Rahmah Hussain J:

The plaintiff's claim in this suit is for professional negligence against the defendant, a firm of advocates & solicitors of the High Court of Malaya, which represented him in a suit in the Kuantan High Court Civil Suit No 57 of 1981. In the said suit, the plaintiff was sued by his sub-contractor Syarikat Than Thian Siong Sdn Bhd ('STTS') for non-payment of sums on accounts rendered. The said sub-contractor applied for summary judgment in the sum of RM105,782.50 but its application was dismissed by the learned senior assistant registrar on 16 April 1982. However, on appeal, the said decision was overturned by VC George J who held inter alia, that there was an account stated between the parties.

The plaintiff through the defendant as its solicitors appealed to the Federal Court vide Civil Appeal No 297 of 1982. The plaintiff's appeal was struck off on 26 September 1983 as the defendant was not present in court on that date. The defendant contended that the plaintiff has failed, on a balance of probabilities, to prove breach of duty as pleaded in allegedly failing to appear in the Federal Court. During the trial of this case before me, DW1 testified that the plaintiff was sufficiently advised of the unlikelihood of success of the appeal. This was further confirmed by DW2, a senior commercial practitioner who gave the same opinion on the matter.

The plaintiff however maintained throughout the trial that he had never instructed or agreed not to proceed with the appeal.

In this case there are basically two issues raised by both parties:

(1) whether there is an absolute duty upon an advocate and solicitor to appear in court; and

(2) whether the defendant obtained the express/implicit instruction or consent of the plaintiff not to proceed with the appeal to the Federal Court.

Issue No (1)

It is settled law that a solicitor has a very high duty imposed upon him to his client. Lord Reid in his judgment in the case of Rondel v. Worsley [1967] 3 All ER 993 at p. 998 made the following pronouncement:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.

This principle was subsequently followed by Richard Talalla J in the case of Lai Cheng Chong v. PP [1993] 3 MLJ 147.

The Legal Profession (Practice and Etiquette) Rules 1978 clearly impress the importance of an advocate and solicitor's duty to appear in court.

Rule 6:

(a) An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

(b) An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client.

Rule 15:

An advocate and solicitor shall maintain a respectful attitude towards the Court.

Rule 24 requires an advocate and solicitor to be ready for the day fixed for trial.

The above rules were made by the Bar Council pursuant to s. 77 of the Legal Profession Act 1976 to regulate the professional practice, etiquette, conduct and discipline of advocates and solicitors. Failure to comply with the rules tantamounts to liability to disciplinary proceedings.

In our case the defendant did not offer any reason for his absence in court or for that matter whether there were intervening circumstances which prevented him from attending court for the appeal. There was an attempt by the defendant (DW1) to show that he had instructed one Mr Anthony Fernandes to mention on his behalf. However the defendant failed to produce him as a witness in court. To my mind this failure on the defendant's part leaves me no choice but to invoke s. 114(g) of the Evidence Act 1950 against him.

The Supreme Court in the case of Guthrie Sdn. Bhd. V. Trans-malaysian Leasing Corp. Bhd. [1991] 1 CLJ 155 upheld the trial judge's decision in invokin