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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. P-02(NCVC)(W) – 1165 – 06/2016

ANTARA

SUPRAMANIAM A/L KASIA PILLAI (yang mengamal sebagai peguamcara di Tetuan Supramaniam & Sivashanmugam di Bukit Mertajam) ...PERAYU

DAN

SUBRAMANIAM A/L MANICKAM …RESPONDEN

[Dalam Mahkamah Tinggi Malaya Di Pulai Pinang Dalam Negeri Pulau Pinang]

Guaman No: 22NCVC-90-06/2014

Antara

SUBRAMANIAM A/L MANICKAM ...PLAINTIF DAN SUPRAMANIAM A/L KASIA PILLAI (yang mengamal sebagai peguamcara di Tetuan Supramaniam & Sivashanmugam di Bukit Mertajam) ...DEFENDAN

CORAM:

DAVID WONG DAK WAH, HMR HAMID SULTAN BIN ABU BACKER HMR

UMI KALTHUM BINTI ABDUL MAJID, HMR

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JUDGMENT OF THE COURT

Introduction:

1. This is an appeal relating to a professional negligence suit against

a legal practitioner in his handling of a litigation matter in Court.

2. The trial Judge sustained the claim of the Respondent/Plaintiff and

awarded the sum of RM200,000.00 as general damages with

interest at 5% from the date of Judgment and costs of

RM80,000.00.

3. We heard the appeal and after due consideration to respective

submissions of counsel, we allowed the appeal in part of the

Appellant/Defendant and now give our reasons.

Background Facts:

4. The Respondent had a contract with Shell Malaysia Trading Sdn

Bhd (Shell Malaysia) in which he undertook to transport and

deliver petrol to Shell Petrol Stations in Kedah and Perlis.

5. Two drivers of a tanker lorry registration number NAH 6706 on

6.7.1995 were caught for theft of petrol while transporting petrol to

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Perlis. An inquiry was conducted by Shell Malaysia on 7.8.1995 in

regard to the theft and after that inquiry the Respondent’s contract

of transport was terminated by a letter dated 4.9.1995.

6. The Respondent retained the Appellant to launch a legal suit

against Shell Malaysia for reinstatement of the contract and

damages for wrongful termination of the contract. Pursuant to the

retainer, the Appellant filed the legal suit in the Penang High Court

under Civil Suit No. 22-242-1996 (Penang Suit).

7. The Penang Suit, after a full trial in which the Respondent had

given evidence and closed his case, was dismissed by the High

Court on 16.8.2004 premised on a submission of a no case to

answer made by Shell Malaysia’s counsel.

8. The Respondent appealed against the decision of the High Court

in the Penang Suit by filing a notice of appeal on 14.9.2004. The

Appellant had also applied for an extension of time to file the

Record of Appeal which the Court of Appeal allowed the same to

be filed within 3 weeks from the date of receipt of the notes of

proceedings. The notes of proceedings were ready on 19.1.2007

but the Appellant did not file the Record of Appeal within the time

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limit stipulated by the Rules of the Court of Appeal 1994, i.e. by

9.2.2007. An attempt to file the Record of Appeal by the Appellant

was made by making an application to this Court in enclosure 7A

to file the same out of time. That application was dismissed by this

Court and the appeal was also struck out.

9. The Respondent then sued the Appellant by filing in the Penang

High Court a writ dated 13.6.2014 claiming against the Appellant

as follows:

a) for damages suffered as a consequence of the

Appellant’s negligence and breach of duty as a

solicitor in the conduct of the Penang Suit, inter alia,

for failure to file the Record of Appeal within time; and

b) for fraud and false representation made by the

Appellant that caused the Respondent to affirm an

affidavit dated 18.6.2008 (Affidavit), which was filed

in support of an application to file the Record of

Appeal out of time (Lampiran 7A application).

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High Court decision:

10. The learned Judge found that the Appellant was in fact negligent in

that there was a breach of duty of care as a solicitor in failing to file

the Record of Appeal in the Penang Suit within the prescribed time

by law and the Respondent had suffered damages. A sum of

RM200,000.00 as general damages with interests of 5% from the

date of the judgment and costs in the sum of RM80,000.00 were

awarded.

