawing caveats lodged by clients without their authority
Held, striking the respondent off the rolls;
(i) Grossly improper conduct in the discharge of a solicitor’s professional duty
was conduct which was dishonourable to him as a man and dishonourable in
his profession. The respondent’s conduct in this case was dishonourable to
him as a man and as an advocate and solicitor.
(ii) The respondent was guilty of grossly improper conduct in the discharge of
his professional duty by withdrawing the caveats without the authority and
instructions of his client. Acting without express consent and authority and in
a manner opposed to a client’s interests would be grossly improper conduct.
CASES & MATERIALS
(iii) ‘Conduct unbefitting an advocate and solicitor’ under s 83(2)(h) of the Act was
not confined to misconduct in the solicitor’s professional capacity but also
extended to misconduct in the solicitor’s personal capacity.
(iv) The respondent’s dishonest misconduct would tend to bring the profession
as a whole into disrepute and thus his conduct could only be regarded as
unbefitting a solicitor.
(v) Where an advocate and solicitor had acted dishonestly, the court would order
that he be struck off the rolls.
CLP
74
LAW SOCIETY OF SINGAPORE v WEE WEI FEN 2000 1 SLR 234

A & S was convicted for 2 charges of forgery and one charge of cheating.
Held, striking the respondent off the rolls;
(i) It was not open to either the respondent or the court to go behind the
respondent’s conviction by virtue of s 83(6) of the LPA which states that any
conviction must be accepted as ‘final and conclusive’. The sole question for the
court’s determination was therefore simply what consequences should flow
from the fact that the respondent had committed the offences for which she
was convicted.
(ii) The offences of forgery and cheating both involved an element of fraud and/or
dishonesty. In cases of proven dishonesty, the court had almost invariably, no
matter how strong the mitigating advanced for the solicitor, ordered that he be
struck off the rolls.
(iii) There was no doubt that the gravity of the offences for which the respondent
was charged was serious. Both the offences of cheating and forgery impinged
greatly on the ability of the respondent to carry out her professional duties
with integrity and trustworthiness and unquestionably demonstrate that the
qualities of honour and uprightness were sorely lacking in her. The second
charge of forgery in particular related to an offence against the administration
of justice, which category of offence nearly always imply a defect of character.
With respect to the first charge of forgery, the respondent had acted on he
client’s behalf without their authority, thus subjecting them to grave prejudice.
Her conduct fell far short of the standard expected of any advocate and solicitor
admitted into practice.
(iv) In relation to the charge for cheating, the courts took a stern view of solicitors
who misplaced the trust reposed in them by their clients, many of whom
deposit not inconsiderable amounts of money with their much trusted legal
advisers. This was not a case in which the respondent was merely negligent or
careless, but rather, she knew full well of the defalcation involved when she
consciously and deliberately took money out of one client’s account to make
payment for and on behalf of a different client.
(v) In a case where the court was bound to consider the appropriate, order to be
made in respect of an advocate and solicitor convicted of a criminal offence
– particularly involving dishonesty – the paramount considerations must be
that of the protection of the public and the preservation of the good name of
the profession. In any case, the weight to be attached to a plea in mitigation
in disciplinary proceedings was negligible where the case was one involving
proven dishonesty, as striking off would often be the consequences as a matter
of course.
LAW SOCIETY OF SINGAPORE v FUN HUAY YEW [2005] 3 SLR 256
High Court
A settlement was reached and it was agreed that Toshiba be paid the net sum of
$635,000. Toshiba was unsuccessful in its repeated attempts to secure the release of
the $635,000 from the respondent. When the respondent eventually handed over a
post-dated cheque for $635,000, the cheque was dishonoured upon presentation for
payment. On learning that the respondent had absconded with the money. Toshiba
made a police report against the respondent for the misappropriation of the $635,000
and lodged a complaint with the Law Society. The Disciplinary Committee found that
cause of sufficient gravity existed for disciplinary action against the respondent. The
Law Society applied under S98(5) of the Legal Profession Act to make absolute an order
to show cause that had been made against the respondent.
75
High Court
The respondent was not permitted to continue to hold the stake once the event upon
which the stake was payable had occurred ie once the action was settled and Toshiba
was to be paid the sum of $635,000. The respondent’s refusal to pay Toshiba despite
its repeated and demands amounted to grossly improper conduct:
It was trite law that where a solicitor had acted dishonestly, the court would order

that he be struck off the roll. In feigning payment of the stakeholder money by using
a post-dated cheque, the respondent was clearly guilty of deception and dishonesty
constituting fraudulent conduct in the discharge of his professional duty.
“Wee Chong Jin CJ in RE MARSHALL DAVID [1972-1974] SLR 132 construed the phrase
“grossly improper conduct” to mean “conduct which is dishonourable to [the solicitor]
as a man and dishonourable in his profession”.
See Also
(i) LAW SOCIETY OF SINGAPORE v LIM KIAP KHEE [2001] 3 SLR 616
The solicitor there had deliberately breached an undertaking to pay over
moneys that he held as a stakeholder. The court held such conduct to be
grossly improper and the solicitor was struck off the roll even though he had
eventually made payment.
Chao Hick Tin JA, delivering the decision of the court, said:
“It is of the utmost importance that a solicitor should abide by the undertaking
he formally gives. It is the very foundation of an honourable profession that
its members act honorably. To deliberately breach an undertaking solemnly
given would seriously undermine the integrity of the profession and would
bring it into disrepute. Such a conduct, in our opinion, clearly constitutes
grossly improper conduct, especially in the circumstances here where the
respondent did not even border to explain himself”.
(ii) LAW SOCIETY OF SINGAPORE v LIM YEE KAI [2001] 1 SLR 721
The solicitor in question had misappropriated and absconded with money
from the client account maintained by the firm.
L P Thean JA, delivering the grounds of decision of the court, said
“that it is trite law that where a solicitor has acted dishonestly, the court
will order that he be struck off the roll. In that case, the solicitor wilfully
misappropriated his clients’ moneys for his own use. His conduct was dishonest
and dishonourable. In those circumstances, the court ordered that the solicitor
be struck off the roll”.
(iii) LAW SOCIETY OF SINGAPORE v CHIONG CHIN MAY SELENA [2005] 4 SLR 320
High Court
The respondent solicitor had decided to start up her own practice as a sole
proprietor. The respondent’s husband, acting as guarantor of the firm’s bank
accounts, was made a co-signatory to the firm’s client and office accounts with
the respondent’s permission. This was breach of s 77(2) of the Legal Profession
CASES & MATERIALS
Act (Singapore). The respondent had been suffering from manic-depressive

psychosis.
Unable to cope with the rigours and demands of a sole proprietorship, she
ceased practice six months later. This was done without notifying any of
her clients, the Law Society of Singapore or the Registrar of the Supreme
Court. Following enquiries made by the Law Society into the status of the
respondent’s practice, it was discovered that the respondent, in setting up the
firm, had failed to prepare or maintain any of the requisite financial records or
documents mandated by the Legal Profession (Solicitors’ Accounts) Rules. The
respondent was thus charged with two counts of having contravened s 83(2)
(b) of the LPA and one count of having contravened s 83(2) (j) of the LPA.
CLP
76
Following hearings before both the Inquiry Committee and the Disciplinary
Committee, the Law Society applied for and obtained an order under s 98 of
the LPA requiring the respondent to show cause before a court of three judges
why she should not be dealt with under s 83 of the LPA. The respondent was
an undischarged bankrupt at the time of the show cause hearing.
Held, suspending the respondent from practice for one year:
Any breach of the Solicitors’ Accounts Rules would be deemed to warrant
disciplinary action. However, each case would have to be resolved on its
own merits. It seemed neither possible nor practical to catalogue the various
consequences for breaches of these obligations.
Breaches of the Solicitors’ Accounts Rules imposed strict, if not absolute,
liability on solicitors. As such, no proof of willful conduct is necessary to
establish a breach of the Solicitors’ Accounts rules. Furthermore, s77(3) of the
LPA clearly warranted disciplinary action against a solicitor who permitted an
unauthorised person to operate a solicitor’s account in contravention of s77(2)
of the LPA:
While there could be no doubt that the respondent had conducted
herself and the affairs of the firm in a wholly inappropriate manner, it
was acknowledged in the final analysis that there was the absence of
any client or third party loss and, just as importantly, the absence of
any element of dishonesty on the respondent’s part. The respondent’s
indiscretions were caused purely by human frailty and not by a character
defect or deficit:
The appropriate punishment had to be tempered by some measure of
sensitivity to the respondent’s plight. The respondent was clearly an able
person who ought to be able to practice once her medical condition stabilised.
Furthermore, it was noted that there had been no complaints about the
respondent when she had previously practiced as an associate in various firms.
As such, a period of suspension from practice of one year, coupled with an
undertaking from the respondent that she would not commence another sole
proprietorship, would be an appropriate penalty in the present case:
[Observation: Bankruptcy did not invariably connote dishonesty; nor did it
preclude a solicitor from resuming practice once he had been discharged. The
purport and intent of s 83(2) (c) of the LPA made it amply evident that a solicitor
who had been made a bankrupt, without being guilty of any impropriety, was
not ipso facto denied a right to practice because of a prior act of bankruptcy or
indeed, actual bankruptcy:
There were three pre-existing sentencing considerations, namely: (a) the
protection of the public; (b) the safeguarding of the collective interests and
standing of the legal profession; and (c) the punishment of the offender.
(iv) IN RE A SOLICITOR (1962) 3 MC 323
Thomson CJ said:
“The legal profession enjoys very great privileges. In return for these privileges
they owe the public a duty involves not only an extremely high standard or
probity but a way of conducting business, and particularly business in relation
to financial matters, which is beyond suspicion. In particular it is required, and
it is part of the price the profession must pay for its privileges, that separate
accounts of solicitors’ money and clients’ money should be kept.”
(v) IN RE A SOLICITOR [1972] 1 WLR 869
Lord Denning MR observed, that negligence “may amount to a professional
misconduct if it is inexcusable and is such as to be regarded as deplorable by
his fellows in the profession”.
77
(vi) BOLTON V LAW SOCIETY [1994] 1 WLR 512

Sir Thomas Bingham MR asserted both pointedly and correctly on behalf of the
Court of Appeal that even if the acts of a solicitor were honest, it would still be
professional misconduct to depart from the rules that bound solicitors. It is plain to
us that breaches of accounting rules made pursuant to the statutes governing the
legal profession impose strict, if not absolute, liability on solicitors. As such, no proof

of willful conduct is necessary to establish a breach of the Solicitors’ Accounts Rules.
(vii) LAW SOCIETY OF SINGAPORE V RAVINDRA SAMUEL [1999] 1 SLR 696
The High Court held that the three primary factors that ought to be taken into account
in determining the appropriate penalty are:
(a) protection of the public;
(b) safeguarding of the collective interests and standing of the legal profession;
and
(c) the punishment of the offender.
The general approach that the court will adopt in disciplinary cases involving solicitors
is encapsulated in the following passage in Law Society of Singapore v Ravindra
Samuel (per Yong Pung How CJ):
(1) where a solicitor has acted dishonestly, the court will order that he be struck
off the roll of solicitors;
(2) if a solicitor is not shown to have acted dishonestly, but is shown to have
fallen below the required standards of integrity, probity and trustworthiness,
he will nonetheless be struck off the roll of solicitors, as opposed to merely
being suspended if his lapse is such as to indicate that he lacks the qualities of
character and trustworthiness which are the necessary attributes of a person
entrusted with the responsibilities of a legal practitioner.
We are persuaded and satisfied that the respondent was not dishonest in her conduct.
She was medically unwell. She was unable to exercise her better judgment when
she decided to commence a sole proprietorship. As Assoc Prof Leslie Lim succinctly
stated in his report:
This illness has caused clouding of judgment and hence the making of decisions
without proper regard to their consequences.
We also note, although this is by no means crucial, that no client or third party has
suffered any financial loss as a consequence of her conduct. Nor is there any evidence
before us that she professionally mishandled any files during her brief sojourn as a
sole practitioner.
To sum it up, while there can be no doubt that the respondent has conducted herself
and the affairs of the firm in a wholly inappropriate manner, one must acknowledge in
the final analysis the absence of any client or third-party loss and, just as importantly,
the absence of any element of dishonesty on the respondent’s part. In Law Society of
Singapore v Prem Singh [1999] 4 SLR 157, the respondent was charged with:
(a) failing to deposit his client’s money into a client account as required by r 3 of
the then applicable Solicitors’ Account Rules; and
CASES & MATERIALS
(b) failing to keep proper written accounts of his dealings with client’s money as
required by r 11(1) (a) (i) of the same Solicitor’s Accounts Rules.
Finding that the solicitor was also not guilty of dishonesty in that case, the court
determined that a suspension for a period of two years was appropriate. We
note, however, that the solicitor in that case was a senior practitioner of 23 years’
standing when the complaint was made against him. Furthermore, he could neither
satisfactorily nor adequately explain nor justify his failure to adhere to the Solicitors’
Accounts Rules.
CLP
78
Bankruptcy does not, however, invariably connote dishonesty; nor does it preclude
a solicitor from resuming practice once he has been discharged. The purport and
intent of s 83 (2) (c) of the LPA makes it amply evident that a solicitor who has been
made a bankrupt, without being guilty of any impropriety, is not ipso facto denied a
right to practice because of a prior act of bankruptcy, or indeed, actual bankruptcy. A
solicitor will have his name stuck off the roll if he is found guilty of any of the acts or
omissions specified in s 124 (5) of the Bankruptcy Act (Cap 20, 2000 Rev Ed (“BA”). In
this case, the respondent did not commit or omit to do any of the acts stated in s 124
(5) of the BA. Her bankruptcy was the direct consequence of her illness and clouded
judgment.
ADVOCACY & DUTIES
OF COUNSEL
(CASES & MATERIALS)
81
Advocacy & Duties of Counsel (Cases & Materials)

Duties of Counsel

1. DUTIES OF COUNSEL
SHAW & SHAW LTD v LIM HOCK KIM (No. 2) 1958 MLJ 129
Whyatt CJ
... an advocate should be fearless in carrying out the interests of his client, but I couple
that with this qualification and this restriction, that the arms which he wields are to
be the arms of the honesty warrior and not of the assassin. It is his duty to strive to
accomplish the interest of his clients per fas and not per nefas. It is his duty, to the
utmost of his power, to seek to reconcile the interests he is bound to maintain and the
duty it is incumbent upon him to discharge with the eternal and immutable interests of
truth and justice.
COPELAND v SMITH 2000 1 AER 457
The issue here arose over the interpretation of s 14 of the Limitation Act 1980: whether
the knowledge of the solicitor or his action or inaction was attributable to, or be deemed
to be that of, the client. The trial judge needed assistance. Counsel advised him,
despite short adjournment, that the point was free of authority. The judge expressed
surprise that there was no authority on the point despite the Act having been in force
for some time. However, the judge concluded in the plaintiff’s favour. On appeal it
was freely conceded by Counsel (who did not appear before the judge) that the judge
was wrong. There was indeed binding decisions of the Court of Appeal contrary to the
judge’s decision. In the Court of Appeal, Counsel produced a copy of the transcript, not
the law report, of that earlier authority. That authority had indeed been reported in
the Weekly Law Reports some four and a half months before the hearing in the court
below. Both Brooke and Buxton LJJ expressed their disappointment at Counsel who
appeared before the trial judge. Buxton LJ said:
“It is not extremely discourteous to the judge not to inform his properly
about the law, but it has also been extremely wasteful of time and money in
this case, because not only did the judge have to deal with the matter, but it
has also formed an issue in the appeal to this court. I have, I fear, to say that
the advocates who appeared below did not discharge their duty properly to
the court in that they have apparently failed top be aware of the existence
of that authority”.
Brooke LJ prescribed the norm:
.... It is quite essential for advocates who did not hold themselves out as
competent to practice in a particular field to bring and keep themselves
up to date with recent authority in that field. By ‘recent authority’ I am
not necessarily referring to authority which is only to be found in specialist
reports, but authority which has been reported in the general law report.
CASES & MATERIALS
CLP
81
82
Datuk Seri S. Samy Vellu v S. Nadarajah [2001] 1 AMR 1

Abdul Wahab Patail J
“While our legal system appears to be and is often described as adversial in
nature, advocates themselves must not lose sight of the fact that, in order
that justice be done according to law, they must assist the court correctly as
to the law. It is not a contest where the object is that the fighter who betters
his opponents wins. The object of a trial is to determine the truth and to
apply the law correctly to the truth. Only by so acting could advocates be
better able to assist the administration of justice to do justice according to
law. For that very reason advocates have also been described as officers of
the court. The public interest is best served not by who wins the battle of
wits, but by whether justice is done according to law.”
YAP BAN TICK & 3 ORS v STANDARD CHARTERED BANK 1995 Court of Appeal
Mahadev Shankar JCA: “the legal profession has great power and responsibility.
We must never forget that the lawyer has a double loyalty to his client and to the
law. He must do his utmost for one but never at expense of the other. There are
many occasions in practice when it would help the client to ignore an inconvenient
letter not to correct a misconception in the judge’s mind, or to suppress an adverse
authority. It must never be done, because if the legal profession ceases to enjoy the
confidence of the state, the state can no longer afford to abide by the Rule of Law,
and democracy will perish.”
IS THERE A DUTY TO INFORM THE COURT THE CHARACTER OF THE WITNESSES?
BRADDOCK v TILLOTSON’S NEWSPAPERS LTD 1950 Court of Appeal
Lady MP brought an action for defamation against newspaper who said she “danced
a jig” across the floor of the House of Commons. The case turn on the jury would
believe - Lady MP or Reporter who said he had seen the incident. The action failed
as the jury believed the reporter. Lady MP subsequently found out the character of
the Reporter and appealed on the ground that .... the reporter had criminal record,
been many times convicted of stealing and other offences involving dishonesty i.e. the
reporter’s credibility is a suspect. The counsel for the Defendant knew the true status
of the witness but did not inform the court.
CA rejected the appeal. Fresh evidence going to credit of witness could only be admitted
where there was more than reasonable probability that a different result would have
been reached. The court is not convinced by that reason alone that Plaintiff would have
succeeded.
TOMBLING v UNIVERSAL BULB CO. LTD. 1951 2 TLR 289 Court of Appeal
In an action for the recovery of debt, the principal witness was a person who was serving
time in prison for motoring offence. He came to court in his ordinary civilian clothes
together with wardens in plain clothes who remained discreetly in the background.
Counsel for Plaintiff who called the witness:
(a) knew that he came from prison but did not disclose it to court.
(b) asked the witness if he resides at a certain address knowing that he was not
residing there. The witness replied in the affirmative.
The judge accepted the testimony of the witness (he was the material witness).
At the hearing of the appeal, counsel for the defendants, the appellants, applied to
adduce further evidence by cross examining the witness in question who was brought
from prison to give evidence at the trial by a warder in plain clothes in respect of
matters going to credit. This fact was not known to the Judge or to the defendants’
counsel at the time of trial. Whether counsel for the plaintiff should have told the
Court?
83
Lord Denning
Not only had the plaintiff failed to draw the Judge’s attention to the fact that the witness
M was then serving a sentence of imprisonment, but the plaintiff’s had in a sense
concealed it from the Judge by the leading questions which they put to the witness.
The raises an important question of professional duty.
“I do not doubt that, if a favourable decision has been obtained by any

improper conduct of the successful party, this court will always be ready to
grant a new trial. The duty of counsel to his client in a civil case - or in defending
an accused person - is to make every honest endeavour to succeed. He must
not, of course, knowingly mislead the Court, either on the facts on the law,
but, short of that, he may put such matters in evidence or omit such others as
in his discretion he thinks will be most to the advantage of his client..........,
when it comes to his speech, he must put every fair argument appears to him
to help his client towards winning his case. The reason is because he is not the
judge of the credibility of the witnesses or of the validity of the arguments.
He is only the advocate employed by the client to speak for him and present
his case, and he must do it to the best of his ability, without making himself
the judge of its correctness, but only of its honesty.”
Tried by these tests, I see nothing improper in the conduct of the case for the plaintiff.
There is no duty on counsel to tell the Judge that a witness comes from prison to give
evidence, any more than there is to tell the Judge that he has had previous convictions.
It is irrelevant save as to his credit, and no counsel is bound to bring before the Judge
the discreditable facts in the life of his witness; for they do not meant that he is not
to be believed on this occasion. Counsel did indeed ask the witness if he lived at 96,
Church Road, to which he answered “Yes”. If that had been done knowingly to mislead
the Court, it would be improper. But after hearing (counsel of the Plaintiff) I am quite
satisfied that it was not done to mislead. This question was only asked so as to give the
man’s permanent address, without disclosing the discreditable but irrelevant fact that
he was at present in prison for a motoring offence.
I agree that the appeal should be dismissed.
CONTRA
MEEK v FLEMING 1961 Court of Appeal
Plaintiff brought an action against Defendant (Police Officer) for damages for false
imprisonment. Counsel for Defendant told the Defendant to come to court in civilian
clothes, this hiding the fact that he had been demoted from Station Inspector to
Sergeant because of disciplinary proceedings. Plaintiff appealed on discovery of this
fact.
CA ordered new trial on grounds of fresh evidence because the evidence would
probably have an important influence on the result of case. (Though such evidence
need not be decisive, they must be apparently credible and could be obtained with
due diligence).
Pearce LJ: the information that the Defendant had been demoted will have an impact
on the case as:
a) Judge on summing up, indicated by constant reference to Defendant’s rank
CASES & MATERIALS
that he considered D’s rank and status as relevant to credibility, in the case
where there was “oath against oath” and there were questions on D’s conduct
in the course of duty.
b) D’s counsel emphasized on status of D as a Police Officer. The Counsel contrast
unfavorably the Plaintiff’s background against the D’s status as a Police Officer.
This shows the great importance they attach to the fact concealed.
c) If Plaintiff had known the true facts and had elicited them in cross examination,
it seems very unlikely that the jury would accept the D’s case. Because without
knowing the true facts, the jury already took four (4) hours for deliberations.
CLP
84
Agreed with Dennning LJ in Tombling where in that case the failure to disclose the
character of witness was only incidental significance, since conviction for a motoring
offence was a wholly irrelevant offence having regard to the issues in that case (i.e. for
recovery of debt). Further, the counsel’s failure was not done knowingly to deceive the
court.
Held on facts: when a party deliberately mislead the court in a material manner, e.g.
concealment of a matter of vital significance ...judgment obtained by deception
should not be allowed to stand.
Pearce LJ
“In this case it is clear that the judge and jury were misleading on an important
matter. .......... I accept that in the present case the decision to conceal the
facts was not made lightly but after anxious consideration. In my judgment
the duty to the court was here unwarrantably subordinated to the duty to
the client. It is no less surprising that this should be done when the defendant
is a member of the Metropolitan Police Force on whose integrity the public
are accustomed to rely. Since the defendant and his advisers thought fit to
take so serious step they must, in the light own intimate knowledge of their
case, have regarded the concealment as being of overwhelming importance
to their success. Therefore, I am not prepared to countenance their present
argument that it may have made no difference to the result. Having regard
to the decision of the court and the materiality of the fresh evidence, the
appeal should be allowed with costs, and that there should be an order for
a new trial”.
Note: After delivery of the judgment the following statement was made by Victor
Durand, Q.C.: I indicated last week in the course of my argument your Lordships that
I took responsibility for the decision; I hope that the words I used then left the court
under no misunderstanding as to my personal responsibility. It is right that I should say
as emphatically and clearly as I can, that the decision not to make disclosure of the
defendant’s change of status was mine, and mine alone. Having come to the conclusion
that this course was justifiable, I determined and dictated the policy which was thereafter
followed during the course of the trial. Neither my learned junior counsel, Mr. Stabb,
nor my instructing solicitor was responsible for initiating or pursuing that policy, and,
indeed, they expressed their disapproval of it. I thought it right, having regard to the
observations made last week, to make that statement before your Lordships in open
court, and I am very grateful to your Lordships for allowing me to make it.
YEE CHANG & CO LTD v NV KONINKLIJKE PAKETVAART MAATSCHAPPIJ [1958] MLJ
131
it was held that an advocate who becomes aware in the course of proceeding that his
client is obstructing the interests of justice has a duty to advise his client about this,
and if the client persists in his wrong conduct, the advocate should decline to act for
him further..
R v BANKS 1916
The counsel during address to jury, exhorted them “to protect young girls from men
like the prisoner”. Jury returned guilty verdict.
On appeal the court held that the counsel had made observation calculated to prejudice
jury.
Held: Prosecution counsel have a duty:-

i) not to secure conviction at all cost and
ii) not to address jury or curt so as to prejudice the accused.
TUCKIAR v THE KING 1934 AUS HC
T. was an aborigine charged for murder of a Police Officer. Counsel asked for an
adjournment at a point when the evidence came where T. alleged another Policeman
is involved. The court granted an adjournment and ask counsel to check it out. When
case resumed, in the open court, he (counsel) made statement that he is facing a great
85
dilemma and thereafter did not vigorously pursue the defence of T.T. was convicted.
Between conviction and sentencing, counsel thought it fit to stand up and made
statement which exonerated the other policeman which T. had implicated. This affected
the judge who then sentenced T. to be hang.
The court reprimanded action of the counsel. His statement enoxerating the policeman
was hardly in keeping with his duty as counsel.

R v TURNER 1970 Lord Parker CJ
Defendant was charged for theft. Counsel advised D to change plea to one of guilty. D
changed plea and was convicted and sentenced to imprisonment.
On appeal, the court held that there was no evidence that D’s exceeded his duty in
advising D to plead guilty. However the plea of guilty is still a nullity because D had the
impression that counsel’s view were those of the trial judge (as he saw counsel walking
with Prosecution to the Judge’s chamber and advise came when counsel came out to
the corridor) when in fact they were the personal views of counsel.
Appeal allowed and new trial ordered.
FOUR GUIDELINES IN PLEA BARGAINING PROCESS per Lord Paker CJ
(i) Counsel must be completely free to do his duty to give D the best advise. This
will often include advise that a plea of guilty, showing an element of remorse,
is mitigating factor which may well enable court to give lesser sentence than
would otherwise be the case. Counsel must emphasize that D must not plea
guilty unless he has committed acts which constitute the offence charged.
(ii) Accused having considered counsel’s advise, must have complete freedom of
choice whether to plead guilty or not guilty.
(iii) There must be a freedom of access between both counsel and Judge.
(iv) The Judge should never indicate the sentence which he is minded to impose.
The judge should only be permitted to indicate the form of the sentence e.g. whether
fine or imprisonment.
If there is a discussion on sentence between judge and counsel, the D counsel should
disclose this to the accused and inform him of what took place.
NEW TUCK SHEN v PP 1982 Wan Yahya J
Accused’s attempt to retract plea of guilty failed after plea bargaining went wrong.
On appeal, the accused argued on basis of R v Turner, retraction should have been
allowed.
Held: Plea bargaining between the prosecution and the defence could only form a
ground of appeal if the accused has been mislead as to the consequences of his plea.
The onus is on the appellant to satisfy the court that he has been laboring under such
mistaken belief of law or fact at the time when he pleaded guilty to the charge and in
this case he failed to do so. In this case the appellant should have known that even if
prosecution had kept to its promise not to press for deterrent sentence, such promise
will be of little or no use as the power to impose sentence lies with the court and not
with counsel for the prosecution or defense.
CASES & MATERIALS
YONG & CO v WEE HOOD TECK DEVELOPMENT CORPORATION 1984 Federal Court
Appellant, a firm of solicitors acted for developers, purchaser and the financier in
transaction was issued by financier for negligence and breach of contract.
Syed Agil Barakbah FJ:
It should be noted that the practice of having a common solicitor acting for both
parties although legitimate and is recognized by the order governing non-contentious
remuneration has inherent dangers in it. The appellants being in that invidious position
and on discovering that they are unable to properly discharge their duties fairly should
have inquired of the Respondents whether their obligations to prepare the charge was
superseded of had come to an end. They failed to do so.
CLP
86
ORIENTAL BANK BHD v ABDUL RAZAK ROUSE 1986

Defendant, an advocate and solicitor acted for both the Bank and the Borrower in
preparation and registration of charge. Issue: whether Defendant breached undertaking
given to Bank.
Abu Mansor J: the position in which the Defendant found himself in is well set out: It
is impossible for the same person to give satisfactory service as the confidential and
expert adviser of two parties with conflicting interests. The man who undertakes to
serve two masters may easily find himself in a position where he must be false to one
and possibly to both.
The common solicitor has the most difficult duties to discharge:
(i) Duty of Disclosure
Where solicitor acts for a party he is under duty to disclose whatever
information he had received in the subject to his client, he cannot withhold
information from client.
(ii) Duty of Confidentiality
If the information was adverse to the developer what is the consequence of disclosing
it to the purchaser.
RAKUSEN v ELLIS MUNDAY & CLARKE 1912
Plaintiff applied for an injunction to prevent Lawyer from acting for Defendant where
Plaintiff had earlier consulted with the Lawyer’s partner on same matter.
Cozens Hardy MR: solicitors of highest honour and integrity may frequently be able
to act in the same manner for a new client, and at the same time may be able to
avoid disclosing secrets without putting any strain upon their memory conscience and
integrity.
BEEVIS v DAWSON
Counsel must not engage in personal bickering and acrimonious (ill-felling) exchange
of words in court with opposing counsel. This would undermine the counsel’s duty to
court and their clients i.e. it will be subordinated by personal quarrel.
Court observed that between counsel on either side, you can make comments here
and there but no to put bickering in the forefront.
The veil of privilege/immunity may be “pierced” if counsel engaged in a deliberate or
malicious act or where it can be shown that counsel abuse his position.
ROY v PRIOR
Prior (P) was a witness called by D (a lawyer) in a case in which the D was acting. D
has, acted for P. in a previous case. There was now some animosity between P and D.
It was known to D that when P is called as witness, he will not be able to turn up. D
applied for warrant of arrest of P had deliberately ignored the summons to appear as
a witness. D knew this representation is false and also that he was obtaining warrant
of arrest on false pretence by deceiving the court. P brought action for damages. D set
up of defence of immunity. Court rejected on the basis that immunity is lost because
it was a malicious act.
On appeal to HL: there are limits to immunity, if privilege is abused, immunity will lost.
On the facts there is loss of immunity for the Defendant because of his malicious acts.
RAJASOORIA V DISCIPLINARY COMMITTEE 1955 Privy Council
The issue which arose for determination was whether on the facts of the case the
appellant (an advocate and solicitor) was guilty of grossly improper conduct. The
appellant acted for several shareholders of a company. The shareholders, wanted to
call an extraordinary meeting of the company with a view to removing the directors and
secretaries and replacing them by their own nominees. For that purpose a requisition
was prepared and signed by a total of 90 shareholders and was handed to the appellant
who forwarded it to the Registrar. The Registrar however, returned the requisition for
non-compliance with s. 115 of the Companies Act (i.e. the requisition should have stated
87
the names of the dissatisfied shareholders nominees for appointment as directors and
secretaries). A new requisition was subsequently prepared to effect that amendment.
The appellant cut off the signatures from the original requisition and attached them by
pasting them onto the sheets of the new amended requisition and signed his name.
At the date of the later purported requisition certain of the alleged 90 signatories we
in fact, and contrary to the appellant’s belief, no longer shareholders of the company.

The Disciplinary Committee was of opinion that the appellant had been guilty of grossly
improper conduct but that he did not act with intention to deceive. That finding was
accepted by the Supreme Court, who suspended the appellant from practicing from a
period of six months.
The Privy Council held that for an advocate and solicitor knowingly and deliberately to
submit a false document intending to be acted upon was grossly improper conduct as
being dishonourable both to himself and to his profession. The submission of such a
document with such intention in itself involved an element of “deceit”. However, the
Privy Council further held that a finding of an intention to deceive us not always an
essential element in grossly improper conduct.
YEE CHANG & CO LTD v NV KONINKLIJKE PAKETVAART MAATSCHAPPIJ [1958] MLJ
131
it was held that an advocate who becomes aware in the course of proceeding that his
client is obstructing the interests of justice has a duty to advise his client about this,
and if the client persists in his wrong conduct , the advocate should decline to act for
him further. On facts, despite the fact that the action had been settled, the defendant’s
advocate continued for several weeks after the settlement to write letters on behalf
of their clients resisting the plaintiff’s advocate’s request for payment. The effect of
this conduct was to wrongfully deprive the plaintiff’s of the sum lawfully due to them.
The court stated that the advocate owes a duty to the court to conduct litigation with
due propriety and to assist in promoting in his own sphere the cause of justice. In this
case the advocate had acted as the instrument by which the client could perpetrate
the wrong. As an officer of the court it is not the advocate’s role to act as an agent for
his client. If he does he would no longer be acting in an advisory capacity as he would
be merely taking instructions from his client. The advocate must always maintain his
independence and objectivity and serve his client from that perspective.
RONDEL v WORSLEY 1967 3 ALL ER 993 (House of Lords)
Facts:
Rondel issued a writ against Mr. Worsley claiming “damages for professional negligence.”
He acted in person and wrote out his own statement of claim. It is a complaint that Mr.
Worsley was negligent in the conduct of the case in three respects:
i) he failed to cross-examine the witnesses for the prosecution so as to show that
it was impossible for the injury to have been caused by a knife.
ii) he failed to elicit from Miss Hogan, one of the witnesses for the defence, that
Manning had several friend who could have assisted him in the fight.
iii) he failed to elicit, or to call witnesses to prove, that Rondel was employed as
rent collector and caretaker and was authorized to go onto the premises.
CASES & MATERIALS
HIGH COURT decision: Lawton. J.

In my judgment any advocate, be he barrister or solicitor, who appears for a client
before a court of law is an officer of justice just as the judge is; and, as in the case of
the judge, PUBLIC POLICY requires that he should be protected from suits brought
by disgruntled litigants. I am satisfied that were the law, otherwise, a number of evils
would follow.
i) First the judges would stop getting from the Bar and from solicitors acting as
advocates, the help which they do get. Instead of thinking all the time how
best to help their clients and the administration of justice, advocates would
have to start thinking about how to protect themselves from allegations of
CLP
88
negligence made by disgruntled clients. Few advocates would dare to take a

short cut or drop a point. (overriding duty of court)
ii) Secondly, those with unpleasing or paranoid personalities would have difficulty
in finding advocates to represent them. (cab-rank rule)
“From the moment that any advocate can be permitted to say that he will or
will not stand between the Crown and the subject arraigned in the court where
he daily sits to practice, from that moment the liberties of England are at an
end.” (per Erskine, when he was deprived of his office as Attorney General to
the Prince of Wales for accepting a brief to defend Tom Paine)
iii) Thirdly, the courts would find themselves burdened with cases which would
be well-nigh impossible to try. Plaintiffs for example, might well allege, as
this plaintiff has that counsel had been negligent in cross-examining as he
did. In order to try such an issue the first case would have to be tried all over
again, probably years after the events about which the witnesses had spoken.
Worse still would be the cases in which the allegation was that counsel had
negligently omitted to ask questions. Every experienced advocate knows that
one of the most difficult aspects of the art of advocacy is to know when to
stop. The judge’s face has to be watched and an ear kept open for shuffling
feet in the jury-box. None of this could be brought back into court months
or years afterwards. Many who had been convicted of criminal offences and
who had unsuccessfully exhausted all their rights of appeal would seek, may
be years later, to get a retrial by means of an action for negligence against
the advocates who had defended them. There would be no end to litigation.
(Relitigation)
iv) Judges, witness and advocates are given immunity for what they say in court.
Conclusion
I have set out at length why I adjudge that advocates cannot be sued for negligence in and
about the conduct of their clients’ cases in court, and have used the word “advocate,”
not “barrister,” because in my judgment the immunity from suit arises from the part
which an advocate plays in the administration of justice not from membership of
an Inn of Court. I suspect that which has taken me a long time to expound was self-
evident principle to former, and probably wiser, generations of judges. It follows that
there would be no point in giving the plaintiff leave to amend; accordingly I dismiss the
appeal, with costs.
Court of Appeal’s decision
Lord Denning MR
i) Immunity for judges, witnesses and advocate
“There is, my judgment, a sure ground on which to rest the immunity of a
barrister. At any rate, so far as concerns his conduct of a case in court. It is
so that he may do his duty fearlessly and independently as he ought: and to
prevent him being harassed by vexatious actions such as this present one now
before us. It is like the ground on which a judge cannot be sued for an act
done in his judicial capacity however corrupt: Scott v Stansfield (1868); and on
which a witness cannot be sued for what he says in giving evidence, however
perjured: see Dawkins v Lord Rokeby (1875), Hargreaves v Bretherton [1959]
1 QB 45 and on which an advocate cannot be sued for slander for what he says
in court, however malicious see Munster v Lamb (1883) 11 QBD 588 CA”.
ii) Overriding duty to court and administration of justice
“As an advocate he is a minister of justice equally with the judge. He has a
monopoly of audience in the higher courts. No one save he can address the
judge, unless it be a litigant in person”.
“He has a duty to the court which is paramount. It is a mistake to suppose
that he is the mouthpiece of his client to say what he wants; or his tool to do
what he directs. He is none of these things. He owes allegiance to a higher
89
cause. It is the cause of truth and justice. He must not consciously mis-state
the facts. He must not knowingly conceal the truth. He must not unjustly make
a charge of fraud, that is, without evidence to support it. He must produce all
the relevant authorities, even those that are against him. He must see that his
client discloses, if ordered, the relevant documents, even those that are fatal
to his case. He must disregard the most specific instructions of his client, if they
conflict with his duty to the court. The code which requires a barrister to do all

this is not a code of law. It is a code of honour. If he breaks it, he is offending
against the rules of the profession and is subject to its discipline. But he cannot
be sued in a court of law”.
iii) Cab-rank rule
“A barrister cannot pick or choose his clients. He is bound to accept a brief
for any man comes before the courts. No matter how great a rascal the man
may be. No matter how given to complaining. No matter how undeserving or
unpopular his cause. The barrister must defend him to the end. Provided only
that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He
must accept the brief and do all he honourably can on behalf of his client”.
iv) Relitigation
“Another ground of public policy is this: If a barrister could be sued for
negligence, it would mean a retrial of the original case. Damage is the gist of
an action for negligence. In order to succeed the plaintiff would have to show
that he was wrongly convicted. See what this means. Illustrate it by this very
case of Rondel. He has already been tried by a jury and been convicted. He
has already put his complaint against his counsel before the Court of Criminal
Appeal. If there had been any miscarriage of justice, the court would have
taken steps to correct it. They were satisfied there was none. They rejected
his application. Is he to be allowed to canvass his guilt or innocence again in
a civil court? And try the case afresh in an action against his own counsel? I
cannot think this would be right. Once a man has been convicted by a jury of a
crime and his appeal rejected, he should not be permitted to challenge it again
in a civil court. He cannot sue the judge, saying that he misdirected the jury.
He cannot sue a witness, saying that he committed willful perjury. Nor should
he be permitted to sue his own counsel, saying that he was negligent. Test in
this way. Suppose he were to succeed, as between himself and his counsel, in
showing that he was wrongly convicted. The Crown would be bound by that
decision. We should have a criminal court sentencing him to imprisonment on
the footing that he was guilty, and a civil court awarding him damages on the
footing that he was not guilty. No system of law could tolerate such a glaring
inconsistency.
Finally, on public policy I would say this: If this action were to be permitted,
it would open the door to every disgruntled client. You have only to read the
applications made daily to the Criminal Division of this court. They are filled
with complaints against the judge, against the counsel, against the witnesses,
against everyone who has had a hand in bringing the man to justice. If this
action is to go for trial, it will lead to dozens of like cases. “Every convicted
prisoner who blamed his counsel could at once bring an action for negligence.
CASES & MATERIALS
Rather than opened the door to him I would bolt it.”

