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JUDGMENT
Introduction
[1] This was an appeal ("this Appeal") against the decision of the learned Sessions Court Judge ("SCJ") on 17 August 2020, who dismissed the appellant's claim against the respondent for negligence in carrying out its duties as the appellant's solicitors. For ease of reference, the appellant and respondent will be referred to respectively as the plaintiff and defendant.
The Background Facts
[2] In the Sessions Court vide A52NCVC-197-10-2016 ("Suit 197"), one E-Soon Maju Sdn Bhd ("E-Soon") had filed a claim against the plaintiff and had obtained judgment against it on 7 February 2018. As a result thereof, the defendant, who were then the solicitors for the plaintiff, filed a notice of appeal on 15 February 2018 ("the Appeal in Suit 197"). The record of appeal was filed on 15 March 2018.
[3] The plaintiff then decided to change solicitors, and on 16 April 2018, the firm of KS Pang & Co ("the new solicitors") had taken over the plaintiff's matter in Suit 197.
[4] On 4 June 2018, the Appeal in Suit 197 was struck out ("the Order") pursuant to an application by the solicitors for E-Soon. As a result thereof, the plaintiff filed a claim ("the plaintiff's claim") against the defendant for negligence on the premise that the Appeal in Suit 197 was struck out due to the defendant's failure to serve the notice of appeal, within the prescribed time period, to the solicitors for E-Soon.
[5] The learned SCJ dismissed the plaintiff's claim. The plaintiff's appeal to this Court was also dismissed, for the following reasons.
The Applicable Law
[6] The liability of a solicitor to the client is two-fold. The first is the duty to exercise care and skill in fulfilling his contractual obligations. The second, arising from the contractual relationship, is liability in negligence. If the solicitor was to breach his duty by failing to do what he had undertaken to, and the client suffers loss or damage as a result thereof, the solicitor would be liable in an action for negligence. These principles have been elucidated in a plethora of authorities including ; [1984] 2 MLJ 39; [1984] 1 CLJ 251, ; [1984] 1 MLJ 126; [1983] CLR (Rep) 663, and ; [2016] 3 MLJ 660;[2016] 4 CLJ 510.
[7] Therefore, a solicitor owes a duty to his client, to exercise reasonable care and competence in the discharge of his professional duties and responsibilities, and when "a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him" grounded in an action for negligence (see Allen v. Sir Alfred McAlpine & Sons Ltd and Other Appeals [1968] 1 All ER 543).
Contentions, Evaluation And Findings
Whether There Was Evidence Of Negligence?
[8] In the present case, although the plaintiff insisted that the striking out of the Appeal in Suit 197 was due to the negligence of the defendant in failing to serve the notice of appeal within the prescribed time to the solicitors of E-Soon, the fact remained that the plaintiff had refused to cooperate and remained evasive with the defendant when the latter was attempting to deal with the application to strike out. This was evident from the evidence of the defendant's managing partner ("SD1"), during cross-examination, which was supported by the defendant's correspondence to the new solicitors furnishing the latter with the status of the plaintiff's matter.
[9] It was undisputed that there was a history to the relationship between SD1 and the director of the plaintiff ("SP1"), and that SP1 was not pleased with the way the defendant had handled the plaintiff's matter. However, the detrimental effects of the lack of communication is a sobering reminder that tardiness as a result thereof, may cause deadlines to be missed, and matters to be struck out.
[10] Communication is a two-way street, and its importance was emphasised by the Court of Appeal in ; [2010] 6 MLJ 80; [2009] 6 CLJ 665, through Hishamudin Mohd Yunus JCA, in an enlightening passage:
"[19] We wish to s
