Shamsudin bin Embun v PT Seah & Co

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 27 November 1986
• Neutral Citation: [1986] SGHC 47
• Date: 27 November 1986
• Subject Matter: Legal Profession Act (Cap 217, 1970 Ed) ss111 & 113(1),Non est factum,Legal Profession,Whether agreement fair and reasonable,Agreement on costs,Bill of costs,Solicitor and client costs
• Docket Number: Summons in Chambers No 8946 of
• Published date: 19 September 2003
• Defendant Counsel: PT Seah in person
• Court: High Court (Singapore)
• Plaintiff Counsel: Gopal Krishnan Nair (G Raman & Partners)

This is an application under s 113 of the Legal Profession Act by one Shamsudin bin Embun (the applicant) to set aside an agreement on costs of $15,000 (the agreement) dated 20 September 1985 and made between the applicant and his solicitor, PT Seah (the solicitor which expression, for convenience, includes PT Seah & Co).

The application is based on two grounds: (1) the agreement is unfair or unreasonable under s 113 of the Legal Profession Act (Cap 217) and (2) the applicant did not know that the agreement was an agreement for costs, ie. the plea of non est factum.

This application would normally have been dealt with in a summary manner. However, in view of the plea of non est factum, I decided to give both parties an opportunity to give oral testimony on this plea. They elected to do so. Accordingly, the evidence adduced in this case is found not only in my notes of evidence but also the affidavits filed by both parties.

The facts are as follows. On 24 April 1980, the applicant was injured whilst assisting in the loading of some pipes onto a lorry belonging to the first defendant at Jurong Port when some pipes pushed him off the lorry onto the floor. The loading was done by a forklift alleged to have been in the control of the second defendant or the third defendant. On 2 May 1980 the applicant signed a warrant to act authorizing the solicitor to act for him. On 22 April 1983, the solicitor issued a writ of summons indorsed with a general indorsement as follows:

The plaintiff`s claim is for damages for personal injuries and consequential loss suffered by him as a result of an accident on or about the 24th day of April 1980 at Jurong Port, Singapore and caused by the negligence of the first, second or third defendants, their servants, or agents or by the breach by the second or third defendants of their duty to the plaintiff as an invitee to take reasonable care for the safety of the plaintiff as their invitee during the course of his employment as a lorry driver employed by Yew Choon Pte Ltd.

On 1 November 1983, the solicitor filed an affidavit of service in which he affirmed that the writ had been served by him on the first defendant by leaving it at his registered office. The affidavit appears to have been defective because on 14 January 1984, the solicitor filed another but fuller affidavit affirming substantially the same fact. On the same day, the solicitor entered interlocutory judgment against the first defendant. On 21 February 1984, an appearance to the writ was entered by the second defendant and on 22 February 1984, an appearance was entered by the third defendant. On 19 March 1984, the solicitor filed a statement of claim in which it was alleged that (a) the accident was caused by the negligence of the first defendant (of which five particulars of negligence were given) or a breach of duty by the first defendant as employer of the plaintiff (b) the second defendant was liable as having the control of the forklift or as an occupier of the premises where the accident occurred (of which three particulars were given) (c) the third defendant was liable as having the control of the forklift or as an occupier of the premises where the accident occurred (of which three particulars were given) and (d) the accident was res ipsa loquitur.

On 22 May 1984, the solicitor filed the notice of appearance of assessment of damages wherein 15 January 1985 was appointed as the date for the mention of the assessment of damages. The matter indeed came on for mention on 15 January 1985 and the Registrar`s minutes show that the solicitor was not ready to assess damages on that day. The assessment commenced on 23 January 1985 with the applicant giving evidence of his injuries and was finally completed on 10 September 1985. The certificate of assessment of damages was signed by the Assistant Registrar and dated 10 September 1985. On 17 February 1986, the solicitor entered final judgment against the first defendant for damages assessed at $37,400 plus costs to be taxed.

During this period, something else was happening. The applicant was unhappy with the delay in the conclusion of his claim. So in July 1985, he approached the Legal Aid Bureau to act for him. On 25 July 1985, the Legal Aid Bureau wrote to the solicitor who, on 31 July 1985, replied, inter alia, that he estimated his costs to be $15,000 and asked whether the Legal Aid Bureau was prepared to give a banker`s guarantee to pay his costs. He ended the letter thus:

We will only allow others to take over the case after our costs have been paid in full.

