JUDGMENT

Gopal Sri Ram JCA:

Preliminary

This case demonstrates the terrible harm that may be visited upon the litigant's head because of his solicitor's mistake. We hasten to add that the solicitor concerned is no longer on record in the proceedings before us.

Whenever possible; where there is no risk of sacrifice of principle in the name of justice or at the altar of convenience; we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interests of justice. When we act, we always bear in mind what Lord Denning said in Doyle v. Olby Ltd [1969] 2 All ER 119, 121:

We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far we can. We will correct it whenever we are able to do so without injustice to the other side.

Sometimes the error has seriously affected the course of the evidence, in which case we can best order a new trial.

We have intervened where counsel makes an erroneous admission of law. See, Lee Hock Ning V. Government Of Malaysia [1972]. But it is not possible where our decision would be in defiance of established principle or where an injustice visited upon the other side. See, Visia Finance Bhd. v. Expert Credit & Leasing Sdn. Bhd. [1998] 2 CLJ 845; [1998] 2 MLJ 705.

Having said that, we must now narrate the facts and background relevant to this appeal.

The Narrative

The appellant is a public company. It has the monopoly of supplying electricity to consumers throughout Peninsula Malaysia. An action was brought against it by the respondents. It was a claim for damages for the breach of a joint venture agreement. The respondent claimed RM4 million. The action came to trial before the High Court at Kuala Lumpur. Both sides were represented. At the commencement of the hearing, the pleadings on both sides were amended. Evidence was called. While the respondents' first witness was giving evidence, counsel informed the judge that the trial would be confined solely to the issue of liability. In the event the appellant was found liable, quantum would be assessed. The judge agreed to this course. He made an order to that effect. The hearing then proceeded. The trial dates originally fixed proved insufficient. So, on 7 November 1996, (being the last day of the original batch of trial dates), the judge adjourned the trial for continuation to 5 and 6 March, 1997.

When the case was called on for continuation on 5 March 1997, counsel for the respondents was present. So was the respondents' only witness who was then under cross-examination. But he was unwell. There was a difficulty about securing the services of an interpreter. Counsel for the appellant was absent. His excuse was that he was not aware of the hearing date. The court was advised of all these matters by counsel for the respondents. The judge was most accommodating. He vacated the hearing dates. He fixed the suit for continued hearing on 22 and 23 July 1997.

When the cause came on for hearing on 22 July 1997, counsel for the respondents and their witness were present. Counsel for the appellant (not Encik Zainur Zakaria or his learned junior who appeared before us) was absent. So was the appellant's representative. Acting in the best traditions of the Bar, counsel for the respondents requested the hearing to be adjourned to await the attendance of the appellant's counsel. The learned judge quite rightly declined. Counsel for the respondents then asked for judgment to be entered against the appellants for the sum claimed, together with interest and costs. He also moved for a dismissal of the appellant's counterclaim. The judge granted both orders. Later that morning the suit was called on once again. Counsel on both sides were present. Counsel for the appellant apologised to the court for his earlier absence. He made an oral application to set aside the judgment. Respondents' counsel said that his clients would have no objecti