Table of Content
1. burden of proof lies with the respondent to establish the claim. (Para 1 , 2 , 5)
2. standard of care in professional negligence cases must be established. (Para 3)
3. failure to follow procedural requirements in professional negligence. (Para 4 , 6)

[1] The appellant (a professional firm of advocates and solicitors) appeals against the decision of the learned High Court Judge who ruled that the appellant was liable in negligence and ordered for assessment of damages. The action arose in respect of opinion given by the appellant relating to intellectual property rights.

[2] The amended Memorandum of Appeal reads as follows:

"Shearn Delamore & Co, the appellant above-named, appeals to the Court of Appeal against that part of the decision of the Honourable Justice Dato' Kang Hwee Gee given at the Kuala Lumpur High Court on the 28 July 2006, as decides that the 2nd plaintiff's action in Civil Suit No: D5-22-260-1996 be allowed with costs and with damages to be assessed on the following grounds:

1. In allowing the respondent's (2nd plaintiff) claim in the action against the appellant (defendant) with costs and ordering that interlocutory judgment be entered for the respondent with damages to be assessed and costs, the learned judge erred in law and/or in fact in holding that the appellant was negligent and/or in breach of its duty of care owed to the respondent on grounds that had not been pleaded by the respondent.

2. The learned judge erred in law and/or fact in holding that theappellant was negligent and/or in breach of its duty of care owed to therespondent in making the following findings:

2.1. that neither of the two legal opinions rendered by the appellant to the respondent addressed the:

"... probable reaction and counter action from IEV that the plaintiff would have to bear and for how long and whether the plaintiff would have the stamina to ride out a sustained litigation that would follow should he decide to act on the defendant's advice to exploit his invention.";

2.2. that the appellant:

"... was duty bound to advise the plaintiff of any consequence which would likely follow should the plaintiff acted to exploit his invention based on the written two opinions to the plaintiff to go ahead to exploit his invention, given the fact that IEV had by then successfully had its patent registered in this country and had issued a notice of infringement of its patent and threatening legal action.";

2.3. that:

"There was also a duty on the part of the defendant to properly advise the plaintiff of the financial implication that he may have to encounter in proceeding to exploit his invention in the face of the IEV patent; from having to defend an interlocutory injunction in the immediate future - and inevitable consequence which must invariably follow under the circumstances from the patent holder IEV, the immediate effect of which would put the plaintiff's attempt to exploit on hold and stretch his resources and stamina and in the end prevent him from achieving what he had set out to do; and ultimately having to overcome the action brought by IEV itself" and/or

2.4. that:

"As advocates and solicitors the defendant owed the plaintiff a duty of care to explain and made aware of the protracted litigation that he was likely to encounter should he decide to act on its advice to exploit his invention. Had the defendant done so, that duty of care would have been discharged. A failure to do so on the other had gave rise to a breach of that duty of care."

3. In so holding the learned judge erred in fact and/or law and in failing to take into account the fact that these matters (or issues) stated by the learned Judge in his grounds of judgment were not the respondent's pleaded case in his Statement of Claim and as such the appellant was deprived of the opportunity to lead such evidence as would have established that the appellant was not in breach of their duties in this regard.

4. In so holding as aforesaid the learned judge also erred in

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