Position of a solicitor
The position of a solicitor is quite distinguishable from that of a barrister. He is not
bound to act for anyone who asks him. He can pick and choose. He can sue for his fees.
He can, and does, make a contract with every client who employs him. He is under
contractual duty to use care: and this extends to his conduct of a cause as well as
and advocate as anything else. If he is negligent he can be sued. The action lies in
contract, not in tort see Groom v Crocker [1939] 1 KB 194, 222; 54 TLR 861; [1938] 2
All ER 394 CA. So damage need not be proved. But, even so, the cases against solicitors
do not encourage the extension of them to barristers. Such cases may be unavoidable
in the present state of the law when the solicitor makes a contract and is under a legal
CLP
90
obligation to his client. But they should not be extended to a barrister who makes no
contract and is not under a legal obligation.
Conclusion
In my judgment a barrister is not liable for negligence in the conduct of a cause. There
is no need to say more. I would add this: The principles here stated apply not only to
the conduct of a criminal case but also to the conduct of a civil case. They apply not
only a trial at first instance, but also to an appeal to this court. They apply not only
to the work in the court itself but also to the preparatory work beforehand, in which
I include not only the pleadings and advice on evidence, but also the opinion given
before action brought.
“In the end I would apply this test: Does the public interest require that a barrister
should now be made liable for negligence? I do not think it does. The rule for centuries
has been that he is not liable for negligence. Every solicitor knows it and engages him
on that footing. We ought not to depart from the usage of the profession so long
established and so well settled unless sufficient ground be shown. None has been. The
rule still stands. I would dismiss the appeal”.
HOUSE OF LORDS’S DECISION (Unanimous decision)
Lord Reid
“I shall confine my attention to condition in England and Scotland between which there
appears to me to be no relevant difference. I do not know enough about conditions in
any other country to express any opinion as to what public policy may there require”.
“There may be other countries where conditions are different and there public policy
may point in a different direction. But here it would be a grave and dangerous step to
make any change which would imperil in any way the confidence which every court
rightly put in all counsel who appears before it”.
i) Cab-rank rule
“It has long been recognized that no counsel is entitled to refuse to act in a
sphere in which he practices, and on being tendered a proper fee, for any
person however unpopular or even offensive he or his opinions may be,
and it is essential that that duty must continue: justice cannot be done and
certainly cannot seen to be done otherwise. If counsel is bound to act for such
a person, no reasonable man could think the less of any counsel because of
his association with such a client, but, if counsel could pick and choose, his
reputation might suffer if he chose to act for such a client, and the client might
have great difficulty in obtaining proper legal assistance”.
ii) Overriding duty to court and administration of justice
“Every counsel has a duty to his client fearlessly to raise every issue, advance
every argument and ask every question, however distasteful, which he
thinks will help his client’s case. But, as an officer of the court concerned in
the administration of justice, he has an overriding duty to the court, to the
standards of his profession, and to the public which may and often does
lead to a conflict with his client’s wishes or with what the client thinks are
his personal interests. Counsel must not mislead the court, he must not lend
himself to casting aspersions on the other party or witnesses for which there
is no sufficient basis in the information in his possession, he must not withhold
authorities or documents which may tell against his clients but which the law
or the standards of his profession require him to produce. And by so acting he
may well incur the displeasure or wrote of his client so that if the case is lost,
his client would or might seek legal redress if that were open to him”.
iii) Immunity to judges, witness and advocates for what they say in court
“Immunity from action by the client is not the only way in which it has been
though proper to protect counsel. It has long been established that judge,
witnesses and barristers alike have absolute privilege with regard to what
91
is said by them in court: and for reasons similar to those which apply to
proceedings in Parliament”.
MUNSTER v LAMB (1883) 11 QBD 588 CA
where a solicitor was sued for defamatory words which he had spoken while
defending an accused person.

Brett M.R. said that he assumed that the words were spoken maliciously
without any justification or excuse, from the indirect motive of
personal ill will or anger towards the prosecutor, and that the
words were irrelevant to every issue of fact in the case. Yet it was
held that there was absolute privilege. He said’ : “To my mind
it is illogical to argue that the protection of privilege ought not
to exist for counsel, who deliberately and maliciously slanders
another person. The reason of the rule is, that a counsel, who is
not malicious and who is acting bona fide, may not be in danger
of having actions brought against him.”
iv) Relitigation of the original suit
Lord Morris put it this way, at pp. 249-50 A.C., p. 1012 All E.R.:
A trial upon a trial would raise speculation upon speculation”.
“It must be recognized that the relationship between the advocate and the
client differs from relationship between the client and adverse witness or
between the client and a juror but it is desirable in the public interest that a
case in court should be regarded by all concerned as being a solemn occasion
when the utmost endeavour is being made to arrive once and for all at the
truth and to achieve a fair and just result. The atmosphere must be created in
which every person concerned is given full opportunity to play his part. There
can be procedure and machinery for appeals and the effectiveness of appeal
procedure can be kept under review, but the attainment of finality must
be an aim of any legal system. In the nature of things it would seem to be
undesirable if, when the litigation is over and appeals have been heard there
can be an inquest upon it all, or a further re-opening of it all, in the form of
an action against the advocate alleging that it was his fault that the case had
not been differently decided. The successful party in the litigation would not
be involved in or be a party to the later action, yet in that action the assertion
would be made that he had wrongly gained the victory. (per Earl of Halsbury
L.C. in Watson v M’Ewan (1905).
v) Position of Solicitors
Lord Reid
“There are differences between the position of barristers and solicitors; not
all the arguments which I have adduced apply to solicitors. But the case for
immunity of counsel appears to me to be so strong that I would find it difficult
to regard those differences as sufficient to justify a different rule for solicitors”...
“So my present view is that the public interest does require that a solicitor
should not be liable to be sued for negligence in carrying out work in litigation
which would have been carried out by counsel had been engaged in the case”
CASES & MATERIALS
C. Extent of Immunity
If there is immunity for suits in negligence what is the extent of the immunity?
What is the nature of the work done by the barrister/solicitor the immunity
covers?
RONDEL v WORSLEY (1967) House of Lords
Lord Reid “their work in conducting litigation. The same public duty
applies when drawing pleadings or conducting subsequent
stages in a case and applies to counsel’s conduct during
“trial” and the same will apply at a stage where litigation is
impending”.
CLP
92
Lord Morris “what is said or done in the ... management of a case in court
...”no action shall lie against counsel for any act honestly done
in the conduct or management of the cause”.
Lord Pearce “there is no distinction between the liability of a barrister in
litigation and in his other non litigious work as a barrister”.
Lord Upjohn “at all events in matters pertaining to litigation and that it must
start before counsel enters the doors of the court to conduct
the case”.
Lord Pearson (Dissenting view) Does the barrister’s immunity extend to
“pure paper work” that is to say, drafting and advisory work
unconnected with litigation”.
SAIF ALI v SYDNEY MITCHELL & CO 1978 AER 1033
House of Lords (Majority 3-2)
Lord Wilberforce LJ
Applied the test propounded by McCarthy P n the New Zealand Court of
Appeal in Rees v Sinclair 1974 1 NZLR 180
“But I cannot narrow the protection to what is done in Court; it must be wider
than that and include some pre-trial work. Each piece of before-trial work
should, however, be tested against the one rule; that the protection exists
only where the particular work is so intimately connected with the conduct
of the cause in Court that it can fairly be said to be a preliminary decision
affecting the way that cause is to be conducted when it comes to a hearing.
The protection should not be given any wider application than is absolutely
necessary in the interests of the administration of justice, and that is why, I
would not be prepared to include anything which does not come within the
test I have stated”.
Position of solicitors
The majority of the House held that: the immunity attaches to a solicitor acting as an
advocate in court as attaches to a barrister;
MINORITY DECISION:
(DISSENTING):
LORD RUSSEL: immunity from claims of negligence should extend to all areas which
affect or may affect the course of conduct of litigation. A decision which
shapes or may shape the course of trial should be within the umbrella
(blanket) of freedom from claims whether it is arrived at before or
during it.
LORD KEITH: grounds of public interest extend beyond the actual conduct of a
cause in court and are applicable to all stages of a barrister’s work in
connection with litigation whether pending or only in contemplation.
SOMASUNDARAM v M JULIUS MELCHOIR & CO. 1989 Court of Appeal
P was charged for causing grievous hurt to wife. D (Counsel) persuaded the plaintiff (P)
to change plea from not guilty because it will help in matrimonial proceeding. P was
sentenced to 2 years imprisonment. Later P sued solicitors.
Court of Appeal: solicitor’s advise is intimately connected, reasons:

(a) advise on plea likely to result in decision of court which would first have to be
upset by appeal process before any action for damages could be sustained;
(b) as advise was later confirmed by advocate, action against solicitor would fail
as he was not negligent and the advocate’s intervention broke link between
solicitor’s advise and plea.
93
GIANNARELI v WRAITH 1988 AUS HC

G was charged and convicted of perjury under Crimes Act 1958 (Vic) as result of
evidence given to Commonwealth and Victorian Royal Commission. During the trial
G was represented by Defendant (“D”). G appealed to High Court of Australia where
the appeal was allowed and the conviction quashed. The ground appeal succeeding
was that s6DD of the Royal Commission Act 1902 rendered the evidence given in the

Royal Commission inadmissible in the criminal proceedings. G sued D for damages
for negligence, alleging a negligent failure (a) to advise that s6DD would render the
evidence given in the Royal Commission inadmissible and thus defeat the Crown case;
and (b) to object on that ground to the tender of evidence.
High Court of Australia: the Counsel is protected as the advise is pertinent to conduct
and management of case.
ABRAHAM v JUTSUN 1963
Counsel took point of law that cause P to pay all cost in divorce court.
Court of Appeal: Counsel is not liable as it is his duty to take fairly arguable point and
not to usurp the province of judge in determining the effect of the legal argument.
PALMER v DURNFORD FORD 1992 2 QB 483 High Court
The plaintiff instructed Defendants (Solicitors) to act for them in a claim for
compensation. The solicitor instructed an engineer to prepare report in respect of the
claim. The engineer was called as an expert to give evidence in respect of the claim.
The claim failed. The plaintiff alleges that the solicitors and expert were in breach of
their duty of care. The plaintiff issued a writ against the Defendant and the expert. The
solicitors applied to strike out the claim. The High Court held that the expert is immune
from liability as he was giving evidence in court and he was at all times acting in the
cause of preparing evidence for a claim. The immunity should only extend to what
could fairly be said to be preliminary to his giving evidence in court. The production or
approval of a report for the purpose of disclosure to the other side would be immune
but work done for the principal purpose of advising the client would not. The solicitor
and the expert were immune from liability and part of the claim was strike out.
KELLY v CORSTON 1998 3 WLR 246 Court of Appeal
(i) where an advocate negotiated a settlement which required the approval of
the judge, such as settlement of proceedings for ancillary relief under the
Matrimonial Causes Act 1973, and received that approval the advocate was
covered by immunity from suit.
(ii) that, although there was a public interest in defining the areas attracting
immunity from suit as narrowly as possible, conduct at the door of the court,
while precluding the conduct of the cause in court, was nevertheless intimately
connected with it; that negotiations in such circumstances and settlements
which resulted from them were an integral part of the conduct of the cause
and had the necessary degree of intimate connection with its conduct in court
to attract immunity; and that, accordingly, the defendant’s conduct in making
a settlement at the door of the court when the trial of the merits was about to
begin was immune from the plaintiff’s claim.
CASES & MATERIALS
ATWELL v MICHEAL PERRY & CO 1998 4 AER 65 High Court (NB: pending appeal to H/
Lords-leap frog)
The plaintiff purchased a property for development and built a bungalow, part of which
spanned a ditch on the edge of the property. His neighbours, who considered that the
ditch belonged to them, issued a writ seeking a mandatory injunction for the removal
of the trespassing part of the bungalow and damages. Prior to trial of the action in the
country court, the plaintiff withdrew his instructions from one firm of solicitors (the first
defendant) and instructed new solicitors, who, in turn, instructed the second defendant,
barrister, to appear at the trial. Judgment was entered in favour of the neighbours and
the plaintiff was ordered to pay $15,000 in damages. Thereafter, the second defendant
gave a written opinion advising that there was no reasonable prospect of a successful
appeal and in consequence the plaintiff’s legal aid certificate was discharged. The
CLP
94
plaintiff however changed his solicitors again and they instructed different barrister,
who took the view that the plaintiff had a very good prospect of success on appeal on
a point not advanced by the second defendant at trial.That appeal was successful. The
plaintiff subsequently brought an action against the second defendant alleging: (i) that
he had been negligent in assessing the strengths of the case before trial; and (ii) that he
had negligently advised that there were no grounds of appeal against the country court
judgment. The second defendant applied to the master to strike out the allegations
of negligence on the basis that his actions were covered by immunity from suit as a
barrister. The master struck out two allegations which related to the complaints of
negligence regarding his conduct of the case at trial, but refused to strike out the main
complaints relating to how counsel proposed to conduct the case at trial. He further
refused to strike out the allegation of negligence concerning the written advice given
by counsel on the prospect of an appeal. The second defendant appealed, seeking to
strike out all the allegations against him. He contended, inter alia, that an advice on
appeal was intimately connected with the conduct of the proceedings in court, since
it reflected counsel’s view of the case which had led to the manner of his conduct of
the proceedings in court. The plaintiff cross-appealed against the master’s decision to
strike out the two allegations.
Held - (1) The immunity of an advocate from suit in respect of out of court work
which was intimately connected with the conduct of the case in court extended to
inadequacies in his pre-trial deliberations as to how the case should be conducted.
There was no reasonable distinction to be drawn between how an advocate proposed
to conduct the case and how he did conduct the case n court. Accordingly, since it was
right for public policy reasons to hold an advocate immune for the manner in which he
conducted the case in court, it was right, in the instant case, to hold counsel immune
against allegations that he negligently formed his case plan. It followed, therefore,
that in so far as the allegations made against the second defendant consisted of such
matters, they attracted immunity and should have been struck out by the master.
Rondel v Worsley [1969] and Saif Ali v Sydney Mitchell & Co [1978] applied.
(2) There was no discernible public policy reason why the immunity attributable to
what an advocate did in the conduct of the case in court, or what he did in pre-trial
work sufficiently connected with his conduct of the case in court, should be extended
to cover an advice on the prospects of an appeal. There was on legitimate distinction
to be drawn between an advice on the prospects of an appeal and an advice as to
whether an action should be brought, which, if it led to the action not being brought
and loss being suffered, might be the subject of a negligence action brought against the
incompetent professional who gave the advice. Accordingly, the master had been right
not to strike out that allegation on the grounds of immunity; but since the plaintiff’s
pleaded case did not see out any sustainable claim for damages in negligence, the
allegation would nevertheless be struck out. It followed, therefore, that the appeal
would be allowed and the cross-appeal dismissed.
CONNOLLY-MARTIN v DAVIES 1998 (unreported) Sedley J
“Legal life in the argument that immunity from suit in relation to what taken place
at the door of the court depends not or not solely, on its physical location but on the
relationship of what is said and done there to what is imminently to happen in court”.
ARTHUR J.S HALL & CO (A Firm) v SIMONS [2000] 3 WLR 543 HL
WOOLF SEDDON (A firm) v BARRATT
SCHOLFIELD ROBERTS & HILL (A Firm) v HARIS

(all the 3 appeals heard together)
i) In the first case P’s solicitors had acted for the D in protracted litigation
concerning a building dispute. On the eve of the trial the D had been advised
by counsel to compromise the proceedings on terms negotiated by counsel
and the P and subsequently embodied in a consent order. In proceedings
brought by the P for recovery of their fees the D counterclaimed alleging their
negligence, in particular, in failing to advise properly as to the liability of other
parties and as to timeous settlement.
95
ii) In the second case the P retained the D to advise and act for him in matrimonial
relief proceedings. Following agreement, based on the wife’s valuation of the
former matrimonial home, that she would receive a guaranteed sum from the
proceeds of its sale, the D prepared and lodge with the court a minute of order
which was approved and made by consent. When sale of the property was
achieved at a reduced figure the P applied successfully for the consent order
to be set aside and the sum payable to the wife was varied. The P claimed

damages for negligence, in particular, by the D’s failure to provide proper
advice on valuation and division of the proceeds of sale and by their lodging
the minute of order which recorded an inaccurate valuation.
iii) In the third case the P instructed the D to advise her in matrimonial ancillary
relief proceedings. Prior to any application for relief counsel, instructed by
the D, advised on the appropriate level of periodical payments and on the
possibility of contributions from the husband’s cohabitee. On the trial date
different counsel, also instructed by the D, advised her to settle at a lower level
of relief on the incorrect basis that the husband’s relationship had ceased. She
accepted the compromise which was approved by the court and embodied in
a consent order. On discovering the husband’s marriage to the cohabitee she
sought to appeal against the consent order and also commenced proceedings
for negligence against the D alleging that they had failed to instruct competent
counsel and properly to investigate the situation relating to the cohabitee.
iv) In each case the judge at first instance concluded that the solicitors enjoyed
an advocate’s immunity from suit and struck out the client’s claims against
them as an abuse of process of the court. The Court of Appeal, having heard
the cases together, ruled that in none of the cases were the solicitors immune
from suit and restored the client’s claims.
On appeals by the solicitors to the House of Lords:-
Held
That in the light of changes in the law of negligence, the functioning of the legal
profession, the administration of justice and public perceptions, a reconsideration of the
issue of advocates’ immunity from suit was appropriate; None of the reasons to justify
the immunity, viz, the “cab rank” rule, the analogy with the immunities of witnesses
and others involved in legal proceedings, the duty of the advocate to the court and the
public policy against relitigating a decision of a court of competent jurisdiction , had
sufficient weight to sustain the immunity in relation to civil proceedings; The principles
of res judicata, issue estoppel and abuse of process were sufficient to prevent any
action being maintained which would be unfair or bring the administration of justice
into disrepute; The obstacle of proving that a better standard of advocacy would have
produced a different outcome and the ability of the court to strike out unsustainable
claims would restrict the ability of clients to bring unmeritorious and vexatious claims
against advocates should the immunity be removed; Finally public interest in the
administration of justice no longer required that advocates enjoy immunity from suit
for alleged negligence in the conduct of civil proceedings.
Reasons For ending the immunity
Lord Steyn
CASES & MATERIALS
“There would be benefits to be gained from the ending of immunity.

(i) First, it will bring to an end an anomalous exception to the basic premise that
there should be a remedy for a wrong. There is no reason to fear a flood of
negligence suits against barristers. The mere doing of his duty to the court by
the advocate to the detriment of his client could never be called negligent.
Indeed if the advocate’s conduct was bona fide dictated by his perception of
his duty to the court there would be no possibility of the court holding him
to be negligent. Moreover, when such claims are made courts will take into
account the difficult decisions faced daily by barristers working in demanding
situations to tight timetables. In this context the observations of Sir Thomas
Bingham M.R. in Ridehalgh v Horsefield [1994] Ch. 205 are instructive. Dealing
CLP
96
with the circumstances in which a wasted costs order against a barrister might
be appropriate he observed, at p. 236:
“Any judge who is invited to make or contemplates making an order
arising out of an advocate’s conduct of court proceedings must make
full allowance for the fact that an advocate in court, like a commander
in battle, often has to make decisions quickly and under pressure, in
the fog of war and ignorant of developments on the other side of the
hill. Mistakes will inevitably be made, things done which the outcome
shows to have been unwise. But advocacy is more an art than a science.
It cannot be conducted according to formulae. Individuals differ in
their style and approach. It is only when, with all allowances made, an
advocates conduct of court proceedings is quite plainly unjustifiable that
it can be appropriate to make a wasted costs order against him.”
For broadly similar reasons it will not be establish negligence against a barrister.
The courts can be trusted to differentiate between errors of judgment and true
negligence. In any event, a plaintiff who claims that poor advocacy resulted in
an unfavourable outcome will face the very great obstacle of showing that a
better standard of advocacy would have resulted in a more favourable out
come. Unmeritorious claims against barristers will be struck out. The new
Civil Procedure Rules 1999, have made it easier to dispose summarily of such
claims: The only argument that remains is that the fear of unfounded actions
might have a negative effect on the conduct of advocates. This is a most flimsy
foundation, unsupported by empirical evidence, for the immunity.
(ii) Secondly, it must be borne in mind that one of the functions of tort law is to set
external standards of behaviour for the benefit of the public. And it would be
right to say that while standards at the Bar are generally high, in some respects
there is room for improvement. An exposure of isolated acts of incompetence
at the Bar will strengthen rather than weaken the legal system.
(iii) Thirdly, and most importantly, public confidence in the legal system is not
enhanced by the existence of the immunity. The appearance is created that
the law singles out its own for protection no matter how flagrant the breach
of the barrister. The world has changed since 1967 (since Rondel). The practice
of law has become more commercialized: barristers may now advertise. They
may now enter into contracts for legal services with their professional clients.
They are now obliged to carry insurance. On the other hand, today we live in
a consumerist society in which people have a much greater awareness of their
rights. If they have suffered a wrong as a result of the provision of negligent
professional services, they expect to have the right to claim redress. It tends to
erode confidence in the legal system if advocates, alone among professional
men, are immune from liability for negligence. It is also noteworthy that there
is no obligation on the barrister (or for that matter the solicitor advocate)
to inform a client at the inception of the relationship that he is not liable in
negligence, and in practice the client is never so informed. Given that the
resort to litigation is often one of the most important decisions in the life of the
client, it has to be said that this is not a satisfactory position. In combination
these factors reinforce the already strong case for ending the immunity.
Conclusion
The House was unanimous in ending the immunity of the advocates in civil cases. One
of the lawlords in the HL dissented on the ground that there shall be immunity for
action in negligence for the acts of the advocate in conducting criminal cases.
The House of Lord held that since a collateral challenge in civil proceedings to a criminal
conviction is prima facie an abuse of process and ordinarily such an action would be
struck out, an advocate’s immunity from suit was not required to prevent collateral
attacks on criminal decisions.
The House of Lord further held that none of the factors said to justify the immunity
had sufficient weight to warrant its retention in relation to criminal proceedings; that,
once a conviction had been set aside there could be no public policy objections to an
97
action in negligence by a client against his legal representatives at a criminal trial; and
that, accordingly, the public interest no longer required that advocates enjoy immunity
from suit for negligence in the conduct of criminal actions Hunter v Chief Constable of
the west Midlands Police [1982] A.C. 529, H.L.(E) applied. Rondel v Worsley [1969]
not followed. On the facts of the cases the HL dismissed the appeals, that the client’s
claims did nor invoke the advocate’s immunity from suits and involved nothing which
would be unfair to their solicitors or liable to bring the administration of justice into

disrepute; and that, accordingly, the claims would be allowed to proceed.
REES v SINCLAIRE [1974] 1 NZLR 180
Does the same public policy consideration as in Rondel, applies in a country where the
profession is fused (i.e. the practitioners are both barristers and solicitors)
McCarthy P held
i) The overriding duty of the officer of court is to court and the administration of
justice. (Applied the same in N. Zealand).
ii) Action for negligence against barrister would make a retrial of the original
action, inevitable and prolong litigation is contrary to public interest. (Applied)
iii) Cab-rank rule (has application in New Zealand).
iv) Judge and witness are protected from liability.
In New Zealand practitioners can practice as barrister and/or solicitor and the protection
from suits of negligence applies to those who are appearing in court or performing
duties incidental to such appearance.
Scope of immunity-“intimately connected test”
BIGGAR v McLEOD 1978 2 NZLR 9
The defendant, a barrister and solicitor, acted for the plaintiff in matrimonial
proceedings. After oral evidence had been given, the defendant advised the plaintiff
that the proceedings could be settled on terms which he outline. The plaintiff accepted
the terms, and the proceedings were settled. Later, the plaintiff claimed that the
defendant had misinformed her as to the terms of the settlement, and she brought
an action for damages alleging negligence by the defendant. On a motion to strike
out, Somers J dismissed the plaintiff’s action on the basis of a barrister’s immunity
from suit for negligence. The plaintiff appealed. Held, the settlement of an action by
compromise in court was work related to the conduct of litigation which was covered
by a barrister’s immunity from action by a client. Appeal dismissed.
GIANNARELI AND ORS v WRAITH AND ORS 1988 AUS HC
Dawson J: The basis for the immunity from liability for negligence of a barrister or
solicitor acting as an advocate in court lies in public policy. The availability of an action
in negligence for the conduct of a case in court would subject the decision of the court
to collateral attack by a client who sought to blame his barrister for his loss of case.
NOTE* Section 10(2) Legal Professional Practice Act 1958
Every barrister shall be liable for negligence as a barrister to the client on whose behalf
he has been employed to the same extent as a solicitor was on 23 November 1891
CASES & MATERIALS
liable to his client for negligence as a solicitor.

Mason CJ held that Barrister and solicitor are immune from liability in negligence for
the conduct of the case in court or in work out of court which leads to a decision
affecting the conduct of a case in court. (This is even so where the express statutory
provisions provide that barrister are liable for negligence as solicitors)
Here on facts: failure to object to inadmissible evidence being tendered in court was
held to be within the scope of immunity.
MUNNING v AUSTRALIAN GOVERNMENT SOLICITOR 1994 68 ALR 169
Admission made by counsel in prior proceeding resulted the appeal being dismissed.
The plaintiff now sue the counsel for negligence.
CLP
98
The High Court of Australia held that the admission were made while the counsel was
conducting a case in court and this cannot give rise to a civil liability because it is clear
that counsel is not civilly liable for the conduct of a client’s case in court.
DEMARCO v UNGARO 1979 [95 D.L.R. (3d) 385] Ontario High Court
Facts:
The Plaintiff alleges that a proper defence of the action would have resulted in a
dismissal of same with costs to the Plaintiff and that the Defendants were incompetent
and failed to exercise reasonable skill in the conduct of the case and failed to give
reasonable care and attention to the preparation of the case and the Plaintiff specifically
pleads that the Defendants.
[a] failed to adequately counsel, assist or confer with the Plaintiff in preparation
for the Examination for Discovery or the trial of the action;
[b] the Defendants failed to proceed expeditiously with the Defence of the action
and arranged for adjournments of Examinations for Discovery from time to
time without advising or conferring with the Plaintiff with the result that the
Plaintiff attended at the Court House unnecessarily on three occasions and
incurred unnecessary expenses as a result thereof;
[c] the Defendant, Guy Ungaro, failed to attend and act as Counsel at the trial of
the action, sending his co-Defendant, George Baryeky, in his place, who was
totally unprepared.
(i) Public interest does not require immunity (other professions does not
have the immunity)
Krever J:
“I have come to the conclusion that the public interest in Ontario does
not require that Court recognize an immunity of a lawyer from action
for negligence at the suit of his or her former client by reason of the
conduct of a civil case in Court. It has not been, is not now and should
not be, public policy in Ontario to confer exclusively on lawyers engaged
in Court work an immunity possessed by no other professional person.
Public policy and the public interest do not exist in a vacuum. They
must be examined against the background of a host of sociological facts
of the society concerned. Nor are the lawyers’ values as opposed to
the values shared by the rest of the community. In the light of recent
developments in the law of professional negligence and the rising
incidence of “malpractice” actions against physicians (and especially
surgeons who may be thought to be physicians what barristers are
to solicitors), I do not believe that enlightened, non-legally trained
members of the community would agree with me if I were to hold that
the public interest requires that litigation lawyers be immune from
actions for negligence. I emphasize again that I am not concerned
with the question whether the conduct complained about amounts to
negligence. Indeed, I find it difficult to believe that a decision made by a
lawyer in the conduct of a case will be held to be negligence as opposed
to a mere errors of judgment. But there may be cases in which the error
is egregious that a Court will conclude that it is negligence. The only
issue I am addressing is whether the client is entitled to ask a Court to
rule upon the matter”.

(ii) Public interest appears to be consistent for clients to have a recourse
against a negligently lawyer
“Many of the sociological facts that are related to public policy and the
public interest may be judicially noticed. The population of Ontario is
approximately eight and a quarter million people. In 1978 there were
approximately 12,300 lawyers licensed by the Law Society of Upper
Canada to practise law in Ontario. All of them have a right of audience
in any Court in Ontario as well as in the Federal Court of Canada and
99
the Supreme Court of Canada. The vast majority of these lawyers are
in private practice and, as such are required to carry liability insurance
in respect of negligence in the conduct of their clients’ affairs. No
distinction is made in this respect between those exclusively engaged in
litigation and all other lawyers. The current rate of increase in the size
of the profession is approximately 1,000 lawyers annually. It is widely
recognized that a graduating class of that size places such an enormous

strain on the resources of the profession that the articling experience of
student-at law is extremely variable. Only a small percentage of lawyers
newly called to the Bar can be expected to have had the advantage of
working with or observing experienced and competent counsel. Yet
very many of those recently qualified lawyers will be appearing in Court
on behalf of clients. To deprive these clients of recourse if their cases
negligently dealt with will not, to most residents of this Province, appear
to be consistent with the public interest”.
(iii) No evidence to support that counsel will compromise their duty to court
“With respect to the duty of counsel to the Court and the risk that, in
the absence of immunity, counsel will be tempted to prefer the interest
of the client to the duty to the Court and will be thereby prolong trials,
it is my respectful view that there is no empirical evidence that the risk
is so serious that an aggrieved client, should be rendered remediless.
Between the dates of the decisions in Leslie v Ball 1863 (Canadian case),
and Rondel v Worsley, 1967 (English case), immunity of counsel was not
recognized in Ontario and negligence actions against lawyers respecting
their conduct of Court cases did not attain serious proportions. Indeed,
apart from the cases I have cited, I know of no case in which a lawyer
was sued for negligence by his or her client in the conduct of a case
in Court. A very similar argument is advanced in many discussions of
the law of professional negligence as it applies to surgeons. Surgeons,
it is claimed, are deterred from using their best judgment out of fear
that the consequence will be an action by the patient in the event of
an unfavourable result. This claim has not given rise to an immunity for
surgeons.
(iv) Relitigation-Res-Judicata (There is provision in the existing procedural
law for abuse of process of law.
“The prospect of relitigating, an issue already tried, it is my view that the
undesirability of that event does not justify the recognition of lawyers’
immunity in Ontario. It is not contingency that does not already exist in
our law and seems to me to be inherently involved in the concept of res
judicata in the recognition that a party, in an action in personam, is only
precluded from relitigating the same matter against a person who was
a party to the earlier action. I can find no fault with the way in which
Hagarty, C.J., dealt with this consideration in Wade v Ball et. al. (1870),
20 U.C.C.P. 302 at p. 304: “Practically, such a suit as the present may
involve the trying over again of Wade v Hoyt. This cannot be avoided.
“Better that than that the client should be without recourse”.
CASES & MATERIALS
(v) Cab-Rank Rule

The obligation of a lawyer to accept any client.
“Whether that has ever been the universally accepted understanding
of a lawyer’s duty in Ontario is doubtful ... In any event, I do not believe
such a duty exists in the practice of civil litigation and that is the kind of
litigation with which I am now concerned”.
(vi) Immunity for what is said in court
“The last consideration to be dealt with is the perceived as an anomaly
related to the absolute privilege enjoyed in respect of anything said in
Court by a lawyer. I confess that I am unable to appreciate why it should
CLP
100
follow from the existence of that privilege that a lawyer may not be sued
by his or her client for the negligent performance of the conduct of the
client’s case in Court. The privilege, a fundamental aspect of the law of
slander, is not concerned with relationships among persons. It relates to
legal proceedings in open Court. The special relationship of lawyer and
client is not involved as it is, of course, when one is considering the law
of negligence”.
(vii) Conclusion
“It may, ... be of interest, from a comparative point of view that, in the
United States, the Courts have not granted immunity to an attorney in
the conduct of litigation; “an attorney must exercise reasonable care,
skill and knowledge in the conduct of litigation ... and must be properly
diligent in the prosecution of the case” (see 7CJS pp.982-4).
To sum up, for the reasons I have given, in Ontario, a lawyer is
not immune from action at the suit of a client for negligence in
the conduct of the client’s civil case in Court. The defendant’s
motion, in effect, for a determination that a lawyer does enjoy
such in immunity is, therefore, dismissed with costs to the plaintiff
in the cause.
Krever J only held that no immunity for lawyers in conduct of a civil action.
What about criminal case?
MAJID v MUTHUSWAMY 1968 2 MLJ 89 Federal Court
Wee Chong Jin CJ:
“The important matter ... is whether an advocate and solicitor of the High Court of
Singapore when conducting a case can be successfully sued for professional negligence.
The case of Rondel v Worsley 1967 decided in the House of Lords has held that on
grounds of public policy, a barrister in England is not liable for negligence, so long as
the negligence alleged, arises during his conduct of a case”.
“There are dicta in that House which indicate that the same considerations would apply
so far as solicitors are concerned in England. Without finally deciding the question, we
are at present inclined to the view that the same considerations of public policy apply
in Singapore and that therefore the decision in Rondel’s case would apply in Singapore
too”.
“The professional is a fused one here, and having regard to the reasons given by the
Law Lords in Rondel’s case, which we would respectfully agree with, we think that the
position in Singapore could be stated thus: an advocate and solicitor can be sued for
professional negligence where the act complained of is an act done in his capacity of
a solicitor but will not be liable for negligence if the act complained of is done in his
capacity as an advocate”.
(NB: Referred to Rondel’s House of Lord’s decision).
CHONG YEO & PARTNERS v GUAN MING HARD LTD 1997 2 SLR 729
Facts
Respondent Company (R) decided to commence legal proceeding against AE Ltd for
money owed. R instructed the appellant (a firm of solicitors) in Oct 1991. A writ was
issued and served and AE entered appearance. Subsequently application for summary
judgment was made. Order 14 RHC in Singapore was amended and came into effect in
August 1991. Objection was taken by AE Ltd because documents were not exhibited
in the affidavit to support the summary judgment as required by the amendment
provisions. Order 14 application had to be adjourned to March 1992. Meanwhile
another creditor of AE obtained judgment against AE Ltd in January 1992 and some
monies was recovered. Subsequently judgment was obtained by R against AE and
instructed solicitors to proceed for garnishee. Order Nisi was obtained but before order
absolute was made, another Creditor of AE presented petition for winding up. The
hearing of order absolute of the garnishee was adjourned sine die. Subsequently a
101
receiver was appointed for AE and the AE was wound up. A number of allegation of
negligence was raised but the significant one is that the solicitors failed to comply with
Order 14 thereby it resulted delay in obtaining the summary judgment and that R was
unable to recover the judgment debt.
High Court held
Distinguish the case of Majid v Muthuswamy, and held that not bound by the Majid’s

case as the statement endorsing Rondel’s case was mere obiter dicta. The High Court
found the solicitors liable for negligence in respect of their failure to comply with the
amended Order 14 as the provisions was clear and had come into effect in August
1991. The High Court held that there is no immunity. The solicitors appealed.
Court of Appeal.
Yong Pung How CJ
“Rondel v Worsley has been accepted in much of the Commonwealth. However, the
High Court of Ontario in the case of Demarco v Ungaro (1970) declined to follow the
House of Lords.
Krever J noted that to deprive members of the public of recourse in the event of
negligence would not be consistent with the public interest, particularly where recently
qualified lawyers would be representing clients in court in large numbers.
For the reasons noted by the High Court judge below, the position in Singapore is open,
The statements in Majid v Muthuswamy, a decision of the Federal Court on appeal
from Singapore, supporting the application of Rondel v Worsley were obiter for that
case was disposed of on the inadequacy of pleadings. The High Court judge below was
thus free to examine the scope and extent of the duty recognized in Rondel v Worsley.
In determining whether the judge was correct, the court must consider the following
categories of public policy factors:
i) The cab rank rule
The rule does not apply locally. The rule is founded upon the desire to ensure
that unpopular cause or parties are represented. The force of the objection
that the barrister is not only at liberty to refuse a client very much lessened
by the fact that the barrister is paid for his services. In return for payment, the
client is entitled to expect some level of competence.
ii) The independence of counsel and his duty to the court
Where counsel purports to omit to do something, or actually does something
against the interest of his client in furtherance of his duty to the court, the
duty owed to the court operates as a justification of his breach of duty to the
client. The court trumps the client, and such breaches are excused. The main
concern is that if counsel were subjected to claims in negligence, they would
not be able to discharge their higher duties to the court: they would be in
effect torn between the two sets of duties, and because of the immediately of
claims by their clients, they would make the wrong choice. There is no basis
for this view. Since the duties owed to the court and counsel’s consequent
independence are higher duties which excuse breach of the duty owed to the
client, counsel should not be so torn.
CASES & MATERIALS
iii) Privilege from suit for words uttered in court

The appellants rely on the privilege conferred upon participants in a trial which
exempts them from actions in defamation for remarks made. This privilege, for
it is not really an immunity, was thought to be a further reason in support of
the immunity of counsel. But it is to be noted that the privilege protects not
liability in negligence but freedom of speech. It is irrelevant here.
iv) Re-litigation
Referred to what Lord Morris in Rondel said at page 1012 about relitigation i.e.
“A trial on a trial would raise speculation on speculation”.
CLP
102
But these reasons are concerned largely with the difficulties if re-litigation.
They are not insurmountable. Many of the problems highlighted would not be
faced locally as juries are no longer in use here. Any difficulties that do remain
act as a deterrent against frivolous suits by disgruntled litigants and militate
strongly against any trigger-happy tendencies.
The real concern then is to ensure that criminal convictions are challenged
in the proper forum: because of the interests of the state, attacks on such
convictions should only be made as part of the criminal trial process. It would
be invidious if the conviction of a criminal were to be founded by a civil case to
have resulted from the negligence of his advocate and solicitor, for it follows
then that the convictions was wrong. A wrong conviction ought not to stand
at all.
But no such considerations apply to a claim of negligence in the conduct of civil
matters. The state has no interest in civil litigation between private individuals.
With respect, the supposed threat of relitigation only arises because the
breach of duty arose in the course of earlier litigation. Though the earlier suit
would be part of the circumstances giving rise to the claim in negligence, that
claim is a new cause of action independent of the earlier one. It is therefore
not a re-litigation of the issue before the earlier court.
v) Is the matter an abuse of process of court
This conclusion raises a question whether such an attack would amount to an
abuse process which is a ground denying liability independent of the immunity
recognized in Rondel v Worsley.
In a case where a new suit is launched against parties actually privy to earlier
decisions, the doctrine of res judicata would apply, and such attacks would
clearly be an abuse of process.
vi) Conclusion
In summary, therefore, for the reasons above, the Rondel v Worsley immunity
does not apply in Singapore. A claim in negligence against an advocate and
solicitor is not barred save where that claim is against the conduct of a criminal
case; in such a case, the bar arises not because of an immunity, but because
the action is an abuse of the court process.
YONG & CO v WEE HOOD TECK DEVELOPMENT CORP [1984] 2 MLJ 39
Syed Agil Barakbah FJ
“The liability of a solicitor may be viewed in two aspects. At common law the retainer
imposes upon him an obligation to be skillful and careful and for failure to fulfill this
obligation he may be liable in contract for negligence whether he is acting for reward
or gratuitously. On the other hand, like any other individual, a solicitor is liable for his
wrongful acts and if the circumstances justify the charge, he may make liable to his
client in tort. He owes a duty not to injure his client by failing to do that which he had
undertaken to do and which his client has relied on him to do”.
NEOGH SOO OH v G. RETHINASAMY 1984 1 MLJ 126
Solicitor fail to inform client that the land which he wishes to purchase had already
been gazetted for purpose of compulsory acquisition (Failure to conduct an official land
search).
High Court
Gunn Chit Tuan J
“It is clear and settled law that a client of a solicitor may bring an action against him
in contract, based on the retainer of the solicitor by the client, or in tort, or in both
(Nocton v Lord Ashburton (1914-15) and the Midland Bank Trust Company Limited
case (1978). As regards the obligations arising out of the retainer, a solicitor’s duty is to
use reasonable care and skill in giving such advice and taking such action as the facts
of a particular case demand. The standard of care is that of the reasonably competent
103
solicitor and the duty is directly related to the confines of the retainer. The exact scope
of the solicitor’s duty to protect his client’s interest is difficult to define but according to
Scott LJ in Groom v Crocker (1938), a solicitor should at least “carry out his instructions
in the matters to which the retainer relates, by all proper means. It is an incident of
that the solicitor shall consult with his client on all questions of doubt which do not fall
within the express or implied discretion left him, and shall keep the client informed to
such an extent as may be reasonably necessary .....”

