Abdul Malik Ishak J:

[1] The plaintiff sent a motor van JCY 5932 for repairs at the defendant's workshop. There was delay in repairing the motor van. Harsh words exchanged between the parties. The plaintiff wanted to take their motor van from the defendant's workshop but the defendant refused to accede unless the plaintiff settle RM1,267.

[2] Mr Gana Muthusamy, an advocate and solicitor, was engaged by the plaintiff and on the basis of that retainer he proceeded to the defendant's workshop accompanied by a representative from the plaintiff's company. At the defendant's workshop, Mr Gana Muthusamy spoke to Tan Joo Khing and tried to persuade the latter to release the motor van belonging to the plaintiff with an undertaking by the plaintiff to settle all charges payable to the workshop but without prejudice to the right of the plaintiff to litigate the matter in a Court of law. The trip to the defendant's workshop proved futile. On 14 April 1997, Mr Gana Muthusamy then issued a notice to the defendant demanding the release of the motor van within three days failing which the matter would be referred to the Court. On 30 April 1997, Tan Joo Khing proceeded to the law firm of M/s Gana Muthusamy & Co, and there he was served with the writ of summons indorsed with the statement of claim (that must be Encl 2), a summons-in-chambers (that must be Encl 6) and two affidavits (that must be Encls 5 and 4). Alarmed by the turn of events, Tan Joo Khing met Mr Chua Chong Ying, an advocate and solicitor from the law firm of M/s Lau Kok Guan & Associates, with specific instructions to contact Mr Gana Muthusamy in order to settle the matter out of Court. At the hearing of Encl 6 in chambers, Miss Vijayaletchumi Gopal, the learned Counsel for the defendant, raised a preliminary objection to the effect that the law firm of M/s Gana Muthusamy & Co, should not appear on record as solicitors for the plaintiff since Mr Gana Muthusamy would be called as a witness by the defendant. Miss Vijayaletchumi Gopal threw the net of her preliminary objection wider when she argued that not only Mr Gana Muthusamy ought not to appear for the plaintiff but the law firm as a whole including the legal assistants of M/s Gana Muthusamy & Co, should not appear nor act for the plaintiff in the present case - be it in chambers or in open Court. As I see it the preliminary objections can be divided into three parts. The first part would be barring Mr Gana Muthusamy from representing the plaintiff be it in chambers or in open Court in the present case as he would be called as a witness by the defendant. The second part would bar the law firm of M/s Gana Muthusamy & Co, to appear on record as solicitors for the plaintiff in the present case. The third part would bar the legal assistants of the law firm of Messrs. Gana Muthusamy & Co, from appearing or acting for the plaintiff be it in chambers or in open Court in the present case. The second and third parts of the preliminary objections are novel ones and indeed I am breaking new ground and entering into an unchartered area.

[3] As an advocate and solicitor, Mr Gana Muthusamy certainly has an obligation towards his client - the plaintiff. There is that fiduciary relationship between Mr Gana Muthusamy and the plaintiff. A relationship between a solicitor and his client whereby the former has an obligation to act with strict fairness and openness to the latter. Thus, in the event the solicitor fails to fulfil this obligation he will be liab le to make compensation in respect of any resulting loss to his client though th e circumstances are not such as would sustain an action for deceit at common law (Nocton v. Lord Ashburton [1914] AC 932 HL; and Re Burford, Burford v. Clifford [1932] 2 Ch 122 CA). At common law, by that retainer Mr Gana Muthusamy has an obligation to be skilful and, at the same time, careful particularly when it involves a third party (Brown v. Raphael [1958] Ch 636 CA; [1958] 2 All ER 79). If Mr Gana Mut