The cause of action for breach of retainer and professional negligence arises when the suit is struck off, not earlier, as prudent legal advice must be provided to the client.

JUDGMENT OF THE COURTINTRODUCTION

[1]There are two appeals before us which are as follows:

a)W-02(NCVC)(W)-2614-12/2017 (Appeal No 2614); and

b)W-02(NCVC)(W)-12-01/2018 (Appeal No 12).

[2]These two appeals arise from the decision of the Learned Judicial Commissioner (Learned JC), delivered on 29.11.2017 which dismissed the Plaintiff’s claim against the Defendants. The Plaintiff, Mrs Nyo Nyo Aye, had brought this present suit against the Defendants for breach of agreement (retainer) and/or professional negligence in the Defendants’ conduct of the Kuala Lumpur High Court Civil Suit No. S3-22-890-2007 (the 1^st Suit). The Plaintiff had alleged that the Defendants, as her solicitors, had failed to inform and advise her and take the necessary actions which resulted in the 1^st Suit being struck off by the High Court on 24.8.2009. At the end of the trial of this present suit, the Learned JC found the Defendants, as solicitors, were in breach of agreement (retainer) and/or professionally negligent but however dismissed the Plaintiff’s claim on the basis that her claim was time-barred.

[3]Both the Plaintiff and the Defendants were aggrieved with the decision of the Learned JC and each filed separate appeals contending that the Learned JC was plainly wrong in arriving at the said decision. Appeal No 2614 is the appeal by the Defendants (Kevin Sathiaseelan A/L Ramakrishnan - 1^st Defendant and Messrs Syed Alwi Ng & Co - 2^nd Defendant) against the decision of the Learned JC which held that the Defendants as solicitors were in breach of agreement (retainer) and/or professionally negligent in their duty as the Plaintiff’s solicitor in the the 1^st Suit while Appeal No 12 is the appeal by the Plaintiff (Mrs Nyo Nyo Aye) against the decision of the Learned JC which held that her claim against the Defendants is time barred.

[4]On the hearing date, by consent of both parties, the Defendants Appeal No 2614 was withdrawn on the agreement that the issues which were raised in Appeal No 2614 can also be raised in Appeal No 12 and that the Plaintiff will not raise any objection if there is any need to file a leave application or an appeal proper to the Federal Court. On that agreement by parties, we struck out Appeal 2614 and proceeded to hear Appeal No 12.

[5]We then proceeded to hear the appeal, and after taking into consideration the submissions of parties, both oral and written, we were unanimous in our view that there were merits in the Plaintiff’s appeal. We therefore allowed the Plaintiff’s appeal and set aside the decision of the Leaned JC on the issue of limitation. However, we are unanimous that there is no merits in the Defendants’ appeal. We therefore dismissed the Defendants’ appeal and we affirmed the decision of the Learned JC on the issue of the breach of agreement (retainer) and negligence. We then remitted the case to the High Court for assessment of damages. We now provide the reasons for our decision which will constitute the judgment of the court and for ease of reference, parties will be referred to as they were in the High Court.

BRIEF FACTS

[6]The facts of the case can be gleaned from the submissions of counsel and we reproduced here with some modification. The Plaintiff’s late husband Adamberage Ananda Rex De Alwis A/L Edward De Alwis passed away on 1.3.2006.

[7]The Plaintiff had appointed the 2^nd Defendant as her solicitors to initiate a civil suit against A. Maurice De Alwis, the executor of the estate of the Plaintiff’s late husband (“the Executor”).

[8]The 1^st Defend