Having considered the evidence adduced in this case I considered and found as a fact
that the defendant had failed in his duty to use reasonable care and skill in giving
his advice and taking such action as the facts of this particular case demanded of a
normally competent and careful practitioner here. I considered that apart from a search
in the Interim Register he should have also, like other normally competent and careful
solicitors, also made a search at or an enquiry with the land office concerned. In the
circumstances of this case I considered that he was therefore liable to compensate his
clients for the loss caused by his breach of contractual duty as their solicitor. As regards
liability in tort, the defendant was a professional man professing special skill who gives
assistance to another and owed a duty of care, quite independent of contract, to that
person or persons who to his knowledge relied on his skill.
ISMAIL BIN IBRAHIM v LIM LIM & ON (sued as a firm) [1998] 1 AMR 339
High Court
The plaintiff was the owner of a piece of land in Penang. He appointed D’s firm to act
for him in the sale of the land to a developer. D’s firm also acted for the developer and
for the developer’s financiers. In the Sale and Purchase Agreement it was provided
that the transfer form (Form 14A) is not to be released until full balance purchase
price was paid to the firm. Plaintiff executed blank transfer form and deposited the
title deed in respect of the land with D’s firm who was also acting for the developer
and the developer’s financier. The D’s firm presented the Transfer form for registration
in the land registry without the developer depositing the balance purchase price. P
found that the land had been transferred to the developer and charged to a financier
and he had not consented to the same. P brought an action for negligence and breach
contractual duty.
Court Held
a) The D was guilty of procuring or causing the land to be transferred to the
developer and thereafter charged to the Financier when the D have given an
assurance and undertaking to the Plaintiff that the relevant document of title
and the Memorandum of Transfer would be held by the D in escrow until the
balance of the full purchase price has been paid by the developer.
b) While the duty of the solicitor is directly related to the confines of the retainer,
it is the incidence of that contractual duty he has to consult his client on all
questions of doubt which do not fall within the express or implied discretion
left in him.
c) The D as solicitor for the P had failed to comply with the contractual duty
to consult, inform or advise the P before presenting the transfer form for
registration.
CASES & MATERIALS
d) The D have failed to protect the P’s interest when it knew or ought to have
known that it was wrong to do so and contrary to the duties and obligations
which it had represented and had agreed to undertake and perform for the P.
e) It is clear that the D had committed a serious breach of professional duty and
care and had been negligent when it acted for three different parties, thereby
putting itself in a situation where it compromised the interest of the Plaintiff.
Plaintiff’s claim allowed with costs.
Commentary
In the above case the P brought an action at law for negligence and breach of contractual
duty.
CLP
104
It is to be noted that the alleged conduct of the Defendant Solicitor warrants a client to
lodge a Complaint with the DISCIPLINARY BOARD for breach of professional duties (i.e.
breach of implied undertaking given in a Sale and Purchase Agreement not to release
the transfer form and title deed until balance purchase price is paid.) Further it is also
a misconduct under S94(3) para (n) LPA 1976 “gross disregard of his client’s interest.”
ANTHONY TING v WONG BING SENG 1997 2 CLJ 831
High Court Sibu
Action against the appellant (solicitor) for negligence and/or breach of contractual duty
and negligent misrepresentation in handing the respondent’s purchased of a piece of
land.
Particulars of negligence is:
i) the appellant failed to practice the standard of care of a reasonably competent
solicitor in ascertaining the identity of a person who claimed to be the owner
of the land.
ii) the land search conducted was inadequate or incomplete.
iii) acted below the standard of a reasonably competent and careful solicitor in
releasing the purchase price to the alleged owner before the registration of
the transfer.
Held: The solicitor was negligent and liable for the loss suffered.
BSN COMMERCIAL BANK (M) BHD v PENTADBIR TANAH DAERAH, MERSING [1997] 5
MLJ 288
High Court (Johor Bahru)
Abdul Malik Ishak J, in passing made an observation,
“The message must be delivered to the effect that solicitors should be cautious and
must guard the interests of their clients zealously lest they be open to negligence suits.
Rondel v Worsley [1969]. In that case, the allegations resolved on the failure to put
certain questions to the witnesses and failure to call certain material witnesses. The
House of Lords agreed with the Court of Appeal that no reasonable cause of action was
disclosed, thus affirming the rule that spanned for almost 200 years to the effect that
barristers were immune to negligence suits. But a caveat should be imposed. Rondel
v Worsley must be read in the context that, in England, the legal profession was not
fused. It had divisions of barristers and solicitors. Here, it is a fused profession and the
set of facts in Rondel v Worsley if decided in our courts may yield different results. On
the other end of the scale is the case of Saif Ali & Anor v Sidney Mitchell & Co (A Firm)
& Ors [1980] AC 198 where the House of Lords held that the barrister was negligent
when there was a failure to advise that Mrs Saif Ali or the van driver be joined as
defendants. Be that as it may, I do not propose to say anything more in regard to the
issue of a solicitor’s immunity”.
ALI BIN JAIS v LINTON ALBERT & ANOR [1999] 6 MLJ 304
High Court (Bintulu)
Hasan JC
The defendant is an advocate. On or about July 1991, the defendants were retained
by the plaintiff, in respect of a dispute relating to a parcel of land. A decision was
made by the Assistant Settlement Officer pursuant to the Sarawak Land Code and
the plaintiff, being dissatisfied with it, instructed the defendants to lodge an appeal
against the decision. The land appeal was dismissed, as the sessions court had no
jurisdiction to hear the appeal, as when the petition of appeal was filed, the decision
of the Assistant Settlement Officer had not been published in the Sarawak Government
Gazette. The plaintiff thereby brought an action against the defendants, for damages,
grounded on the negligence and/or breach of contract by the defendants, while acting
as the plaintiff’s advocates and solicitors. The plaintiff contended, inter alia, that the
defendants: (i) filed the land appeal when it was not the appropriate time to file such
105
an appeal; and (ii) failed to file an appeal within the three months period when the
decision of the Assistant Settlement Officer was gazetted in the Gazette.
Held, allowing the plaintiff’s claim:
The was a breach of duty and lack of reasonable care on the part of the first defendant
in handling the said land appeal to the sessions court. By failing to file the appeal
within three months from the date the decision of the Assistant Settlement Officer

was gazetted, the first defendant had breached the standard of care as expected from
a reasonable man practicing as an advocate.
It was also submitted by the learned counsel for the defendants that as an advocate
and solicitor, the defendants is not liable negligence which arises during their conduct
of the case. Cited the case of Rondel v Worsley [1967] and Majid v Muthuswamy
[1968]. I am unable to agree with the defendants that this is the law in Malaysia. In
this connection, I am reminded of what was said by the Federal Court in Miranda v
Khoo Yew Boon [1968] where the Federal Court had considered the case of Rondel v
Worsley. The Federal Court held that the position of an advocate and solicitor is exactly
the same as that of a solicitor in England and if there is an act of negligence, it is
immaterial to consider whether the act is one normally done in England by a barrister
or a solicitor. It was also held that in an action against a solicitor for negligence in
litigation, the burden is on the solicitor to show that the client was not damnified.
It was the duty of the defendants after being retained by the plaintiff to exercise due
care, skills, expertise and attention in the handling of the land appeal case in the
sessions court. It was the defendants’ duty to file the appeal to the sessions court
within the prescribed time, and by not filing the said appeal within the prescribed
time, the defendants were clearly in breach of their obligation to give a full and proper
care and attention to the conduct of the said land appeal and to protect the plaintiff’s
interest. The appeal in the land appeal case has become useless. As such, I hold that
the defendants are also liable in contract for negligence.
LIM SOH WAH & ANOR v WONG SIN CHONG & ANOR [2001] 2 AMR 2001
Court of Appeal
The appellants, advocates, failed to appear in court on the day fixed for trial and had
further failed to inform their clients, the respondents, of the trial date. Due to their
failure to appear in court, judgment was entered against the respondents.
An application to set aside the judgment failed and on appeal, the decision was upheld.
The appellants counsel contended that even the respondents were informed of the
trial and they had all been present, the outcome would not have differed.
Counsels for the respondents pointed out that the respondents lost an opportunity to
convince the Judge by way of oral testimony and documentary evidence and they had
a complete answer to the claims that had been brought against them. The respondents
counsel further showed that the appellants had not prepared their client’s case with
the care and attention it deserved and therefore the appellants must answer in a claim
for negligence.
The respondents cross-appealed against the failure of the Judge to allow certain items
of damage that had been clearly proved at the trial. As there were no serious disputes
with regards to these items and the cross-appeals were not seriously resisted, the
CASES & MATERIALS
cross-appeals were allowed.

Issue(s)
Whether the judgment entered against the respondents were caused by the appellants’
negligence.
Held
Advocates & solicitors undertake an onerous task when they agree to act for a client.
There is an assumption of responsibility by the solicitor coupled with reliance by the
client on the skill of the solicitor. The solicitor’s duty to exercise reasonable care and
skill is imposed both by contract and the law of tort.
CLP
106
It is a fundamental duty of a solicitor to diarize his cases and keep his clients informed
of dates and prepare the case with the client. On the facts, the appellant failed to
discharge this fundamental obligation which resulted in judgment being entered
against the respondents. This is therefore the causative link between the negligent
omission of the appellant and the damage suffered by the respondents.
Gopal Sri Ram JCA (delivering the judgment of the court)
The position of law
It arises in the context of professional negligence on the part of an advocate and
solicitor. It comes at a time when the subject is in vogue. In England, for example,
the courts have, influenced no doubt by the far-reaching decision of the European
Court of Human Rights in Osman v The UK [2000] EHRR 245 removed the blanket
immunity enjoyed by advocates since the policy decision in Rondel v Worsley [1969] 1
AC 191. See, Arhtur (JS) Hall & Co v Simons [1999] 3 WLR 873. Our law has, however,
always differed from English law. Advocates here have never enjoyed immunity from
suits for negligence. See, Miranda v Khoo Yew Boon [1968] 1 MLJ 161; Ali bin Jais
v Linton Albert & Anor [1999] 6 MLJ 304. This may cause difficulties especially in
criminal cases where there is a danger of the merits of a conviction being re-litigated in
civil proceedings. Perhaps the correct policy approach in such cases lies in the court’s
power to strike an action out as an abuse of process. See, Hunter v Chief Constable of
West Midlands & Anor [1981] 3 All ER 727.
Facts of the case
The present case does not involve any policy question. It is a case in which the appellant
advocate delivered a defence but failed to appear in court on the day fixed for the
trial of the action. He also did not inform his clients (the respondents) of the trial date.
Judgment was then entered against the respondents. An application to set aside the
judgment failed before Mohamed Zahir, J, inter alia, on the ground that the defence
raised no triable issue. A subsequent appeal also failed. The advocate has seized upon
the finding made by Mohamed Zahir J. His counsel argued that even if the advocate
had informed the respondents and they all had been present at the date of hearing
it would have made no difference to the respondents’ case. It would have been lost
anyway. So it all goes back to causation.
Causation
A plaintiff may suffer damage. But it is of no consequence unless the defendant
negligently caused it. If the damage would have happened anyway, then the defendant
cannot be held liable for it. For liability to be visited upon a defendant’s head, it
must be proved that but for his negligence the harm would not have happened.
See Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 ALL
ER 1068. But the inferences to be drawn from any given set of circumstances may
establish causation. The point is well illustrated by McGhee v National Coal Board
[1972] 3 ALL ER 1008.
In that case, the pursuer worked in a brick kiln. The hot and dusty conditions of his
work place caused the brick dust to adhere to his sweaty skin. No breach of duty by
his employers, the defenders, was established in respect of his working conditions.
However, the employers were held to be at fault in failing to provide adequate washing
facilities which resulted in the pursuer having to cycle home after work with his body
still caked in brick dust. The pursuer contracted dermatitis and the evidence that
this was caused by the brick dust was accepted. Brick dust adhering to the skin was
a recognized cause of industrial dermatitis and the provision of showers to remove

it after work was a usual precaution to minimize the risk of the disease. The precise
mechanism of causation of the disease however, was not known and the furthest the
doctors called for the pursuer were able to go was to say that the provision of showers
would have materially reduced the risk of dermatitis. They were unable to say it would
probably have prevented the disease.
The pursuer failed before the Lord Ordinary and the first Division of the Court of Session
on the ground that he had not proved causation. On further appeal, the House of Lords
reversed. Lord Wilberforce said (at p 1012):
107
“But the question whether a pursuer must necessarily fail, if, after he has
shown a breach of duty, involving an increase of risk of disease, he cannot
positively prove that this increase of risk caused or materially contributed to
the disease while his employers cannot positively prove the contrary. In this
intermediate case there is an appearance of logic in the view that the pursuer,
on whom the onus lies, should fail - a logic which dictated the judgments
below. The question is whether we should be satisfied in factual situations

like the present, with this logical approach. In my opinion, there are further
considerations of importance. First, it is a sound principle that where a person
has, by breach of duty of care, created a risk, and injury occurs within the
area of that risk, the loss should be borne by him unless he shows that it had
some other cause. Secondly, from the evidential point of view, one may ask,
why should a man who is able to show that his employer should have taken
certain precautions, because without them there is a risk, or an added risk, of
injury or disease, and who in fact sustains exactly that injury or disease, have
to assume the burden of proving more: namely, that it was the addition to the
risk, caused by the breach of duty, which caused or materially contributed to
the injury? In many cases of which the present is typical, this is impossible to
prove, just because honest medical opinion cannot segregate the causes of
an illness between compound causes. And if one asks which of the parties,
the workman or the employers should suffer from this inherent evidential
difficulty, the answer as a matter in policy or justice should be that it is the
creator of the risk who, ex hypothesi, must be taken to have foreseen the
possibility of damage, who should bear its consequences.”
Now, we must confess that despite the careful argument presented by counsel for the
appellant, we formed the view that causation had been established. As pointed out
by counsel for the respondents, this is a case where the clients lost an opportunity
to convince the Judge by way of oral testimony and documentary evidence that they
had a complete answer to the claim that had been brought against them. In fact,
Dato’ Wrigglesworth was able to demonstrate to a conviction that the appellant had
not prepared his clients’ case with the care and attention it deserved. Vital links in
the evidence were omitted by a singular failure to pursue the proper line of inquiry,
especially in regard to the relevant documentary evidence. If the appellant solicitor
had informed the respondents of the hearing date and had prepared himself properly
for the trial, he would have been able to persuade the Judge that they had a complete
answer to the claim that had been brought against the respondents. Accordingly,
this is a case where the respondents lost a valuable right - the right to persuade a
Judge of first instance by way of oral and documentary evidence - by reason of the
appellant’s oversight of the notice of hearing that had been given by the court. It is
an unfortunate turn of events which we are certain the solicitor did not wish upon
his clients. But it happened. And for that the solicitor must answer in a claim for
negligence.
Advocate and solicitors undertake an onerous task when they agree to act for a client.
There is an assumption of responsibility by the solicitor coupled with reliance by the
client on the skill of the solicitor. The solicitor’s duty to exercise reasonable care and
skill is imposed both by contract and by the law of tort. Here, we need do no more
than quote the words of Lord Goff in Henderson & Ors v Merrett Syndicates Ltd & Ors
[1994] 3 ALL ER 506, 503:
CASES & MATERIALS
“The judgment of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp
& Kemp (a firm)[1978] 3 ALL ER 571, [1979] Ch 384 provided the first analysis
in depth of the question of concurrent liability in tort and contract. Following
upon Esso Petroleum Co Ltd v Mardon [1976] 2 ALL ER 5; [1976] QB 801, it also
broke the mould, in the sense that it undermined the view which was becoming
settled that, where there is an alternative liability in tort, the claimant must
pursue his remedy in contract alone. The development of the case law in other
common law countries is very striking. In the same year as the Midland Bank
Trust case, the Irish Supreme Court held that solicitors owed to their clients
concurrent duties in contract and tort: see Finlay v Murtagh [1979] 1R 249.
Next, in Central Trust Co v Rafuse [1986] 31 DLR (4th) 481 Le Dain J, delivering
CLP
108
the judgment of the Supreme Court of Canada, conducted a comprehensive

and most impressive survey of the relevant English and Canadian authorities
on the liability of solicitors to their clients for negligence, in contract and in
tort, in the course of which he paid a generous tribute to the analysis of Oliver
J in the Midland Bank Trust case. His conclusions are set out in a series of
proposition (at 521-522); but his general conclusion was to the same effect as
that reached by Oliver J. He said (at 522):
‘A concurrent or alternative liability in tort will not be admitted if its
effect would be to permit the plaintiff to circumvent or escape a
contractual exclusion or limitation of liability for the act or omission that
would constitute the tort. Subject to this qualification, where concurrent
liability in tort and contract exists the plaintiff has the right to assert the
cause of action that appears to be the most advantageous to him in
respect of any particular legal consequence.’
One of the fundamental duties of a solicitor is to diarize his cases, keep his client
informed of the diarized dates and prepare the case with the client. The present
instance is a case where there was a failure to discharge this rather fundamental
obligation. As a result the clients suffered. There it is then-the causative link-between
the negligent omission and damage.
Having come to the conclusion that there are no merits in the appeal, the appeal is
dismissed.
MOHD NOR DAGANG SDN BHD v TETUAN MOHD YUSOF ENDOT [2001] 5 MLJ 561
High Court
Abdull Hamid Embong J
The plaintiff is claiming for general and special damages against the defendant for
professional negligence. In the instant suit, the plaintiff alleged that the defendant,
as its retained advocate and solicitor, was negligent in exercising due care, skill and
diligence in defending the suit. The plaintiff’s allegation of negligence is grounded on
both acts of preparatory to the trial and the omission of the defendant in court failing
to call witness and adducing documents as evidence in defending the suit. The issues
to be decided are; (i) whether the defendant had informed the plaintiff of the new
hearing date of the suit; (ii) whether the defendant had been negligent in reminding
the plaintiff of the hearing date.
Held, allowing the appeal with costs:
(i) It may be a common practice for an advocate and solicitor to remind a client
or his witness to be present in court on appointed date, but there is no legal
obligation to do so. Failure to remind a client to attend court is therefore not
a negligent act if, as in the instant case, the advocate and solicitor had taken
all necessary and reasonable steps to inform the client. Neither the LPA 1976
nor the rules made thereunder provide for such specified obligation, even
though in all cases there is, as a matter of etiquette a need for an advocate
and solicitor, to always uphold the interest of his client, which in a particular
case would include ensuring the latter’s appearance in court.
(ii) It is settled law that a client may bring an action against an advocate and
solicitor in contract, based on the retainer. The standard of care required is that
of a reasonable competent advocate and solicitor acting within the confines
of the retainer NEOGH SOO OH & ORS v G RETHINASAMY [1984] MLJ 126. On
the facts of the case, the court is the view that the defendant had reasonably
done all it could in preparing for the plaintiff’s defence in the suit. The court
could not find that the defendant had failed to exercise reasonable care, skill
and diligence in acting as advocate and solicitor for the plaintiff in the suit.
109
Standard of care required to prove professional negligence

DR SOO FOOK MUN v FOO FIO NA & ANOR [2001] 2 AMR 2205
Gopal Sri Ram JCA,
The final point I propose to deal with is the standard of proof of medical negligence.
The test that we have always used in our jurisdiction is that formulated by McNair J in

Bolam v Friern Hospital Management Committee [1975] 1 WLR 582. To recall, this is
what he there said at p 586:
“Where you get a situation which involves the use of some special skill or
competence, then the test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham omnibus, because he has
not got this special skill. The test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man need not possess the
highest expert skill; it is well established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that particular art.”
Indeed the Privy Council in an appeal from our courts applied this statement. See, Chin
Keow v Government of Malaysia & Anor [1967] 2 MLJ 45. To the list of cases that have
explained the applicability of the Bolam test may be added the instructive judgement
of Lord Woolf MR in Penny v East Kent Health Authority [1999] Butterworths Direct
On line Service Official Transcripts.
In the course of argument we were referred to a number of recent cases from Australia
that have departed from the Bolam test. These include F v R (1984) 33 SASR 189, Rogers
v Wittaker (1992) 109 ALR 625 and Naxakis v Western General Hospital (1999) HCA 22
(Internet edition). Counsel for the plaintiff urged us to follow the Australian approach
and jettison the Bolam test. I will be less than frank if I did not say that I was at first most
attracted to this suggestion. But having given the matter much anxious consideration,
I have come to the conclusion that we ought not to alter the approach. There are two
broad reasons for this. First, as a matter of precedent I do not think that it is open to
us an intermediate Court of Appeal to alter the law. That is a function reserved for the
apex court. Secondly, as a matter of practical justice, the Bolam test places a fairly high
threshold for a plaintiff to cross in an action for medical negligence. It is right that this
be so. If the law played too interventionist a role in the field if medical negligence, it
will lead to the practice of defensive medicine. The cost of medical care for the man on
the street would become prohibitive without being necessarily beneficial. For the time
being in Bolam test maintains a fair balance between law and medicine. There may
perhaps come a time when we will be compelled to lower the interventions threshold
if there is a continuing slide in medical standards. But that day has not yet come.
FOO FIO NA v DR SOO FOOK MUN & ANOR [2007] 1 AMR 621 Federal Ct
The Appellant was a front seat passenger in a motor car that crashed into a tree on
the night of 11th July, 1982. The car was driven by her boyfriend and there were two
other passengers in the back seat. The accident happened near Assunta Hospital (“the
Hospital”) where the Appellant and her two companions were brought to and where
the Appellant was subsequently warded for the following injuries.
(1) Bruises on the lower abdominal wall.
(2) Bruises on the right breast.
CASES & MATERIALS
(3) Bruises on both anterior iliac spine areas.

(4) Closed dislocation C4 and C5 vertebrae with bilaterally locked facets.
Injury No. (4), the most serious of her injuries caused much pain to her neck each
time she moved her head. Dr. Celine Pereira, the doctor on duty, prescribed the initial
treatment by having X-rays taken of her neck and placing a cervical collar around it.
Dr Celine Pereira then contacted the orthopaedic surgeon on duty Dr. Soo Fook Mun,
the 1st Respondent, who was at home at that time and she was advised that the collar
should remain and the Appellant stablised by keeping her in bed and placing sand-
bags on either side of her head to prevent her from moving her head and to reduce
the risk of paralysis. This was accordingly done. The 1st Respondent saw the Appellant
CLP
110
for the first time the following morning and after examining her, prescribed the first
treatment by placing her on traction with weights in a further attempt to reduce the
dislocated cervical vertebrae. This proved to be unsuccessful and on 14 July, 1982,
the 1st Respondent performed a manipulation or closed reduction procedure under
general anaesthetic to unlock the locked facet joint.
Despite three attempts the 1st Respondent failed to reduce the dislocated cervical
vertebrae and on 19th July, 1982, the 1st Respondent performed the first of two
operations to place the dislocated vertebrae into their original positions. This involved
an open reduction whereby the nape of the Appellant’s neck was surgically opened
and the dislocated vertebrae moved to their normal positions and secured by bone
grafting and the insertion of a loop of wire to stabilise the spinal cord. X-rays were
taken after the surgery.
Unfortunately this procedure too failed as the Appellant became paralysed the day
after the operation. Suspecting that the paralysis might be due to vascular infarction
i.e. when blood supply to the spinal cord is interrupted and cut-off, the 1st Respondent
prescribed a course of medication to the Appellant by the injection of Dexamethasone
for over four days. When the Appellant’s condition showed no signs of improvement
the 1st Respondent called in a neurosurgeon, Dr. Mohandas, to examine the Appellant.
Following his examination, Dr. Mohandas did a myelogram test on her on 5 August,
1982 and he found that the wire loop which was placed to correct the dislocation of
C4 and C5 vertebrae during the first operation was pressuring the spinal cord and that
was the cause of the total paralysis. As a result of this the 1st Respondent performed
a second operation on the appellant on the same day whereby he removed the wire
loop. But this treatment too did not remove the paralysis and the Appellant continued
to be confined to a wheel chair to this very day.
In her medical negligence suit filed against the 1st and 2nd Respondents in January,
1987, the Appellant succeeded in proving that:
(1) her paralysis was caused by the first operation performed by the 1st Respondent
and was not due to the motor car accident.
(2) the 1st Respondent was negligent in tying the wire loop which impressed the
spinal cord and which led to the paralysis.
(3) the 1st Respondent was also negligent in not doing anything immediately after
the discovery of the paralysis to remedy it.
(4) that the 1st Respondent was negligent when he performed the second
operation in the absence of Dr. Mohandas who pointed out the cause of the
paralysis.
As for the 2nd Respondent, since it was proven that the 1st Respondent was at all
material times its servant or agent, the 2nd Respondent was held vicariously liable for
the negligent acts of the 1st Respondent.
Pursuant to the finding of fault on the part of both Respondents and the award of
damages against them separate notices of appeal were filed by the 1st Respondent
against the Appellant and 2nd Respondent and by the 2nd Respondent against the
Appellant and 1st Respondent to the Court of Appeal.
Both appeals were heard together at the end of which the Court of Appeal allowed
both appeals, set aside the orders of the High Court and ordered that Appellant bear
the costs of both appeals as well as the trial.
Following this, the Appellant successfully applied for and obtained leave to appeal to
this Court to determine the question of law which is already stated at the beginning of
this judgment.
In granting such leave, Steve Shim CJ (Sabah & Sarawak), Abdul Malek and Mohtar
Abdullah, FCJJ, have in their unanimous judgment reported at [2002] 2 CLJ 11, confined
that question of law to the “particular aspect of medical negligence [that] relates
specifically to the duty and standard of care of a medical practitioner in providing
advice to a patient on the inherent or material risks of the proposed treatment.”
111
At common law the duty of care owed by a doctor arises out of his relationship with
his patient. Without the doctor and patient relationship, there is no duty on the part of
the doctor to diagnose, advice and treat his patient.
That duty of care has been aptly described by Lord Hewart CJ in R. Bateman [1925] 94
LBKB 79 to be as follows.
“If a person holds himself out as possessing special skill and knowledge and

he is consulted, as possessing such skill and knowledge by or on behalf of a
patient, he owes a duty to the patient to use due caution in undertaking the
treatment and the patient submits to his direction and treatment accordingly,
he owes a duty to the patient to use diligence, care, knowledge, skill and
caution in administering the treatment. No contractual relation is necessary,
nor is it necessary that the service be rendered for reward.”
However in the exercise of his duty of care, the doctor is expected to maintain a
standard which under the common law is achieved by the standard satisfied by the
hypothetical reasonable man. However case law has redefined that standard to be
that of the Bolam principle which in substance restrains the courts from scrutinizing
and evaluating the professional conduct of a doctor possessed of a special skill and
competence and that he is not negligent if he has acted within a practice accepted
as proper by a body of his own peers who possess similar skill and competence as
the doctor in question. It matters not that there exists another body with a differing
opinion that does not accept the action taken by the doctor. It is enough that he had
acted in accordance with one of the bodies of opinion and the courts can never declare
his action to be in any way negligent. This over protective and deferential approach
perhaps conform to the well known phrase that “A doctor knows best.”
In the instant appeal, the trial Judge did not apply the Bolam principle, preferring,
instead to question, analyze and conclude that on the evidence before him, the 1st
Respondent was negligent in administering a course of treatment that led to the
Appellant’s paralysis.
The Court of Appeal whilst steering clear of making any pronouncement on the Bolam
principle nonetheless disagreed with the High Court and concluded there was no
evidence to establish with certainty that it was the first surgery performed by the 1st
Respondent that caused the paralysis and freed the 1st Respondent of any liability for
the Appellant’s misfortunes.
It cannot be disputed that the 1st Respondent was under a duty to advice the Appellant
on the course of treatment to be undertaken and the risks involved and the issue is
whether there has been a breach of that duty.
It is the 1st Respondent’s case that the neck injuries suffered by the Appellant were as a
result of the motor car accident and if left unattended would lead to paralysis sooner or
late. It was under these circumstances that when the conservative treatment proved to
be negative that the first operation was performed and when that proved unsuccessful
the second operation was undertaken and on both occasions the 1st Respondent had
the expressed consents of the Appellant to perform both operations.
The expressed consents refer to two consent forms executed by the Appellant. The first
was signed by her at the time of her admission when it was not even contemplated
that surgery was necessary. The second consent form showed her thumb print on
CASES & MATERIALS
the form and bearing a date after the first operation. The trial Judge questioned the
voluntariness of the thumb print as it was not executed in the presence of a witness as
by that time she had lost all sensation to her limbs.
But the issue here is not so much on the consents given for the two operations but
on the risks involved and whether the Appellant was warned of such risks. She had
testified that had she been warned of the risks involved she would not have readily
agreed to undergo the first operation.
There was conflicting evidence on this and the trial Judge made the following finding
when dealing with the Appellant’s first expressed consent.
CLP
112
“It would also be concluded that at the time when that consent was signed
both defendants did not know whether the plaintiff really needed the
operation. As such I am of the view that it would not be possible for the
2nd defendant to explain the procedure and the risks of the operation when
the consent in the above-stated form was given or signed. For that reason
I believe the plaintiff when she said that the 2nd defendant told her that the
1st operation (open reduction) which took place on 19.7.1982 was a minor
operation to correct the little problem of the neck that she was suffering.
In other words she was not told of the risk of paralysis coming from that
operation.”
It must also be remembered that the Appellant suffered total paralysis after operation
and it was to correct this situation that the second operation was performed. In this
respect the trial Judge made the following observations.
“As to the 1st operation, it is clear to me that the 2nd defendant had done
something which caused the paralysis. I am satisfied that the paralysis was
caused by the wire loop compressing the spinal cord and when the wire loop
was removed during the 2nd operation the plaintiff was able to move her
upper limbs. It does not matter what explanation the 2nd defendant gave
for removing the wire loop because the fact remained that the plaintiff
recovered the use of her upper limbs after the removal of the wire loop.
The wire loop inserted by the 2nd defendant during the 1st operation was the
cause of the paralysis. The 2nd defendant was again negligent when he did
not take any step to remedy the paralysis immediately. Instead he waited
for two weeks to do the remedial operation and all that time he kept on
assuring the plaintiff that she would recover from the paralysis which was
only temporary in nature. In my view the above shows that the 2nd defendant
failed to exercise the care and skill of an ordinary competent practitioner in
that profession as stated by the Federal Court in the case of Kow Nan Seng v.
Nagamah & Ors. [1982] 1 MLJ 128.”
The 2nd defendant referred to by the High Court is the 1st Respondent before us.
This is a finding of fact and the law on appellate interference against findings of facts
is well settled as to deter us from upsetting such a finding. Moreover there is sufficient
evidence before the court to justify it in concluding as it did. See the cases of (1) Renal
Link (KL) Sdn. Bhd. v Dato’ Harnam Singh [1997] 2 MLJ 373, (2) China Airlines Ltd. V
Maltran Air Corp Sdn. Bhd. and another appeal [1996] 2 MLJ 517 and (3) Maynard v
West Midlands Regional Health Authority [1985] 1 ALL ER 635.
More importantly, the facts of the instant appeal differ vastly with the facts in Bolam
case in that:
(1) Bolam was a mental patient, and unlike the Appellant, who has been described
as “a bright young lady” by the Court of Appeal, it is doubtful whether he was
in a position to give any consent to any treatment to be given to him.
(2) had a warning of risk been communicated to him, it is doubtful whether he
was in a position to comprehend the true nature of the risks involved.
(3) the risk of injury in the nature of a fracture to Bolam was one in ten thousand.
The same cannot be attributed to the Appellant as the risk of paralysis was
present and real.
(4) unlike Bolam’s case there is no conflicting body of medical opinion adduced in
the instant appeal to establish whether the Appellant should or should not be
warned of the risks of paralysis.
That said, we are of the opinion that the Bolam test has no relevance to the duty and
standard of care of a medical practioner in providing advice to a patient on the inherent
and material risks of the proposed treatment. The practioner is duty bound by law to
inform his patient who is capable of understanding and appreciating such information
of the risks involved in any proposed treatment so as to enable the patient to make an
election of whether to proceed with the proposed treatment with knowledge of the
risks involved or decline to be subjected to such treatment.
113
Case law on this aspect of medical negligence has not been consistent in the application
of the Bolam principle by the English courts.
One such case relates to the House of Lords’ dissenting judgment of Lord Scarman
in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley
Hospital and Others [1985 1 ACT 871. The learned Judge expressed his observations in
the following manner.

