Solicitors are liable for negligence if their failure to attend court leads to adverse consequences for their clients, demonstrating a breach of duty of care.

S. Nantha Balan JJCA:

JUDGMENT OF THE COURT Introduction

[1]The background facts to this appeal exemplify the nightmare scenario for every advocate and solicitor engaged in litigation work and underscores the imperative need for constant risk management and vigilance in the handling of litigation files. It is therefore obvious enough that a reasonably competent advocate and solicitor who represents a client in court proceedings must not only be up-to-date with the law (both procedural and substantive), but must also perform the most basic, fundamental or rudimentary duty of attending court on the hearing or mention or case management date, as the case may be. (see: Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor. v Awang Soh Bin Mamat & Ors. [2010] AMR 285; [2009] 5 CLJ 1 CA and the instructive decision of the Federal Court in respect of the same case reported as [2010] MLJU 34; [2010] 3 CLJ 895; [2010] 1 LNS 43 FC).

[2]Thus, the most dreadful and professionally threatening situation for any advocate and solicitor is where the action is struck off or judgment in default is entered due to counsel’s absence in court. With that the damage to the client would have crystallized. What happens thereafter in terms of whether the predicament is remedied or ameliorated remains largely in the hands of the court as to whether the court’s discretion should be exercised to reinstate the action, or to set aside the default judgment.

[3]The present appeal arises out of a claim by the appellant against the respondents (their former solicitors) for their negligence in respect of the appellant’s claim in court which was struck out (with costs) due to the absence of the appellant’s solicitor (3^rd respondent) when the suit was called up for continued hearing.

[4]The 1^st respondent is a law firm. The appellant was a former client of the 1^st respondent. The 2^nd respondent is a partner of the 1^st respondent. The 3^rd respondent was also a partner of the 1^st respondent. The appellant had engaged the 1^st respondent to commence legal action against Sinnayah & Sons Sdn Bhd (“Sinnayah”) to claim for the balance amount outstanding for sub-contract works carried out by the appellant valued at RM482,442.92. The 3^rd respondent personally handled the case on behalf of the appellant. The suit against Sinnayah was filed in the Sessions Court in Melaka and was fixed for full trial.

[5]The appellant’s witness testified and their case was closed. Sinnayah’s witnesses testified and the case was thereafter fixed for continued hearing. The 3^rd respondent did not turn up in court and the suit was struck out. The 1^st respondent applied to have the suit reinstated, but was unsuccessful. The respondents did not appeal to the High Court. Instead, they filed a second suit against Sinnayah. The second suit was struck out as being an abuse of process. The 1^st respondent filed an appeal to the High Court against the striking out of the second suit. The appellant terminated the services of the 1^st respondent and did not pursue the appeal to the High Court.

[6]The appellant filed an action in the Sessions Court for negligence against the respondents. The appellant’s claim was allowed. The respondents appealed to the High Court. The High Court allowed the appeal and set aside the judgment of the Sessions Court. The appeal herein is directed at the said decision of the High Court.

First suit against Sinnayah

[7]On 17^th September, 2014, the 1^st respondent (as the appellant’s solicitors), filed a Writ of Summons and Statement of Claim against Sinnayah via Melaka Sessions Court Suit No: B52C-04-09/2014 (“Suit 04”). The trial of Suit 04 was heard over several days in 2015. Suit 04 was scheduled for continued hearing on 7^th January, 2016, 11^th January, 2016, 1^st and 2^nd February, 2016. These dates were fixed by the Sessions Court on 29^th September, 2015. (see: Q/A.7 of 3^rd respondent’s witness statement)

[8]The 3^rd respondent’s mother passed away on 6^th January, 2016. The case was coming up f