11. With regards to the Affidavit, the learned Judge found no false

representation or fraud on the part of the Appellant. No appeal by

the Respondent was made in respect of this finding by the learned

Judge.

Our grounds of decision:

12. From the outset of the hearing of the appeal, learned counsel for

the Appellant conceded to the findings of liability on the part of the

learned Judge and his submission before us was primarily focused

on the quantum of damages and costs awarded by the learned

Judge.

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13. In view of the aforesaid concession, we did not deliberate on the

issue of liability.

14. The primary complaint of the Appellant was the failure on the part

of the learned Judge to ask the question whether the appeal has

any prospect of success in determining the quantum of damages.

This was how the learned Judge dealt with this issue:

“Defendan menghujahkan bahawa Plaintif tidak

mempunyai prospek yang munasabah untuk berjaya

di dalam rayuannya sekiranya pun jika Rekod Rayuan

dibenarkan difailkan.

Atas isu ini, saya dapati bahawa Defendan telah

menerima arahan daripada Plaintif untuk merayu,

tugas Defendan adalah untuk mengambil tindakan

bagi proses rayuan dan tidak dengan sendirinya

membuat andaian yang Plaintif tidak mempunyai merit

di dalam rayuannya.

Defendan telah bersetuju untuk bertindak bagi pihak

Plaintif untuk memfailkan rayuan bagi keputusan kes

242.

Tugas kemahiran profesional Defendan adalah untuk

memfailkan tindakan rayuan dan sama ada Plaintif

akan berjaya di dalam rayuannya atau tidak adalah

untuk ditentukan oleh Mahkamah.

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…

Saya dapati Defendan telah melanggar kewajipan

berjaga-jaganya terhadap Plaintif.”

15. One can see from the above paragraphs that the learned Judge

had not considered the prospect of success had the appeal been

properly lodged and heard by this Court. On this issue, we can do

no better than to refer to the judgment of this Court in Pang Yeow

Chow (practising at Messrs YC Pang, Chong & Gordon ) v

Advance Specialist Treatment Engineering Sdn. Bhd. [2014] 8

CLJ 188 , where Hamid Sultan Abu Backer JCA stated the

applicable principles at page 194 -195, as follows :-

[7] There are authorities to suggest that in a case of this

nature the respondent still has to prove his case against

the third party on the balance of probabilities. This was

not done in this case. In Sharif & Ors v. Garrett &

Company [2002] 1 WLR 3118, the court with similar

issues had relied on Lord Justice Simon Brown in Mount

v. Barker Austin [1998] PNLR 493 at pp 510/511,

where His Lordship had summarised the relevant

consideration as follows:

(i) The legal burden lies on the plaintiff to prove

that in losing the opportunity to pursue his claim,

he has lost something of value ie, that his claim (or

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defence) had a real and substantial rather than

merely a negligible prospect of success.

(ii) The evidential burden lies on the defendants to

show that despite their having acted for the plaintiff

in the litigation and charged for their services, that

litigation was of no value to their client, so that he

lost nothing by their negligence in causing it to be

struck out. Plainly the burden is heavier in a case

where the solicitors have failed to advise their

client of the hopelessness of his position. If, of

course, the solicitors have advised their client with

regard to the merits of his claim (or defence) such

advice is likely to be highly relevant.

(iii) If and insofar as the court may now have

greater difficulty in discerning the strength of the

plaintiff's original claim than it would have had at

the time of the original action, such difficulty should

not count against him, but rather against his

negligent solicitors. It is quite likely that the delay

would have caused such difficulty and quite

possible, indeed, that is why the original action was

struck out in the first place. That, however, is not

inevitable: it will not be the case in particular (a)

where the original claim (or defence) turned on

questions of law or the interpretation of documents,

or (b) where the only possible prejudice from the

delay can have been to the other side's case.

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(iv) If and when the court decides that the plaintiff's

chances in the original action were more than

merely negligible, it will then have to evaluate

them. That requires the court to make a realistic

assessment of what would have been the plaintiff's

prospects of success had the original litigation

been fought out. Generally speaking one would

expect the court to tend towards a generous

assessment given that it was the defendants'

negligence which lost the plaintiff the opportunity of

succeeding in full or fuller measure.