“In my view the question whether or not the omission to warn constitutes a
breach of the doctors duty of care towards his patient is to be determined not
exclusively by reference to the current state of responsible and competent
professional opinion and practice at the time, though both are, of course,
relevant considerations, but by the court’s view as to whether the doctor in
advising his patient gave the consideration which the law requires him to
give to the right of the patient to make up her own mind in the light of the
relevant information whether or not she will accept the treatment which he
proposes.”
In that case, Mrs. Sidaway suffered personal injuries as a result of a surgical operation
done by a neuro-surgeon, Mr. Falconer who died five years before the trial of her action.
She did not allege negligence on the performance of the operation but rested her case
on the failure of Mr. Falconer to inform her of the risk inherent on the operation for
had she been so warned she would not have consented to the operation.
The case of Hucks v Cole [1993] 4 MED LR 393, suggests a shift in attitude when
determining a doctor’s liability in a given case. The judges in that case adopted a
pragmatic approach to this issue and held that it was appropriate for the judges to
reject medical expert evidence if they do not really stand up to analysis. The defendant
in that case was a general practitioner in Somerset who possessed a diploma in
obstetrics. Mrs. Hucks had been one of the patients in a maternity hospital and after
giving birth to her child, suffered from fulminating septicemia, which caused various
sores and yellow sports on her fingers and toes. Dr Cole put the patient on a five-
day course of antibiotics known as tetracycline and it was taken off as the sores were
improving. The next day Mrs Huck contracted septicemia, puerperal fever. She sued
Dr Cole for negligence, alleging that he should have treated her with penicillin. The
defendant contended that he had acted in accordance with the reasonable practice of
other doctors with obstetric experience.
At the trial, Lawton J found Dr Cole to have been negligent and the Court of Appeal
upheld his finding. Though the court understood Dr Cole’s action couched with a sense
of security, the court was willing to apply the test of reasonable care, as to whether the
defendant had acted in accordance with approved practice. Based on the evidence, Dr
Cole was found to be negligent because he did not take “every precaution” to prevent
the outbreak of puerperal fever and it mattered not if other doctors would have acted
as he did.
On appeal Sach L.J. opined that “when risks of greater danger are knowingly taken
as a matter of professional practice then, however small the risks, the court must
carefully examine the practice, particularly where the risks can be easily and
inexpensively avoided”.
The decision in Hucks was followed in Gascoine v Ian Sheridan & Co [1994] 5 Med LR
CASES & MATERIALS
437 and in another case, Joyce v Wandworth Health Authority [1995] 6 Med LR 60
where Overend J commented that “the medical practice must stand up to analysis
and be unreasonable in the light of medical knowledge at that time.”
However, a majority of the cases followed the principles set out in Sidaway in which
the courts have effectively allowed a doctor’s liability to be determined by a medical
judgment. Nevertheless the legal position has somewhat changed with the House of
Lords’ decision in Bolitho (administratix of the estate of Bolitho (deceased) v City and
Hackney Health Authority [1997] 4 ALL ER 771.
In that case, the plaintiff a two year old boy, who has a past history of hospital treatment
for croup, was readmitted to hospital under the case of Dr H and Dr R. On the following
day the plaintiff had two episodes during which he turned white and clearly had
CLP
114
difficulty in breathing. Dr H was called in the first instance and she delegated Dr R to
attend in the second instance but neither attended the plaintiff. At about 2.30 pm, the
plaintiff suffered total respiratory failure and a cardiac arrest resulting in severe brain
damage and subsequently died. The mother continued his proceedings for medical
negligence as the administratrix of his estate. The defendant accepted that Dr H had
acted in breach of her duty of care to the plaintiff but contended that the cardiac arrest
would not have been avoided if Dr H or some other suitable deputy had attended.
Lord Browne-Wilkinson delivering the judgment of the House of Lords expressed his
findings at page 778 of the report as follows.
“.... In my view the court is not bound to hold that a defendant doctor escapes
liability for negligent treatment or diagnosis just because he leads evidence
from a number of medical experts who are genuinely of opinion that the
defendant’s treatment or diagnosis accorded with sound medical practice.
.... In particular, in cases involving, as they so often do, the weighing of risks
against benefits, the judge before accepting a body of opinion as being
responsible, reasonable or respectable, will need to be satisfied that, in
forming their views, the experts have directed their minds to the question of
comparative risks and benefits and have reached a defensible conclusion on
the matter”.
In the course of his speech and after discussing some decided cases, the learned Judge
also made the following pertinent remarks.
“These decisions demonstrate that in cases of diagnosis and treatment
there are cases where, despite a body of professional opinion sanctioning
the defendant’s conduct, the defendant can properly be held liable for
negligence (I am not here considering questions of disclosure of risk). In
my judgment that is because, in some cases, it cannot be demonstrated to
the judge’s satisfaction that the body of opinion relied on is reasonable or
responsible. In the vast majority of cases the fact that distinguished experts
in the field are of a particular opinion will demonstrate the reasonableness
of that opinion. In particular, where there are questions of assessment of
the relative risks and benefits of adopting a particular medical practice, a
reasonable view necessarily presupposes that the relative risks and benefits
have been weighed by the experts in forming their opinions. But if, in a rare
case, it can be demonstrated that the professional opinion is not capable of
withstanding logical analysis, the judge is entitled to hold that the body of
opinion is not reasonable or responsible”.
It would appear that Bolitho decided that if it can be shown that the professional
opinion relied upon was not capable or withstanding logical analysis, the Judge is
entitled to hold that the body of opinion was not reasonable or responsible.
Commonwealth jurisdictions have also declined to follow the Bolam test. One such
case is the Australian case of Rogers v Whitaker [1992] 175 CLR 479, where the
facts disclose that Whitaker who was almost totally blind in the right eye consulted
Rogers, an ophthalmic surgeon. The latter advised her that an operation on her right
eye would not only improve its appearance but would probably restore significant
sight to it. Whitaker agreed to undergo surgery but it did nothing to her right eye but
developed inflammation to her left eye and this led to the loss of sight of that good
eye. In the Supreme Court of New South Wales Rogers was held liable in that he had
failed to warn Whitaker that as a result of the surgery, she might develop a condition
known as sympathetic opthalmia in her left eye. Rogers’ appeal to the Court of Appeal
was dismissed and in affirming that decision and following Lord Scarman’s ruling in
Sidaway, the High Court made the following pronouncements.
“In Australia, it has been accepted that the standard of care to be observed
by a person with some special skill or competence is that of the ordinary
skilled person exercising and professing to have that special skill. But,
that standard is not determined solely or even primarily by reference to
the practice followed or supported by a responsible body of opinion in the
relevant profession or trade. Even in the sphere of diagnosis and treatment,
115
the heartland of the skilled medical practitioner, the Bolam principle has not
always been applied. Further, and more importantly, particularly in the field
of non-disclosure of risk and the provision of advice and information, the
Bolam principle has been discarded and, instead, the courts have adopted the
principle that, while evidence of acceptable medical practice is a useful guide
for the courts, it is for the courts to adjudicate on what is the appropriate
standard of care after giving weight to “the paramount consideration that a

person is entitled to make his own decisions about his life.”
The decision in Rogers was followed by the Supreme Court of South Australia in the
case of F v R [1983] 33 S.A.S.R. 189 and Battersby v Tottman [1984] 35 S.A.S.R. 577,582
which rejected the notion that the court is automatically bound by evidence as to
the practice of the medical profession. The court has an obligation to question and
scrutinize the professional practice, to ensure that the standard set by law is attained.
In F v R [1983] 33 S.A.S.R. 189 at page 191 King C.J. outlined the scope of the duty to
disclose in the following manner.
“Determination of the scope of the doctor’s duty to disclose involves
consideration of two values which are sometimes in conflict, namely the
duty of the doctor to act in what he conceives to be the best interests of his
patient and the right of the patient to control his own life and to have the
information necessary to do so.
What is in question is the scope of the doctor’s duty of care. He is required
to act reasonably, not only in his actual treatment of the patient, but also
in relation to the disclosure of information. In Chatterton v Gerson Bristow
J. held that it is “the duty of a doctor to explain what he intends to do,
and its implications, in the way a careful and responsible doctor in similar
circumstances would have done”. It is my opinion that is a correct statement
of the law, and that the duty extends, not only to the disclosure of real
risks of misfortune inherent in the treatment, but also any real risk that the
treatment, especially if it involves major surgery, may prove ineffective.
What a careful and responsible doctor would disclose depends upon the
circumstances. The relevant circumstances include the nature of the matter
to be disclosed, the nature of the treatment, the desire of the patient for
information, the temperament and health of the patient, and the general
surrounding circumstances”.
This is followed by the following warning from the learned Judge as to the reality of
the situation.
“But professions may adopt unreasonable practices. Practices may develop
in professions, particularly as to disclosure, not because they serve the
interest of the clients, but because they protect the interests or convenience
of members of the profession. The court has an obligation to scrutinise
professional practices to ensure that they accord with the standard of
reasonableness imposed by the law”.
In the realm of diagnosis, treatment and the duty to warn, the ruling of the High Court
of Australia in Naxakis v Western General Hospital & Another [1999] HCA 22 1 was
able to settle the ongoing doubt which existed in Rogers V Whitaker, as to, whether
CASES & MATERIALS
Rogers was restricted to cases relating to negligent advise only.

In Naxakis, a 12 year old boy, Paraskevas Naxakis was struck on the head by his
schoolmate’s school bag. He collapsed and was admitted by a general practitioner
to the Western General Hospital for head injury. At the hospital the appellant fell
into unarousable unconsciousness for five minutes and was unresponsive to painful
stimuli. A preliminary diagnosis was made of a subarachnoid (traumatically caused)
haemorrhage caused by the blow to the head. He remained in hospital for nine days
under the supervision of the second respondent, Mr. Jensen, a senior neurosurgeon
at the hospital. A CAT scan was carried out which indicated that he was suffering from
subarachnoid (traumatically caused) haemorrhage. However his condition improved
and the appellant was discharged. Two days later the appellant collapsed and was
taken to the Royal Children’s Hospital where he was attended to by Mr Klug, director
CLP
116
of neurosurgery. An angiogram conducted revealed that the appellant suffered a

major intracranial bleed from a burst aneurysm. An operation was performed to
insert a ventricular peritoneal shunt to drain cerebrospinal fluid and a craniotomy
was performed to clip the aneurysm. The appellant brought an action in the Supreme
Court of Victoria against the Senior neurosurgeon and the hospital for failure to
properly diagnose and that his negligence had led him to suffer serious and permanent
physical and intellectual impairment. The trial judge accepted a no case to answer. The
appellant’s appeal was unsuccessful when the Court of Appeal held that there was
no basis for the claim that the neurosurgeon failed to consider the possibility of an
aneurysm.
Gaudron J, speaking for the High Court of Australia reaffirmed the rejection of the
Bolam test with the following remarks at page 4 of the report.
“... It is important to bear in mind that the test for medical negligence is not
what other doctor say they would or would not have done in the same or
similar circumstances...
To treat what other doctors do or do not do as decisive is to adopt a variant
to the direction given to the jury in Bolam v Friern Hospital Management
Committee (“the Bolam rule”)....
The Bolam rule, which allows that the standard of care owed by a doctor
to his or her patient is “a matter of medical judgment”, was rejected by this
Court in Rogers v Whitaker”.
McHugh J, another member of the panel expressed the same sentiments at page 12
of the report.
“In my opinion, that evidence of Mr Klug was sufficient to get the plaintiff’s
case to the jury, irrespective of whether Mr. Jensen did or did not consider
performing an angiogram. .... If there is evidence upon which the jury could
reasonably find negligence on the part of a doctor, the issue is for them to
decide irrespective of how many doctors think that the defendant was not
negligent or careless. Nor is it to the point that this evidence of Mr. Klug also
shows that a respectable body of medical opinion would not have performed
an angiogram in the circumstances of this case. To allow that body of
opinion to be decisive would re-introduce the Bolam test into Australian
law. In Rogers v Whitaker, this Court rejected the Bolam test and held that a
finding of medical negligence may be made even though the conduct of the
defendant was in accord with a practice accepted at that time as proper by a
responsible body of medical opinion”.
The question before the High Court of Australia was not whether the defendant’s
conduct accorded with the practice of the medical profession or some parts of it, but
whether it conformed to the standard of reasonable care demanded by the law. That
was the question for the court, and the duty of deciding it could not be delegated to
any profession or group in the community.
In Malaysia, the Bolam principle has been applied extensively by the courts in medical
negligent cases when determining the standard of care. Such cases include:
(1) Swamy v Matthews [1967] 1 MLJ 142 and [1968] 1 MLJ 138.
(2) Chin Keow v Government of Malaysia and Another [1967] 2 MLJ 45.
(3) Elizabeth Choo v Government of Malaysia [1970] 2 MLJ 171.

(4) KOW NAM SENG v Nagamah & Ors [1982] 1 MLJ 128.
In the last mentioned case, the appellant applied a complete plaster cost to the leg of
the 2nd Respondent and due to lack of proper skill and care in the application of the
cast, caused inadequate blood circulation to the leg that led to gangrene, necessitating
the amputation of the 2nd respondent’s leg. The 2nd respondent claimed damages
against the appellant, 3rd respondent and the Government. The appellant admitted
liability as regards the road accident but denied it as regards the amputation. The trial
judge absolved the medical officer and the Government from any blame and held the
117
appellant solely to blame. Salleh Abas FJ in delivering judgment for the Federal Court
said at page 130:
“There may be differences of opinion as to the types of plaster casts to be
applied in the treatment of the type of injuries sustained by the respondent,
but the choice of a treatment which is the standard medical practice is not by
itself a negligence, Bolam v Friern Hospital Management Committee [1957]2

All ER 118 and Elizabeth Choo v Government of Malaysia [1970] 2 MLJ 171.”
In Asiah bte Kamsah v Dr Rajinder Singh & Ors [2002] 1 MLJ 484, the plaintiff delivered
her second child on 10th October 1988 at the Telok Intan District Hospital. Due to
suspicion of foetus distress, she underwent a lower section caesarian operation done
under general anaesthesia. Unfortunately she did not recover from the operation and
suffered permanent irreversible brain damage. The plaintiff claimed damages against
the defendants. In deciding whether the doctor and the anaesthetist were negligent,
the court relied on the Bolam principle. James Foong J (as he then was) concluded as
follows at page 489 of the report.
“.... I find no evidence to support a finding that this doctor was negligent in
this surgery going by the test set out in the established case of Bolam v Friern
Hospital Management Committee [1957] 2 All ER 118”. ...
Later at page 494 of the same report, the learned Judge made the following finding as
against the second doctor sued in that action.
“.... I find the second defendant is guilty of negligence since he did not act
in accordance with the practice accepted as proper by a responsible body of
medical men skilled in this particular art - a test as set forth in Bolam’s case”.
Later in the same year, the court in Hor Sai Hong & Anor v University Hospital & Anor
[2002] 5 MLJ 167, applied the Bolam principle in deciding whether the doctor was
negligent in handling the birth of the 2nd plaintiff’s child.
Following the decision of the Rogers’ case in 1992, conflicting judgments have been
delivered in our courts over the preference and application of the Rogers v Whitaker
test to the Bolam test.
In Liew Sin Kiong v Cr Sharon DM Paulraj [1996]5 MLJ 193 the plaintiff sued the
defendant for aggravated or punitive damages for negligence pertaining to the
operation of his right eye which was lost to post-operative infection. The plaintiff also
alleged that a Seton procedure, which the plaintiff’s 1st doctor had recommended
should have been carried out, and not a repeat trabeculectomy which the defendant
had performed.
Ian Chin J followed Sidaway and found that the plaintiff had failed to prove that
the defendant had not acted in accordance with the standards of a competent
ophthalmologist. The defendant was held not liable and in so deciding, the learned
Judge made the following remarks at page 209 of the report.
“I am of the view that the defendant had treaded on well trodden path
and she cannot be said to be guilty of negligence (Bolam v Friern Hospital
Management Committee [1957]2 All ER 118, HL). Put in another way,
the plaintiff has failed to prove that the defendant did what no skilled
ophthalmologist would do (Hunter v Hanley [1955]SC 20, Elizabeth Choo v
CASES & MATERIALS
Government of Malaysia & Anor [1970]2 MLJ 171.”

The Rogers v Whitaker test was fully endorsed in Malaysia for the first time in the case of
Kamalam a/p Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram
Estate, Ulu Tiram, Johore & Anor [1996] 4 MLJ 674. The brief facts in this case are that
the late Mr Dinasan a/l Padmanbathan, the deceased, who was employed by the 1st
defendant at the time of his death, was suffering from hypertension. He complained of
giddiness and fits and fainted at work. He was then attended by the defendant’s doctor
who examined him and prescribed medication and subsequently discharged him. He
was further examined by the defendant’s doctor on two other occasions. A day after
his last examination the deceased was admitted to the Kluang Hospital as a result of
giddiness and fits. The deceased died at the Kluang Hospital the day after.
CLP
118
Richard Talalla J, at page 686 of his judgment had this to say.

“The law applicable in this case and which binds me is to be found in the
majority decision of Barakbah LP in the Federal Court case of Swamy v
Matthews & Anor [1968] 1 MLJ 138 at pp 139 and 140 where it was stated:
‘A man or a woman who practices a profession is bound to exercise the
care and skill of an ordinary competent practitioner in that profession
- be it the profession of an accountant, a banker, a doctor, a solicitor
or otherwise.’
Further at page 687 His Lordship went on to say:
“..... that the current state of the law, by way of elaboration may be found
in the decision of the High Court of Australia given in Christoper Rogers v
Whitaker [1992]175 CLR 479.”
Finally at page 691 His Lordship concluded as follows.
“For my part I see Bolam’s case and that of Elizabeth Choo being referred
to by the learned judge not for a proposition that there being differences of
opinion as to treatment, choice of a treatment which is the standard medical
practice is not itself negligence. I do not see the learned judge as having
addressed himself to the Bolam principle and upon doing so applying it.
Accordingly I do not find myself by reference to Kow’s case being fettered by
the Bolam principle but on the contrary bound by the ruling of Salleh Abas
FJ, set out above which ruling corresponds with the ruling by the then Lord
President in Swamy’s case and I propose to adopt by way of elaboration of
those rulings the abovementioned dicta extracted from the decision in the
Roger’s case. I should emphazise that while due regards will be had to the
evidence of medical experts, I do not accept myself as being restricted by the
establishment in evidence of a practice accepted as proper by a responsible
body of medical men skilled in that particular art to finding a doctor is not
guilty of negligence if he has acted in accordance with that practice. In short
I am not bound by the Bolam principle. Rather do I see the judicial function in
this case as one to be exercised as in any other case of negligence, unshackled,
on the ordinary principles of the law of negligence and the overall evidence.”
Rogers v Whitaker was again applied in the case of Tan Ah Kau v The Government of
Malaysia [1997] 2 AMR 1382. In this case, the servant and/or agent of the defendant
carried out a surgical operation on the plaintiff who had a history of an injury to his
back caused by a piece of wood.
The provisional diagnosis was that of a prolapsed disc. An orthopedic surgeon examined
the plaintiff and made a provisional diagnosis of intra spinal tumor at the level of the
thoracic vertebra D11 and D12. After numerous tests the cause of the tumour was
ascertained as low grade astrocytoma. He was completely paralysed waist down. The
Plaintiff sought damages from the defendant for the alleged negligence and/or breach
of professional duties.
In applying the Rogers v Whitaker test, Low Hop Bing, J (as he then was) arrived at the
following conclusion at page 1402 of his judgment.
“In the instant case, where the risk of paralysis was very real, more so than
the tumour was intramedullary, it was absolutely essential for the attending
surgeon such as DW1 or any doctor assisting him to warn the patient of the
foreseeable risk of even a finding of intramedullary tumour”.

Finally we make reference to Michael Jones’ book on Medical Negligence [1996]
edition at page 95 that seems to suggest that there is a distinction between the test
of negligence based on the reasonable competent man and that of the ordinary skilled
man. The former makes it clear that negligence is concerned with the departures from
what ought to have been done in the circumstances which is measured by reference to
a hypothetical ‘reasonable doctor’ and the latter places considerable emphasis on the
standards which are in fact adopted by the profession. He emphasizes that the point
is for the court to determine what the reasonable doctor would have done, not the
119
profession. What the profession does in a given situation will be an important indicator
of what ought to have been done, but it should not necessarily be determinative. In the
final analysis the court should set the standard of care in negligence, drawing upon the
evidence presented. The Bolam test fails to make this important distinction between
the reasonable competent doctor and the ordinary skilled doctor.
In Blenkiron v Great Central Gas Consumers’ Co [1860] 2 F & F 437, Cockburn CJ, said.

“General practice has always been taken into account in determining the
standard of care, but it is not conclusive because ‘no one can claim to be
excused for want of care because others are careless as himself’. .... Indeed
it is not so much the universal behaviour of mankind in a particular field to
which the law gives weight, as the standard of conduct whether uniformly
followed or not, which is generally accepted as correct”.
In Hajgato v London Health Association [1982] 36 O.R. (2nd) 669, an action in negligence
in respect of personal injuries sustained during post-operative case, Callaghan J, at
page 693 of his judgment expressed his concern in the following manner.
“In my view however, a court has a right to strike down substandard
approved practices when common sense dictates such a result. No profession
is above the law and the courts on behalf of the public have a critical role to
play in monitoring and precipitating changes where required in professional
standards.”
In the Irish case of Best v Wellcome Foundation Ltd [1994] 5 Med LR 81, Finlay CJ
expressed the same concern and defined the “function which a Court can and must
perform in the trial of a case in order to acquire a just result, is to apply common
sense and a careful understanding of the logical and likelihood of events to conflicting
opinions and conflicting theories concerning a matter of this kind”.
Therefore there is a need for members of the medical profession to stand up to the
wrong doings, if any, as is the case of professionals in other professions. In so doing
people involved in medical negligence cases would be able to obtain better professional
advice and that the courts would be appraised with evidence that would assist them
in their deliberations. On this basis we are of the view that the Rogers v Whitaker test
would be a more appropriate and a viable test of this millennium then the Bolam
test.
To borrow a quote from Lord Woolfe’s inaugural lecture in the new Provost Series,
delivered in London in 2001, the phrase “Doctor knows best” should now be followed
by the qualifying words “if he acts reasonably and logically and gets his facts right”.
On that finding we answer the question posed to us in the negative and order that
this appeal is allowed with costs here, in the Court of Appeal and in the High Court to
be borne by the Respondents and the orders of the High Court on quantum are to be
restored. The deposit is to be refunded to the Appellant.
MAELSTROM RESOURCES SDN BHD & ANOR v SHEARN DELAMORE & CO (disaman
sebagai firma) (and Another Suit] [2007] 1 AMR 754 High Court
The parties had agreed that the trial would be confined to findings on liability. The
claims of the respective plaintiffs, both founded on the tort of negligence, arose from
legal opinion on the patentability of an invention offered by the defendant firm of
CASES & MATERIALS
advocates and solicitors who were also a registered patent agent.

The second plaintiff (the plaintiff), in suit No. 1, in the course of his employment with
IEV, an Australian company involved in the cleaning of off-shore oil rigs using its own
Australian patented cleaning device, was exposed to the use of the IEV cleaning device.
After leaving IEV, the plaintiff had designed an improved version of the IEV devices and
sought legal advice from the defendant. IEV was subsequently granted a Malaysian
patent on the cleaning device and thereafter served a notice of patent infringement on
the plaintiff. The defendant gave its first written legal opinion advising the plaintiff to
file his patent application for his invention and at the same time to seek a declaration of
non-infringement of the IEV patent from the High Court. Subsequently, the defendant
gave a second legal opinion. After the discharge of the defendant from acting for the
CLP
120
plaintiff, the plaintiff obtained three different opinions confirming infringement and
conflict of interest, based on which the plaintiff served notice of demand for negligent
advice to the defendant.
The plaintiff’s case was based on the complaint that the defendant owed a duty of care
to him in that at the time of giving the opinions, the defendant knew or ought to have
known that there was a foreseeable risk in exploiting the invention and that in failing
to advise the plaintiffs of the risk and instead advising him to “go ahead and exploit”
his invention which constituted a breach of the duty of care.
The plaintiff contended that the risks were not made known to him and he was made
to believe that the threat from IEV was merely a “fishing expedition”. The defendant in
opposing; contended that the plaintiff had understood both the technical advice with
respect to patentability as well as the risk involved in exploiting his invention.
Issue
Whether the defendant negligent in failing to advise the plaintiff of the risk in exploiting
his invention.
Held
To succeed in negligence the plaintiff is required to prove, that a duty of care was owed
to him by the defendant, that the duty was breached and that he suffered damages in
consequences thereof. Moreover, the defendant being a firm of advocates and solicitors,
has a duty to warn the client of risks he is facing. The plaintiff’s complaint was therefore
purely within the area of competency of a practicing advocate and solicitor and not a
patent agent or other non practicing patent experts. Following the test enunciated in
Caparo Industries Plc v Dickman & Ors [1990] 1 All ER 568 the defendant being a firm
of advocates and solicitors as well as the registered patent agent owed a duty of care
on respect of the professional service that it provided to the plaintiff. Failure by the
defendant to explain and make aware to the plaintiff of the protracted litigation he
was likely to encounter should he decide to act on its advice gave rise to a breach of
that duty of care. On the facts, 2 years had passed by the time this application for a
declaration of an infringement was decided, by which time the plaintiff was no longer
in financial position to continue with his exploitation and in consequence suffered
damages. Therefore the defendant was held to be liable for negligence in failing to
properly advise the plaintiff with respect to the legal impediments to enable him to
weigh his option before he decided to exploit his invention.
Held: Kang Hwee Gee, J
The law
To succeed in negligence the plaintiff is required to prove:
1. that a duty was owed to him by the defendant;
2. that there was a breach of that duty of care; and
3. that in consequence thereof he suffered damages.
See Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors [2003] 2 AMR 6;
[2003] 1 CLJ 585.
Duty of care
House of Lords in CAPARO INDUSTRIES PLC v DICKMAN & ORS [1990] 1 All ER 568:
Held - The three criteria for the imposition of a duty of care were foreseeability of
damage, proximity of relationship and the reasonableness or otherwise of imposing a
duty. In determining whether there was a relationship of proximity between the parties
the court, guided by situations in which the existence, scope and limits of a duty of
care had previously been held to exist rather than by a single general principle, would
determine whether the particular damage suffered was the kind of damage which the
defendant was under a duty to prevent and whether there were circumstances from
which the court could pragmatically conclude that a duty of care existed.
121
Breach of the duty of care - generally

As to what constitutes a breach generally, see BLYTH v BIRMINGHAM WATERWORKS
CO [1856] 11Exch 781:
“The omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do”.

Breach of duty of care - solicitors specifically
See Halsbury’s Laws of England: The Law of Solicitor’s Negligence paragraph 152 and
paragraph 153, 4th edn, Reissue:
Liability for negligence. A solicitor holds himself out to his clients as having
adequate skill and knowledge properly to conduct all business that he
undertakes, whether contentious or non-contentious. He owes a duty to his
client both in contract and in tort, and he may be liable to a third person for
the tort of negligence. Where the solicitors is in breach of his contractual duty
to his client, or where he fails to use proper care and his client or third person,
where he owes a duty of care to that third person, suffers loss as a result,
he is liable in damages even if the claim in negligence is for purely financial
loss. The solicitor’s contractual duties to his client may, in some instances, be
continuing duties, so that the limitation period runs from the date when the
obligation becomes impossible of performance or when the client elects to
treat the continued non-performance as a repudiation of the contract.
Facts not constituting negligence. A solicitor is not guilty of negligence if he
has merely acted upon his client’s instructions in the reasonable belief that
they were correct, or if he has fully explained the position to his client and is
nevertheless instructed to proceed, or merely because he has committed an
error of judgment, whether on matters of discretion or of law, for example on
points of new occurrence or of doubtful construction. Where the facts would
otherwise establish a case of negligence, the solicitor may escape liability on
the ground that he acted upon counsel’s advice. For this purpose he must show
that the counsel whom he consulted was, in his judgment a competent person
that the facts of the case were fully laid before the counsel, and he himself
merely carried out what counsel had advised. However, counsel’s advice is
no protection to the solicitor where, in the circumstances, the solicitor ought
to have the knowledge himself, or where the question is one of practical
procedure, not involving any special difficulty.
A solicitor has a duty to warn client of risks he is facing:
1. Buckland v Mackesy Court of Appeal The Solicitors’ Journal, vols 112- 1968,
p 842:
HARMAN LJ said that neither professional man could be proud of his part
in the present case. The plaintiff contended that the solicitor was negligent
because he allowed or advised the plaintiff to exchange contracts when he
knew that the plaintiff had not yet obtained a mortgage. But there was no duty
on a solicitor to ensure that his client obtained a mortgage before exchanging
contracts: he fulfilled his duty if he warned the client of the risk which the
CASES & MATERIALS
client incurred.
2. Boyce v Rendalls [1983] Court of Appeal Volume 268 Estates Gazette pp 269-
272:
Secondly, having advised correctly on those contemplated arrangements, he
had then drafted two grazing agreements and both of them, for the reasons
I have indicated, were effective to bring them within the proviso to s 2(1) of
the 1948 Act. It follows, submitted Mr Walker, that it cannot be said that Mr
Pedrick was in any way negligent. Mr Price did not seek to say that that general
approach was unsound, but he added this rider: that, if, in the course of taking
instructions, a professional man like a land agent or a solicitor learns of facts
which reveal to him as a professional man the existence of obvious risks, then
CLP
122
he should do more than merely advise within the strict limits of his retainer.
He should call attention to and advise upon the risks. I accept that as a general
proposition of law.
3. County Personnel (Employment Agency) Ltd v Alan R Pulver & Co (a firm)
[1987] 1 All ER 289 Court of Appeal
It seems obvious that legal advice, like any other communication, should be
in terms appropriate to the comprehension and experience of the particular
recipient. It is also, I think, clear that in a situation such as this the professional
man does not necessarily discharge his duty by spelling out what is obvious. The
client is entitled to expect the exercise of a reasonable professional judgment.
That is why the client seeks advice from the professional man in the first place.
If in the exercise of a reasonable professional judgment a solicitor is or should
be alerted to risks which might elude even an intelligent layman, then plainly
it is his duty, to advise the client of these risks or explore the matter further.
and at p 296:
These reflections involve no element of valuation, on which a solicitor
is plainly unfitted to advise. They are reflections which, in my judgment,
would and should occur to a reasonably careful and competent solicitor
called on to consider and advise on this clause against the background I
have described. Having done so, he would and should have advised the
plaintiff that it was, on existing information, impossible to say how the
clause would operate in practice, but that its operation might to a greater
or lesser extent be disadvantageous to the plaintiff, that unless both
initial rents were known and investigated and found to be at open market
levels the risk of disadvantage could not, on the proposed wording, be
eliminated and that, as matters stood, the plaintiff should not consider
entering into a lease which contained this clause. Distasteful though it is
to make a finding of negligence against a dead man who cannot defend
himself, the inescapable fact is that Mr Rose did not give this advice or
anything like it and, in my view, he was negligent in failing to do so.
... This explanation was not itself entirely accurate, if the headlease rent was
below the open market level, but, more importantly, it did nothing to alert Mrs
Feldman to the possible risks I have mentioned. The deputy judge found that
Mr Rose gave no further or fuller explanation, but I (unlike the judge) think he
was bound in law to do so. I cannot accept the distinction drawn between legal
consequences and financial implications, because in this case the significance
of the legal consequences lay in the financial implications. Even accepting that
Mrs Feldman was not a naive innocent in the commercial world, I regard this
as a classic case in which the professional legal adviser was bound to warn his
client of risks which should have been apparent to him but would, on a simple
reading of the clause, have been most unlikely to occur to her.
4. Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] 1 AC
296 Privy Council
Such a conclusion would not be unexpected, because it is the solicitor and not
the client who has the better opportunity to assess the gravity or remoteness
of the risk involved in a particular case and it is the solicitor and not the client
who has the necessary expertise to analyse and guard against the risk.
Their Lordships turn to the question whether the risk could have been avoided
in the instant case. The answer, in the Lordships’ view, is that it could readily
have been avoided without in any way undermining the basic features of the
Hong Kong style of completion.
and at p 308:
The risk inherent in the Hong Kong style of completion as operated in the
instant case being foreseeable, and really avoidable, there can be only
an affirmative answer to the third question, whether the respondents
123
were negligent in not foreseeing and avoiding that risk. Their Lordships
respectfully agree with the dissenting judgment of Li JA.
As it is now stands the plaintiff’s complaint of negligence is confined to the defendant’s
opinion that the defendant should not have advised the plaintiff to exploit his invention
given IEV had by then successfully had its patent registered in Malaysia. This in my view
is purely within the area of competency of a practicing advocate and solicitor not a

patent agent or other non practicing patent experts. I would not therefore be moved
by the opinion of the New Zealand patent expert (a non advocate or solicitor) that
the defendant should not have advised the plaintiff to exploit his invention under the
circumstances as presented.
The test to be applied
[59] The test of whether there was a breach of duty of care under the circumstances
would have to be determined by applying the persuasive general guidance set by the
House of Lords in Caparo Industries Plc v Dickman & Ors [1990] 1 All ER 568, supra,
approved by the Court of appeal in Arab-Malaysian Finance Bhd v Steven Phoa Cheng
Loon & Ors [2003] 1 CLJ 585, supra, - touching on the foreseeability of damage,
proximity of relationship and the reasonableness or otherwise of imposing a duty in
conjunction with the line of cases (supra) respecting the standard of care expected of
solicitors on the advices that they give to their clients.
Whether the defendant owed the plaintiff a duty of care
[60] The defendant was a firm of advocates and solicitors and at the same time is a
registered patent agent. It follows by reason of that relationship, a duty of care arose
in respect of the professional service that it provided to the plaintiff Sada.
Whether there was a breach of that duty of care
1. As patent agent as well as advocates and solicitors, the scope of the defendant’s
duty encompasses both the duty of patent agent and advocates and solicitors.
It is therefore to be expected within that duty that the plaintiff ought to be
advised not only on the specialised law of patent but also the material aspect
of litigation consistent with its expertise as a firm of advocates and solicitors.
This is quite unlike the duty of a patent agent or patent attorney whose
expertise would be confined to the patentability of an invention.
2. The defendant, it is clear, had confined its advice to the plaintiff strictly to the
patentability of his invention. Not a word was said in the two legal opinions of
the probable reaction and counter action from IEV that the plaintiff would have
to bear and for how long and whether the plaintiff would have the stamina to
ride out a sustained litigation that would follow should he decide to act on the
defendant’s advice to exploit his invention.
3. For its part as advocates and solicitors it was duty bound to advise the plaintiff
of any consequence which would likely follow should the plaintiff act to exploit
his invention based on the written 2 opinions to the plaintiff to go ahead to
exploit his invention, given the fact that IEV had by then successfully had its
patent registered in this country and had issued a notice of infringement of
its patent and threatening legal action. These were clearly matters within the
reasonable foreseeability of a reasonably competent advocate and solicitor.
CASES & MATERIALS
4. There was also a duty on the part of the defendant to properly advise the
plaintiff of the financial implication that he may have to encounter in proceeding
to exploit his invention in the face of the IEV patent; from having to defend an
interlocutory injunction in the immediate future - an inevitable consequence
which must invariably follow under the circumstances from the patent holder
IEV, the immediate effect of which would put the plaintiff’s attempt to exploit
on hold and stretch his resources and stamina and in the end prevent him form
achieving what he had set out to do; and ultimately having to overcome the
action brought by IEV itself.
5. It is true that the plaintiff himself should be aware that an application for a
declaration of non infringement of the IEV patent would generally involve
CLP
124
litigation in a court of law. But a lay person however well informed would not
be able to appreciate the full extent and implication of a litigation involving
patent law. As advocates and solicitors the defendant owed the plaintiff a duty
of care to explain and be made aware of the protracted litigation that he was
likely to encounter should he decide to act on its advice to exploit his invention.
Had the defendant done so, that duty of care would have been discharged. A
failure to do so on the other hand gave rise to a breach of that duty of care.
[61] I accept the submission of counsel for the plaintiff that the dogmatic opinions using
such words as “Go ahead and exploit” and “Have no fear of any possible infringement”
given without caveat had prompted the plaintiff to proceed to exploit his invention.
[62] It is true that in so far as its advice on the patentability of the plaintiff’s invention
is concerned, the defendant had been absolutely competent as in the end the High
Court had vindicated the defendant (by striking out the IEV patent in all 5 of 6 claims)
in effect rendering the IEV patent as invalid. It is also true that the defendant was in
the end found to have given the correct advice with respect to the patentability of
the plaintiff’s invention. But this would not exonerate the defendant of his liability for
negligence - the test of foreseeability of harm here being the immediate impact and
consequence of the advice to exploit and not merely the end success of getting the
patent registered.
[63] As it was, by the time his application for a declaration of an infringement (which
had to be discontinued in favour of maintaining another action for invalidation of the
IEV patent) was decided in his favour a good 2 years had passed. By then the plaintiff
was no longer in a financial position to continue with his exploitation. In consequence
he had therefore suffered damages. Had he been properly advised by the defendant
with respect to the legal impediments that he would have to face over a period, he may
be able to weigh his option before he decided to exploit his invention.
CHANG SIEW LAN v LOH CHOOI TENG [2010] 1 CLJ 657 Federal Court
Professional
Negligence – Non Litigatious - Duty of care - Solicitors - Respondent solicitor paid
balance purchase price to vendors’ solicitor
The applicant paid the vendors the deposit stipulated in the agreement. Later, the
respondent solicitor released the balance of the purchase price to the vendors’
solicitors. In so doing, she acted in accordance with the arrangement between the
parties and upon the vendor’s solicitor’s undertaking to utilize the balance of the
purchase price to redeem the subject property from Delta Finance. As it happened,
the vendors’ solicitor misappropriated the monies and presented a cheque to Delta
Finance which dishonoured. The applicant then brought an action, inter alia, against
the respondent for negligence, the substance of the charge being that the respondent
ought to have reasonably foreseen that the vendors’ solicitor may misappropriate the
balance of the purchase price. The instant respondent, however, asserted that she had,
in all the circumstances of the case, acted with reasonable care. The High Court and
the Court of Appeal found in favour of the respondent and hence this application for
leave to appeal by the appellant. The application for leave in the court herein involved
a question of fact.
Held (dismissing application)
Per Gopal Sri Ram FCJ delivering the judgment of the court:
(1) The danger of an embezzler acting as the vendors’ solicitor did not enter upon
the scene in view of the express directions in the sale and purchase agreement.
It was therefore not negligence for the respondent to do what she did, namely,
to comply with the duty imposed on her by the terms of the sale and purchase
agreement. To have expected her to have done more in the circumstances
of the present case would have required to have guarded against fantastic
possibilities. Further, what remained was only the question of fact whether
there was negligence here. In accordance with settled law, this court did not
grant leave on issues of fact.
125
Obiter:
(1) Whilst it may not be negligence for a purchaser’s solicitor to act in accordance
with the terms of an agreement stipulating the role that he or she is required
to play in the transaction, it may well be negligent (depending on the
particular circumstances of the case) not to advice a purchaser to insist on
inserting a clause in a sale and purchase agreement in circumstances as the

present where there was an outstanding charge, requiring a separate payment
directly to the chargee in order to effect a redemption of the subject property.
Since protecting one’s client’s money was the overriding consideration in
conveyancing matters, ensuring that the redemption sum reached a chargee
without the intervention of the other side’s solicitor may be the answer to
avoid charges of negligent practice.
Gopal Sri Ram FCJ:
Whether a defendant has acted negligently in given circumstances is a pure question
of fact. As Lord Dunedin said in Fardon v. Harecourt-Rivington [1932] 146 LT 391, 392:
“If the possibility of the danger emerging is reasonably apparent, then to take
no precautions is negligence; but if the possibility of danger emerging is only
a mere possibility which would never occur to the mind of a reasonable man,
then there is no negligence in not having taken extraordinary precautions... In
other words, people must guard against reasonable probabilities, but they are
not bound to guard against fantastic possibilities.”
Before we conclude there is a caveat which we would add for members of the
conveyancing Bar. Whilst it may not be negligence for a purchaser’s solicitor to act
in accordance with the terms of an agreement stipulating the role that he or she
is required to play in the transaction, it may well be negligent (depending on the
particular circumstances of the case) not to advice a purchaser to insist on inserting
a clause in a sale and purchase agreement in circumstances as the present where
there is an outstanding charge, requiring a separate payment directly to the charge
in order to effect a redemption of the subject property. It would be advisable and be
in accord with acceptable and careful conveyancing practice to do so having regard to
the widespread misappropriation of clients’ moneys by solicitors of which we read in
the National newspapers at regular intervals. Since protecting one’s client’s money is
the overriding consideration in conveyancing matters, ensuring that the redemption
sum reaches a chargee without the intervention of the other side’s solicitor may be the
answer to avoid charges of negligent practice.
WONG KIONG HUNG & ANOR v CHANG SIEW LAN (p) (AND ANOTHER APPEAL) [2009]
4 AMR Court of Appeal
Professional negligence - Conveyancing transaction
Low Hop Bing JCA
(1) Return of RM309,685,51
In the light of the decision of the High Court and the respective counsel’s
contentions under this head, the questions to be determined are:
(a) On the above agreed facts, is the vendor’s solicitor the agent of the
CASES & MATERIALS
vendors? and
(b) If the answer to question (1) is in the affirmative, are the Vendors
vicariously liable for their solicitor?
On the capacity of an agent, it is noteworthy that the SPA expressly stated that
the vendors had appointed JL Lim & Co as their solicitor to whom the vendors
had paid the fees and costs. A solicitor who has been retained by his client and
whose fees and costs are paid by his client is in law and in fact the agent of the
client: see Abu Bakar b Ismail v Ismail b Husin (and 4 Other Appeals) [2007] 3
AMR 257.
Clause 15 of the SPA manifests an express and irrevocable authority given by
the vendors to the their solicitor to accept the money payable pursuant to
CLP
126
the SPA, to utilize it to discharge the existing charge over the property and
to act for and deal with all matters pertaining to the transaction in order to
give effect the terms and conditions in the SPA, especially the requirement to
discharge the existing charge over the property through the vendors’ solicitor.
A substantially similar situation arose in Kuldip Singh & Anor v Lembaga Letrik
Negara & Anor [1983] 1 MLJ 256. There, the client purchased a house and
instructed a solicitor Brar to prepare a sale and purchase agreement. The client
had taken a loan. He appointed the solicitor to whom the cheque for the loan
had been issued in order to redeem the house from the chargee. However, the
solicitor disappeared with the loan sum and never redeemed the house. Wan
Hamzah (later SCJ) held that the solicitor was the agent of the client. Hence,
the client was ordered to bear the loss of the loan.
On the facts and the law, the answers to both the above questions are in the
affirmative.
(2) Negligence and breach of contract
In my view, the issue for determination under this head may be formulated as
follows:
Upon a true construction of clauses 2, 4 and 15 of the SPA, is the
Purchaser’s Solicitor liable to the purchaser in the tort of negligence
or for breach of contractual duty when the purchaser’s solicitor
delivered the balance purchase price vide the cheque, made payable
to the vendors’ solicitor who, instead of honouring the undertaking to
discharge the existing charge pursuant to the SPA, had absconded with
the balance purchase price and is now nowhere to be found?
It is imperative to hark back to first principle by setting out the respective
ingredients or elements of these causes of action, with particular reference to
solicitor-client relationship.
To succeed in the tort of negligence against the solicitor, it is incumbent on the
client to establish that:
(1) the solicitors owes the client a duty of care;
(2) there is a breach if that duty by the solicitor ;
(3) the client has thereby suffered damage; and
(4) the damage is not too remote a consequence of the breach.
(See e.g. Maelstorm Resources Sdn Bhd & Anor v Shearn Delamore & Co)
For the purpose of establishing a breach of contractual duty against the
solicitor, the client must prove:
(1) the existence of a contractual relationship which expressly or impliedly
imposes a contractual duty on the solicitor;
(2) there is a breach thereof by the solicitor;
(3) the client has thereby suffered damage; and
(4) the damage is not too remote a consequence of the breach.
Practical illustrations which set out the principles governing the tort of
negligence, and the breach of contractual duty, may be distilled from decided
cases, as follows:
(1) A man or a woman who practices a profession is bound to exercise the
care and skill of an ordinary competent practitioner in that profession
- be it the profession of ... a solicitor or otherwise: Swamy v Matthews
Anor [1968] 1 MLJ 138, FC per Barakbah LP (as he then was) at p 139,
applying Lamphier v Phipos (1838) 8 Car & P 475; 173 ER 581 where
Tindal CJ laid down this principle:
127
Every person who enters into a learned profession undertakes to bring

to the exercise of it a reasonable degree of care and skill. He does
not undertake, if he is an attorney, that all events you shall gain your
case, nor does he undertake to use the highest degree of skill ... but he
undertakes to bring a fair, reasonable and competent degree of skill.
(2) Per Oliver J in Midland Bank Trust Co Ltd and Another v Hett, Stubbs &

