Suriyadi Halim Omar JCA:

[1] This was an appeal heard by us against the High Court's decision rejecting the application of the appellant, a firm of advocates and solicitors, to disqualify Messrs Chellam Wong, also a firm of advocates and solicitors, from acting in the matter in which it had a pecuniary interest. The relevant provisions adverted to by the appellant in its submission were rr. 5 , 27(a) and 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 .

[2] To understand the issue at hand, it is necessary to appreciate the facts of the case, which led to the disqualifying application. The appellant had initially represented Far Legion Sdn Bhd and Kewmoor International Limited, the current respondents, in civil suit D5-22-395-1996 against two companies called DB Trustee (M) Bhd and Mercury Industries Bhd. The respondents had agreed to an interim professional fee of RM300,000 to the appellant for that legal representation. A final note dated 4 April 1997 to pay a professional fee of RM320, 868.60 was issued later to the appellant.

[3] Due to bad blood subsequently flowing between the appellant and the respondents, a new set of lawyers represented the latter ie, Messrs Chellam Wong, for case D5-22-395-1996. The appellant was unhappy with its substitution, and had made its feelings known but eventually shifted its views. Rule 54 of the Legal Profession (Practice and Etiquette) Rules 1978 permits substitution as it states that an advocate and solicitor, knowing that the other party is represented by another advocate and solicitor, shall not act for him unless there is prior consent from the other advocate and solicitor. Ravi Nekoo in Professional Practice (MLJ) at p. 152 had also succinctly said:

Where consent is not obtained, the new solicitor may still take conduct of the matter upon being satisfied that the professional remuneration of the present advocate and solicitor has been paid. Alternatively, the new solicitor may undertake to pay the professional remuneration of the present advocate and solicitor (emphasis supplied)

[4] Such giving of undertaking is quite normal in a solicitor's world, as situations will arise where solicitors will be called upon to give the solicitors' undertakings, normally to be accepted by their colleagues. The regime of trust that permeates this profession is the cornerstone of the acceptability of such undertaking. Its enforceability on the other hand must depend on certain prerequisites, eg, that undertaking must be given by the solicitor in the capacity as a solicitor (United Mining and Finance Corporation v. Becher [1910] 2 KB 296; T. Damodaran v. Choe Kuan Him , [1979] 2 MLJ 267; Oriental Bank Bhd v. Abdul Razak Rouse ). It must be clear, unambiguous and unequivocal (Geoffrey Silver & Drake v. Thomas Anthony Baines [1971] 1 QB 396). Once that undertaking is established as good, even if the client were to die, or the solicitor ordered not to comply with it, or even if the solicitor's firm were replaced, unless waived it is enforceable. Halsbury's Laws of England (4th edn) Vol 44 at para. 255 had authored:

Enforcement of undertakings. 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 may be 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 undertaking given by the solicitor will be enforced against the solicitor even though, after it is given, the client dies or instructs the solicitor not to perform it, or changes his solicitor. If performance of the undertaking has been waived the undertaking will not be enforced