Haidar Mohd Noor JCA:

In this application the appellant prayed for an order for extension of time for him to file the record of appeal pursuant to r. 18(7) of the Rules of the Court of Appeal 1994 ("the Rules") which reads:

The memorandum and copies above referred to which, together shall be called the record of appeal shall be filed at the Registry within six weeks after the entry of the appeal or within such further time as the Court may allow.

In support of the application, the solicitor for the appellant filed an affidavit setting out the grounds for the delay. In essence, the delay is grounded on:

(1) non-compliance with the Practice Direction No. 1 of 1996 dated 5 February 1996 issued by the President of the Court of Appeal;

(2) would not prejudice the respondent.

The respondent objected to the application.

Non-compliance With Practice Direction No: 1 Of 1996

On 13 October 1997, the learned High Court judge dismissed the appeal of the appellant against the judgment of the lower court on liability and quantum. It is a running down action.

On 7 November 1997, the appellant filed notice of appeal against the decision of the learned High Court judge.

On 10 December 1997, the appellant was provided with the notes of evidence but not the grounds of judgment of the learned High Court judge.

As the appellant was not provided with the notes of evidence within one month from the date the notice of appeal was filed after making the necessary application for same, the appellant should immediately, in accordance to para. (1) of the Practice Direction No. 1 of 1996, apply to the President of the Court of Appeal for extension of time to file the record of appeal.

Instead of writing to the President of the Court of Appeal for extension of time as stipulated under para. (1) of the Practice Direction No. 1 of 1996 the appellant's solicitor wrote a letter dated 4 December 1996 (exh. "SKS-2") to the registrar of the Court of Appeal for extension of time to file the record of appeal. Quite naturally there was no response from the registrar of the Court of Appeal to the letter of 4 December 1997 from the appellant's solicitor.

The appellant's solicitor subsequently wrote a letter dated 16 December 1997 to the President of the Court of Appeal applying for extension of time to file the record of appeal. This letter itself had not complied with paras. (2) and (3) of the Practice Direction No. 1 of 1996. Be that as it may, the appellant's solicitor was advised to comply with the Practice Direction No. 1 of 1996 (see exh. "SKS-3"). It is clearly erroneous on the part of the appellant's solicitor to contend the need to have the grounds of judgment in order to prepare the memorandum of appeal for inclusion in the record of appeal when para. (5) of the Practice Direction No. 1 of 1996 clearly allows for the grounds of judgment to be filed as an additional record of appeal without the necessity of filing an application. As a result there was a delay in filing the record of appeal.

Practice Direction No. 1 of 1996 has been framed to regulate the procedure governing the filing of appeal records. It must be strictly adhered to so that there is a systematic and consistent procedure governing the filing of appeal records. It was so emphasised by this court in Yeo Yoo Teik v. Jemaah Pengadilan Sewa, Pulau Pinang & Anor [1996] 2 CLJ 628; [1996] 2 MLJ 54 and quoted with approval recently by this court in another case, Ling Siok Seng V. Ting Sieh Chung [1998] 4 CLJ 169. The conduct of the appellant's solicitor in not complying with the Practice Direction No. 1 of 1996 can hardly be described as an acceptable explanation for the delay.

As stated by this court in Soh Keng Hian V. American International Assurance Co. Ltd. [1995], the mistake of a solicitor is a factor which the court may now take into account when deciding whether to grant an extension of time. Though Soh Keng Hian's case relates to extension of time to file notice of appeal