The cause of action in negligence for a solicitor's failure arises at the moment of damage, while the burden of proof for reasonable prospect of success lies with the plaintiff.

[1] The appellants (defendant) appeal and the respondents (plaintiff) cross-appeal which relates to professional negligence of solicitor in not attending court on the day of hearing which resulted in the suit being struck out came up for hearing on 7 April 2014 and 23 April 2014. Upon hearing the parties we reserved judgment. My learned brothers Mohamad Ariff Mohd Yusof JCA and Abang Iskandar Abang Hashim JCA have read the judgment and approved the same. This is our judgment.

Preliminaries

[2] At the outset we must say the learned judicial commissioner had dealt with the issues meticulously and written a comprehensive judgment. The complaint by the appellant is related to (i) the defence of limitation; and (ii) the allegation that the respondent has no reasonable prospect of success against SK Styrofoam (purported debtor) and therefore suffered no actual damage.

[3] The respondents cross-appeal is related to the interest awarded on the judgment sum, which was 5% per annum but the respondent says it must be the contractual interest of 1.5% per month from 12 November 2000.

Undisputed Facts

[4] The cause of action against the purported debtor arose on 12 November 2000 and the action will become time barred on 12 November 2006. The striking out of the suit was done on 29 May 2006.

[5] The present suit was filed on 4 October 2012. The cause of action the appellant said arose on 29 May 2006 and it would have been time barred on 28 May 2012. However, the learned Judicial Commissioner says in negligence the cause of action only arises at the time the respondent suffers damage. And asserts further, that will only arise on 12 November 2006, ie when the opportunity to file afresh and/or reinstate is lost. That part of judgment reads as follows:

"[23] Now, I will consider the issue of limitation raised by the defendant. In a claim for negligence, the cause of action accrues when the plaintiff first suffers damage. I have alluded to this principle and examined it in some detail in my earlier judgment in Kobchai Sosothikul (Representative Of The Estate Of Boonsom Boonyanit @ Sun Yok Eng, Deceased) v. Pengarah Tanah Dan Galian, Pulau Pinang at pp 17-18, 2011 MarsdenLR 1167 ). This principle was aptly summarised by Templeman LJ, writing for the English court of Appeal in Baker v. Ollard & Bentley (a firm) & Anor [1982] 162 Sol Jo 593, in the following terms:

The period of limitation under the Limitation Act 1939 begins to run when the cause of action accrues. In negligence actions damage is an essential part of the cause of action and thus the relevant period of limitation, in this case six years, runs from the date of the damage and not from the date of the act which causes the damage.

[24] The same principle was reiterated by Lord Nichols of Birkenhead in Nykredit Mortgage Bank plc v. Edward Erdman Group (No 2) [1997] 1 WLR 1627 when he said:

In cases in tort the cause of action arises not when the culpable conduct occurs, but when the plaintiff first sustains damage.

[25] The date when limitation set in is very much fact based and varies from case to case depending on the peculiarity of each case. The date of the culpable act and the date on which damage is first suffered need not be the same. In the instant case, the date of the culpable act of not attending court leading to the Suit being struck out was 29 May 2006. On that date, I find that the plaintiff did not suffer any damage yet, as there still exist