These principles are largely taken from the leading

cases of Kitchen v. Royal Air Force Association

[1958] 1 WLR 563 and Allied Maples Group Ltd v.

Simmons and Simmons [1995] 1 WLR 1602 and

have been applied in a number of cases to which

we were referred…

Prospect of success:

16. It should be made clear at this juncture that the Respondent’s case

against Shell Malaysia was dismissed by the trial Judge in the

Penang Suit premised on the fact that two reports of Shell

Malaysia, namely a report dated 17.7.1995 on the operation

(Operation Report) executed by employees of Shell Malaysia to

apprehend the drivers of the Respondent and the Inquiry Report

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on the theft were placed in Part A of the Bundle of Documents for

the trial and hence had allowed Shell Marketing to make its ‘no

case to answer’ after the Respondent’s case. Those reports when

placed in Part A meant that the Respondent had conceded his

complicity in the theft and had provided valid ground for the

termination of the transportation contract. That in short was the

circumstances in which the appeal of the Respondent was lodged.

17. From the evidence at the trial Court, it was not disputed that the

Respondent had not called any legal practitioner, senior or

otherwise, to testify on the prospect of success in the appeal. In

our view, this was essential in a suit of this nature and failure to do

so here was detrimental to the Respondent’s claims. To reiterate

the obvious, the legal burden was always on the Respondent.

18. Furthermore, the learned Judge had also refused to admit the two

documents, namely the Operation Report and the Inquiry Report

which in our view was wrong for the simple reason that those

documents were part of the Penang Suit and they were crucial to

the determination of the prospect of success of the Respondent’s

appeal. To recapitulate the Operation Report and the Inquiry

Report in essence showed that the Respondent’s employees were

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caught in the act of theft so to speak and the Respondent, as

employer, was responsible for their acts. In fact, the Respondent

had on 21.7.1995 appealed to Shell Malaysia to give him another

chance to continue with the transportation contract (see page 927

appeal record Jilid 5).

19. As pointed out earlier, the learned Judge had not really dealt with

this issue. Be that as it may, as appeals before us are by way of

rehearing, we dealt with this issue. First, we found that the learned

Judge should have admitted the Operation Report (IDD7 – page

940-946 appeal record Jilid 5) and the Inquiry Report (IDD6 – page

947-948 appeal record Jilid 5). Accordingly, we ordered those

documents be marked as D6 and D7 respectively for the purpose

of this appeal.

20. In view of the contents of D6 and D7 together with the

Respondent’s letter of appeal to Shell Malaysia as mentioned

earlier, we found that the prospect of success of the Respondent’s

appeal to be minimal to say the least. The Respondent’s case was

further compounded by his failure to call a legal practitioner to

enlighten the Court on the prospect of success of the appeal. Be

that as it may, we did not find it appropriate in the circumstances of

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this case not to award anything to the Respondent. The negligent

act of the Appellant had caused the Respondent some damages in

terms of out of pocket expenses which he was entitled to be

compensated reasonably.

Conclusion:

21. This was another case where the learned Judge and trial counsel

for the Respondent had failed to appreciate the manner as to how

damages are to be proved in the Court of law. The burden of proof

is always on the party asserting the claim for damages and that

legal burden can only be satisfied when evidence had reached a

standard of establishing a prima facie case for the disputing party

to rebut. And if those evidence had not established a prima facie

case, failure to rebut will not amount to having proved its case. In

the case at hand, as liability had been conceded we were left to

make an award which would commensurate with the

circumstances we have before us.

22. In the circumstances, we allowed the appeal in part as follows:

(i) the High Court orders were set aside;

(ii) the amount of damages awarded be reduced to

RM30,000.00;

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(iii) the costs of RM80,00.00 awarded is set aside;

(iv) costs of RM10,000.00 to the Respondent for here

and below subject to the payment of allocatur;

(v) deposit to be refunded to the Appellant.

Dated : 6 October 2017

(DAVID WONG DAK WAH) Judge

Court of Appeal Malaysia

For the Appellant : P. Navaratnam

Messrs. Nava & Associates

For the Respondent : G. Nanda Goban

Messrs. Goban & Co.

Notice: This copy of the Court's Reasons for Judgment is subject

to formal revision.