DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. P-02(NCVC)(W) – 1165 – 06/2016
SUPRAMANIAM A/L KASIA PILLAI
(yang mengamal sebagai peguamcara
di Tetuan Supramaniam & Sivashanmugam
di Bukit Mertajam) …PERAYU
SUBRAMANIAM A/L MANICKAM …RESPONDEN
[Dalam Mahkamah Tinggi Malaya Di Pulai Pinang Dalam Negeri
Guaman No: 22NCVC-90-06/2014 Antara
SUBRAMANIAM A/L MANICKAM
SUPRAMANIAM A/L KASIA PILLAI (yang mengamal sebagai peguamcara di Tetuan Supramaniam & Sivashanmugam
di Bukit Mertajam) …DEFENDAN
DAVID WONG DAK WAH, HMR HAMID SULTAN BIN ABU BACKER HMR UMI KALTHUM BINTI ABDUL MAJID, HMR
JUDGMENT OF THE COURT
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.
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
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
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).
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.
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.
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.  8 CLJ 188 , where Hamid Sultan Abu Backer JCA stated the applicable principles at page 194 -195, as follows :-
 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  1 WLR 3118, the court with similar issues had relied on Lord Justice Simon Brown in Mount v. Barker Austin  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
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.
(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  1 WLR 563 and Allied Maples Group Ltd v. Simmons and Simmons  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
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
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
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.
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;
(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)
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.