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2024 MarsdenLR 3075
HIGH COURT (KUALA LUMPUR)
HAYATUL AKMAL, J
Tetuan Amin-Tan & Co (suing as a firm) – Plaintiff
Versus
Tetuan Harjinder & Associates (sued as a firm) – Defendant
CIVIL SUIT NO WA-22NCvC-219–05 OF 2020
Alvin Oh Seong Yew (with Siew Chang Peng) (Sia Siew Mun & Co) for the plaintiff.
Tan Keng Teck (with Ung Zhee Liane) (Lim Kian Leong & Co) for the defendant.
The burden of proof lies with the plaintiff to establish loss in claims of professional negligence, requiring evidence of substantial success in the original action.
Headnote:(A) Legal Profession Act 1976 - Allegations of breach of contract and professional negligence regarding representation in a civil recovery suit - Plaintiff alleged negligence due to the defendant's failure to keep them informed, leading to the striking out of Suit 208 by the High Court for non-compliance with court orders - The defendant argued that loss of opportunity must have substantial prospects of success and that the plaintiff did not prove actual loss caused by alleged negligence - Court found plaintiff failed to discharge burden of proof and established no compelling evidence of loss or damages. (Paras [1], [3], [11], [12], [13])
Facts of the case:
The plaintiff claimed the defendant, a law firm, was negligent for allowing their civil recovery suit (Suit 208) to be struck out due to non-compliance with court orders, thus allegedly depriving them of the chance to recover RM2.1 million. The plaintiff argued the defendant breached their duty by not informing them about consent orders. (Paras [2], [3g], [11a])
Findings of Court:
The court found that the plaintiff did not prove actual damage/loss resulting from the defendant's actions and that there is no res judicata preventing the plaintiff from filing a new action regarding Suit 208. The court determined that the plaintiff’s losses were speculative and there was no intervening act that broke the chain of causation. (Paras [11b], [13], [14])
Issues: The court addressed whether the plaintiff had sustained actual loss due to the alleged negligence of the defendant and if the claim for loss of chance was valid when the outcomes in Suit 208 were not sufficiently established. (Paras [6a], [11])
Ratio Decidendi: The court held that the plaintiff failed to demonstrate sufficient evidence of loss to sustain their claim for professional negligence, emphasizing that the evidence must demonstrate a real and substantial prospect of success for such claims. The defendant's failure to meet the professional standard was not held against them without substantial proof of loss from the plaintiff. (Paras [5], [11], [12], [14])
Result: Plaintiff’s claim dismissed with costs of RM25,000 to be paid to the defendant within 30 days.
Hayatul Akmal J:
INTRODUCTION
[1]The parties in this suit are legal firms registered under the Legal Profession Act 1976
[2]The plaintiff’s action against the defendant is premised on breach of contract and professional negligence, claiming:
(a)their purported loss of a right to pursue an action against the defendants in Kuala Lumpur Civil Suit No WA-22NCVC-208–04 of 2018 (‘Suit 208’); and
(b)their purported right to recover their claim in Suit 208 against the named defendants.
The list of witnesses at the trial is as follows:
(a)the plaintiff’s witnesses:
(i)PW1 Datin Jamilah bt Abu Bakar; and
(ii)PW2 Ammar bin Ghalip;
(b)the defendant’s witnesses:
(i)SD1 Tengku Haris bin Tengku Rostam; and
(ii)SD2 Harjinder Singh a/l Saudagar Singh.
On 31 January 2024, after considering the facts, all the cause papers, the totality of the evidence adduced at the trial, and the parties’ respective arguments, on the balance of probabilities, I found no merit in the plaintiff’s suit against the defendant. I dismissed it with a cost of RM25,000 to be paid within 30 days.
Aggrieved, the plaintiff filed this appeal against my decision, and these are my reasons.
BRIEF FACTS
[3]Parties have filed agreed facts, and in narrating the brief facts, I will also refer to a series of correspondences and documents available before me. In examining the evidence at the trial, I found as follows:
(a) both are law firms duly registered under the Legal Profession Act 1976 ;
(b) the defendant:
(i)had represented the plaintiff in a civil recovery suit in KL HC Suit No WA-22NCVC-208–04 of 2018 (Suit 208) against its former partners and legal assistants for alleged breach of fiduciary duty (under billing, concealment, non-billing, non-collection of billing of one particular client: Prosper Group of Companies) resulting in suspected losses to the plaintiff. The plaintiff founded their action against the former partners and associates under:
(1)breach of fiduciary duties; and
(2)conspiracy to cause loss of profit and damages to the plaintiff;
(ii)the plaintiff discovered this alleged breach in July 2017 after carrying out an internal audit on work related to the former partners/legal assistants (Dato’ Tan Bing Hua, Susie Lim Chuan Tin, Norazlina bt Idris, and Neik Chi Ngu); and
(iii)in Suit 208, it was alleged that the client’s personnel conspired with the plaintiff’s former partners/legal assistants;
(c) the plaintiff asserts that the defendant, in undertaking this civil recovery suit, must ensure that the plaintiff is well informed of the suit’s progress and render the appropriate advice pertinent to the circumstances. They are to prosecute Suit 208 for the plaintiff to its conclusion diligently;
(d) the plaintiff alleges that the defendant had caused Suit 208 to be struck off by the High Court for incompliance with the timeline to provide further and better particulars to the former partners/legal assistants in Suit 208 secured through a consent order before the court. The timeline requirement by the High Court came with an unless order;
(e) because the plaintiff failed to meet the court-ordered deadline, the court enforced the unless order on 18 April 2019 and struck out Suit 208 without hearing the merits of the plaintiff’s suit;
(f) the plaintiff claimed that:
(i)the defendant had agreed to the consent orders for further and better particulars by the former partners/legal assistants without the plaintiff’s prior mandate;
(ii)the defendant never disclosed the consent orders to the plaintiff and failed to inform about the unless order;
(iii)the defendant had five months’ access to the specific prayers sought by the former partners/legal assistants before entering the consent orders. They should have had the materials ready by then to comply with them;
(iv)the plaintiff only found out Suit 208 was stuck off when told by the defendant sometime on 18 April 2019 that Suit 208 had been struck for in default of complying with the consent orders, but was advised by the defendant that an appeal can