Kemp (A Firm) ([1978] 3 All ER 571, Ch D:
(2.1) In relation to a breach of contractual duty, solicitors are not liable
under a general retainer since the extent of a solicitor’s duties to
his client depends on the terms and limits of his retainer. There
is no such thing as a “general retainer” of a solicitor in the sense
of a solicitor being under a duty to consider all aspects of his
client’s interests generally when consulted by the client about a
particular aspect of a problem;
(2.2) In relation to the tort of negligence, under the general law, the
solicitor - client relationship gives rise to a duty on a solicitor
to exercise that care and skill on which he knows that his client
would rely, and to a duty not to injure his client by failing to do
that which he had undertaken to do and which, at the solicitor’s
invitation, the client had relied on him to do. A solicitor’s failure
e.g. to register an option to purchase the freehold reversion of a
farm (as an estate contract under the (UK) Land Charges Act 1925)
constitutes a breach of professional duties to exercise reasonable
care and skill;
(2.3) There is no rule of law which confines a solicitor’s duty to his
client under his retainer to a contractual duty alone; nor is there
any rule of law which precludes a claim in tort for breach of a duty
to use reasonable care and skill if there is a parallel contractual
duty of care;
(3) A client may bring an action against his solicitor in contract, based on
the retainer or in tort, or in both:
Noction v Lord Ashburton [1914 - 15] 2 All ER 267 at 281 and Midland
Bank Trust Company Limited, (supra). As regards the obligations arising
out of the retainer, a solicitor’s duty is to use reasonable care and skill
in giving such advice and taking such action as the facts of a particular
case demand. The standard of care is that of the reasonably competent
solicitor and the duty is directly related to the confines of the retainer.
The exact scope of the solicitor’s duty to protect his client’s interest is
difficult to define but according to Scott LJ, in Groom v Crocker [1938]
All ER 394 at 413, a solicitor should at least “carry out his instructions in
the matters to which the retainer relates, by all proper means. It is an
incident of that duty that the solicitor should consult with his client on
all questions of doubt which do not fail within the express or implied
discretion left to him, and shall keep the client informed to such an
extent as may be reasonable necessary ...”
CASES & MATERIALS
(4) Per Syed Agil Barakhbah J (later SCJ) in Yong & Co v Wee Hood Teck
Development Corp [1984] 2 MLJ 39, FC:
(4.1) A retainer may come into existence by implication and amplified
by the conduct of the parties which shows a course of dealings
giving rise to legal obligations and establishing the solicitor-client
relationship, thereby putting into operation the normal terms of
the contractual relationship including in particular the duty of the
solicitors to protect the interest of the client in matters to which
the retainer relates by all proper means;
(4.2) While the duty of a solicitor is directly related to the confines of
the retainer, it is the incident of that contractual duty that he has
CLP
128
to consult his client on all questions of doubt which do not fail

within the express or implied discretion left to him; and to keep
his client informed to such extent as may be necessary according
to the same criteria;
(4.3) A common solicitor, acting for two different clients whose
interests are directly in conflict, acts at his own peril and the onus
of showing that the conflicting interests did not prevent him from
doing his duty to both clients rests firmly on him;
(4.4) The solicitor’s failure to perform his obligation under the contract
with the required skill and care constitutes a breach of contractual
duty, while the solicitor’s failure to exercise reasonable care and
skill renders the solicitor liable in the tot of negligence;
(5) Per Karthigesu JA in Fong Maun Yee & Anor v Yoong Weng Ho Robert
(practicing under the name and style of Yoong & Co) [1997] 2 SLR 297,
CA Singapore:
(5.1) A solicitor owes his client a duty of care to verify the instructions
to act in the sale of property, instead of merely acting on the
strength of a company’s resolution and option which turn out to
be forgeries;
(5.2) The extent of the legal duty in a given situation is a question of
law;
(5.3) The solicitor’s failure, to verify the instructions to act, clearly gives
rise to a foreseeable risk that the solicitor would be acting without
authority. This risk could have been avoided by the solicitor taking
steps to confirm his authority to act or, if the solicitor could not
have done so, to at least warn the client of the risk that he could
have been acting without proper authority, as he could not
confirm his instructions to act. The solicitor, who took no such
avoiding action before proceeding to act in the scale, does not
meet up to the standard of a reasonably competent conveyancing
solicitor in Singapore, being in breach of his duty of care and skill;
(6) A solicitor’s failure to use reasonable care and skill in giving his advice
and taking such action as the facts of the case demand of a normally
competent and careful practitioner in a sale and purchase of land, such
as making a search at or an enquiry with the land office relating to the
acquisition of the land under the Land Acquisition Act 1960, renders the
solicitor liable for breach of contractual duty and in tort, which is quite
independent of contract, as a professional man professing special skill
who gives assistance to another and owes a duty of care to that other
person who to his knowledge relies on his skill: per Gunn Chit Tuan J
(later CJ(Malaya)) in Neogh Soo Oh & Ors v G Rethinasamy [1984] 1 MLJ
126, HC;
(7) Per Mohd Noor Ahmad J (later FCJ) in Lai Foh & Sons Sdn Bhd v Skrine &
Co (didakwan sebagai sebuah firma) [2001] 3 AMR 3070; HC:
(7.1) The practice of conveyancing work requires a high degree of skill
and caution on the part of solicitors for the purpose of protecting
their clients’ interest against possible fraud or forgery. On the

plaintiff’s purported letter of authorization which was forged and
which the solicitor had not sought verification, the release by the
solicitor of land titles to a third party who had no right to receive
them, is an act which falls well below the standards expected of
a prudent conveyancing solicitor, both for breach of contractual
duty and for negligence;
(7.2) In determining whether the duty of care imposed upon a solicitor
should extend to ensure that a third party wrong doer does not
commit tortuous acts against the victim of an original act of
129
negligence, the court has to strive neither unjustifiably to deprive

the client of remedies for the injuries nor unjustifiably impose
too heavily a legal responsibility on the solicitor. The former is n
the nature of public interest and the latter is of personal interest.
Having balanced the conflicting interests, public interest must
prevail in this case;

Other illustrations of professional negligence include:
(1) The solicitor’s failure to alert the client in relation to the effect of
an unusual clause in a lease and the risks inherent in entering into
such a lease: County Personnel (Employment Agency) Ltd v Alan R
Pulver & Co (A Firm) [1987] 1 All ER 289, CS; and
(2) The solicitor’s failure to explain and make aware to the client of
the protracted litigation he was likely to encounter should he
decide to act on the solicitor’s advice: Maelstrom Resources Sdn
Bhd & Anor,
It needs to be observed that the aforesaid authorities had established
liability against the solicitor in negligence or for breach of contractual
duty or both, on the basis of the solicitor’s wrongfulness or omission
such as:
(1) failure to register an option under the (UK) Land Charges Act
1925: Midland Bank Trust & Co Ltd;
(2) acting as a common solicitor for two different clients whose
interests are directly in conflict: Yong & Co;
(3) failure to verify the authority to act, but merely relying on forged
company resolution and option: Fong Maun Yee & Anor;
(4) unauthorised release of land titles to a third party who has no
right to receive them and who subsequently committed forgery
in relation thereto: Lai Foh & Sons Sdn Bhd;
(5) failure to alert the client in relation to the effect of an unusual
clause in a lease: County Personnel (Empolyment Agency) Ltd; and
(6) failure to explain and make aware to the client of protracted
litigations; Maelstrom Resources Sdn Bhd & Anor.
In Edward Wong Finance Co Ltd v Johnson Stokes & Master (A Firm)
[1984] AC 296, PC, the clients instructed solicitors to act in a mortgage
transaction. The solicitors carried out a land search against the property
which revealed charges in favour of a bank. The solicitors forwarded
the purchase price to the vendor’s solicitor on an undertaking by the
vendor’s solicitor to forward to the purchaser’s solicitors, within a
specified period, the relevant documents of title duly executed. On the
basis of the undertaking, the purchaser’s solicitors sent to the vendor’s
solicitor cheques drawn by the plaintiffs in his favour. Without honouring
his undertaking, the Vendor’s solicitor left Hong Kong with the money. In
the first instance, the Hong Kong Supreme Court held, inter alia, that the
CASES & MATERIALS
purchaser’s solicitors were negligent, having failed to exercise due care,

skill and judgment in the performance of the duty to take reasonable
steps to protect the plaintiffs’ interest. On appeal, the Court of Appeal
reversed that decision. On further appeal, the Privy Council restored the
Supreme Court decision, and held that:
(1) the risk of loss to the plaintiffs by placing the money at the
disposition of the Vendor’s solicitor was a foreseeable risk of
embezzlement by him;
(2) the risk could have been avoided by precautions to ensure that
the plaintiffs would have an unanswerable claim against the other
side for specific performance of that party’s obligations, and in
CLP
130
the case of property already subject to a mortgage which was to

be discharged so much of the purchase price as was needed to
discharge the prior mortgage could have been paid by cheque in
favour of the mortgagee or its duly authorised agent and not by
cheque in favour of the vendor’s solicitor; and
(3) without taking precautions, when they knew the property was
subject to an existing mortgage, the purchaser’s solicitors had
failed to exercise the standard of care which the owed to the
plaintiffs and, accordingly, they were negligent.
The case of Edward Wong Finance Co. Ltd, (supra), which the purchaser
herein relied on heavily, is concerned with the standard of care owed by
a solicitor to his client in relation to mortgage of property pursuant to the
conveyancing practice prevalent in Hong Kong. The advice of the Privy
Council was delivered in the context of the tort of negligence arising
from the solicitors’ failure to exercise due care, skill and judgment in
the performance of their duty to take reasonable steps to protect their
client’s interest. Conspicuously, the facts before the Privy Council are
somewhat dissimilar.
In Malaysia, as alluded to above, where a solicitor accepted a sum of
money in the capacity of the solicitor for his client, so as to utilize it to
redeem the property, but had instead absconded with it, the client was
ordered to bear the loss: per Wan Hamzah J (later SCJ) in Kuldip Singh
& Anor.
In the process of effecting payment of the balance purchase price by the
purchaser’s solicitor to the vendors’ solicitor pursuant to the provisions
of the SPA, there was no evidence of any wrongful act or omission on
the part of the purchaser’s solicitor. On the facts, no negligence can be
imputed to the purchaser’s solicitor. The facts also do not reveal any
conflict of interest. The balance purchase price was actually released
to the person to whom it was intended i.e. the vendors’ solicitor who
was specifically appointed by the vendors in the SPA. There is nothing
in the agreed facts to render the disappearance of the vendors’ solicitor
reasonably foreseeable.
The purchaser’s solicitor should not be made liable for the wrongful act
of the vendors’ solicitor. It was the vendor’s solicitor who had failed to
honour his undertaking. It was the vendor’s solicitor who had absconded
with the balance purchase price.
In Simmons v Pennnington & Son (A Firm) [1955] 1 All ER 240, Ch D, both
the High Court and the Court of Appeal concurrently held that where
the advice given by the solicitors was n accordance with the general
conveyancing practice which had prevailed for a long time, the solicitors
were not negligent, in particular where the consequences could not
reasonably have been foreseen and were too remote. It is so easy to
be wise after the event. One has to try to put oneself in the position
of the solicitor at the time and see whether the solicitor had failed to
come up to a reasonable standard of care and skill such as is rightfully
required of an ordinary prudent solicitor. It is impossible to say that a
solicitor is guilty of a breach of duty to his client when it was one of

those misadventures and misfortunes which do sometimes happen
even in the best-conducted businesses: per Denning LJ (later MR).
In Duchess of Argyll v Beuselinck [1972] 2 Llyod’s 172 (Rep), Ch D, it
was held that in this world, there are few things that could not have
been better done if done with hindsight. The advantages of hindsight
include the benefit of having a sufficient indication of which of the many
factors present are important and which are unimportant. But hindsight
is no touchstone of negligence. The standard of care to be expected of
a professional man must be based on events as they occur, in prospect
131
and not in retrospect. The duty of care is not a warranty of perfection:

per Megarry. J.
The purchaser’s solicitor should not be held liable to the purchaser in
negligence or for breach of contractual duty.
The answer to the above question is in the negative.

SRI ALAM SDN BHD v TETUAN RADZUAN IBRAHIM & CO (didakwa sebagai sebuah
firma) [2009] 8 AMR 521 High Court
Negligence
The plaintiff commenced the instant suit against the defendant alleging that the
defendant had breached their duty of care in contract and tort in that they were
negligent in their representation of the plaintiff. There were two complaints of
negligence, first, that the defendant failed to file the affidavit in reply on time or in any
event, that there was a failure to apply for an extension of time to file the said affidavit
(“the first complaint”). It was contended that this arose as a result of the defendant’s
failure to keep abreast of the developments in the law, namely the amendments to
Order 28 of the RHC.
The other complaint of negligence was that the defendant had not explained to the
plaintiff the full effects of not appealing against the decision of the trial judge and
proceeding with the OS on the basis that the assertions of WMN were not rebutted
because there was no affidavit in reply (“second complaint”).
The defendant denied the allegations of negligence and argued that even if they were
found to be negligent, they could not be sued and further that since the complaint of
breach of duty arose from the conduct and management of a case in court, they were
immune from any suit.
Issues
1. Whether advocates in Malaysia involved in the conduct of litigation in court
should continue to be accorded immunity from being sued for negligence.
2. Whether the defendant had failed to file the affidavit in reply on time or in any
event, failed to apply for extension of time to file the said affidavit.
3. Whether the plaintiff had proved the second complaint of negligence.
Held, dismissing the plaintiff’s claim with costs
1. (a) The House of Lords in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 (“Hall”)
held that the existing public policy grounds relied on to justify immunity as
espoused in Rondel v Worsley [1969] 1 AC 191 (“Rondel”) and which has been
applied and followed in Malaysia, were no longer persuasive in civil or criminal
proceedings and that none of the factors said to justify the immunity had
sufficient weight to justify its retention. The House of Lords in Hall rejected
immunity of advocates in civil cases and also held that the policy considerations
stated in Rondel were also no longer persuasive in criminal proceedings.
Applying Hall’s case to Malaysia, it is no longer in the public interest to retain
the immunity for advocates. Advocates therefore are in principle, liable for
negligence in the same way as other professionals in the country.
CASES & MATERIALS
(b) The House of Lord’s reasoning in Hall’s that it was unthinkable that anyone
could be found negligent for acting in accordance with one’s duty to the court
should apply to advocates in Malaysia.
(c) The granting of immunity is a serious matter as it deprives the victims of a
wrong from obtaining a remedy. Public confidence in the legal system may
be affected if people who have suffered from negligent advocates are denied
redress. It also begs the question as to why among professionals, only
advocates are singled out for immunity from liability for negligence.
(d) The absence of this immunity should not cause difficulties to the advocates
in Malaysia and would not open floodgates to suits against advocates for
mishandling litigation in court. On the contrary, the standards at the Bar would
CLP
132
improve as advocates would understand and appreciate that to move ahead

and be successful, they need to establish credibility and reputation among
their peers, the community and the judiciary. If the advocates is faithful to his
duties to the court by being honest and diligent, it would not be easy to find
him or her negligent.
(e) In addition, it is difficult to prove negligence against advocates in the conduct of
a case and the onus of proving negligence is on the person alleging negligence.
Mistakes or errors of judgment are frequently made by all professionals and
not all such mistakes or errors will lead to actionable negligence.
2. (a) It is now accepted that advocates and solicitors owe concurrent duties in
contract and in tort, namely to exercise reasonable degree of care and skill
as with all professions. In court proceedings, there is really no duty to be
right, only to ensure that one acts with integrity and diligence in exercising
reasonable care and skill that is expected of him or her.
(b) In this case, there was no breach of duty on the defendant’s part and therefore
no negligence as SD1 had appropriately and justifiably raised fairly persuasive
arguments which any reasonable competent practitioner in his position would
have done. It was unfortunate for him and the plaintiff and the trial judge did
not find in their favour but as often happens in a court of law, it was a matter
that could have gone either way.
3. The evidence clearly indicates that the defendant had in fact provided a
detailed account to the plaintiff of what had transpired during the relevant
court proceeding, and had also stated the alternatives available, i.e. whether
to proceed without the affidavit, or to appeal. To this end a meeting was held
between the representatives of the plaintiff and defendant whereby a decision
was taken to proceed with the OS. The plaintiff had failed to prove that the
there had been any breach by the defendant either under contract or tort.
Harmindar Singh Dhaliwal JC
The Federal Court in Miranda was asked to consider whether an advocate be he a
barrister or solicitor who appeared in court for his client should, on the ground of
public policy, be protected from suits brought by disgruntled clients. The Federal Court
took the view that the position of advocate and solicitor is exactly the same as that
of solicitor in England as if there is an act of negligence it is immaterial to consider
whether the act is one normally done in England by a barrister or solicitor.
The High Court in Mohd Nor Dagang considered that the Federal Court in Miranda did
not address the aspect of immunity on the ground of public policy. It is noteworthy that
the Federal Court did not have the benefit of the House of Lords decision in Rondel as
the judgment appears to only refer to the Court of Appeal decision. Significantly, the
House of Lords in Rondel narrowed the limits of immunity of barristers but widened
the scope of protection for solicitors for acts concerned in the conduct of litigation as
advocates. The High Court held that immunity was necessary on public policy grounds
on factors alluded to in Rondel’s case which were summarized as follows:
(i) the consideration that a proper administration of justice may not be achieved if
barristers are inhibited by the fear of being sued for negligence by a disgruntled
client at the expense of exercising the duty he owes to the court;
(ii) the public interest consideration in that issues already decided at a trial may
have to be relitigated at the ensuing negligence suit between the client and his
barrister to establish the negligence and damage flowing; and
(iii) the existing general immunity attached to all other participants in proceedings
before the court viz. judges, court officials, witnesses or parties based on
public policy to ensure that trials are conducted without the stress and fear on
the part of those participants, not for their benefit but in the higher interest of
the advancement of justice.
However, the law in England with regards to immunity of advocates came up for re-
examination in Arthur JS Hall & Co v Simons [2000] 3 WLR 543. In that case, the House
133
of Lords were unanimous in rejecting immunity in civil cases, and by a majority of four
to three, decided that these policy considerations were no longer persuasive also in
criminal proceedings. In a carefully reasoned judgment, the House of Lords founds
that none of the factors said to justify the immunity had sufficient weight to justify its
retention. It was held therefore that advocates were in principle liable for negligence
in the same way as other professionals.

In the light of this development, the question that arises is whether advocates in
Malaysia involved in the conduct of litigation in court should continue to be accorded
immunity from being sued for negligence? I do not propose to go into detail the reasons
as to why the House of Lords in Hall’s case were no longer persuaded by the public
policy considerations for retaining the immunity. These reasons are well set out in the
judgments. On the issue of relitigation, Lord Steyn was of the view that the principles
of res judicata, issue estoppel and abuse of process of the court were adequate to cope
with risks of collateral challenges to decisions already made by the courts. In the case
of immunities already conferred to all the other participants in court, it was felt that
the public policy giving rise to such immunities had little to do with the alleged legal
policy requiring immunity from actions for negligent acts (at p 551). For the witnesses,
immunity was necessary so that they would be more willing to come forward to
tell the truth (at p 562). It was asserted that unlike the other participants, only the
advocate owed a duty to his client (at p 570). On the question of whether the immunity
was needed to ensure that the advocates will respect their duty to the court. Their
Lordships found it unthinkable that anyone could be found to be negligent for acting
in accordance with one’s duty to the court (at p 564). Suffice to say, I had no difficulty
in agreeing with the views and sentiments expressed and do not see why the same
reasoning would not apply to advocates in Malaysia.
I have also asked myself if the absence of immunity would cause difficulties to the
advocates in Malaysia? Would it open the floodgates to suits against advocates for
mishandling the litigation in court? I fail to see why that should be the case. I think far
from causing difficulties, the standards at the Bar would improve. There are of course
members of the Bar who have some difficulty in reconciling their duty to the court with
that to their client. However, I think advocates do understand and appreciate that to
move ahead and be successful, they need to establish credibility and reputation among
their peers, the community and not least the judiciary. If the advocate is faithful to his
duties to the court by being honest and diligent, it would not be so easy to find him or
her negligent.
In any event, it is also fair to say that proving negligence against advocates in the
conduct of a case in court is already a difficult task. The onus to prove negligence in on
the person alleging negligence. Mistakes or errors of judgment are made frequently
by all professionals. Not all such mistakes or errors will lead to actionable negligence.
There is an abundance of literature on this issue and I need only refer to Saif Ali v
Sydney Mitchell & Co (supra), where Lord Wilberforce put the issue in the following
terms:
Much if not most of a barrister’s work involves exercise of judgment – it is in
the realm of art not science. Indeed the solicitor normally goes to counsel
precisely at the point where, as between possible courses, a choice can only
be made on the basis of judgment, which is not infallible and may turn out to
be wrong. Thus in the nature of things, an action against a barrister who acts
CASES & MATERIALS
honestly and carefully is very unlikely to succeed.

For these reasons, I find no compelling reasons or justification for retaining the
immunity. It is no longer in the public interest that the immunity should remain. We
have to accept the reality that we now live in a world where expectations are high
and criticisms come easily when things go wrong. I see no reason why advocates in
Malaysia should be treated any differently from those in England. I would accordingly
declare that an advocate has no immunity from suits and that his or her position is the
same with all professionals in the country.
Was counsel negligent in taking this position rather than the one suggested by the
plaintiff now? In this regard, it is now accepted that advocates and solicitors owe
concurrent duties in contract and in tort (Midland Bank Trust Co Ltd & Anor v Hett,
CLP
134
Stubbs & Kemp (A Firm) [1979] Ch 384, Saif Ali v Sydney Mitchell & Co (supra)). Their
duty is to exercise reasonable degree of care and skill as with all professions. He or she
to be judged by what reasonably competent practitioners would do although a lawyer
is to be judged accordingly to the standards of practitioners of his own standing and
seniority.
In court proceedings we often see advocates, who have exercised reasonable care and
competence, taking diametrically opposite views. It will then become the function of
the judges to decide which view is the correct one. The view that is not accepted may
be considered to be wrong. The fact that one view turns out to be wrong does not
mean that the advocate has been negligent. In the same vein, it is also not unusual
to find that judges who had held to a particular view be later found to be incorrect
when the matter is taken up and decided on appeal. In other words, there is really no
duty to be right, only to ensure that one acts with integrity and diligence in exercising
reasonable care and skill that is expected of him or her.
Considering these circumstance, I do not see how the defendant could be faulted
in any way. In the result, I hold that the plaintiff had failed to prove there was any
breach of duty either under contract or tort by the defendant. I would further hold that
there was no negligence on the part of the defendant. The plaintiff’s claim against the
defendant is dismissed with costs.
MYERS v ELMAN 1939 4 AER 484
Facts:
In an earlier proceeding after judgment had been entered against all the defendants
but nothing was recoverable. The counsel for the plaintiff, invited the judge, on the
evidence and facts disclosed, to exercised the court’s jurisdiction over it’s officers for
professional misconduct against Mr. E, the solicitor for the defendants on the ground
that, inter alia;-
i) filing defence for the defendants which he knew to be false;
ii) allowing certain affidavit of discovery to be sworn and put on the file which
was inadequate and false;
iii) he was obstructing the interest of justice and causing delay.
From the disclosed facts it was found that Mr. E was absent for sometimes from his
office and entrusted the conduct of the litigation to his managing clerk who was not
a solicitor but had experience in litigation matter. The High Court judge held that E
is not guilty of professional misconduct for filing the defence for the defendants as
every person has the right to put a defence that is available in law and it is for the
other side to prove otherwise. However E being the officer of the court was guilty
of professional misconduct in relation to the affidavit of discovery as it increased the
plaintiff’s difficulties in obtaining discovery, and increased the cost of proceedings and
obstructed interest of justice. The judge draw no distinction between the conduct of
E himself and his managing clerk. The High Court made an order against E to pay part
of the cost of the earlier proceeding to Plaintiff. The respondent appealed to Court
of Appeal. The Court of Appeal allowed the appeal of E by holding that the court can
only exercise the jurisdiction if only E had personally misconducted himself (but not
responsible for the acts of his managing clerk).
House of Lord [Majority 4-1 decision-disagreed with the Court of Appeal’s decision].
Viscount Maugham
“If the Court of Appeal’s view is correct than any solicitor who is guilty of disgraceful or
improper conduct, he has only to show that he left the whole matter in the hands of a
clerk and he will than escape the jurisdiction of the court ... Further, where a firm with
two or more solicitors is acting for the client, it is necessary in such a case to inquire
into the several responsibilities and an order can only be made against those partners
who can be shown to be personally involved. “ I am unable to agree with that”.
“Misconduct or default or negligence in the course of the proceedings is in some cases
sufficient to justify an order for cost against the solicitor personally. The primary object
135
of the court is, not to punish the solicitor, but to protect the client who has suffered
and to indemnify the party who has been injured”.
“... the jurisdiction in question ought to be exercised only when there has been
established a serious dereliction of duty as a solicitor either by himself or by his clerks”.
“It is my opinion that .... was amply justifies in concluding that Elman was guilty of
professional misconduct in not insisting on his clients disclosing the relevant documents

as soon as he knew that they were, or had been, in their possession, custody or power,
and in preparing and putting on the file affidavits of documents which knew to be very
in adequate”.
Lord Wright
“The matter complained of need not be criminal. It need not involve speculation or
dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross
neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy
may suffice. The term professional misconduct has often been used to describe the
ground on which the court acts. It would perhaps be more accurate to describe it as a
conduct which involves a failure on the part of a solicitor to fulfil his duty to the court
and to realize his duty to aid in promoting, in his own sphere, the cause of justice”.
“The word” “professional misconduct” itself is not necessarily confined to cases where
the solicitor himself is personally guilty. They only mean misconduct in the exercise of
the profession, and they cover cases where a duty is owed by the solicitor to the court
and is not performed owing to the wrongdoing of the clerk to whom that duty has
been entrusted”.
“The court is not concerning itself with a breach of duty to the other litigant, but with
a breach of duty to itself. Its jurisdiction is punitive, and is exercised in appropriate
cases and in appropriate measure where there has been no personal complicity by the
solicitor charged”.
Lord Atkin
explains the nature of the jurisdiction;
“From time immemorial, judges have exercised over solicitors, ... a disciplinary
jurisdiction in cases of misconduct. At times the misconduct is associated with
the conduct of litigation proceeding in the court itself. Rules are disobeyed,
false statements are made to the court or to the parties by which the course
of justice is either perverted or delayed. The duty owed to the court to
conduct litigation before it with due propriety is owed by the solicitors for
the respective parties, whether they be carrying on the profession alone or
as a firm. They cannot evade the consequences of breach of duty by showing
that the performance of the particular duty of which breach is alleged was
delegated by them to a clerk. Such delegation is inevitable, and there is no
one in the profession, ..., who will not bear ungrudging tribute to the efficiency
and integrity with which, in general, managing clerks, ..., perform their duties.
The machinery of justice would not work without them. Nevertheless, as far as
the interests of the court and the other litigants are concerned, it is a matter
of no moment whether the work is actually done by the solicitor on the record
or by his servant or agent. If the court is deceived or the litigant is improperly
CASES & MATERIALS
delayed or put to unnecessary expense, the solicitor on the record will be held
responsible, and will be admonished or visited with such pecuniary penalty
as the court thinks necessary, in the circumstances of the case. Misconduct of
course, may be such as to indicate personal turpitude on the part of the person
committing it, and to lead to the conclusion that the party committing it, if an
officer of the court, is no longer fit to act as such. Over conduct such as that,
punitive jurisdiction will be exercised, but it seems hardly necessary to state
that no punishment based on personal misconduct will be inflicted unless the
party visited is himself proved to be personally implicated”.
CLP
136
R & T THEW LTD v REEVES (No 2) 1982 3 AER 1086

P (R & T) sued for money against D (Mr. Reeves). D applied for legal aid to defend
the action. The D’s solicitors requested his articled clerk to do the necessary to obtain
legal aid. The clerk applied for legal aid only to “defend the action when it should be
for “defend and counterclaim”. The P succeeded in their action and defending the
counterclaim. The P could not recover the cost for defending the counterclaim as the D
was only covered for defending the action by the legal aid and the court on their own
motion issued notice to the solicitors of the D to see whether they are guilty of any
professional misconduct.
Lord Denning MR held
The ‘unacceptable face’ of British justice
‘So here we have presented to us at its most ugly the “unacceptable face” of British
justice. The Thews came to the courts of law to obtain sums from a debtor which were
undoubted due to them. They were baulked by the grant of legal aid to the defendant.
Their own costs came to $7,000. When they sought to recover those costs from the legal
aid fund, they were met by the plea: “You cannot recover them because a mistake was
made in the legal aid certificate and it cannot be corrected”. That plea has succeeded.
I hang my head in shame that it should be so.
After the hearing, this court itself suggested a remedy. It appeared to be possible that
the disaster to the Thews was caused, not by anything done by their own solicitor, but
by a mistake made by the solicitors for Mr Reeves on the other side. It was the mistake
of their articled clerk which led to all the trouble. He had applied only for legal aid to
‘defend’, whereas he should have applied for legal aid to ‘defend and counterclaim’.
So why should they not compensate the Thews, especially as they would be insured
against liability for negligence?
Despite this suggestion by the court, counsel for the Thews declined to make any
application against those other solicitors. He refused for good reason. The Thews had
expended all their money already. They could not get legal aid. If they took proceedings
against the solicitors for the other side, they might lose and have to pay all the cost. So
they decided to cut their losses and do nothing.
This court then decided to act of its own. It ordered the solicitors for Mr Reeves to
attend-
‘for the purposes of considering whether or not they should be ordered to pay
personally cost ..., in the High Court action their clerk or articled clerk such
costs not being recoverable from The Law Society under the provisions of the
Legal aid Act 1974.
What conduct is sufficient?
This compensatory jurisdiction still remains, however, with a disciplinary slant. Just as
officers in the services are subject to military discipline, so are solicitors, as officers
of the court, subject to judicial discipline. If they are guilty of ‘any act, conduct or
neglect to the prejudice of good order and [judicial] discipline’ or which is ‘unbecoming
the character of an officer and a gentleman’, causing loss or damage to another, they
can be ordered personally to compensate him. The cases show that it is not available
in cases of mistake, error of judgment or mere negligence. It is only available where
the conduct of the solicitor is inexcusable and such as to merit reproof. In Myers v
Elman [1939] 4 All ER 484 Viscount Maugham put it as ‘a serious dereliction of duty’,
Lord Atkin spoke of ‘gross negligence’, and Lord Wright said that ‘gross neglect or
inaccuracy’ may suffice. Lord Wright’s definition included ‘a failure on the part of a
solicitor ... to realize his duty to aid in promoting, in his own sphere, the cause of
justice’. Lord Porter said that the solicitor there had been ‘grossly negligent’. Useful
illustrations are to be found in Edward v Edward [1958} 2 All ER 179 (holding the
solicitor liable to pay the costs of the side because of his ‘oppressive procedure’) and
Mauroux v Sociedade Commercial Abel Pereira da Fonseca SARL [1972] 2 All ER 1085,
(holding the solicitor not liable for an ‘oversight’).
137
Applied to this case

Applying this test, it seems to me that the conduct of the articled clerk was not
sufficiently serious to warrant the court in exercising its compensatory jurisdiction. It
was at most a mere slip. As I said..., the articled clerk ‘botched up the application, so
that it did not correctly state the description of the legal aid desired’. It omitted the
words ‘and counterclaim’. But everyone treated it as containing those words, and it

was corrected as soon as it was discovered.
In any case, it may not have been the cause of the disaster. It may have been due to
the mistake of the clerk in the legal aid office. As I said in my judgment [1981] 2 All ER
964 at 974,’... a mistake was made by the clerk who drew up the offer of legal aid. He
bungled it by copying out the words of the botched application form...’
Conclusion
It was in the hope of helping the Thews that this court suggested that a remedy might
be available. It has proved to be abortive. We are left to weep over the ‘unacceptable
face of British justice’.
YEE CHANG & CO LTD v KONINKLIJKE PAKETVAART MAATSCHAPPIJ [1958] MLJ 131
On facts, despite the fact that the action had been settled, the defendant’s advocate
continued for several weeks after the settlement to write letters on behalf of their
clients resisting the plaintiff’s advocate’s request for payment. The effect of this conduct
was to wrongfully deprive the plaintiffs of the sum lawfully due to them.
The High Court held
i) that the advocate owes a duty to the court to conduct litigation with due
propriety and to assist in promoting in his own sphere the cause of justice. In
this case the advocate had acted as the instrument by which the client could
perpetrate the wrong. As an officer of the court it is not the advocate’s role
to act as an agent for his client. If he does he would no longer be acting in an
advisory capacity as he would be merely taking instructions from his client.
The advocate must always maintain his independence and objectivity and
serve his client from the perspective.
ii) it was held that an advocate who becomes aware in the course of proceeding
that his client is obstructing the interests of justice has a duty to advise his
client about this, and if the client persists in his wrong conduct, the advocate
should decline to act for him further.
The court referred to Lord Wright’s statement in Myers v Elman and said “that the
Court has a right and a duty to supervise the conduct of its solicitors and the court
would be failing in the discharge of that duty if it passed over the conduct of the ...
solicitors ... in silence”.
“If, ..., a solicitor becomes aware in the course of proceedings that his client is
obstructing the interests of justice, it is his duty to advise his client as to conduct which
he ought to follow and if the client still persists in his wrong conduct, he should decline
to act for him further”.
“Solicitors have a double duty, a duty to the Court as well as a duty to their clients,
and it is inconsistent with their duty to the Court, as officers of the Court, to accept
CASES & MATERIALS
instructions from their clients when it is clear beyond a peradventure, ..., that by so
doing they will be obstructing the interest of justice”.
LEE CHEE v ALLEN & GLEDHILL [1990] 1 CLJ 782
Facts.
The Plaintiff sought a declaration that the Defendants (firm of solicitors) were in breach
of a letter of undertaking. The Defendants raised a preliminary issue whether the court
has jurisdiction to entertain such an application?
CLP
138
Lim Beng Choon J

Referred to the English cases of Myers v Elman and Re H.A. Grey and held that the
position in Malaysia differs. Here, the advocates and solicitors are governed by the
Legal Profession Act 1976 and there is clearly no provisions indicating that they are
officers of the court. However our courts have sometimes referred to advocates and
solicitors as officer of the court. From the examination of the 1976 Act his Lordship
held that there is no provision declaring that an advocate and solicitor is an officer
of the court. As such the principle in Re. H. A. Grey is inapplicable in Malaysia. The
English common law principle advocating that the court has punitive and disciplinary
jurisdiction over solicitors dehors the provisions of the 1976 Act. However, the court
held that since the Plaintiff’s case concerned that the Defendant should comply with
the terms of the undertaking failing which, they should pay damages in substitute of
the performance of their undertaking. These remedies sought by them are to vindicate
their legal fights. The function of the court to entertain an application by anyone to
enforce his legal right is absolute. The present complaint of the Plaintiff’s made to this
court are distinct from any complaint of misconduct or malpractice of an advocate and
solicitor which is not associated with a litigation proceeding in the court. The court
granted the declaration
T DAMODARAN v CHOE KUAN HIN (1979) Federal Court
Facts -
“This is to confirm, that the sum of ringgit three hundred and thirty two thousand
seven hundred and ninety two ($332,792) being the balance of the purchase of (the
lands in question) has been deposited with us and that the said sum will be released
to you (applicant) upon the transfer of (the lands) being duly registered in the name
of the purchasers Messrs. Syarikat Alor Merah Sdn Bhd, or their nominee, nominees or
assigns”.
Suffian L.P.
“The law and practice relating to solicitors undertaking in Malaysia in my opinion
is same as that in England. Mr. Choe is an officer of the court and we should compel
him to honour undertakings by him promptly to secure public trust and confidence in
the legal profession which is an ancient and honourable one, and the language used
by Mr. Choe in this undertaking is clear, unambiguous and unqualified and that any
one reading it cannot but get the impression that Mr. Choe undertook to release the
money in his hand the moment the lands had been transferred into the name of the
Alor Merah Sdn Bhd or its assigness.
Ali F.J.
“The English law on summary enforcement of solicitor’s undertakings as stated on
page 195 of Halsbury’s Law of England. Third Edition, Vol. 36 is a follows:
“266. Enforcement of undertakings. Where is a solicitor, who is acting
professionally for a client, gives his personal undertaking in that character to
the client, or to a third person, or if the undertaking is given to the court in
the course of proceedings, that undertaking may be enforced summarily upon
application to the court. “In Re A Solicitor, Ex parte Hales it was ‘held thus:
“Where a solicitor in the course of legal proceedings make a statement to a
person even though not his client, that funds have been put into his hands
for the purpose of payment to that person upon a certain event happening,
and that upon the happening of the event he will pay the money, the personal
undertaking of the solicitor is sufficient to enable the court to exercise its
summary jurisdiction to compel him to carry out the undertaking on the
application of the person to whom it is given, although it is not a personal
guarantee in the sense that the solicitor guarantees the payment of the money
out of his (the solicitor’s) own pocket.”
Quite a part from these citations reference has also been made to the Guide by the
English Law Society 1974 which makes it abundantly clear that an undertaking by a
solicitor stands on a special footing in view of his special position under the law. The
utmost reliance is placed on any promise or undertaking which he makes either to
139
members of the public or the court. Failure to honour the promise or undertaking
is regarded in law as professional misconduct. Under section 26 of our Advocates &
Solicitors Ordinance, 1947 the high Court having power of control over Advocates &
Solicitors can order them to be struck off the Roll or suspended from practice for gross
misconduct. In my opinion there is no difference between the law in England and
here.