The applicant testified that the Legal Aid Bureau gave him a copy of the respondent`s letter which he threw away. He told the Legal Aid Bureau that he did not have $15,000. The Legal Aid Bureau did not proceed to act further on behalf of the applicant. On 20 September 1985, the applicant called at the office of the solicitor and signed the agreement. The respondent did not give evidence on, and the applicant could not remember, the circumstance which led to the applicant calling at the office of the respondent on this occasion. However, the applicant, when shown the agreement, readily admitted signing the agreement but denied that he knew the full implications of its contents as the document was not explained to him.

On 17 June 1986, the applicant wrote a letter to the solicitor to thank him for having acted for the applicant but at the same time to complain, inter alia, that the charge of $15,000 was excessive and asking for copies of the papers in the case to be sent to him, as he had never been given copies thereof throughout the claim period. On 20 June 1986, the solicitor replied to the applicant to deny the allegation; but the commencement paragraph is revealing. It reads:

We refer to your letter dated 17 June 1986 and are pleased to note that you are thankful to us for acting for you in the above matter. We take it you mean you have no complaint about us.

I excerpt this paragraph decidedly as its tenor is symptomatic of the solicitor`s inability to appreciate or evaluate his client`s grievance.

On or about 15 July 1986, the applicant discharged the solicitor as his solicitor and appointed in his stead the present solicitors who on 19 August 1986 took out this application to set aside the agreement and to have the solicitor`s solicitor and client costs and party and party costs taxed.

I will now deal with the plea of non est factum. The applicant testified that although he had been employed first by the British Army from 1950 to 1957 as a driver holding the rank of corporal and then by the Singapore Armed Forces from 1957 to 1977 as a driver holding the rank of corporal and rising to the rank of sergeant (motor transport), he could not read, write or speak English although he could copy English words. He was educated in Malay in romanized script in a Malay school. He was never taught English in school nor did he get any instruction in English whilst in the army. He said that when he signed the warrant to act, the contents were not explained to him. Also, when he signed the agreement to pay $15,000 to the solicitor, the contents were not explained to him. The solicitor was unable to produce any evidence to show that the applicant could read or write or speak English but the solicitor testified that the applicant spoke to him in English, when he first came to his office on 24 May 1980, and because of that he was under the impression that the applicant could read and write at least simple English. He testified further that he personally explained the contents of the agreement to the applicant in English and Malay. In his submission on this point, the solicitor argued that even if no explanation had been given, the applicant should or must have understood the agreement because it contained simple words which are also used as part of the Malay language, eg. agreement, costs and $15,000.

It is not necessary for me to decide whether or not the applicant was able to read or write English proficiently. On the evidence, I find that when the applicant signed the agreement on 20 September 1985, he knew that it was an agreement on costs for $15,000. He understood the nature of the agreement. It could not have been otherwise as (a) sometime in August 1985, he was informed by the Legal Aid Bureau of the solicitor`s demand for $15,000 and (b) by his letter of 17 June 1986, confirmed such knowledge by complaining of its unreasonableness. However, whether he understood the actual contents or scope of the agreement is a different issue. To determine this, I will have to look at the agreement to see what it provides. The agreement is as follows:

Agreement On Costs

Re: Industrial accident on 24 April 1980 Suit No 1874 of 1983

I, Shamsudin bin Embun of Block 11, No. 74-H Teban Garden Singapore (2260), hereby agree to pay my solicitors PT Seah & Co the sum of Dollars Fifteen Thousand only ($15,000) for acting for me in the above matter.

Dated the 20th day of September 1985

Sd. Shamsudin Signature/RTP of abovenamed

Against the background of the respondent having been retained to act on 2 May 1980, my first observation is that on the face of the agreement, it is not apparent that the fee of $15,000 is payable for work done from 2 May 1980 to 20 September 1985 or for any future period and if so, what period. Second, it is not apparent that the fee of $15,000 includes disbursements.

What is the testimony of the solicitor on the meaning of the agreement? His affidavit made on 11 September 1986, discloses the following:

9 Paragraph 3 of Shamsudin`s affidavit is correct. The facts were made known to him by me as well as by the court. The reason for the delay in entering final judgment was that at that time, it was realized there was a possibility the final judgment against the first defendants was liable to be set aside on the grounds that at all material times,

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