Chapter 8 - Counsel's Liability in Negligence

Question 1

COUNSEL’S LIABILITY IN NEGLIGENCE

Overview

Answer 1

1) general principles
2) English position
3) Malaysian position

Question 2

COUNSEL’S LIABILITY IN NEGLIGENCE

General Principles

Answer 2

1) Right to sue A&S in contract:

• S.114: agreement entered may be sued, recovered or set aside.
• S.116: A&S may make agreement for fees on contentious business.

2) Right to sue A&S in tort:
- Standard of care - Neogh Soo Oh v G. Rethinasamy: solicitor has duty to exercise reasonable care based on the stand of reasonably competent solicitor.

Question 3

COUNSEL’S LIABILITY IN NEGLIGENCE

English position

Answer 3

1) Previous position:
- immunity & public position - Rondel v Worseley: counsel enjoyed full immunity based on ground of public policy.
- scope of immunity - Saif Ali v Mitchell: include pre-trial work, exclude advice or pleadings.
2) Current position:
- ending immunity - Arthur J.S Hall & Co v Simmons: barristers can now be sued & held liable for negligence.

Question 4

COUNSEL’S LIABILITY IN NEGLIGENCE

Malaysian position - overview

Answer 4

1) general
2) litigious matters
3) non-litigious matters
4) recent application

Question 5

MALAYSIAN POSITION ON LIABILITY IN NEGLIGENCE

general position

Answer 5

1) Whether English immunity applies - BSN Commerce Bank v Pentadbiran Tanah Daerah Malaysia:

• Rondel’s immunity in legal profession is not fused in Malaysia.
• no immunity for negligent conduct.

2) Whether there is immunity - Lim Soh Wah v Wong Sin Chong:
- CA held that A&S do not enjoy immunity for their negligent conduct.

Question 6

MALAYSIAN POSITION ON LIABILITY IN NEGLIGENCE

litigious matter

Answer 6

Existence of duty of care & burden of proof - Miranda v Khoo Yew Boon:

• FC held that solicitor was liable for negligence for failing to file MoA on time;
• A&S in Malaysia has the contractual duty to use care;
• Burden is on A&S to show that he was not negligent.

Question 7

MALAYSIAN POSITION ON LIABILITY IN NEGLIGENCE

non-litigious matter

Answer 7

1) Mishandling SPA - Anthony Ting Chio Pang v Wong Bing Seng:
- solicitor was held negligent for breach of contractual duty for mishandling the SPA of the land.
2) Conducting land search - Neogh Soo Oh v G Rethinasamy:
- failure to conduct an official land search was held to be a negligent conduct of a solicitor.

Question 8

MALAYSIAN POSITION ON LIABILITY IN NEGLIGENCE

recent application

Answer 8

Nyo Nyo Aye v Kevin Sathiaseelan a/l Ramakrishnan:

1) On standard of care:

• standard of care expected is of a reasonable practitioner in that profession;
• burden is first on the P to establish that standard of care has been breached;
• D is the required to call an expert in the same profession to rebut.

2) Duty to keep records:
- solicitors must keep record of correspondence of communication with the client on matters of great importance.
3) Fair chance of winning:

• lawyer should only bring case if they feel that they have a fair chance of winning.
• if he knew that the case is weak & hopeless, it is important to advise the client.