Mohd Azmi Kamaruddin SCJ:

[1] The present dispute between the appellants (hereinafter referred to as "the Wongs") and the respondents, (hereinafter also referred to as "the former solicitors") has its roots in 1978 when the Wongs were sued in the Kota Bharu High Court by Lian Mah Trading Agency Sdn Bhd ("the Company") for general and special damages in an action for wrongful seizure and sale of goods, namely Komatsu Angle Dozer, of which the Company had claimed to be the owners. The Wongs who were then represented by the respondents, had denied the various allegations in the statement of claim, and pleaded in their defence that the Komatsu Angle Dozer actually belonged to one Syarikat Perusahaan Berangkat Sdn Bhd ("the Syarikat") against whom they had the right of seizure and sale. They also pleaded waiver on the ground that the Company had not filed any objection proceeding against the auction sale. When the 1978 case came up for hearing before Mohamed Zahir J, on 16 May 1981, neither the Wongs nor their then Counsel, Mr Bhagwan Singh (the 1st respondent herein) a partner of M/s Lim Soh Wah, Bhagwan & Partners, were present, resulting in default judgment being entered against the Wongs in the total sum of RM81,000 comprising of RM65,000 for the value of the Komatsu Angle Dozer and RM16,000 as damages for loss of its use.

[2] More than a month later, on 18 June 1981, Mr Bhagwan Singh who was then still acting for the Wongs, applied by summons-in-chambers to set aside the default judgment. On 23 August 1981 with the consent of the former solicitors, there was a change of solicitors whereby the Wongs had engaged M/s Wrigglesworth & Company in place of their former solicitors. At the hearing of the application to set aside on 16 September 1981, Mohamed Zahir J, with the consent of the parties, agreed to hear the application together with a fresh application by the Wongs to extend time since the application to set aside was filed outside the seven days from the date of service of the order of default judgment, and therefore did not comply with O 35 r 2(2) RHC 1980. After hearing arguments, Mohamed Zahir J, dismissed both the applications. An appeal to the then Federal Court by Dato' Wrigglesworth was also dismissed which finally put an end to any hope by the Wongs to set aside the 1981 default judgment. It was under these circumstances, that the Wongs instructed Dato' Wrigglesworth to commence action against their former solicitors for professional negligence. The writ against them was filed on 22 December 1985. Hearing of the suit commenced on 5 December 1990, during which two witnesses for the Wongs gave evidence and this was followed by another two witnesses (PW3 and PW4) the next day, but before PW4 was cross-examined, the hearing was adjourned to 23 April 1991 for continued hearing. On 14 April 1991, that is, about a week before the date of continued hearing, the 1st respondent on his own behalf and on behalf of the former solicitor's firm issued a writ of subpoena ad testificandum and duces tecum under O 38 r 14 RHC 1980, for the Wongs' present Counsel, Dato' Wrigglesworth to give oral evidence for the defence and as well as to produce documents. By summons-in-chambers dated 3 August 1991, the Wongs applied to have the subpoena against their Counsel set aside on the principal ground that Dato' Wrigglesworth did not have any personal knowledge on any facts relating to the professional negligence case, and as such could not give any material evidence. By para 12 of the summons, it was also contended that the issue of the subpoena had been made mala fide and was an abuse of the Court process in that it had been served with a hidden motive of preventing Dato' Wrigglesworh from continuing as Counsel for the Wongs in the partly heard case. Further, the Wongs contended that Dato' Wrigglesworth had been acting for them for the past ten years ever since the alleged professional negligence was committed, and as such a change of