A lawyer does not breach fiduciary duty when advising clients to file a new suit based on new facts rather than amending an existing suit, provided the new facts constitute a separate cause of action.

Introduction

[1] The Court in this case determined that the Plaintiffs claim for breach of fiduciary duty and negligence against the Defendant, a lawyer, could be disposed without calling any witnesses. The issue in this case could be determined by way of legal submissions of both parties.

[2] The Court's power to give directions as to the future course of action in a just, expeditious and economical manner is provided for under O 34 of the Rules of Court 2012 as follows:

(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that:

(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

[Emphasis Mine]

The Brief Facts

[3] The agreed facts between the Plaintiff and the Defendant revealed that that the Defendant is a partner in a law firm called "Goh Wong Pereira" (Defendant's firm).

[4] On the instructions of the Plaintiffs the Defendant's firm had filed a Civil Suit No:22NCVC-709-06/2012 ("Suit 709") at the Shah Alam High Court on behalf of the Plaintiffs on June 2012 for 'misappropriation of funds' by Lin Kai Wing and Lin Kah Hong ('the named persons') in a firm named Kong Ming Trading (KMT) of which the Plaintiffs were also partners.

[5] On October 2014 the Defendant on the discovery of some new facts advised the Plaintiffs to file a new Civil Suit with the registration number 22NCVC-482-10/2014 ("Suit 482") in Shah Alam High Court with regards to the misappropriation of funds by the same named persons in the same firm Kong Ming Trading.

[6] The named persons filed an application to strike out the second suit on the basis of Res Judicata and were successful in striking out the case.

The Issue

[7] The issue in this case is whether the Defendant breached his fiduciary duty or was negligent in advising a new second suit to be filed rather than amending the first suit.

Duty Of Care

[8] In the Court's view the Defendant as the appointed counsel in the civil claims filed by the Plaintiffs did owe a duty of care towards the Plaintiffs which extended to giving proper legal advise.

Breach Of Duty

[9] The primary issue for determination is whether the Defendant breached this duty of care when advising the Plaintiffs to file a new suit instead of amending the earlier suit and therefore breached this duty of care.

[10] In determining this issue the Court took into cognisance certain facts pertaining to suit 709. The Plaintiffs discovered further misappropriation of a sum of RM4,032,869.31 from KTM's account at Malaysian French Bank and Malayan Banking Bhd after Suit 709 was filed. Suit 709 concluded on 11 August 2014 after a full trial and the Defendant received the instructions from the Plaintiffs to file Suit 482 on 29 September 2014.

[11] In the Court's view the Defendant's advise to file a new suit was appropriate especially since the trial of Suit 709 had begun and it would have been unlikely the Court at such a late stage would have allowed for an amendment as this would be tantamount to adding a new cause of action which is prohibited under the Rules

[12] Order 20(5) although allows an amendment even if it amounts to adding or substituting a new cause of action it states as follows:

"5) An amendment may be allowed under paragra