RAHIMAH HUSSAIN J:

The plaintiff's claim in this suit is for professional negligence against the defendant, a firmof 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 SiongSdn 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, onappeal, 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 297of 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 allegedlyfailing 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 gavethe 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 theplaintiff 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 imposedupon 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 subsequentlyfollowed 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 certainof 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 givento the client.

Rule 15:

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

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

The above rules were made by the Bar Council pursuant to s 77the Legal Profession Act 1976

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 preventedhim 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 failureon the defendant's part leaves me no choice but to invoke s 114(g)Evidence Act 1950

The Supreme Court in the case of GUTHRIE Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33

Issue No (2)

I am of the opinion that the defendantis estopped from raising this issue as it was not pleaded in his statement of defence. This defence is at best an afterthought. Therefore I will not proceed to discuss this issue. In the case of Abdul Rahman bin Abdul Karim v Abdul Wahab bin Abdul Hamid [1996] 4 MLJ 623

(1) It is tri