Chapter 13 - Extent of Counsel's Authority

Question 1

EXTENT OF COUNSEL’S AUTHORITY

Overview

Answer 1

1) Retainer

2) Authorities

Question 2

RETAINER

Overview

Answer 2

1) What is retainer

2) Creation of retainer

Question 3

RETAINER

What is retainer

Answer 3

• contract for the relation of A&S and the client.

Question 4

RETAINER

Creation of retainer

Answer 4

1) Oral:

• risk: done at own solicitor’s risk.
• burden of proof: on the solicitor & more weight on client’s affidavit.

2) In writing:

• whether mandatory: advisable but not mandatory.
• contentious matter: solicitor must obtain client’s written authority before commencing a suit in contentious matter.

3) by implication/conduct:

Yong & Co v Wee Hood Teck Development: retainer can come into existence by implication of conduct.

Question 5

AUTHORITIES

Overview

Answer 5

1) To act in action
2) To conclude contract
3) To concede
4) To compromise a suit

Question 6

AUTHORITIES

To act in action

Answer 6

1) Conduct litigation - Scott & English (M) Sdn Bhd v Yek Toh Ming:
- when counsel appears in court & states that he has been instructed, court will NOT inquire into his authority appear.
2) Consult when in doubt - Yong & Co v Wee:
- where a solicitor is in doubt, he must consult his client on his authority to represent his client.
3) effect of acting with authority - Medoc Training Pte Ltd v Vijay Kumar:

• Opposing counsel may challenge A&S’s authority;
• If it is found that counsel is acting w/o authority, A&S can be held liable for costs personally.

Question 7

AUTHORITIES

To conclude contract

Answer 7

1) General rule - Yeo Gek Lieng v Alice Wee:
- no authority to conclude contracts on behalf of clients.
2) Exception - client’s instructions - Teh Kok Kee v Tan Chiah Hock:

• authority of a solicitor is limited by his client’s instructions;
• burden is on the A&S to prove such instruction.

Question 8

AUTHORITIES

To concede on mistake

Answer 8

1) Point of law - Yap Cheng Kee v Ow Giam Eng:
- A&S may withdraw his mistake on point of law during the case or at appeal.
2) Point of fact - Langdale v Danby:

• if other party had relied on the point of fact, A&S cannot withdraw the point.
• if there is no reliance, court has the discretion to allow for withdrawal.

Question 9

AUTHORITIES

To compromise a suit

Answer 9

1) General rule:

• A&S has ostensible authority to compromise;
• opposing side can generally rely on this unless some limitation of authority is communicated.

2) Exception - vitiating factor - Yap Chee Meng v Ajinomoto Sdn Bhd:
- a settlement can be set aside on grounds such as fraud or undue influence.
3) Exception - collateral issues - Waugh v HB Clifford:

• authority to compromise only covers matters in issue;
• it does not extend to collateral matters.
• if it extended, it may be set aside.