To enforce an undertaking what must be shown?
The position of the law on the subject is clearly set out in Halsbury’s Law of England
(4th Edition) Vol. 44 at paragraph 255 thus:
“Where a solicitor who is acting professionally for a client gives his personal
undertaking in that character to the client or to a third person, or gives an
undertaking to the Court in the course of proceedings, that undertaking
maybe enforced summarily upon application to the court. Before this remedy
can be pursued it must be shown that the undertaking is given by the solicitor
personally, and not merely as agent on behalf of his client. The undertaking
must also be given by the solicitor, not as an individual, but in his professional
capacity as a solicitor.
The jurisdiction is based upon the court’s right to require its officers to observe
a high standard of conduct; it is immaterial that no misconduct on the part of
the solicitor is suggested. The solicitor cannot, therefore, defend himself on
the ground that his undertaking is not enforceable as a contract against him, or
on the ground that the application has been delayed. Nor will an undertaking
given under a mistaken belief of having authority to fulfil it be set aside;
nor can the solicitor withdraw from his undertaking save by consent; but an
undertaking given by mistake in too wide terms will not be enforced insofar as
it was mistakenly given.
The undertaking must be clear in its terms. The whole of the agreement to
which it relates must be before the court, and the undertaking must be one
which is not impossible ab initio for the solicitor to perform. Nevertheless,
an undertaking will be enforced against the solicitor even though, after it is
given, the client dies or instructs the solicitors not to perform it, or changes his
solicitor. If performance of the undertaking has been waived the undertaking
will not be enforced afterwards. Similarly, if the undertaking is conditional, the
condition must be fulfilled before the undertaking will be enforced”.
HASTINGWOOD PROPERTIES LTD v SAUNDERS BEARMAN ANSLEM (a firm) (1990) 3
AER 107
Facts
The Plaintiff (P) company entered into a joint venture with another company set up
by the two partners of the defendant, firm of solicitors. In accordance with the joint
venture agreement, the P company will deposit some money with the Defendant
firm as a stakeholder to be held in a special account until a specified event occurs,
thereafter to be paid over to another party. It was agreed that if the event does not
occur the money is to be refunded, to the P company but the Defendant is entitled to
deduct legal expenses. The event did not took place and the P company claimed for the
refund. The Defendant solicitor issued a bill of cost which is higher than the amount
CASES & MATERIALS
held by them as stakeholder and withdrawn the money from the special account and
placed in their own account. The P company made an application to court to enforce
the obligation the Defendant undertaken to do. The D raised a preliminary objection
that there is no undertaking as such and they was acting as stakeholders and not as
solicitors.
High Court held
The use of the word “undertaking” is not essential in order that a solicitor’s obligation
shall be enforceable summarily. The court said that the summary power to enforce
undertakings extend to all obligations created by a solicitor in his capacity as a solicitor.
The fact he did not use the word “undertaking” does not prevent the court from
ordering him to perform the obligation he has accepted.
CLP
140
UNITED MINING AND FINANCE CORPORATION v BECHER 1910

Facts
There was negotiation for purchase of certain mining contract and UMF (applicant)
have deposited with the Respondent solicitor a sum of $2,000 which is to be repaid
in the event the terms are not agreeable. The negotiation failed and requested for
refund. The respondent solicitors refused and UMF made an application to court. The
respondent solicitors raised preliminary objection as to:
i) the solicitor is not guilty of any dishonourable or discreditable conduct which
warrant the summary jurisdiction to be invoked;
ii) the undertaking was not given in the course of any pending legal proceeding;
iii) The undertaking was given in negotiation in which solicitors were concerned
but not to Court directly to a party in a suit.
Hamilton J
“the Court will summarily enforce undertakings given by a solicitor in that character ...
it matters not that his services are gratuitous, or that the undertakings is given after
judgment or even that it is not given in an action but in a mere mortgage or loan
transaction. But the solicitor must be acting professionally”.
“The conduct which is required of solicitors is to this extent, perhaps raised to a higher
standard than the conduct required of an ordinary man, in that it is subject to the
special control which a court exercise over officers so that in certain cases they may be
called upon summarily to perform their undertaking, even where the contention that
they are not liable to perform them is entirely free from any taint of moral misconduct”.
“When a solicitor, in the course of business which he is conducting for clients with third
parties in the way of his profession, gives an undertaking to those third parties incidental
to those negotiations, that undertaking is one given in his capacity as a solicitor and not
as a mere layman undertaking the office of stakeholder or guaranteeing the payment
of money.
GEOFFREY SILVER AND DRAKE v THOMAS ANTHONY BAINES 1971 Court of Appeal
D (Mr Baines) (the only partner in firm of solicitors) employed B (solicitor) to carry out
the firm’s work. B asked P (Mr Silver) (a partner in another firm) to advance $4,000 for
a client of D’s firm. P advanced the money and in an undertaking written on the D’s
professionally headed notepaper, dated 12/3/1969, addressed to the P, and signed
by B on behalf of the D’s firm, it was stated that in consideration “of you handing me
the sum of $4,000, we hereby undertake to repay the said sum to you together with
interest a 2% a month on 21/5/1969”. It was not repaid in time and when P demanded
repayment, the D said that he knew nothing about the loan and he repudiated any
liability under the written undertaking.
Lord Denning M.R.
“The first question in the present case is whether the solicitor gave undertaking ‘in his
capacity as a solicitor’. This is difficult to define. But I think it will usually be found, in
regard to money, that it is an undertaking to pay money which he has in his hands on
trust, or on an undertaking that he will apply it in a particular way. Thus, if a solicitor is
acting for a client on the sale of land, and gives an undertaking to a bank that he will
pay over so much money, when received, to the bank, the undertaking is given ‘in his
capacity as solicitor’: see in Re A Solicitor. So also, if a solicitor gives an undertaking

that he will hold a sum of money in his hands pending the conclusion of negotiations,
that too is given in his capacity as a solicitor, as in United Mining Finance Corpn Ltd v
Betcher”.
“The solicitor here was not holding money in his hands at all. All that happened was
that ... received money and paid it over to a client, and promised to repay it to Mr Silver
... That is all. It was at good interest too, 2 per cent a month. The money may have
been for the benefit of a client. But that does not matter. It was, in truth, nothing more
nor less than an undertaking to repay money lent. That is not an undertaking ‘in his
141
capacity as a solicitor;. In any case, however, this is not a case in which the court should
exercise its summary jurisdiction”.
Widgery LJ
“This was not the common case of an undertaking given to the court in which any
default is akin to a contempt and naturally attracts the remedy of attachment and
committal. The undertaking in question here was not given to the court. It was not even

given in the course of litigation. There is clear authority, however, from the earliest days
that a solicitor, being an officer of the court, is liable to attachment for a breach of an
undertaking even though the undertaking is not given to the court itself. But the first
requirement of the exercise of that jurisdiction,..., is that the undertaking in question
must have been given by the solicitor in the course of his activities as a solicitor. It
must be given by him professionally as a solicitor and not his personal capacity. The
reason for that is clear enough, because a remedy of this kind is intended primarily to
discipline the officers of the court, to ensure the honesty of those officers. The court is
thus concerned only with their activities as solicitors, and anything done by a solicitor
in his private capacity is outside this jurisdiction”.
JOHN FOX (a firm) v BANNISTER AND RIGBEYS (a firm) 1986 Court of Appeal
The plaintiffs were a firm a solicitors instructed by a client to undertake particular
business. The same client also instructed the defendants, another firm of solicitors, to
conduct different business, including the sale of certain property. The money retained
from the sale, some $18,000 was subsequently held by the defendants to the client’s
account. When the client failed to meet the plaintiffs’ professional fees, the plaintiffs
obtained from him a form of authority authorizing the defendants to give an undertaking
that they would retain the $18,000 in their account for payments to the plaintiffs. The
defendants did not give an undertaking pursuant to the authority but they did write to
the plaintiff’s that they would retain specified sum “until you have sorted everything
out”. Subsequently the plaintiffs requested the defendants to release the sum, but
on the client’s demand the defendants transferred the amount to him. The plaintiffs
applied to the court to exercise its inherent jurisdiction over solicitors to enforce the
undertaking contained in the defendants’ letter. The defendants contended, the inter
alia, that no undertaking had been given.
The Court of Appeal held
“In my view the defendants did give an undertaking to the plaintiffs. They had in their
possession money belonging to the client. They knew that in instructing them to retain
$18,000 and not paying that amount to the plaintiffs, the client was going back on the
authority he had signed. When, in these circumstances, the defendants wrote to the
plaintiffs in the terms of their letter, they made to the plaintiffs a clear and unequivocal
statement that they would not part with the sum of $18,000. I can see no reason why
the plaintiffs were not entitled to rely on that as a commitment by the defendants. Nor
can I accept the ....submission that the words relied on were not sufficiently clear in
their meaning to amount to a solicitor’s undertaking. To my mind there is no material
ambiguity. The defendants stated that they would hold onto the money until the
plaintiffs had come to some arrangement regarding it with their mutual client. The
defendants could have terminated their obligation on giving reasonable notice to the
plaintiffs.
CASES & MATERIALS
What, then, should now be done? The undertaking was broken. For the defendants
it was submitted that, since $18,000 has gone, the undertaking is incapable of
performance. It was submitted, in reliance on Re A Solicitor [1966] 3 All ER 52, that
in general the court will not make a committal order against a solicitor without first
ordering him to perform the undertaking, and that the court will not order a solicitor
to perform an undertaking which is impossible for him to perform. But that case is no
authority for the proposition to the effect that if a solicitor undertakes not to part with
a fund and then in breach of his undertaking does so, the court is powerless to take
any steps to require the solicitor to make good his default, but must leave the party to
whom the undertaking was given to his remedy, if any, at law.
I consider that the appropriate course is to direct an inquiry, in these proceedings, as
to what loss, if any, the plaintiffs suffered by reason of the breach of the undertaking.
CLP
142
UDALL v CAPRI LIGHTING (1987)

In May 1983 the plaintiff, Mr Udall, issued writs against the defendant, Capri Lighting
Ltd, whose solicitor was Mr R O Whiting. The plaintiff later took out a summons for
summary judgment under RSC Ord 14 but in the course of a telephone conservation
between the plaintiff’s solicitor and Mr Whiting, the plaintiff’s solicitor stated that his
client would agreed to an adjournment of the Ord 14 proceedings if the directors of the
defendant execute charges on their homes or on life assurance policies. Mr Whiting
gave what the judge found to be his personal undertaking as a solicitor to procure
those charges. The hearing of the Ord 14 summons was adjourned but Mr Whiting
later denied that an undertaking had been given. In due course judgment in default
was entered against the defendant but because it went into liquidation the judgment
could not be enforced. The plaintiff therefore decided to enforce Mr Whiting’s personal
undertaking and issued a summons for an order that Mr Whiting procure the charges
pursuant to this undertaking.
The High Court, ordered that the undertaking be performed. Mr Whiting appealed,
contending that it was impossible for him to perform the undertaking and therefore it
ought not to be enforced.
C/A HELD:
On the first ground of appeal, ie impossibility of performance, the appeal must succeed.
I do not say that the judge was wrong making the order he did, since at the time he
had no evidence as to impossibility and in those circumstances he was justified in
ordering performance; However, we did have evidence of impossibility and, as appeal
is by way of re-hearing we must of course take account of that evidence. It is old and
trite law that the “court will not make any order in vain”: see, New Brunswick, etc Co
v Muggeridge (1859) cited and applied by Megary V-C in Tito v Waddell (No 2) [1977]
3 All ER 129 at 311. The proposition is so self-evident that it requires no elaboration.
There is the further point that disobedience to the court’s order is a contempt, and
contempt is punishable with imprisonment. It is unthinkable that a court should put a
man at risk of imprisonment by making an order which it knows, at the time of making
the order, is impossible of performance. In Seawell v Webster (1859) 29 LJ Ch 71 “Put
the extreme case of a vendor burning a title deed: the Court could not make a decree
that he should deliver it up, and be imprisoned if he does not”.
As the undertaking could not be performed the court held that the court do have the
compensatory jurisdiction i.e. to make good the loss suffered by the party to whom the
undertaking was given. The court remitted the matter to the court below to determine
the quantum of loss suffered by the Plaintiff.
BANK KERJASAMA RAKYAT MALAYSIA BHD v TETUAN HARANAY, RONI & ANIKA &
ORS [1999] (High Court, Ipoh)
The defendants had, in their capacity as solicitors for one Ahmad Padli, written to the
plaintiff’s solicitors, requesting the plaintiff not to proceed further with the auction of
the goods of Ahmad Padli and gave to the plaintiff an undertaking to pay the sum of
RM26,000 within six months from the date of the letter. The said undertaking was
“We hereby give you our express and unqualified undertaking to pay you
the sum of RM26,000 within six months from the date of this letter hereof in
satisfaction of the judgment debt owing by our client”.
However, the defendants had failed to honour their undertaking. Hence this application.
The Judge held

“I find that this is a proper case in which the court can exercise its summary
jurisdiction to enforce the defendant’s undertaking. The undertaking is clear
and unconditional in terms. It is for the payment of a specified amount by an
ascertained date.
143
D. A FIRM IS BOUND BY UNDERTAKING GIVEN BY LEGAL ASSISTANT IN FIRM’S AS LEGAL

ASSISTANT HAS OSTENSIBLE AUTHORITY
TUNKU ISMAIL BIN TUNKU MD JEWA v TETUAN HISHAM, SOBRI AND KADIR 1989 2
MLJ 489 Court
The plaintiffs as administrators of an estate sold to the purchasers a piece of land for
$1,038,228. The defendants were solicitors acting for purchasers and the bank. On

16 January 1985 the defendants wrote to the plaintiffs’ solicitors, undertaking to pay
$450,000 and provide a continuing and irrevocable banker’s guarantee for $435,305.20
upon the plaintiffs’ solicitors providing the necessary documents and registration of
the transfer. The solicitors providing the necessary documents and registration of
the transfer. The documents were forwarded and the land was duly registered in the
purchaser’s name on 29 January 1985. The sum of $450,000 was paid but despite
requests the defendants failed to furnish the guarantee.
The plaintiffs alleged breach of the undertaking and applied to enforce. The defendants
denied liability on several grounds; firstly that the undertaking was ambiguous in that
the terms and conditions of the guarantee were not stated; secondly, that the legal
assistant who carried on the day-to day business of the branch of the firm in Alor Setar
had no actual or ostensible authority to bind the principals; thirdly, the undertaking was
given by mistake in that the legal assistant was mistaken into believing that the bank
was going to issue the guarantee; fourthly, that the undertaking became impossible
to comply; fifthly, that the undertaking was a matter which should not be dealt with
summarily as there were issues which should go for trial.
Held, allowing the plaintiffs’ application:
(i) The defendants had wanted to register the memorandum of transfer and charge
before paying the full price to the plaintiffs because the bank would not release
the loan until the charge was registered. To achieve this, the defendants had
to give the necessary usual undertakings which was elementary conveyancing
practice under the Torrens system. The plaintiffs’ solicitors had in their letter
acceded to the defendants’ request for the necessary documents and clearly
stated that the guarantee was to be made in favour of the plaintiffs and
payable upon delivery of vacant possession. Any banker’s guarantee would be
sufficient. On the facts, the defendants’ undertaking was clear, unqualified and
unequivocal.
(ii) The onus of proving ostensible authority rested with the plaintiffs. There can
only be ostensible authority to give an undertaking of a kind which was in the
ordinary course of a solicitor’s business. It was crystal clear that the undertaking
in question was within the ordinary course of a solicitors’ business that no
further proof is required. The undertaking was necessary for the completion
of the documentation and registration of the charge which was undertaken by
the defendants as solicitors for the bank.
(iii) An undertaking would not be enforced if the court is satisfied that the mistake
went further than what a solicitor intended or was aware of. In the present
case, the solicitor knew the nature and effect of the undertaking wad was
merely taking risks in giving the undertaking when the guarantee had not
come into his hand.
CASES & MATERIALS
(iv) The undertaking had not become impossible to perform as the guarantee
could be obtained from any bank and expressed to be payable upon delivery
of vacant possession.
(v) A court could exercise summary jurisdiction over solicitors and it extended
so far that if a solicitor gave an undertaking in his capacity as a solicitor, the
court may order him to perform his undertaking straightaway. This jurisdiction
should however be exercised in a clear case.
RE FRANCIS SEOW 1973
A solicitor firm acting for client under police investigation for criminal breach of trust,
Singaporean police came with search warrant to search the firm for evidence to support
CLP
144
charge. Francis rang AG and gave an undertaking to deliver files to AG the next day. AG
relying on the undertaking instructed the police not to conduct search. Francis told a
partner to follow instruction. Later, police discovered that 2 files were missing. Police
informed the AG who reported the matter to Singapore Law Society. Law Society found
Francis guilty for breach of undertaking and suspended him for 1 year.
NOTE* Although the actual implementation of the undertaking is by the partner of
the firm Mr. Ratnam but Francis is responsible as he gave undertaking.
On appeal the court said all these go towards mitigation and not towards escaping
liability. Held breach of undertaking and duly imposed suspension.
2 points to note:
i. undertaking given to 3rd party is enforceable.
ii. undertaking is enforceable eventhough the solicitor personally involved may
not have been in breach of it.
RE DAVID MARSHALL 1972
MARSHALL’S case arose out of certain habeas corpus proceedings in which Mr. Marshall
was the counsel for the detainee. When the case 1st came up for hearing, the AG was
representing the Govt requested that both parties appear before the Chief Justice in
Chamber and then said because of several accusations against the Govt found in the
affidavit he wanted an undertaking from Mr. Marshall that he would not reveal it to
the Press. He gave the undertaking in the presence of the CJ. Amnesty International
got hold of a set of pleadings including affidavits through Marshall and publicized this.
While Marshall was not responsible for publication, he was responsible for events
that set the publications into motion. This constitute a disciplinary offence and he was
suspended.
RAKUSEN v ELLIS, MUNDAY AND CLARKE (1912) 1 Ch 831 (Court of Appeal)
M and C were the only partners in a firm of solicitors named E.M. & C and were in the
habit of doing business separately and without any knowledge of each other’s clients.
R consulted M with reference to an action for wrongful dismissal which he desired to
commence against a company. He then changed his solicitors and issued his writ, and
the matter was referred to arbitration, the proceedings in which were still in progress.
C was away at the time and knew nothing of the consultations between T and M,
and whilst the arbitration was going on the firm of E.M. & C was appointed to act as
solicitors for the company in the arbitration. R applied for an injunction to restrain E.M.
& C from acting for the company.
Held, that there was no general rule that a solicitor who had acted for some person
either before or after the litigation began could in no case act for the opposite side; the
Court must be satisfied in each case that mischief would result from his so acting; that
there could be no danger of any breach of confidence if C acted for the company and
that the injunction must be refused.
RE TAI CHOI YU 1999 AMR 895
Counsel for the defendant in a matter before the High Court had applied to disqualify
the trial judge, from presiding in a case in which the counsel was retained as the
solicitor. The counsel alleged that the trial judge had ruled unfavourably on the
counsel’s credibility in another suit in which the counsel was a witness and therefore
there was a likelihood of the trial judge being biased or impartial against the counsel
in the material suit and in all future suits and which would result in the counsel’s
clients being prejudiced by such biasness and impartiality. By the said allegations,
the counsel had expressly implied that the trial judge would be deciding upon the said
cases, without any regard to the evidence and the law. The court acted summarily on
its own motion and allowed the counsel an opportunity to make representations on
the charge of contempt, before imposing sentence. At the said hearing, the counsel
elected not to call any evidence. The counsel submitted his action were not in contempt
of court.
145
Held
(i) It is not hypothetical nor conjecture but a natural consequence of any
allegation of bias or impartiality against a judge that public confidence in the
administration of justice would be impaired.
(ii) In the circumstances, the counsel’s allegations of biasness or partiality of
the trial judge as a ground for disqualification, was baseless and unjustified,

bearing in mind further that the said allegations were made in reference to the
decision of the trial judge in another suit, the grounds of decision of which the
counsel had yet to obtain when making such allegations.
(iii) The nature of the contempt committed by the counsel, if condoned or trivialized
would impair the public’s confidence in the integrity of the judiciary and
consequently imperil the administration of justice in this country. In view of
the seriousness of the blatant and unrelenting contempt of the counsel, which
was in the face of the court, a mere fine would only have the perverse and
unintended effect trivializing such contempt.
(iv) Counsel sentenced to one month’s imprisonment; Sentence stayed pending
filing of the counsel’s appeal within the time stipulated for by the rules;
Warrant of committal to be issued upon failure to file appeal within time.
ANTHONY RATOS v CITY SPECIALIST CENTRE SDN BHD, PEGUAM NEGARA, MALAYSIA
(INTERVENER) 1996
KL REKHRAJ JC: :Mr Ms Murthi (MS) is the solicitor retained by AR to advise him. MS as
solicitor, instead of taking his client’s instructions had proceeded to advise AR to take
these contempt proceeding against Dato’ Kamalanathan Ratnam JC (JC) in the manner
as he did and has thereby not only aided and abetted the contempt proceedings against
JC, but also played the role of a principle actor in the “Wayang Kulit” show ....To me this
was an act done clearly in retaliation to the other contempt proceedings taken against
AR and MS in the court of JC and calculated to bring the D5 court and the JC into
contempt by embarrassing or lowering his authority in the eyes of the world...To me,
MS proceeding as thus, in advising his client, has not only exceeded all the bounds of
limitations showing his personal malignancy, but an act of scurrilous abuse intended to
ridicule and embarrass the administration of justice. MS being earned in law ought to
have known that judges of HM Yang Di-Pertuan Agong enjoy a total statutory immunity/
protection of the law against all or any prosecution to be commenced against them in
the station of their office under s.14(1) of the Court of Judicature Act 1964”.
HOME OFFICE v HARMAN 1982 House of Lords
H (solicitor) acted for prisoner who brought action against Home Office alleging
unlawful confinement. In the course of discovery and at the request of Home Office,
H gave express undertaking that documents obtained in discovery would “not be used
for any other purpose except for the case at hand”. After trial H allowed journalist
to have access to the documents. The journalist later wrote and published an article
based on the documents which was highly critical of the Home Office. The Home Office
applied for an order that H was in contempt of court.
L DIPLOCK: It was the duty of the solicitor of a party to civil litigation who obtained
possession of documents belongings to other party by way of discovery to refrain from
CASES & MATERIALS
using the advantage enjoyed by such possession for some collateral or ulterior purpose
of his own which was not reasonably necessary for the proper conduct of the action on
his client’s behalf. It followed that H had been guilty of contempt of court.
RAYMOND v HONEY 1982 House of Lords
Raymond (R) was serving a sentence of imprisonment in prison where Honey was
the governor, R wrote a letter (24 June) to his solicitor which in accordance to the
prison standing orders read by a prison officer and stopped by H because it contained
an allegation that an assistant governor of prison had committed theft. R was told to
rewrite omitting allegation of theft. R prepared an application to High Court for leave to
commit H for contempt of court for stopping 24 June letter. The application was given
CLP
146
to prison authority to be forwarded to the court. H stopped the application, R applied

to court to commit H for contempt and submitted that:
(i) H had unlawfully and improperly interfered with confidential correspondence
passing between R and legal advisers; and
(ii) H had interfered with the due and proper administration of justice by
preventing application.
HOUSE OF LORDS: (a) the conduct of H in stopping letter of 24 June was not a contempt
of court since there was insufficient evidence to show that it effectively impeded the
due course of justice or lawful process of court;
(b) the decision of stopping the application to court amounted to a denial by H of R’s
right of access to the court and this constitutes contempt of court.
KOPERASI SERBAGUNA TAIPING BARAT BHD v LIM JOO THONG 1999 6 MLJ 38
High Court
This was a contempt proceeding instituted by the court on its own motion against
the defendant and his solicitor. The defendant’s solicitor had written letters to the
deputy registrar of the High Court and to the Chief Justice of the Federal Court. The
defendant had written an undated letter to the Chief Justice of the Federal court. The
court had come to a finding that the contents of the three letters when read together
contained elements which constituted an act of contempt of the court and had
issued show cause letters to the defendant and his solicitor as to why they should
not be cited for contempt of court for writing the three letters. At the outset of the
contempt proceeding, the court informed the alleged contemnors that the court was
proceeding with the contempt proceeding in a summary manner on the basis that the
court found prima facie the act and conduct of the alleged contemnors based on the
contents of the letters constitute contempt in the face of the court. However, counsel
for the contemnors sought the court’s indulgence to make a submission on the point of
procedure to be adopted in this contempt proceeding. It was submitted that in so far as
the letters were concerned, they were written not with regard to something occurring
in the face of the court.
Held, finding the defendants guilty of contempt:
(1) The act and conduct of the alleged contemnors based on the letters written by
them in respect of matters arising from this case constituted a contempt in the
face of the court. It was a contempt in the cognizance of the court as such acts
and conduct took place during a pending proceeding and when the case had
not been finally disposed of by the court. Hence, it was contempt which the
court could punish on its own motion.
(2) The circumstances and categories of facts which may arise and which may
constitute contempt in the face of the court in a particular case are never closed.
Contempt in the face of the court may arise from any act, any slander, any
contemptuous utterance and any act of disobedience to a court order. Any of
these acts in varying degrees that affects the administration of justice or may
impede the fair trail of subjudice matters, whether for the time being pending
in any court, can be deemed to be contempt in the face of the court. Any
comment or views expressed on a pending legal proceedings as in the present
case which purports to prejudge the issues which are to be tried by the court
is intrinsically objectionable as being an usurpation of the proper function of
the court. This may be punished or restrained as contempt irrespective of the

effect or likely effect on the particular proceeding in question. In the present
case, the defendant’s solicitor in their letter to the Chief Registrar of the High
Court had not only prejudged the issues to be tried by the court, but had
thought it fit to direct the deputy registrar to fix a new auction date as soon as
possible defying the order of stay made by this court.
(3) To constitute contempt in the face of the court, it appears to be unnecessary
that the act of contempt should take place wholly or in part in a court room
itself nor does it seem to be necessary that all circumstances of contempt
147
should be within the personal knowledge of the judicial officer dealing with
the contempt.
(4) The court had the jurisdiction to proceed to institute the contempt proceeding
against the alleged contemnors based on the show cause letter sent out to the
alleged contemnors. The court had the jurisdiction by virtue of the fact that
the show cause letter had instituted three charges and that the elements of

contempt were fully set out and the court had decided that both the defendant
and his solicitor were to show cause. The alleged contemnors therefore should
give explanations to the court and that would tantamount to show cause.
(5) In a contempt proceeding initiated by the court on its own motion and to
determine at the end of the day whether the explanation given ought to be
accepted or rejected, the court must and can question the alleged contemnors
in order to satisfy itself whether the explanation was made in good faith or
malice and to determine whether to accept or to reject the explanation given.
(6) Having heard and studied the explanation given by the defendant and his
solicitor, the court found that both the alleged contemnors had failed to give a
sufficient explanation to the said show cause letter. Therefore, the court found
both the defendant and his solicitor to be guilty of contempt of the court.
(7) The question of mens rea or intention in a contempt proceeding is not a
relevant consideration. The test was whether the matter complained of had
the tendency or was calculated to interfere with the due administration of
justice, not whether the perpetrator had intended that result. Contempt in the
face of the court is an offence of strict liability in which intention on the part of
the contemnor is irrelevant.
(8) On the sentence to be meted out, the court had to take into consideration of
the fact that contempt in the face of the court that had been committed in this
case was a serious offence. However, after having heard the plea in mitigation
made by counsels of the respective contemnors and having considered the
facts and the circumstances under which the letters were written together
with the willingness of the contemnor to unreservedly tender their apologies
to this honourable court, the court found that it was not inappropriate for
the court to pass a sentence of merely admonishing and discharging both the
contemnors.
ZAINUR ZAKARIA v PENDAKWA RAYA [2001] 3 AMR 3149 Federal Court
The appellant was one of the defence counsel in the trial of DSAI who was charged
with the commission of four offences of corrupt practice. In the course of the trial the
appellant file an application to disqualify two of the prosecutors. The application was
based on a letter written by one MSD to the AG and a statutory declaration made by
MSD. MSD was then counsel for one Nalla who was charged with an offence under
the ISA. In the SD, MSD alleged that if Nalla wanted his charge to be amended from
one under the ISA to one under the Arms Act 1960, then Nalla must give information
and testify against DSAI concerning DSAI’s illicit relationship with five women. The
trial judge found that the request for information from Nalla was an exercise of lawful
powers with no undertones of impropriety. The trial Judge held that the application
was an interference with the course of justice, baseless and was a pre-emptive step
CASES & MATERIALS
to undermine the trial. He proposed to cite the appellant for contempt. The appellant
refused to apologise and explained that the application was made following DSAI’S
instruction, and after counsels for DSAI’S had studied the relevant documents. The trial
Judge then cited the appellant for contempt and imposed a sentence of three months
imprisonment. The appellant appealed to the Court of Appeal but his appeal was
dismissed and the trial Judge’s decision upheld. This is the appellant’s appeal against
the Court of Appeal’s decision.
Issue(s)
1. Whether the appellant, in the filing the application, was restless, negligent
and had acted in bad faith, tantamount to an abuse of the process of the court
and/or interference with the course of justice.
CLP
148
2. Whether the trial Judge had correctly adopted the summary procedure in
convicting the appellant for contempt.
Held
per Steve LK Shim, CJ (Sabah & Sarawak)
(1) Whether the conduct was a contempt
(a) Given the stand taken by DSAI throughout the trial denying any
extramarital affairs, it was reasonable that he should allege that the
request made by the prosecutors at the meeting was an attempt to
get Nalla to fabricate evidence against him. Looking at the situation
from DSAI’s standpoint, and given the fact that at the material time he
had not as yet charged with sexual involvement with any women, his
complaint that prosecutors’ conduct at the meeting was an attempt to
fabricate evidence against him was prima facie justified.
(b) In the absence of any evidence explaining this matter, the motive or
motives of the prosecutors in resorting to seek Nalla’s co-operation was
questionable.
(c) Taking into consideration all the circumstances in which the meeting
was held, MSD was justified in concluding or perceiving that there was
an attempt to induce Nalla to fabricate evidence against DSAI. In the
circumstances, the trial Judge’s view, which was endorsed by the Court
of Appeal, that the request for information by the prosecutors was an
exercise of lawful powers with no undertones of impropriety, was clearly
misconceived.
(d) Therefore, the High Court and Court of Appeal was wrong in holding the
appellant had acted recklessly, negligently and in bad faith in filing the
disqualification application. The appellant was prima facie justified in
filing the application. There could not therefore have been any abuse of
the process of court. Consequently, the charge of contempt against the
appellant had not been proven beyond reasonable doubt.
(e) There was evidence to support the application to disqualify the two
prosecutors. The letter and SD showed that the allegation in the affidavit-
in support could not be a baseless allegation. Consequently, there was
really no basis to find that the appellant had acted in bad faith in filing
the application on behalf of his client.
(f) Being aware of MSD’s letter, it was only natural for the appellant’s client
to be suspicious about the proceedings against him. In making the
application on behalf of his client, the appellant could not be said to be
interfering with the administration of justice.
per Haidar b Mohd Noor, FCJ
(g) In answering to the charge for contempt merely saying that he was
acting on the instructions of his client, without anything more, was
not a good defence for the appellant. However, if the appellant had
reasonably satisfied himself that there were adequate grounds to file
the application, then that would be a good defence as long as he did not
overstep the mark between his legal duty and contempt.

