Azmi (Malaya) CJ:

This is an appeal against the judgement of the High Court at Muar for $2,534 for negligence against the appellant, an advocate and solicitor of the High Court of Malaya.

The facts of the case would appear to be as follows. The respondent retained the appellant as his advocate and solicitor to defend him in a civil action in the sessions Court at Muar. The respondent was sued as an endorser of a dishonoured cheque. A second defendant who was sued as the drawer of the cheque admitted the claim and judgment with costs was entered against him. The respondent contested the action but at the conclusion of the hearing judgment was also entered against him on 1 May 1962. Dissatisfied with this decision the respondent instructed the appellant to appeal. The notice of appeal was signed by both the respondent and the appellant on 3 May 1962 and filed within the prescribed time. Subsequently after the record of appeal had been prepared by the sessions Court, a notice under r. 2 (1) of O. 59 of the Rules of the Supreme Court, 1957, was served on 18 August 1962 on the appellant. In terms of the said r. 2(1) the memorandum of appeal should have been filed within 14 days from 18 August 1962. This, however, was not done. Application was made by the appellant on behalf of the respondent to the High Court for extension of time. This application came before the High Court on 24 November 1962. It was supported by an affidavit of Chia Teng Kee, appellant's clerk. That affidavit admitted the service of the notice served by the sessions Court on the appellant and then went on to say that he, the affirmant, filed the above-said notice in the office file and did not bring it to the notice of the appellant in time as he was ignorant of the amendment of O. 59 of the Rules of the Supreme Court. This amendment came into force in 1958. What he intended to convey I think is this: under the old rule there was no time limit to the filing of the memorandum of appeal but after this amendment the memorandum of appeal has to be filed within 14 days from the date of the service of the notice on an appellant or his solicitors.

The Judge's notes in the application for the extension of time showed that the appellant referred to O. 59 of the Supreme Court Rules as it was before the amendment and as it is now. In support of his application he also dealt on the merits of the appeal and in so doing produced for reference of the Court the notes of evidence of the trial before the sessions Court. There is no doubt that his main ground in support of his application was that the failure to file the memorandum of appeal in time was due to the ignorance of his clerk of the amendment to O. 59.

Counsel for the other party whilst indicating he was prepared to leave the matter entirely in the Court's hands referred to the Court the case of Hendry v. de Cruz [1949] MLJ Supp 24, CA. In that case the Court of appeal held that the mistake of the clerk of the legal adviser for the appellant did not constitute a ground for granting special leave to extend the time in which to appeal.

The Court dismissed the appellant's application. The respondent thereupon brought this suit against the appellant for negligence.

In his statement of claim the respondent alleged that he suffered damage from appellant's negligence in his conduct of business undertaken by him on the respondent's retainer.

The negligence alleged was in failing to file in the High Court the memorandum of appeal referred to previously within 14 days from the date of service on the appellant of the notice under r. 3(2) of O. XXIX of the Subordinate Court Rules, 1950.

In his statement of defence the appellant denied negligence on the ground that the respondent had failed to give him instructions in time to file a memorandum of appeal, and further stated that he (the appellant) took further steps by applying for extension of time to file the memorandum of appeal before the High Court which dismisse