A claimant in a legal professional negligence case must prove a real prospect of success in the original suit to establish negligence against the solicitor.

JUDGMENT

Rhodzariah Bujang FCJ:

[1] This appeal concerns a claim for professional negligence filed by the appellant against its former solicitor, the respondent, who was at that material time practicing in a legal firm, Messrs Suresh Thanabalasingam, but a partner in Messrs Suresh, Sharvin & Co when this appeal was heard before us. The background facts leading to the filing of the said claim are rather chequered and long winded for it went all the way back to 2011 when one Syarikat Lim Beng Brothers (Syarikat Lim, for short) filed a suit [No 22NCVC-1205-12/2011] in the Kuala Lumpur High Court against the appellant (as 2nd defendant) and 3 others, for trespass, negligence and nuisance arising out of an alleged encroachment of its land by the appellant's developer who was doing work on the appellant's land, which was adjacent to that of Syarikat Lim's, based on a joint venture agreement between the appellant and the said developer. That suit, hereinafter referred to as Suit 1205, did not proceed to trial for it was struck out against the other 3 defendants because of Syarikat Lim's failure to provide further and better particulars, but as against the appellant, judgment was entered against it on 31 July 2013 during case management of the said date and for damages to be assessed because of the appellant's failure to file a witness list and witness statements on or before 1 July 2013 as directed by Yeoh Wee Siam J (as Her Ladyship then was) during the said case management before her on 29 April 2013. It is to be noted that the said case management and the judgment entered on 31 July 2013 was before another High Court Judge, ie, SM Komathy Suppiah J (as Her Ladyship then was) and notably the respondent was absent during the said proceeding. Pursuant to the said judgment, an assessment of damages proceeded before the learned Deputy Registrar who made an award of general damages in the sum of RM5,455,000.00, special damages in the sum of RM202,000.00, exemplary damages in the sum of RM1,020,750.00 and with interest at 5% on the said judgment sums from January 2010 until full payment as well as cost of RM20,000.00, which the appellant fully settled subsequently at a reduced sum of RM6.3 million. From the time of filing Suit 1205 until its judicial conclusion, the appellant was legally represented by the respondent. Arising from the civil liability it suffered in Suit 1205 the appellant then filed a claim for professional negligence (No BA-21-NCVC-46-06/2016) against the respondent which is the subject matter of the present appeal, based on the following pleaded facts:

i. During the case management before Yeoh Wee Siam J on 29 April 2013, Her Ladyship not only directed the said filing of the witness list and witness statements on or before 1 July 2013, but also for the filing of agreed facts, issues to be tried, summary of case, common bundle of documents and bundle of pleadings on or before 29 May 2013, ie, 1 month after the said case management date and the respondent only complied with the latter direction but not the former.

ii. Failing to attend the case management proceeding on 31 July 2013 which resulted in the judgment against the appellant.

iii. Failing to set aside the judgment obtained in Suit 1205.

iv. Failing to inform the appellant about the assessment of damages hearing before the learned Deputy Registrar.

[2] This suit went for full trial and judgment was delivered by the High Court against the respondent and he was ordered to pay the appellant RM6.3 million, RM50,000.00 as general damages, another RM50,000.00 as exemplary damages, interest at 5% per annum on the judgment sum from the date of judgment until full settlement and cost of RM20,000.00. Dissatisfied with the said decision, the respondent appealed to the Court of Appeal and on 23 November 2022, his appeal was allowed and the High Court decision was therefore reversed and set aside. The appellant was successful in its application for leave to appeal to this