The court established that even in the absence of a formal retainer, an implied solicitor-client relationship existed, mandating the solicitor's duty of care to the client, which was breached despite the dependency suit being filed on time.

S Nantha Balan JCA:

Introduction

[1] This is an appeal (by the plaintiff) against the decision of the learned Judicial Commissioner ("the JC") of the High Court at Shah Alam dated 11 October 2019 dismissing the plaintiff's claim per Shah Alam High Court Suit No. BA-23NCVC-20-09/2017 (with costs of RM40,000.00) ("Suit 20"). Suit 20 (which was filed on 13 September 2019) is essentially a claim for professional negligence and breach of contract against the defendant who is an advocate and solicitor. For the sake of convenience and brevity, we shall refer to the appellant and respondent as "plaintiff" and "defendant" respectively.

[2] The starting point in the narrative is a tragic road accident involving the plaintiff's daughter. The accident took place on 14 September 2008. She died on 15 September 2008 as a result of the injuries sustained in the motor accident. The defendant was asked (through a tout) to file a dependency action. The tout via a letter dated 4 August 2011 gave express instructions for the suit to be filed.

[3] On 12 September 2011, the defendant filed a claim (on behalf of the plaintiff) for dependency under s 7 of the Civil Law Act 1956 (Revised 1972) (Act 67) (" CLA ") via Shah Alam High Court Suit No. 22NCVC-1027-09/2011 ("the dependency suit"). The last date to file the dependency claim was 14 September 2011.

[4] Before filing the dependency claim, the defendant had not met the plaintiff and did not collect any deposit towards fees and disbursements. The plaintiff had not executed a Warrant to Act in favour of the defendant.

[5] However, on 6 October 2011 the dependency action was struck out due to counsel's non-attendance at the first case management before the Registrar. The appeal before us arises out of the defendant's handling, or mishandling, of the dependency suit. The plaintiff sued the defendant for professional negligence and breach of contract (via Suit 20). After a full trial, the JC dismissed Suit 20 on the basis, inter alia, that there was no solicitor-client relationship between the plaintiff and the defendant.

[6] As a preliminary observation, we find it necessary to state that it is rather curious that the dependency suit was filed in the High Court when it should have been filed in the Sessions Court. No doubt, the High Court has unlimited monetary jurisdiction for all civil actions. However, the defendant ought to have been aware that under s 65(1) of the Subordinate Courts Act 1948 (Revised 1972) (Act 92) the Sessions Court has "unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents".

[7] However, the filing of the dependency suit in the High Court is not the problem, as the action could have been transferred to the Sessions Court without any difficulty. The problem lies in the fact that the dependency suit was "short-lived". It was short-lived because of what the defendant did not do.

[8] Although, the defendant filed the dependency suit on 12 September 2011, he did not extract the sealed copy of the Writ of Summons. The first case management was on 6 October 2011. The evidence at the trial of Suit 20 disclosed that the defendant was aware of the case management date. On that day, the Registrar of the High Court waited until 5.00 pm.

[9] The defendant did not appear before the Registrar. He also did not write to the Registrar to vacate the case management date and seek a longer date to get all the information, details and documents to amend the Statement of Claim or alternatively to hand over the matter to another solicitor or at least to sort out matters with the tout.

[10] Ultimately, nothing was done to preserve the dependency suit and it was rather unfortunately struck out on 6 October 2011. There is no evidence that the plaintiff was aware that the dependency suit was struck out. He came to know about it very much later, i.e., after he had appointed new solicitors to take over the matter from the defendant.

[11] The appeal pivots o