(h) In the circumstances of this case, the appellant was prima facie justified
in filing the application. Accordingly, the appellant could not be said to
have acted recklessly, negligently and in bad faith in filing the application.
R v GRAY 1900 2 QB 37
Facts
Darling J. sat in the Crown Court for the trial of prisoners. One W as about to be
tried before the learned judge for unlawfully and indecently publishing and uttering
149
certain obscene and filthy words, and for unlawfully publishing and selling an obscene
libel contained in a book. Before the trial was commenced Darling J. made some
observations in Court, pointing out in substance that, it was inexpedient that the
newspaper press should give anything like a full or detailed account of what passed
at the trial, and that, ... there was absolutely no protection to a newspaper for the
publication of objectionable, obscene, and indecent matter, and any newspaper which
did so might as easily be prosecuted. The learned judge further said that, although he

hoped and believed that his advice would be taken, if it was disregarded he should
make it his business to see that the law was in that respect. After the trial of W had
been concluded and sentence passed, and whilst Darling J. was still sitting as a judge,
Gray wrote and published in a newspaper circulating in Birmingham, of which he was
the editor, the article in question, headed “A Defender of Decency”.
Lord Russell of Killowen CJ “Any act done or writing published calculated to bring a
Court or a judge of the Court into contempt, or to lower
his authority, is a contempt of court. [This] class belongs
to the category as “scandalising a Court or a judge”.
That description of that class of contempt is to be taken
subject to one and an important qualification. Judges
and Courts are alike open to criticism, and if reasonable
argument or expostulation is offered against any judicial
act as contrary to law or the public good, no Court could
or would treat that as contempt of Court.
Lord Russell held that the articles were not a criticism of the judge’s conduct but a
“personal scurrilous abuse of the judge as a judge”. G himself in the affidavit described
the language used as intemperate, improper, ungentlem only and void of the respect
due to his lordships person and office.
HILBORNE v LAW SOCIETY OF SINGAPORE 1978 Privy Council
H (advocate) represented P in litigation and obtained judgement in default of Defence.
D successfully applied for the judgement to be aside. P applied to the Court of Appeal
to reopen the P’s appeal. The Court to refused the application and after the decision
was pronounced, H remarked to the court that by refusing to reopen the appeal, they
“had set a seal on dishonesty”.
HELD: remark by H constitute and offensive critical comment rather than a submission
seeking to persuade court to reopen the appeal (as made after court refused appeal).
Law Society imposed penalty.
TRUSTEE OF LEONG ETC v IDRIS & OTHERS 1990 Supreme Court
In proceedings in which squatters sued developer for damages, the Consumer
Association Penang was campaigning the cause of the squatters. Damages was awarded
to squatters by the court but this was reversed on appeal to the Supreme Court.
a) In the speeches by 1st and 2nd Respondent, there were inferences that the
court acted recklessly and irresponsibly and abused process of court.
b) It was alleged in their speeches that Supreme Court Judges are prejudice, not
gainfully employed and have not discharged duties.
c) It was suggested that the judges lacked maturity and apply on the interior and
CASES & MATERIALS
incapable and have not kept up with the best standard of Judges of Supreme
Court.
d) It was suggested that the Supreme Court decision was stupid, meaningless
and disregard of the legal process. The language was not within reasonable
courtesy and good faith.
1st Respondent’s speech (Mr Mohideen Abdul Kadir)
“..Mr Poh bila dia tengok bulldozer dia ingat dia boleh pergi ke mahkamah dapat
keadilan. Dia mimpi dia boleh dapat keadilan daripada mahkamah...Hakim kasi dia
$300,000 mula-mula. Farlim appeal..Appeal itu tiga hakim dengar, bukan dia kasi lebih
dia potong sampai $20,000. Dan dia cakap dalam Malaysia tuan tanah bila sudah kasi
CLP
150
notis dia boleh pergi sendiri tak payah pergi court**. Tak tahu apa pasal kita ada court?
Tak tau apa pasal kita bayar kasi hakim-hakim..ini undang-undang banyak jahat punya
undang-undang...undang-undang syaitan..”
2nd Respondent’s speech (Ms Meenakshi)
“..undang-undang banyak bodoh punya undang-undang. Bukan sahaja dia bodoh, dia
tak adil..Buat apa kita mahu hakim-hakim yang dia orang kata pandai-pandai. Tapi dia
pandai-pandai macam ini bikin undang-undang bodoh-bodoh.
ABDUL HAMID LP: “In Malaysia the need to protect the dignity and integrity of
Supreme Court and High Court is recognised by Article 126 Federal
Constitution and s13 Courts of Judicature Act 1964. A proper
balance must be struck between right of speech and expression
as provided for in Article 10 and the need to protect dignity
and integrity of Supreme Court in interest of maintaining public
confidence in the judiciary”... it is established ... that whether a
criticism of a judgment is criticism of reasonable courtesy and
good faith must depend on the facts of each particular case and
in determining the limits of reasonable courtesy the court should
not lose sight of local conditions”.
“As advocates and solicitors they (the 1st and 2nd Respondent)
are both officers of the court and are expected to uphold the
dignity of the court and the respect for the judges. But they have
ridiculed the Supreme Court. We find that the respondents had
gone outside the two limits of reasonable courtesy and good
faith. The blatant insinuations made by them had scandalized
the Supreme Court and brought it into disrepute as they were
not within limits of reasonable courtesy and good faith. We find
that the applicants have proven their case against them beyond
reasonable doubt and we find both of them guilty of contempt
of this court”.
AG v MANJEET SINGH DILLON 1991 1 MLJ 167
Salleh Abas LP was removed by Tribunal hearing. Tun Hamid as Chief Justice ordered
staff not to open court room. Bar Council commenced action against Chief Justice (at
that time the new Lord President) for contempt. The Bar Council took a very strong
stand in the events. In the action Bar Council filed an affidavit affirmed by MSD
containing certain allegations against the Chief Justice eg. “unfit to be Lord President”.
Attorney General applied to commit MSD to prison for contempt of court.
Supreme Court (MAJORITY): allowed AG’s application.
(i) The English common law of contempt of court applies in Malaysia by virtue of
s.3 Civil Law Act 1956. Therefore any act done or writing published calculated
to bring a court or a judge of court into contempt or to lower his authority, is a
contempt of court.
(ii) When applying the law of contempt in Malaysia, the court will not lose sight of
local conditions and for that reason it would be necessary to take stricter view
here of matters pertaining to the dignity of the court.
MOHD YUSOF SCJ: On the facts of the case the criticism made by MSD if repeated
would undisputable undermine the authority of the Lord President and lower the
dignity of the court in the eyes of the public and therefore a contempt of court has
been proven against MSD.
GUAN CHIT TUAN SCJ: On the facts of the case there was no jurisdiction for the
criticism in the affidavit affirmed by MSD. There can be no doubt that the respondent
intended to affirm the affidavit in question and there are statements in the affidavit
containing accusations and allegations which were an attack on Lord President causing
unwarranted aspersions on his character, which could be considered to be scurrilously
abusive of the judge, thereby amounting to contempt by scandalizing the court.
151
HARUN HASHIM SCJ (dissenting): The statement in affidavit is defamatory. However

such libel can only amount to scandalizing the court if it criticise the judicial conduct
of the judge. On the facts, MSD has not crossed the line from libel to scandalizing the
Lord President in his judicial capacity. The conduct of the judge which is criticized in the
affidavit is not a judicial conduct but an administrative conduct as Chief Justice. Mere
abuse of a judge, however defamatory, is not a contempt of court. The abuse must
relate to the performance of a judicial duty of the judge for it to be criminal contempt

of court. The offence alleged against MSD has not been proven.
NOTE* GUAN CHIT TUAN SCJ: it is quit clear from local case eg. AG v Arthur Lee, that
this court has recently held that in deciding whether any criticism on a court of judge
falls within limits of reasonable courtesy and good faith, the court should not lose
sight of local circumstances and conditions. The court had in those cases hesitated to
follow too closely the decisions of English Courts on the subject of contempt without
first considering whether the relevant conditions in England and this country is similar.
COMMENT: This seems to indicate that the Supreme court’s sensitivity to criticism had
not change eventhough it has been constituted for 6 years.
LEWIS v OGDEN 1984 High Court of Australia
At a criminal trial before Judge Ogden and a jury, Lewis (counsel for accused) in the
course of his address to the jury made remarks:
“This trial has been just slightly unusual from most trials... with clearly defined
role you normally think of a judge as being a sort of umpire and you expect an
umpire to be unbiased.. it may surprise you to find his Honour’s role in the trial
is quite different does not have to be unbiased at all except on question of law.
On the question of fact, his Honour is quite entitled to form views and very
obviously has done so in this trial...his honour had given some fairly definite
views in this case. They have been pretty adverse to the accused and certainly
my presentation of the case on behalf of accused..”
Judge Ogden took view that remarks might have adverse effect in minds of the
jury and discharged jury without verdict. Judge found Lewis guilty of contempt,
in that remarks was a willful insult to the court and impose $500 fine.
HIGH CT OF AUS: allowed the appeal by Lewis. “The contempt power is
exercised to vindicate the integrity of the court and of its proceedings, and is
rarely, if ever, exercised to vindicate the personal dignity of the a judge.”
CHANDRA SRI RAM v MURRAY HIEBERT 1997 3 MLJ 240
High Court
An article in FEER magazine was written by the Respondent which one the case was
presiding in court for determination.
“Threat and intimidation to, and interference with proceedings in this court as
contained in para 5 of the article which reads as follows:
Educators are also following that case closely. A hefty award for the plaintiff
would be major financial burden on the school - and could hinder Malaysia’s
efforts to attract foreigners. The institution, after all was established 30 years
ago to educate the children of foreign businessman and diplomats”.
CASES & MATERIALS
Low Hop Bing

“In my judgment, this paragraph contains threat and intimidation to this court in that
if this court were to hand down a hefty award, foreign investors would be driven away.
A threat and intimidation of this nature and in this direction particularly in pending
proceedings was clearly calculated to divert the course of justice and therefore
interfered with the due process of law and the course of justice, in that this court
should be hesitant to find in favour of the plaintiff in the civil suit by suggesting that
Malaysia’s economics interest was at stake” ... “Every writing, letter or publication,
which has for its object to divert the course of justice is a contempt of court”.
CLP
152
“In my ... view, I hold that in order to establish contempt of court as a result of
publication scandalizing the court of interfering with the course of justice, as in the
instant case, intention or mens rea on the part of the alleged contemnor was not an
essential ingredient. It was no defence for the author of an article, or for that matter,
any person involved in a contemptuous or contumacious conduct, to show that he did
not know that the behaviour or conduct in question constituted contempt of court.
The test was whether the matter complained of had the tendency or was calculated to
interfere with the due administration of justice - not whether the perpetrator intended
that result”.
“An intent to commit not necessary to maintain a conviction. The write of an article
can be guilty contempt without intending to interefere with the due course of justice.
An article written with the deliberate intention of interfering with the due course of
justice would be an extremely serious matter meriting very serious punishment. He
can, however, be guilty of writing an article which tends to interfere with the course
of justice without intending so to interfere. The test has always been not what the
writer intended but what effect the words would have upon readers...The question of
intention is irrelevant in considering whether the offence has been committed, though
of course it is a most important mater in considering the appropriate sentence to be
imposed”.
“In order to sustain a conviction for contempt of court the standard of proof required is
that the evidence before the court must be such that the complainant, ie the applicant
has proved the case against the respondent beyond a reasonable doubt.
MURRAY HIEBERT v CHANDRA SRI RAM 1999 4 AMR 4005
On appeal to Court of Appeal
i) Bearing in mind the effect of the article as a whole on the ordinary reasonable
reader, this court is of the view that the article did in fact constitute contempt
of court.
ii) The High Court was correct to have held that on the facts of this case, the
intention or the mens rea on the part of the appellant is not an essential
ingredient, as contempt of court generally and publication contempt is
an offence of strict liability. It was therefore no defence for the appellant
to claim that he had not known, thought or intended the said article to be
contemptuous.
iii) On the facts, the High Court had applied the correct test in deciding whether
or not the publication of the article amounted to a contempt of court i.e.
“whether the publication of the said article tends or is likely to interfere with
the administration of justice”.
iv) On the facts, and bearing in mind the Supreme Court’s decision in Arthur Lee
Men Kwang v Faber Merlin Malaysia Bhd & Ors [1986] 2 MLJ 193, the trial
Judge was right to have held that the respondent had the locus standi to file
the application. there was no need for the respondent to have obtained the
consent of the AG before filing the application.
Appeal against conviction dismissed; Term of imprisonment reduced to six weeks.
MBf CAPITAL BERHAD & ANOR v TOMMY THOMAS & ANOR 1999 1 AMR 141 High
Court
RK Nathan J
The plaintiffs commenced certain action in defamation after the first defendant was
alleged to have made certain remarks contained in an article which appeared in a
journal, which allegedly potrayed that the lawyers acting for the plaintiffs in certain
suits of complicity in, or at least connivance at improperly seeking to obtain favours
from the judges concerned in the litigation in which they were involved. A settlement
was recorded. The next day, statements appeared, in various newspapers wherein the
first defendant indicated that the settlement of the defamation actions were initiated
brokered and insisted upon, entirely by the insurers and that the actions were settled
153
despite his express objections. Subsequently the first defendant issued statement
retracting his statement issued a day earlier.
This was the hearing of the notice to show cause by the court which recorded the
settlement as to why the first defendant should not be cited for contempt for issuing
press statements in breach of his own statements in open court which resulted in the
settlement being recorded.

Held
i) The first defendant did not challenge the notice of to show cause and therefore
was guilty of the offence of issuing a press statement in breach of a court
order after he had authorised the reading of a statement in open court by his
counsel.
ii) This was a clear case where a custodial sentence was necessary. This was
because the contemnor had continued to reflect his personal desire not to be
open and candid with the court. Sentenced to six months imprisonment.
KARAM SINGH v P.P. 1974 1 MLJ 229
Raja Azlan Shah F.J. This is an appeal by an advocate & solicitor against summary
conviction and sentence of two weeks’ imprisonment.
The facts so far disclosed in the record are that there was a heated argument between
the magistrate and the learned counsel who was appearing on behalf of a defendant in
a case concerning impersonation under section 170 of the Penal Code.
The learned magistrate adjourned into chambers for 15 minutes and after considering
the matter returned to the Bench and decided to deal with the appellant summarily.
The question here is whether the facts are sufficient to warrant summary committal
for contempt.
Insulting behaviour by counsel, however reprehensible, may or may not be contempt
depending on the surrounding circumstances. But, in my view, a magistrate’s summary
proper to proceed of his own motion must never be invoked unless the ends of justice
really required such drastic means. No doubt it appeared to be rough justice, it is
contrary to natural justice and can only be justified if nothing else would do. Therefore
this power must be exercised with scrupulous care and only when the case is clear
beyond reasonable doubt. In my view, it is only in urgent cases a magistrate should
take on himself to move. He should, in my view, leave it to the local Bar Committee to
move in accordance with section 27 of the Advocates & Solicitors Ordinance, 1947. The
magistrate should not appear to be both prosecutor and judge - a role which does not
become him well.
In my opinion, it was not a case for summary punishment because it was not sufficiently
urgent or imperative. He would have done well if he had adjourned the case and
reported the matter to the local Bar Committee. The power which a magistrate
possesses is both salutary and dangerous. The present appeal gives an opportunity to
make clear that it should be used reluctantly but fearlessly when and only when it is
necessary to prevent justice from being obstructed or undermined. That is not because
judges, witness and counsel who are offices of the court, take themselves seriously, but
because justice, whose servants we all are, must be taken seriously in a civilized society
if the rule of law is to be maintained. Therefore in this case the learned magistrate
CASES & MATERIALS
should have adjourned the matter and reported it to the local Bar committee, which I
propose to do now.
However, I would set aside the conviction and sentence. Conviction and sentence set
aside.
RE KUMARAENDRAN, AN ADVOCATE & SOLICITOR 1975 2 MLJ 45
Abdoolcader J. I have called for an examined the record of these proceedings in the
Session Court at Taiping in the exercise of my powers of criminal revision under section
323 of the Criminal Procedure Code for the purpose of satisfying myself as to the
correctness, legality and propriety of the summary order of committal for contempt
of court made by the learned president against K. Kumaraendran, an advocate and
CLP
154
solicitor of the High Court in Malaya, the advocate was defending an accused person
charged with an offence under section 4 of the Corrosive and Explosive Substances and
Offensive Weapons Ordinance, 1958, in the course of cross-examination of the second
witness for the prosecution by the advocate made the following note:
“[The defence counsel was shouting and behaving in a manner which is most
unexpected as he keeps on shouting throughout the whole proceedings, both
to the witness and to the court.]”
In this case, the learned defence counsel has very unjustifiably shouted at the witness
and notwithstanding the advice of the court has failed to conduct the case with
decorum. The learned defence counsel has absolutely no regard for both the court, the
witness and above all the sense of justice. Indeed the court has been most restrained
in allowing a great deal of latitude to the learned defence counsel. In spite of this,
the shouting potentialities of the learned defence counsel has been increasingly
manifested.
If you say this outside the court, I will take on (sic) you certainly. The counsel is
committing contempt of court and I am exercising my summary power and commit
him to two days’ imprisonment.
I must accept the last remark of the advocate as recorded by the learned president,
which apparently led to the summary order he made, as the unbiased truth in view of
the fact that this statement was made in open court in his presence and in his hearing
and indeed directed at and to him. There is no doubt that these words ascribed to the
advocate certainly constitudes insulting and contumacious behaviour in outrageous
and provocative language tantamount to a deliberate challenge to the authority of a
learned president and clearly a gross contempt in the face of the court.
Contempt in the face of the court has been, in my view aptly defined by Laskin J., in
his dissenting judgment in the Canadian Supreme Court case of Mckeown v The King
when he said:
“Contempt in the face of the court is, in my view, distinguished from contempt
not in its face on the footing that all the circumstances are in the personal
knowledge of the court.
In Balogh v St. Albans Crown Court, the Court of Appeal in England held that because the
power to summarily punish a contemnor for contempt is arbitrary, contrary to natural
justice, and far removed from the ordinary process of the law, it is to be exercised with
scrupulous care and only when it is imperative for the court to act immediately; and it
must never be invoked unless nothing else will do to protect the ends of justice.
The power to take cognisance of any contempt of court connotes summary disposal of
the matter as an offence without the formality of a charge or complaint. Punishment
for contempt in the face of the court which may be imprisonment or a fine can be
imposed immediately and without notice but it has however been firmly established
that:
“no person should be punished for contempt of court, which is a criminal
offence, unless the specific offence charged against him be distinctly stated,
and an opportunity or answering it given to him.”
I would add that the court’s power to imprison should only be exercised in serious
cases of contempt. In deciding whether a contempt is serious enough to warrant
imprisonment, two factors should be taken into account, first, likely interference with
the due administration of justice and, secondly, the culpability of the offender. Where
the imposition of a fine would meet the circumstances an order of committal should be
avoided, if at all possible the learned President as a result of the statement attributed
to the advocate in the record of the proceedings, perhaps understandably acting in
the heat of the moment, immediately committed him to imprisonment for 2 days
without distinctly stating the specific offence charged against him and without giving
him an opportunity of showing cause or answering that charge, in breach of the rules
of natural justice. The order of committal made must accordingly be unsustainable in
law and invalid.
155
But let me add this. Presidents and magistrates must accept the fact that it is duty of
counsel appearing before them to act fearlessly and with all the force and vigour at
their disposal in the interest of the cause they represent but wholly within the bounds
of propriety and courtesy in the discharge of their duties as officers of the court.
Counsel appearing before these courts must equally remember that in the discharge
of their duties they must judiciously use the right and privilege of appearing as such in
these courts and not abuse it, and that their conduct must at all times accord with that

decorum and dignity which is absolutely essential to the administration of justice and
above all, however frustrated or provoked they may be, they must pay that respect due
to the court which is the embodiment of the institution of justice in the machinery of
which both the courts and the Bar are interdependent and vital components. If counsel
has any complaint of unfair treatment then his recourse should not be a challenge
to the authority of the court but must of necessity be to direct it to the proper
quarters either personally or perhaps more appropriately through the appropriate
Bar Committee. Mutual respect and courtesy should always prevail and the utmost
restraint exercised from overacting, even at the most trying times. Occurrences of the
nature before me will only tarnish the image of justice which we all seek to administer
and mar the smoothness of its administration. If this admonition is adhered to then
there will be no danger of a repetition of the unhappy events which have culminated
in today’s proceedings.
For the reason I have given I am constrained to exercise my powers of revision to set
aside the order of committal made against the advocate.
However the order I have just made should not be allowed to obfuscate the gravity
of the statement attributed to the advocate in the record of these proceedings, and
I think this is a proper case for a reference to the appropriate Bar Committee for an
enquiry into the conduct of the advocate by his peers in relation to that statement, and
I so direct.
P.P. v SEERALAN 1985 2 MLJ 30
Salleh Abas L.P. The Magistrate, was holding an Inquest. The respondent Mr. Seeralan,
a member of the Bar was in court holding a watching brief and conducting the inquest
was P.O. Inspector Arvinder Singh.
During the course of the inquest, witness No. 8 became unduly difficult.
At this juncture, the respondent stood up and without asking the permission of the
court objected to the course which the P.O. intended to take and accused him and the
Bench of unnecessarily tormenting the witness. He was reminded by the magistrate
that he had no right to address the court unless permitted to do so; whereupon,
the respondent became emotional and made several allegations of basis against
the magistrate. In order to continue the proceedings, the magistrate ordered the
respondent to leave the court but he refused to comply with the order saying that he
had every right to be in court. He continued to make allegations of bias against the
Bench saying that the Bench was unfair and prejudiced against the witness, and he
would apply to have another magistrate to hear the inquest.
As a result of this Magistrate told the respondent that he was in contempt and that
the respondent was then under arrest and was to be moved out from the court. When
the respondent refused to leave the court, and said that he had to be carried away, the
CASES & MATERIALS
court adjourned.
The magistrate said that he took cognizance of the contempt committed by the
respondent and informed him of his acts and statements which, in the opinion of the
magistrate, constituted a contempt and required him to show cause why he should not
be punished. The acts and statements were:
(1) as he was only holding a watching brief in the matter, the respondent had to
ask the court’s permission before addressing it, and he had not done so;
(2) he accused the Bench of being unfair and biased against witness;
(3) he refused to leave the court when ordered to do so;
CLP
156
(4) by his continued unbecoming behaviour the respondent had disrupted the
court’s proceedings.
He denied the charge and claimed to be tried before another magistrate because the
magistrate being himself, the complainant was therefore biased. The magistrate then
fined the respondent of $150/=. The respondent refused to pay the fine.
The next day, the Seremban High Court exercising his powers of revision reversed and
set aside the magistrate’s order.
The P.P now refers three questions to us:-
1) Whether or not in law criminal contempt has been committed in the face of
the court by the respondent by accusing the presiding magistrate being biased,
unfair and prejudiced and by refusing to leave the court when ordered to do so
by the learned magistrate;
2) Whether it is right in law for the learned magistrate in the circumstances of this
case to exercise his powers of punishment for contempt of court summarily;
3) Whether it is right in law for learned Judge to set aside the Order of the learned
magistrate committing the respondent for contempt of court in chambers
without giving due notice or the right to be heard to the P.P.
The First question:
Did the conduct and behaviour of the respondent constitute a contempt of court?
Merely to address the court without getting its permission did not constitute a
contempt, especially when the respondent in this case had the court’s indulgence to
cross-examine practically every witness.
An inquest is not like a trial. It is only an inquiry by a magistrate as to the cause of death
and the prosecuting officers is there not to prosecute anyone but only to assist the
court with the examination of witness for the purpose of giving evidence. A defence
counsel present at an inquest is not there to defend anyone, but only to look after the
interests of those who engage him. However, although addressing the court without
permission is not a contempt it is certainly not polite to do so without permission. In
polite circles such as the legal profession, this simple etiquette is expected.
Whilst the respondent’s objection to the proposed course of action in order to protect
the witness may not amount to a contempt, having been reminded that he had no
right to make such objection as of right, he should not have made the situation more
difficult by an allegation of bias against the court. There is absolutely no justification
for him to make the accusation. Whilst we accept that counsel can plead for his client
without fear and favour, he certainly has no right to abuse the court and interrupt the
proceedings. An allegation of bias, in our opinion, is not a mere act of discourtesy, but
a contempt of court.
The Privy Council’s decision in Maharaj v A.G. for Trinidad and Tobago. Their Lordships
held that an allegation that a judge is guilty of “unjudicial conduct” is not a contempt
court. The trial judge took the allegation to be a “vicious attack on the integrity of
the court”, but their Lordships were satisfied that there had been no such attack, and
allowed the appellant’s appeal against his conviction. What Maharaj’s case established
is that the phrase “unjudicial conduct” does not amount to a vicious attack on the
integrity of the Court. In any event, what vitiated the committal for contempt was
the failure of the trial judge to make plain to the appellant the specific nature of the
contempt with which he was being charged. Reverting to the case under reference, the
words uttered by the respondent are not “unjudicial conduct” but biased, unfair and
prejudiced” and, therefore, in our opinion, constitutes a contempt of court.
The record clearly reveals the uncompromising attitude of the respondent and his
unabashed arrogance and insolence towards the magistrate. His continued accusations
that the court was biased, unfair and prejudiced clearly amount to a contempt of court.
This contempt had become all the more serious by his defiant attitude towards the
court. When asked to leave the court, he refused, and when told that he was under
arrest, he replied that he had to be carried away. The record shows that this abusive
conduct had in fact interrupted the inquest proceedings which the Court should be
157
concerned with and which, therefore, had to be postponed to another date. Under
such circumstances what else could the magistrate do in order to restore the dignity
of the court and bring order to it? We are of the view that it was correct and proper
for him to invoke para 26 of the Third Schedule to the Subordinate Courts Act to deal
with the situation. But this legitimate step was only met by continued defiance of the
respondent who kept on repeating the same allegations of bias against the magistrate,
saying that he would show cause only before another magistrate. He showed absolutely

no remorse or regret over what had happened.
In our view, such conduct and behaviour was not just a disorderly act, nor a mere use
of unbecoming language. They constituted a contempt of court of a serious kind, i.e.
without any mitigate factor.
The second question:
Many cases of contempt of court have been reversed because of the failure of the
court to give the contemnor an opportunity of being heard before he is punished, Re
Kumaraendran and Maharaj v A.G. for Trinidad and Tobago. In the case under reference
the record clearly shows that the elements of contempt were fully set out and that the
contemnor was asked to show cause. He did not attempt to reply to the charge but
instead demanded that another magistrate should hear it.
In support of Mr. Ramachandran’s submission, Mr. Param Cumaraswamy urged us to
hold that once the respondent had required the contempt of court to be dealt with
by another magistrate, the request should be granted; otherwise all subsequent
proceedings would be held to be null and void. With respect, we cannot infer such a
construction in para 26 of the third Schedule to the Subordinate Courts Act.
In our view, therefore, the fact that the company may also amount to an offence
under section 228 of the Penal Code does not in any way deprive the magistrate of
the power to punish for contempt. In this situation, the magistrate has a choice of
either proceeding under para 26 of the Third Schedule to the Act or of authorizing a
prosecution.
CHEAH CHENG HOC v P.P 1986 1 MLJ 299
In this case the appellant, and advocate and solicitor was charged and committed
for contempt and sentenced to three days’ imprisonment by the learned judge. The
charge arose out of an alleged breach of duty as counsel in a civil case, the allegation
being that the appellant concealed a document as to affect the credibility of a witness
in a civil suit. The appellant appealed.
Lee Hun Hoe C.J. The court has power to punish as contempt any misuse of the court’s
process, e.g., forging or altering of court documents or other deceits of the kind or
deceiving the court by deliberately suppressing a fact or giving false facts. Whether
the court should deal with the contempt summarily would depend upon the situation
in each particular case. In Jaginder Singh & Ors v Attorney General the Federal Court
made clear that the summary contempt procedure should rarely be resorted to expect
in those exceptional cases where it is urgent and imperative to act immediately to
preserve the integrity of the trial in progress.
Denning L.J., said in Tombling’s case relating to the duty of counsel:
“The duty of counsel to his client in a civil case - or in defending an accused
CASES & MATERIALS
person - is to make honest endeavour to succeed. He must not, of course,

knowingly mislead the court, either on the facts or on the law, but, short of
that, he may put such matters ... as in his discretion he thinks will be most to
the advantage of his client......”
It is very important for a counsel to remember that whatever may be his duty to his
client his duty to the court remains paramount in the administration of justice.
The power of summary punishment is a necessary power to maintain the dignity and
authority of the Judge and to ensure a fair trial. It should be exercised with scrupulous
care and only when the case is clear and beyond reasonable doubt. As Lord Denning,
M.R. said in Balogh v Crown Court:
CLP
158
“It is to be exercised by the judge of his own motion only when it is urgent and
imperative to act immediately - so as to maintain the authority of the court -
to prevent disorder - to enable witness to be free from fear - and jurors from
being improperly influenced - and the like...”
This power must be used sparingly but fearlessly when necessary to prevent obstruction
of justice. We feel that we must leave the exercise of this awesome power to the good
sense of our Judges. We will interfere when this power is misused. We consider that the
learned Judge was right in this case to find the appellant guilty. However, we thought
the penalty imposed was rather harsh in the circumstances and therefore varied the
sentence with the option of a fine.
NEALE v GORDON LENNOX [1902] All ER Rep 622 House of Lords
Facts
The Plaintiffs brought an action for defamation. When the case was coming up for
trial, the judge suggested a reference (ie the trial be held before an official referee
and in private to avoid embarrassment.) The counsel referred to P and P agreed
provided the D withdraw the imputations in public. Her counsel, who did not make this
limitation of his authority known to the defendant’s counsel, agreed with the latter
to refer the action without any disclaimer of imputations. An order was drawn up to
refer the matter to an official referee but P’s counsel did not got the D to withdraw the
imputations. Before the order was perfected the P applied by motion to set aside the
order on the ground that her counsel did not have the authority to refer the matter
unless the imputation was withdrawn.
Held, that the counsel having exceeded his authority the plaintiff was entitled to have
the agreement to refer set aside as it would cause injustice and the cause restored to
the list for trial.
A counsel has no authority to refer an action against the wishes of his client or upon
terms different from those which his client has authorized. If he does so refer it
the reference may be set aside although the limit put by the client on his counsel’s
authority is not made known to the other side when the reference is agreed upon. The
court before whom the question of setting aside the reference comes is not bound to
sanction an arrangement made by counsel which is not in the opinion of the Court a
proper one.
MARSDEN v MARSDEN [1972] 2 All ER 1162
The husband petitioned for divorce. The wife opposed the petition on the ground that
the dissolution of the marriage would cause her grave financial hardship. In the course
of hearing, counsel for the wife, contrary to express instructions, undertook on her
behalf to release the class F charge on the matrimonial home and to abandon her
interest therein. Furthermore against express instructions not to do so, he entered into
an agreement with counsel for the husband providing for the maintenance of the wife
and the children. The limitation of the authority of the wife’s counsel was unknown to
the husband’s counsel. The agreement was presented to the court by both counsels
and the judge made an order in terms of the agreement. The order was perfected on
14th March 1972. On the same day, either contemporaneously with the perfection
of the order or at some time beforehand, the wife applied to the court to set aside
the order; having informed the court a day or two previously that such an application
would be made.
Watkins J held
The ground on which, the application is founded is that the aforesaid matters form
part of a consent order to the making of which the wife did not, in fact, consent. In
effect, what is said by her is that counsel who appeared for her at the hearing of the
divorce suit gave on her behalf undertakings to the court which he was not authorised
to give and entered into an agreement with counsel for the husband, of which the
undertaking formed part, relating to maintenance and the matrimonial home which he
was expressly instructed not to enter into.
159
The wife’s very experienced solicitor, who was present at the hearing of the divorce suit
until a very late stage, has told me that after consulting his client and before leaving the
court he gave counsel clear instructions not to enter into an agreement.
The question is, having regard to the fact that he, as I have found, acted contrary to
authority, can the agreement stand?
Counsel has an implied authority to enter into a compromise subject to any express

limitation imposed on that authority by the client. Did counsel require an express
authority to give an undertaking on behalf of his client? Instructions of limitation must,
it is said, be clear and unequivocal. I find that clear and unequivocal instructions of
limitation were given in this case and that no authority, express or otherwise, was
given for the undertakings which formed part of the agreement.
With regard to the circumstances in which the court should interfere to set aside an
order based on compromise, I have been referred to a number of authorities. They all
show that the court should view such applications as this with extreme caution and
that a court will not grant such an application except in a case which calls clearly for
interference with the order made. It is discretionary remedy to be exercised with care
and with regard to the injustice or otherwise of allowing an order to stand.
Can the order be set aside after it being drawn up or perfected?
Referred to Neale v Gordon Lennox [1902] All ER Rep 622 where it concerned with an
action for defamation. A compromise was arranged. Counsel for the plaintiff omitted
in that compromise to extract, as he was instructed to do so, a withdrawal of the
imputations made on the character of the plaintiff. It was in those circumstances that
the House of Lords thought it right to interfere on behalf of the plaintiff. Nowhere in
the speech of the Halsbury LC or in the other speeches is there any mention of the
necessity to make an application such as this before an order is drawn up.
I was also referred to the case of Shepherd v Robinson [1919] 1 KB 474. That case
involved an action for debt. When it was called on for hearing counsel for the defendant
consented to judgment against his client for part of the claim. The plaintiff thereupon
abandoned the balance. Without the knowledge of counsel on either side, or of the
solicitors for the plaintiff, the defendant had given instructions to her solicitors that
the case was not to be settled. In that case counsel for the defendant was clearly
under a misapprehension and at a grave disadvantage since he was not informed of
his own client’s instructions. It is clear from the judgment in the Court of Appeal that
the application in Shepherd’s case was made before the order was perfected. I think
it is well settled law that the court will not interfere at a time after perfection of
the order. Having regard to those facts, I have come to the conclusion that the high
probability is that the application was made, if not contemporaneously with the
order being perfected, then at some time before it. In any event, where circumstances
are to the effect that action was taken of informing the court of the intention to make
an application before the perfection of the order and the application is actually made
on the day of perfection of the order, it seems to me to be a manifest injustice to an
applicant to exclude her application from consideration on the basis that she may not
have made it before the order was perfected. Having regard to these special facts, I
feel entitled to entertain this application. This permits me to return to the question of
whether or not I should in the exercise of my discretion grant the application. In this
regard I refer further to Shepherd v Robinson, where reference is made to the case
CASES & MATERIALS
of Little v Spreadbury [1910] 2 KB 658. Bankes LJ in referring to this case made these
quotations from it:
‘Lord Coleridge J, said: “My view of the law is this: Where a client has given
specific instructions for a compromise, or has given a prohibition against
compromising, except upon certain terms, the solicitor” - and the same would
apply to counsel - “has no authority from the client to depart from those
instructions without the client’s consent express or implied.”
I was also referred to Halsbury’s Laws of England. I quote from the last two paragraphs:
‘The position is more uncertain where the authority of counsel is limited, but
the limitation is unknown to the other side, who enter into the compromise
CLP
160
believing that the opponent’s counsel has the ordinary unlimited authority.
In some cases, where the matter is within the ordinary authority of counsel,
the courts have refused to inquire whether there was any such limitation,
when it was not communicated to the other side, and have refused to set
aside a compromise entered into by counsel. But the true rule seems to be
that in such case the Court has power to interfere; that it is not prevented
by the agreement of counsel from setting aside or refusing to enforce a
compromise; that it is a matter for the discretion of the Court; and that when,
in the particular circumstances of the case, grave injustice would be done by
allowing the compromise to stand, the compromise may be set aside, even
though the limitation of counsel’s authority was unknown to the other side.’
In my opinion, the two undertakings given on her behalf, namely, that which concerns
any rights she may have to the equity of the matrimonial home and that relating to
the release of the class F charge which is now on it, are important matters for her. It
being the fact, as I have said, that the undertakings were given without her express
instructions, there may be a grave injustice visited on her if the orders stand. On
balance, therefore, I think the injustice is on her side. The consent order was set aside.
The position in England changed after the case of WAUGH
WAUGH V HB CLIFFORD (1982) 1 AER 1095
Court of Appeal
Plaintiff - 2 couples (Waugh/Hillers) in 1977 bought from the Defendant (a Company)
adjoining plots of land with agreement that the D build on each plot a semi detached
dwelling house. Upon completion P moved in. Later they complained about the plaster
in the walls and ceilings. The D did some remedial work but the trouble continued. The
P instructed their solicitors M/s Williamson & Barns (M/s WB) to commence action and
the D appointed M/s Boys and Maughan (M/s BM).
The P issued writ against D for negligence and breach of contract. The D’s Surveyor
reported to Mr Austin of M/s BM and D, that D was liable to P for building defective
houses.
The Plaintiffs issued proceedings for summary judgment under RSC Ord 14. This
introduced an urgency into the proceedings. The next day Mr Austin reported to Mr
Clifford (D) that writs had been issued and advised the date for the hearing of the
summary judgment. His letter went on:
“Clearly we shall be in a good position to serve our Defence well before that
date and to compromise the matter if at all possible, and I suggest that the
time is now appropriate for us to meet up, the plaintiffs, myself and you, and
discuss the matter generally. As a matter of interest, I understand that the P’s
Solicitors think he would still be willing to sell the property, which suggestion
was I think the subject of previous correspondence, but no doubt we can
discuss that when we meet”.
On the same day the P’s solicitors wrote to M/s BM and said:
At the moment it is quite clear that even if it were possible to effectively repair
the damage the cost would be very substantial and the work would necessarily
involve our clients moving out of their houses completely for a period at least
six weeks. As your client and yourselves have indicated in the past that you
would certainly want to consider some form of settlement, we have been
instructed to confirm to you that our clients would be prepared to settle their
claim against your client on the basis that your client purchases both houses
at their current market value and provided that your clients also pays the
conveyancing costs and our client’s costs in this matter to date. We must ask
you to take instructions on this as soon as possible because our clients tell
us they are only prepared to settle on this basis if your client can come to a
decision within 21 days from today’s date. Mr and Mrs. Hillier will be moving
out of their houses at the end of the month to premises in the West Country,
where Mr. Hillier has been posted. This will involve them in considerable extra
161
expense, and we give you notice that this will ultimately be included in the
claim against your clients’.
On 13 March there was a meeting between Mr Clifford, Mr Austin and Mr Gore (D’s
Surveyor). Mr Austin made a rough note of what he thought was decided as the
meeting:
(i) Purchase at open market valuation reflecting some contribution towards

shrinkage.
(ii) Not to pay Hillier’s conveyancing costs. (iii) Pay other conveyancing costs plus
cost of litigation of both parties. (iv) Handley’s fees not. (Mr Handley was the
surveyor advising the plaintiffs.)
The judge found that at that meeting Mr Clifford authorised his solicitors, M/s BM, to
proceed on the footing that he was prepared in principle to purchase the houses at a
valuation to be agreed, although perhaps the basis of valuation had not been really
thought out.
On the same day (13 March) Mr Austin wrote to M/s WB:
‘We refer to your letter of the 5th March 1980 the contents of which we have
now discussed with our client in conjunction with his surveyor. Our client is
prepared in principle to purchase the houses of both sets of Plaintiffs at a
valuation to be agreed between the parties. Our client is also prepared to
pay the conveyancing costs in this regard of Mr. and Mrs Waugh but does not
consider it reasonable that he should pay the conveyancing costs of Mr. and
Mrs. Hillier having regard to the fact that they were proposing to move in any
event. Our client is also prepared to meet the costs of the litigation to date.
Perhaps you would obtain instructions at the earliest opportunity so that we
can finalise arrangements before it becomes necessary to prepare for the
Order 14 application on the 8th May’.
He sent a copy of this letter to Mr Clifford who raised no objection to it.
On 25 March the plaintiffs’ solicitors replied to that letter:
‘We thank you for your letter dated 13 March which we have now discussed
with our clients. In principle, our clients are prepared to settle on the basis
that you set out in your letter. We appreciate the points you make about Mr.
and Mrs Hillier’s conveyancing costs, however, their position has now altered
because Mr. Hillier’s posting to Yeovilton has now been cancelled and he has
to remain in Deal. We enclose a copy of a letter from Mr. Hillier’s Commanding
Officer which confirms this. In these circumstances, we consider that Mr and
Mrs Hillier’s costs should also be paid by your client. Our clients have been
advised as to the valuation of their properties by Mr R.E. Handley and we
would wish him to negotiate on their behalf. Perhaps you would like to ask
your valuer to get in touch direct with him. We are preparing a note of our
costs and disbursements and will let you have details in due course. We look
forward to hearing from you in reply’.
On 28 March Mr Austin wrote to Mr Clifford:
‘I refer to my letter to the other side consequent upon our meeting on the
CASES & MATERIALS
13th March and I am very pleased to advise that the offer has in principle
been accepted subject to the one qualification in the second paragraph of the
enclose copy letter which you will see. I have dealt with in my reply. I will think
you will have to concede this point. I have asked Mr. Gore either to negotiate
on your behalf or to recommend the name of a suitable Deal surveyor for that
purpose and as soon as they have some figures I will let you know’.
On the same day Mr Austin wrote to the plaintiff’s solicitors:
‘Thank you for your letter of the 25th March. There was no enclosure with your
letter but we accept what you say. We are instructing your valuer accordingly.
We are not proposing at present to prepare for the Order 14 hearing on the
2nd May’.
CLP
162
On 21 April Mr Austin reported again to Mr Clifford:

‘Further to our recent telephone conversation I confirm that Mr. Gore has
acknowledged instructions to conduct negotiations on your behalf. We have
conceded on your behalf the point about Mr and Mrs Hillier’s conveyancing
costs as it would appear that at the present time they have no plans to move
from the area. Gore propose to take the view that the shrinkage aspect of the
defective plaster work should be reflected in assessing the open market value.
I will report you further as soon as possible’.
On the same day he told the plaintiffs’ solicitors that the company would pay the
Hillier’s conveyancing costs, and asked them to confirm that they would now withdraw
the Ord 14 summons. The Judge found that up to 21 April Mr Clifford was being kept
informed of the progress of events and there was no evidence that he raised any
objection.
The valuers negotiated. Mr Gore made an offer of $20,000 on behalf of the company
for each house. Mr Handley suggested $29,000 for one house and $30,000 for the
other. So there was $20,000 odd between them.
On 29 April, in a telephone conversation between Mr Austin and Mr James of M/s WB,
Mr James refused to withdraw the Ord 14 summons. This led Mr Austin to protest,
and in the course of his protest he asserted that the exchange of letters of 13 and 25
March constituted a binding agreement for settlement of the action.
In evidence Mr Austin admitted that he did not really think that there was a binding
agreement at that stage. The judge found that Mr Austin was in that letter (of 13 March)
holding himself out to M/s WB as being in a position to conclude a binding agreement.
During the next few days Mr Gore raised the company’s offer by $2,500, but Mr Handley
showed no sign of agreeing.
On 1 May the plaintiffs’ solicitors wrote to the defendants’ solicitors:
‘We refer to our telephone conversation of today and write to confirm what
we agreed, without prejudice. It was confirmed that your client’s offer to
purchase these properties at a valuation does not mean that the valuation
will be reduced by a sum in respect of the damage caused by the faulty breeze
blocks. We understand that Mr Gore is getting in touch with Mr Handley again
and suggesting that if they are unable to agree a value within 14 days then
a third valuer will be appointed. We have not taken specific instructions on
this point but we anticipate that our clients will agree. We agreed that there
should be an application for a Consent Order to withdraw the action on terms
that the properties be purchased at a valuation, that your client pay the
Plaintiffs’ costs and also their conveyancing costs involved in the sale of these
properties to your client and the purchase of new properties. On this basis we
have instructed our agents to adjourn the application and we understand that
you will be writing to the Court to confirm this’.
M/s BM reported this to Mr Clifford, and on 21 May wrote to him:
‘I enclose copy of my recent exchange with Gore from which you will see that
he is encountering some difficulty in negotiating with Mr Handley on the other
side. In the circumstances we suggest the appointment of John Hogbin and
Son who are a most reputable firm of valuers in Deal and they will be qualified
to arrive at an independent valuation which it is suggested should be final and
binding on both parties. Hopefully this will put an end to all this “toing and
froing”. Unless I hear from you to the contrary within the course of the next
few days I shall assume that you are in agreement with this course of action’.
On 30 May Mr Austin’s secretary received instructions on behalf of Mr Clifford not to
agree to the appointment of Mr Hogbin, but by an error that message did not reach Mr
Austin until after 6 June. Meanwhile, on 30 May, the plaintiffs’ solicitors wrote to the
defendants’ solicitors:
‘We refer to our recent telephone conversation and write to inform you that our
clients have now instructed us that they are prepared to agree to a valuation
163
of their properties by a single valuer. You agreed with us that the valuer should
be from Messrs John Hogbin & Sons of Queen Street, Deal and we have spoken
to Mr Young of that firm who has confirmed that he would be prepared to
take on this task. The valuer is to be instructed to place a market value on
these properties which disregards the damage to the property caused by the
problem with the breeze blocks. Both sides are to have until, we suggest, 13
June, in which to make representations to the valuer. Once the value has been

fixed we would think it reasonable that payment should be made as soon as
vacant possession is given thereafter. We look forward to hearing from you
that you agree this’.
On 6 June the defendants’ solicitors’ replied to the plaintiffs’ solicitors:
‘We acknowledge receipt of your letter dated 30th May 1980 and confirm that
we agree with the contents’.
In evidence, Mr Austin stated that by that latter he intended to effect an agreement
binding on his client.
On the same day (6 June), Mr Austin sent to Mr gore a copy of the plaintiffs’ solicitors
letter dated 30 May, and asked him to make the appropriate representations to M/s
Hogbin. Three days later Mr Clifford told his solicitors that he no longer wanted to
settle the case, but on 10 June the plaintiffs’ solicitors told the defendants’ solicitors
that they had instructed M/s JH to carry out the valuation, and that representations
to that firm should be submitted by 23 June. On the same day Mr Gore submitted to
JH representations on behalf of the defendant company. On 13 June the company
withdrew its instructions to M/s BM to represent it in connection with the proceedings
brought against it by the plaintiffs, and repeated the instruction given by telephone on
30 May that they were not agree to the appointment of any new valuer, saying that it
was no longer their wish to purchase the two houses. On the same day (13 June) M/s
BM told the plaintiffs’ solicitors that their client did not agree to the settlement which
had been the subject of correspondence to M/s JH and required the instructions to JH
to be withdrawn. The plaintiffs refused to accept the defendants’ new stand, and on 10
July gave notice of proceedings for specific performance of a contract by the defendant
company to purchase the two houses, damages and costs. M/s JH valued 55 Sydney
Road at $28,500.
So the plaintiffs, by writ, commenced the proceedings with which the appeal is
concerned. They claimed specific performance of the contract to be collected from
the exchange of the letters from the plaintiffs’ solicitors to M/s BM dated 1 and 30
May 1980, and the letter from M/s BM to the plaintiffs’ solicitors dated 6 June 1980,
alternatively damages.
By its defence the company denied that the correspondence constituted or purported
to constitute any concluded and unconditional contract, and denied the authority of
M/s BM as second defendants, against whom the plaintiffs also claimed damages for
breach or warranty of authority. The second defendants joined issue.
The High Court judge decided that:
(1) M/s BM had no express authority to make an agreement on behalf of the
defendant company to purchase either of the properties in satisfaction of the
plaintiffs’ claim for damages in the first action;
CASES & MATERIALS
(2) the plaintiffs’ solicitors were entitled to assume that M/s BM had the authority
that they claimed and therefore had authority to contract to compromise the
first action;
(3) the three letters pleaded in the statement of claim were to be construed as a
binding agreement for the defendant company to repurchase the two houses
at the valuation later effected by M/s JH as an independent valuer;
(4) on those findings it was unnecessary to express any view on the question of the
measure of damages which would have applied if the plaintiffs had succeeded
against the second defendants for breach of warranty of authority. The judge
made an order for specific performance.
CLP
164
The defendant company appeals on the grounds (1) that the judge was wrong in
holding that M/s BM had authority to make the contract on behalf of the company
and (2) there being no express authority, the authority of a solicitor on the record to
compromise proceedings was not such as to entitle to make an agreement on behalf of
the company to purchase either of the properties in satisfaction of the plaintiff’s claim
for damages.
By a respondent’s notice the plaintiff’s seek an order for damages against the second
defendants on the ground of their breach of warranty of authority, such order only to
be pursued in the event of the defendant company succeeding on its appeal against
the plaintiffs.
BRIGHTMAN LJ. The issue in this case is whether Messrs Boys & Maughan (BM) (the
builders’ solicitors) had ostensible authority to bind their clients HB Clifford & Sons Ltd
(the builders) to terms of compromise of the action brought against the builders by
Mr and Mrs Waugh and Mr and Mrs Hillier (the buyers), the terms of the compromise
being on the basis that the builders would repurchase the allegedly defective dwelling
houses at a valuation.
Certain matters are common ground for the purposes of this appeal.
First, that the builders had expressly forbidden their solicitors to enter into the
particular terms of compromise proposed, although by inadvertence the prohibition
did not reach the ears of the member of the firm dealing with the matter.
Second, that this prohibition was unknown to Mr Waugh/Mr Hiller and their solicitors.
Third, that the letters though couched in informal terms, amounted to a binding
agreement to compromise between the buyers’ solicitors and the builders’ solicitors,
subject only to the question of authority. Despite the informality of the letters, the case
falls to be decided in exactly the same way as if properly drafted terms of compromise
had been drawn up and signed by the respective solicitors on behalf of their clients.
It is in my opinion necessary to bear in mind the distinction between on the one hand
the implied authority of a solicitor to compromise an action without prior reference to
his client for consent, and on the other hand the ostensible or apparent authority of a
solicitor to compromise an action on behalf of his client without the opposing litigant
being required for his own protection either
(i) to scrutinise the authority of the solicitor of the other party, or
(ii) to demand that the other party (if an individual) himself signs the terms of
compromise or (if a corporation) affixes its seal or signs by a director or other
agent possessing the requisite power under the articles of association or other
constitution of corporation.
A convenient starting point is the Swinfern litigation. The testator had devised a
valuable landed estate to Mrs Swinfen, his widowed daughter-in-law. The testator’s
heir-at-law claimed the estate. The court directed that an issue should be tried as to the
validity of the devise, and that Mrs Swinfen should be the plaintiff and the heir-at-law
the defendant. The action came for trial. When it was part heard the eminent counsel
acting for Mrs Swinfen purported to agree on her behalf, but without reference to her,
to a compromise on the basis that Mrs Swinfen should convey the estate to the heir-
at-law in return for a small annuity. Mrs Swinfen strongly objected to the compromise
supposedly made in her name. Thereupon the heir-at-law proceeded against her for
specific performances. The specific performance action was decided in 1857 and is
reported as Swinfen v Swinfen (1857). Romily MR appears to have dismissed the action
principally on the ground that counsel had no implied authority, and therefore no
ostensible authority, to compromise a suit on behalf of his client.
Romily MR said
‘... an attorney ... is employed to conduct a suit for a client, but I apprehend
it to be perfectly clear that a compromise does not come within the term
“conduct of a suit”, and that a compromise is not within meaning of the
words “management of cause”.
165
Swinfen v Lord Chelmsford (1860) (an action brought by Mrs Swinfen against her
solicitor for damages in concluding the settlement) it directly raised the question
whether and to what extent a barrister or solicitor has an implied authority, as between
himself and his client, to compromise an action without reference to the client. Pollock
CB, said this
‘... the plaintiff has always contended that the defendant had no authority

or power to make such an agreement, that it was not binding, and that
the agreement was a nullity; and we are of opinion, although a counsel
has complete authority over the suit, the mode of conducting it, and all
that is incident to it - such as withdrawing the record, withdrawing a juror,
calling no witnesses, or selecting such as, in is discretion, he thinks ought
to be called, and others matters which is properly belong to the suit and
the management and conduct of the trial - we think he has not, by virtue of
his retainer in the suit, any power over matters that are collateral to it. For
instance, in an action for a nuisance between the owners of adjoining land, -
however desirable it may be that litigation should cease by one of the parties
purchasing the property of the other, we think the counsel have no authority
to agree to such a sale and bind the parties to the suit without their consent,
and we think such an agreement would be void.
It would seem arguable that in Swinfen v Lord Chelmsford the Court of Exchequer
Chamber was taking the same view as Romilly MR in Swinfen v Swinfen namely that
any compromise was ‘collateral’ to the action and therefore outside the retainer of
the solicitor or barrister. In Prestwich v Poley (1865) in that case the vendor sued the
purchaser for the price of goods sold and delivered. The purchaser’s solicitor offered
to settle the mater on the basis that the goods should be returned to the vendor in
discharge of the debt, and this was accepted by the vendor’s solicitor. The vendor
repudiated the compromise and sought to continue the action. The court decided that
the compromise was valid. Byles J said.
‘No authority has been cited before us to shew that an attorney, who has
the legal management of the cause, has no power in the bona fide exercise
of reasonable care and skill to compromise an action in any manner he may
find to be for the interest of his client.
Keating J said
“The attorney ... here has compromised, not by taking other goods in
satisfaction of the debt instead of money - but the very goods which were
the subject of the action. It seems to me that is within the most usual and
limited notion of the authority of the attorney.”
Montague Smith J said
‘The attorney is the general agent of the client in all matters which may
reasonably be expected to arise for decision in the cause. Everyone must
reasonably expect that a cause may not be carried to its natural conclusion,
and that it is proper and usual, and often necessary, to compromise.’
The case of Prestwitch v Poley was followed by Strauss v Francis (1866) also a case
involving ostensible authority. That was an action for defamation against a publisher.
The action was compromised. In agreeing to the compromise the plaintiff’s counsel
CASES & MATERIALS
acted without reference to his client. The plaintiff repudiated the compromise and
sought unsuccessfully to continue the action. Blackburn J said
‘Counsel ... being ordinarily retained to conduct a cause without any limitation,
the apparent authority with which he is clothed when he appears to conduct
the cause is to do everything which, in the exercise of his discretion, he may
think best for the interests of his client in the conduct of the cause: and if
within the limits of this apparent authority he enters into an agreement
with the opposite counsel as to the cause, on every principle this agreement
should be held binding.’
Next comes Mathews v Munster (1887) which was a somewhat similar case involving
ostensible authority. The plaintiff sued for malicious prosecution. When the action
CLP
166
was part heard, the defendant’s counsel, without reference to the defendant, agreed
that the action should be settled on the basis of his paying $350 damages and costs,
and withdrawing certain imputations against the plaintiff. The defendant sought
to repudiate the compromise and to continuing the action. The evidence was that
neither the defendant nor his solicitor had consented to the settlement, and that the
managing clerk, who was in court, had implored counsel to wait until the defendant
and his solicitor arrived in court. In the Court of Appeal Lord Esher MR said
‘... when the client has requested counsel to act as his advocate ... he thereby
represent to the other side that counsel is to act for him in the usual course,
and he must be bound by that representation so long as it continues ... the
request does not mean that counsel is to act in any other character than that
of advocate or to do any other act than such an advocate usually does. The
duty of counsel is to advise his client out of court and to act for him in court,
and until his authority is withdrawn he has, with regard to all matters that
properly relate to the conduct of the case, unlimited power to do what which
is best for his client.’
Both Lord Esher MR and Bowen LJ adopted the formulation of Pollock CB in Swinfen
v Lord Chelmsford, that the barrister has complete authority over the conduct of the
cause and all that is incidental to it’, but not over ‘matters that are collateral to it’.
The law thus became well established that the solicitor or counsel retained in a
action has an implied authority as between himself and his client to compromise the
suit without reference to the client, provided that the compromise does not involve
matter collateral to the action’; and ostensible authority, as between himself and the
opposing litigant, to compromise the suit without actual proof of authority, subject
to the same limitation; and that compromise does not involve ‘collateral matter’
merely because it contains terms which the court could not have ordered by way
of judgment in the action: for example, the return of the piano in Prestwich v Poley
(1865) the withdrawal of the imputations in Mathews v Munster (1887).
Suppose that a defamation action is on foot; that terms of compromise are discussed;
and that the defendant’s solicitor writes to the plaintiff’s solicitor offering to
compromise at a figure $100,000, which the plaintiff desires to accept. It would in
my view be officious on the part of the plaintiff’s solicitor to demand to be satisfied
as to the authority of the defendant’s solicitors to make the offer. It is perfectly clear
that the defendant’s solicitor has ostensible authority to compromise on behalf of his
client, not withstanding the large sum involved. It is not incumbent on the plaintiff to
seek the signature of the defendant, if an individual, or the seal of the defendant if a
corporation, or the signature of a director. But it does not follow that the defendant’s
solicitor would have implied authority to agree damages on that scale without the
agreement of his client. In the light of the solicitor’s knowledge of his client’s cash
position it might be quite unreasonable and indeed grossly negligent for the solicitor
to commit his client to such a burden without first inquiring it it were acceptable. But
that does not affect the ostensible authority of the solicitor to compromise, so as to
place the plaintiff at risk if he fails to satisfy himself that the defendant’s solicitor has
sought the agreement of his client. Such a limitation on the ostensible authority of the
solicitor would be unworkable.
It follows in my view that a solicitor or counsel) in a particular case have ostensible
authority vis-à-vis the opposing litigant where he has no implied authority vis-à-vis
his client. All that the opposing litigant need ask himself when testing the ostensible
authority of the solicitor or counsel, is the question whether the compromise contains
matter collateral to the suit’. The magnitude of the compromise or the burden which
its terms impose on the other party, is irrelevant. All that has to be considered in the
present appeal, which concerns ostensible and not implied authority, is whether the
repurchase of the allegedly defective dwelling houses is properly to be described as
matter collateral to the action. For the buyers and their solicitors had no notice of any
limitation imposed by the builders on the ostensible authority of the builders’ solicitors.
In the instant case the subject matter of the dispute was the performance of the
agreements. The action which was compromised sought damages for breach of
contract and for distress and inconvenience.
167
If an action for damages is brought for the sale of defective goods, it is within the
ostensible authority of the vendor’s solicitor to agree that they shall be taken back and
the purchase price repaid, the buyer does not need for his own protection to require
the signature of the seller, or to examine the authority of the solicitor. I see no reason
why a different rule should apply to an action based on the sale of a defective dwelling
house than would apply to an action based on the sale of defective merchandise. The
builder’s appeal dismissed.

Summary of the English Position
Authority to Compromise
A solicitor is authorised to compromise proceedings and as between himself and his
client he has implied authority to compromise without reference to his client: and
has ostensible authority vis-à-vis the client’s opponent to compromise without proof
of actual authority (see Waugh v HB Clifford & Son (1982)) subject to the following
reservations.
(i) The proceedings must be in being. A solicitor although retained to bring an
action cannot without express authority compromise it before the writ or
other originating process is issued (Welsh v Roe (1918)/ Macaulay v Polley
(1897));
(ii) In some cases the sanction of the court is required to make a compromise
valid-eg where the rights of minors or patients are affected;
(iii) In some cases, as part of the terms of compromise, the court’s intervention
to order that something shall or shall not be done is required the court may
notwithstanding anything which has been said or done by the counsel or
solicitors of the parties, inquire into the circumstances and withhold or grant
its intervention as it may deem just (Neale v Gordon Lennox (1902)/Selsh v Roe
(1918));
(iv) The authority to compromise does not extend to matters collateral to the
action in the sense that it really involves extraneous subject matter (Waugh v
HB Clifford & son (1982)):
Subject to the above reservations the law may be summarized as follows:
(i) A consent judgment/order, made with the express authority of the client, is
binding upon him from the time it is made, whether the case has been opened
to the court or not a mere consent order cannot be arbitrarily withdrawn even
before it is passed and entered (Harvey v Croydon (1883)
Where the client is in court at that time, his express authority will generally be
implied, unless he intervenes openly (Wright v Soresby (1834).
(ii) A consent order or judgment not doing beyond the subject matter of the
action, whether made with the authority of the client or not, which has been
perfected, is binding on the client and the Court will not interfere (Neale v
Gordon Lennox (1902)/Marsden v Marsden (1972). Waugh v HB Clifford &
Sons Ltd it was held that a solicitor’s ostensible authority to compromise an
action (vis-à-vis the other party) may be greater than his implied authority
to do so without reference to his client. If made without authority the client
CASES & MATERIALS
may have a remedy against his solicitor (Fray v Voules (1859)). But the court
has intervened where the plaintiff took out the perfected order solely for the
purpose of applying to have it set aside (Neale v Gordon Lennox (1902)) and
also where notice of the intention to apply to have the order set aside was
given before the perfection of the order although the application was not
made until after it was perfected (Marsden v Marsden (1972)).
(iii) In cases where a consent/judgment has been made but not perfected the
court has a discretion to interfere, and will do so if in the circumstances of
the particular case it considers that injustice would be the result of allowing
the compromise to stand. Thus the court will exercised its discretion where a
client has given his solicitor or counsel specific instructions not to compromise,
even though the existence of the limitation was not known to the other side
CLP
168
(Shepherd v Robinson (1919)), and where the client’s instructions placed a

limit on the ordinary of counsel or solicitor, though without the knowledge
of the other side (Marsden v Marsden (1972)): and the court has refused
to exercise its discretion where a compromise was made in the absence of
any express instructions from the client (Re Newen (1903)) and also where
a compromise was made in the absence of the client who has consequently
unable to intervene (Mathews v Munster (1887) and where a client by her
conduct induced her solicitor to believe that he was authorised to make a
certain compromise she was held bound by it whether she intended to give
the authority or not (Little v Spredbury (1910).
(iv) Where the compromise extends to matters collateral to the action as, eg where
the plaintiff’s counsel in a breach of promise case agrees to give up letters, and
not to molest, as part of the terms (Kempshall v Holland (1895)) or where,
after recovering damages in the action the plaintiff’s solicitor assents to the
defendant executing a deed of assignment for the benefit of all his creditors
(Re A Debtor (1914)), a special authority from the client is required, in the
absence of which the entire compromise will be set aside. The withdrawal of
imputations in a libel case, however, is not collateral matter going beyond the
subject-matter of the action for this purpose (Neale v Gordon Lennox (1902)).
Malaysian Cases
YAP CHEE MENG v AJINOMOTO (MALAYSIA) BERHAD [1978] 2 MLJ 249
The plaintiff had been injured while performing his work at the factory of the defendants
and had been blinded as a result of the accident. He instructed solicitors who arranged
a settlement of his claim. The plaintiff subsequently repudiated the settlement and
brought an action for damages against D. The main ground for objecting to the
settlement was that he gave instructions to his solicitors AEH not to settle out of court;
he never gave his consent to the settlement and that there is no valid discharge of the
claim.
Harun J held:
In accident cases it is the accepted practice after the pleadings have been filed in court
and before trial for the solicitors of both parties to negotiate a settlement. It is a good
practice as it save time and costs. Accident victims receive their compensation money
much earlier than if the matter had gone to trial.
It is usual during the course of negotiations for solicitors to consult their clients, give
legal advice and receive instructions. Once settlement has been reached, payments
made and the relevant documents signed, that should be the end of the matter.
In this case, so far as the defendants’ solicitors are concerned the negotiations with
plaintiff’s solicitor AEH were conducted in the usual manner. According to the affidavit
in reply by the solicitor AEH the plaintiff agreed to a settlement out of court and in fact
pressed him for an early settlement. His client saw him several times and the matter
was handled not only by him but also by his assistant, another solicitor of the same
firm. Copies of all his firm’s letters to defendants’ solicitors were sent to plaintiff to
keep him informed of the progress of the negotiations. It was his professional opinion
that the sum offered was reasonable in the circumstances.
It is quite clear, therefore, that there are two contradicting versions of what exactly
were the instructions plaintiff gave to his solicitors AEH. Whatever may the truth
be, how does it affect the defendants? This raises the question with regard to the
relationship between solicitor and client. It is settled law that a solicitor once retained
has full authority to act on behalf of his client and this authority extends to negotiations
to effect settlement out of court.
In Mathews v Munster (1887) the Court of Appeal held that the consent of the client
is not needed for a matter which is within the ordinary authority of counsel, and if a
compromise is entered into by counsel in the absence of the client, the client is bound.
And in Welsh v Roe (1918) it was held that where an action has been commenced, the
solicitor retained has an implied authority to compromise the action and no limitation
of such implied authority can be relied upon by the client as against the other side
169
unless such limitation had been brought to the knowledge of the other side before the
compromise was arranged.
However in Neale v Gordon Lenox (1902) the interfered when counsel exceed his
authority. In Shephed v Robinson (1919) counsel had consented to judgment without
knowing that his client had told the solicitors that the case was not to be settled and
the court ordered that the case be restored to the list for hearing. And in Marsden v

Marsden the court interfered when counsel acted against express instructions.
On a review of the cases, it seems to me that each case should be decided on its merits.
As a general rule, it is against public policy to allow settlement concluded between
solicitors on behalf of their respective clients in accident cases to be challenged with
impunity. To do so would open the floor-gates of endless litigation initiated by parties
who become wise after the event. It will also discourage the practice of out of court
settlements. But a settlement is a contract and like all contracts it is viodable on specific
grounds eg undue influence, misrepresentation, fraud or mistake. If this can be shown
it is then the duty of the court to interfere so that justice is done.
In this case prima facie, there is a valid settlement, conducted between advocates and
solicitors of this court.
S. PAKIANATHAN v R.K. STALLARD 1979 2 MLJ 251 Federal Court
In this case judgment had been entered against the appellant for broker’s commission
alleged to be lost as a result of the appellant’s breach to perform his obligation as
a guarantor under an agreement. The learned judge ordered the Senior Assistant
Registrar to assess damages. The Senior Assistant Registrar made an order, with the
consent of the then solicitor for the appellant, that the appellant pay the respondent
A$42,375 as damages. The appellant thereupon applied to have the other set aside
as he stated that the solicitor had no authority to giver consent and that there was no
sufficient evidence relating to the damages. The appellant’s present solicitor filed a
notice of motion seeking that the court order be set aside and a retrial or a new trial be
ordered on the grounds that the order was obtained by the respondent not disclosing
all the material facts and that the appellant had discovered new material evidence,
which the appellant with reasonable diligence could not have discovered; alternatively,
the appellant sought that the consent order made by the SAR be withdrawn on the
ground that the appellant’s solicitor at the time had no authority from the appellant
to give consent and that the assessment of damages was founded merely on letters.
Syed Othman FJ held:
Taking the former solicitor’s affidavit by itself, it should have been apparent that there
was strong force in the appellant’s contention that he could not have given his consent
to the damages as awarded by the Senior Assistant Registrar, and the appellant’s
former solicitor must have made a mistake, which he did not apparently choose to
declare in more positive terms in his affidavit. Further, there seems to be no dispute
that the appellant was not present at the inquiry. Under these circumstances there
would be grave injustice, if the consent order was allowed to stand.
In Marsden v Marsden the Court of Appeal in England held in effect, as indicated in the
1979 White Book (The Supreme Court Practice) Part 2 at page 607, that -
“Where a party applies to have a consent order set aside on the ground that
CASES & MATERIALS
it was made without his consent and the application is made either before or
contemporaneously with its being perfected, the court has a discretion to set
aside the order where grave injustice would be done by allowing it to stand.”
The principle here appears to apply to the present case. The appeal is allowed.
LAU MING HING v BANK PEMBANGUNAN M’SIA BHD 1994 2 MLJ 323 High Court
An advocate have a general authority to agree to a consent or to compromise any matter
on behalf of his client in the action that has already commenced provided that he acted
bona fide and not contrary to express negative instructions: Little v Spreadbury [1910].
CLP
170
The client cannot impose a limitation upon the implied authority of the advocate to
compromise to proceedings unless the limitation has been brought to the notice of the
opposite party: Welsh v Roe [1918].
LEONG SENG HUAT v LOW MAI YEN [1996] 3AMR 3388 High Court (Alor Star)
Mohd Hishamudin
On the facts it was an application for committal against the D (wife) to prison for failing
to comply with the consent order recorded by her previous solicitor in the custody
matter. The D wife raised the issue that her previous solicitor was not authorised to
record a consent order (ie she did not consent to the consent order).
Held
It is irrelevant whether or not the previous solicitor in agreeing to the consent order had
acted in accordance with the D’s instruction or not. Assuming that it is true that the D
had never authorised her former counsel to agree to the consent order, that however
is a problem to be thrashed out only between the D and her former counsel. Such lack
of authority cannot affect the interest of third party, the plaintiff. It is a principle of law
that a party is entitled to rely on the apparent authority of the counsel of the opposing
party to compromise: Waugh v HB Clifford & Son (1982)
FABER DEVELOPMENT SDN BHD v GEMCOL HOLDINGS SDN BHD
High Court, Johor Baharu (1998 Unreported) (Usul Pemula No: 25-34 Tahun 1995)
There was a consent order and a judgment recorded in the High Court arising out of an
action in 1992 by the P against the D. The Plaintiff’s previous solicitor have recorded
the consent order and judgment in 1994 and 1995 respectively. P being dissatisfied
applied to set aside both the orders on the ground that the previous solicitors was
not authorised to record the consent order and judgment and they was not aware the
progress of the case.
Held: Haidar J
The main thrust of the P’s argument in this action is that the former counsel for the
P was not authorised by the P to record the consent order. If the P succeeds, then it
follows that the said judgment recorded before the SAR should be set aside.
The grounds relied on by the P to set aside the consent order are:-
(1) The former counsel was not authorised either expressly or impliedly to record
the consent order.
(2) The P was not informed by the former counsel of D’s Order 14 application on
the counterclaim.
(3) The compromise was entered into by mistake on the part of the former counsel
on her mandate to compromise.
(4) In the circumstances it would be inequitable to comply with the consent order
and grave injustice would be caused to the plaintiff.
To put in nutshell, taking all the grounds altogether, the plaintiff would seem to say that
those grounds come under “special circumstances” in which the Court has a discretion
to interfere to set aside or refuse to enforce a compromise.
In relying on what are the special circumstances the P’s counsel relied on the passage
at paragraph 1180 of page 648 of Halsbury’s Laws of England, 4th Edition Vol. 3 and I
quote -
“If, with his client’s authority and consent, counsel agrees to an order, and,
there is no mistake or surprise, the client cannot arbitrarily withdraw his
consent, but if counsel subsequently informs the court that he agreed under
misapprehension, the court will not hold him or his client to the agreement,
and if counsel agrees contrary to his clients clear instructions, the court will
not hold the client to the agreement.”
The P’s counsel further relied on the case of Marsden v Marsden (1972) 2 ALL ER 1162
where Watkins, J held -
171
“in cases, unknown to the other party, where the usual authority of counsel
was limited by express instructions and counsel nonetheless entered into a
compromise for which he had no authority, the court had power to interfere
and might, in the exercise of its discretion, set aside the compromise and order
based on it, if grave injustice would be done by allowing the compromise to
stand”.

From the above quoted passages, the following matters would come within the
meaning of “special circumstances” for the consideration of the court in the exercise
of its discretionary power -
(i) clear and unequivocal instructions of limitations have been given;
(ii) counsel acted under misapprehension; and
(iii) grave injustice.
(i) & (ii) Clear and unequivocal instructions of limitations have been given/counsel
acted under misapprehension.
It is true that the client’s consent is not needed for a matter which is within the ordinary
authority of counsel. Thus, if in court, in the absence of the client’s a compromise or
settlement is entered into by counsel, whose authority has not been expressly limited,
the client is bound. In Mathews v Munster (1887) at page 143 Lord Esher, MR said -
“But when the client has requested counsel to act as his advocate he has done
something more, for he thereby represents to the other side that counsel is to
act for him in the usual course, and he must be bound by that representation
so long as it continues, so that a secret withdrawal of anything unknown
to the other side would not affect the apparent authority of counsel. The
request does not mean that counsel is to act in any other character than that
of advocate or to do any other act than such an advocate usually does. The
duty of counsel is to advise his client out of court and to act for him in court,
and until his authority is withdrawn he has, with regard to all matters that
properly relate to the conduct of the case, unlimited power to that which is
best for his client.”
Similarly it has been held that where a matter is within the authority of counsel, the
courts have refused to inquire whether there was any such limitation, when it was not
communicate to the other side, and have refused to set aside a compromise entered
by counsel (see Strauss v Francis (1866) CR 1 QB 379. As to enter a consent judgment
is a matter within the authority of counsel and no such limitation was communicated
to other side I accepted in this case the counsels’ words that their clients wanted to
settle the matter and there was therefore no necessity for me to inquire of any such
limitation of counsels and accordingly recorded the consent order.
However, in this case the plaintiff’s counsel contended that there was a limitation of
counsel’s authority to compromise or settle the counterclaim by reference to the letter.
Be that as it may, P’s former counsel herself admitted in her evidence that she made
a mistake in the settlement of the counterclaim. In other words she had gone beyond
of what was authorised by the plaintiff to settle the counterclaim if one compares the
contents of the letter and the terms of the consent order.
CASES & MATERIALS
The question now is whether I can accept P’s former counsel’s evidence on the mistake
or error on her part in entering the consent order.
The only inference that I can draw is that P’s former counsel did not inform the P at
that point of time of the consent order. By right she should have informed her client of
the consent order if so authorised soonest possible in view of the terms recorded that
imposed a heavy responsibility for the plaintiff to comply.
On the case of Leong Seng Huat v Low Mai Yen (1996) 3 AMR 3388 relied on by the
counsel for the defendant, the learned Judge there relied on the English case of Waugh
& Ord v H.B. Cliffird & Sons Ltd and others (1982) 1 All ER 1095 in respect of counsel’s
apparent or ostensible authority. However, I am of the view that the facts in Waugh’s
case are slightly different with the facts of this case and in the Waugh’s case, the
CLP
172
defendant company through Mr. Clifford was kept informed of the progress of events
and there was no evidence that he raised any objection as found by the learned Judge.
The defendant company (H.B. Clifford) decided to withdraw the authority because of
the disagreement over the appointment of the valuer. In this case the plaintiff was not
kept informed of the progress of the case and even the consent order obtained was
not brought to the knowledge of the P by the former counsel. It seemed clear that our
Federal Court case of S. Pakianathan v R.K. Stellard (1979) 2 MLJ 251 was not brought
to the attention of the learned J in Leong Seng Huat’s case. If it had been, may be
the learned Judge would have decided differently and not merely ruling that “if the
defendant had not authorised her counsel to agree to the consent order, she has to
resolve the matter with the counsel, lack of authorisation cannot affect the interest
of third party”. In other words, the court would have no discretion to set aside the
consent order which, in my view, is not the correct position in the light of what has
been stated in the Halsbury’s Laws of England and the case of Marsden v Marsden.
Taking the totality of the former’s counsel’s oral evidence, the letters referred to and
the affidavits of the P, I am of the view that the former counsel had acted against
the clear and unequivocal instructions of limitations of her client and had in fact, as
admitted by her, acted under a mistake or misapprehension in entering the consent
order.
Grave injustice
This ground had been accepted for setting aside the compromise an order based on it.
In Marsden v Marsden (1972) 2 All ER 1162, Watkins J at page 1167 said -
“But the true rule seems to be that the Court has power to interfere, that it
is not prevented by the agreement of counsel from setting aside or refusing
to enforce a compromise, it is a matter for the discretion of the Court, and
that when, in the particular circumstances of the case, grave injustice would
be done by allowing the compromise to stand, the compromise may be set
aside, even although the limitation of counsel’s authority was unknown to
the other side.”
In the circumstances, grave injustice would be caused to the plaintiff if the consent
order is allowed to stand. In the Federal Court case of S. Pakianathan v R.K. Stellard,
quoting with approval the case of Marsden v Marsden, it is stated at page 253 -
“Taking the former solicitor’s affidavit by itself, it should have been apparent
that there was strong force in the appellant’s contention that he could not
have given his consent to the damages as awarded by the Senior Assistant
Registrar, and the appellant’s former solicitor must have made a mistake,
which he did not apparently choose to declare in more positive terms in his
affidavit. Further, there seems to be no dispute that the appellant was not at
the inquiry. Under these circumstances there would be grave injustice, if the
consent order was allowed to stand.”
Quite apart from the great difficulties of the plaintiff complying with the terms of
the consent order, it is not disputed that the plaintiff was not present at any stage
of the proceedings in the suit including the subsequent hearing of the assessment of
damages.
I would, on the ground of grave injustice itself, accordingly set aside the consent order.
(Note: The court set aside both the order eventhough the orders have been perfected
because the P was not aware of the order until sometime later when they were served
with the orders.)

PP - Cases - Material - Ethics of The Legal Profession and Duties of Counsel 20-4-2020

Uploaded by

Copyright:

Available Formats

PP - Cases - Material - Ethics of The Legal Profession and Duties of Counsel 20-4-2020

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PP - Cases - Material - Ethics of The Legal Profession and Duties of Counsel 20-4-2020

Uploaded by

Copyright:

Available Formats

CLP Cases & Materials

Surdev Singh @ Sukhdave Singh Gill

Published by Brickfields Asia College

©Brickfields Asia College Sdn Bhd

First edition: 2012

Ethics (Cases & Materials)

1. SOLICITOR’S LIABILITY AS FIDUCIARY AND CONFLICT OF INTEREST

Advocacy & Duties Of Counsel (Cases & Material)

Ethics (Cases & Materials)

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

“In cases such as the present one, it is essential to remember, indeed to

property he does so at his peril. He must be prepared to show that he has

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

ought not to put himself forward as a prospective principal to deal with

b) Because of the principle that a solicitor owed a fiduciary duty to his

Ethics (Cases & Materials)

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

AG v ARTHUR LEE (SC) [1987] 1MLJ 291

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

On the subject of personal relationship, learned counsel cited to us the authority of

elementary tenet of construction in finding the meaning of “personal relationship” and

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

(meaning an association) which is personal between them. A working relationship

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Held, allowing the objection, barring Mr L from representing the plaintiff.

I am of the opinion that there is a personal relationship between Dato’ Manjit

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

independence to act in the best interests of the administration of justice.

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

AWALUDDIN BIN SURATMAN & ORS v PP [1991] 3 CLJ 2459

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Abdul Malik J (High Court)

be it in open Court or in Chambers. There are no concessions to be offered.

that right. There is a passage appearing in the judgment of Humphreys J in R v

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

PP v MOKHTAR B. ABDUL LATIFF

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

The second question:

2. It is not hypothetical nor conjecture but a natural consequence of any

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

(3) To constitute contempt in the face of the court, it appears to be unnecessary

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

per Haidar b Mohd Noor, FCJ

(2) In respect of the Procedure

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Gopal Sri Ram JCA

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

RE J. L. P. HARRIS AN ADVOCATE & SOLICITOR 1953 19 MLJ 161

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

that purpose or object.”

(d) The question is whether such overcharging, if proved, amounts to grossly

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

(3) Leads to the deterioration of ethical standards. RE TREPCA MINES LTD. It is

Professional Practice Ethics of the Legal Profession and Duties of Counsel/Advocacy

Mr Gana Muthusamy was ordered to be barred from representing the plaintiff

[Preliminary objection upheld. No order as to costs.]