Tan Hock Tee v CS Tan & Company

• Jurisdiction: Singapore
• Judgment Date: 31 July 1996
• Date: 31 July 1996
• Docket Number: Suit No 2065 of 1995
• Court: High Court (Singapore)

Tan Hock Tee

Plaintiff

and

C S Tan and Co

Defendant

[1996] SGHC 149

Lai Siu Chiu J

Suit No 2065 of 1995

High Court

Legal Profession–Duties–Client–Professional negligence–Solicitor failing to file appeal timeously–Solicitor obtaining client's approval to engage and relying on senior lawyer to conduct case–Solicitor on record and agreeing to prepare notice of appeal and client's case–Whether presence of senior lawyer exonerating solicitor from performing duties–Whether solicitor breaching duty to client–Tort–Negligence–Causation–Professional negligence–Ingredients–Solicitor failing to file appeal timeously–Client's application for extension of time rejected and appeal dismissed–Solicitor originally rating client's chance of success at 40% but changing it to nil in proceedings with no explanation–Whether causation proved–Whether solicitor's burden of proof in negating causation discharged

The plaintiff engaged the defendant law firm, a sole proprietorship, to appeal against a summary judgment which a third party had obtained against the plaintiff for recovery of possession of a property which the plaintiff claimed as adverse possessor. The illiterate plaintiff consulted the defendant through two representatives. Relying on the defendant's professional advice that he had a 40% chance of success on appeal, the plaintiff engaged the defendant to represent him and paid $20,000 as a deposit. The defendant had allegedly informed the plaintiff that he did not have expertise in such actions, and with the plaintiff's consent engaged a senior lawyer, to whom the defendant acted as a mere conduit with the plaintiff. It was further alleged that it was the senior lawyer who looked through the papers for the proceedings, and it was the senior lawyer's advice which the plaintiff relied on, not the defendant's; however, the defendant prepared the record of appeal and the plaintiff's case. He did not read the papers thoroughly upon receipt and he did not notice that the letter setting out the deadline for appeal was listed in the schedule for the documents. He left the task of perusing the papers to the senior lawyer and waited to be directed by the senior lawyer on how to file the appeal papers; he also assumed that the trial judge had not completed writing the grounds of decision for the appeal. As a result the defendant did not file the plaintiff's case and record of appeal in time, and an application for extension of time was denied. The plaintiff's application was consequently dismissed with costs. The plaintiff commenced this action claiming that as a result of the defendant's negligence, he suffered loss in the interest in the property or chance of succeeding in the defence of the suit by the third party, damages and costs paid to the third party, the deposit of $20,000, and consequential reliefs. In the defendant's affidavit he rated the plaintiff's chances on appeal as nil - a turnaround which he did not substantiate. The assistant registrar granted the defendant conditional leave to defend, subject to the defendant providing a banker's guarantee for $20,000 within 14 days. The plaintiff appealed against the defendant's conditional leave to defend.

Held, allowing the plaintiff's appeal:

(1) A solicitor ought to know the time frame for appeals. The presence of a senior counsel did not exonerate a lawyer from the duties he owed to a client, and he owed a duty to the client to make sure the client's appeal did not become nugatory. This was all the more so when he was the solicitor on record for the appeal and would prepare the record of appeal and the client's case. The solicitor had a duty to read the Registrar's letter as it was with him and he failed to explain why he did not; the solicitor was negligent in not reading the letter - and in failing to keep track of the plaintiff's appeal, he did absolutely nothing. In so far as the client's loss was concerned, it had been shown that he incurred the legal costs in his (unsuccessful) application for extension of time to file his record of appeal: at [23] to [26].

(2) The burden was on the solicitor, which he failed to discharge, to prove that the client would not have succeeded in his appeal in any event, even if the solicitor had filed his record of appeal in time: at [37].

Fletcher & Son v Jubb, Booth & Helliwell [1920] 1 KB 275 (refd)

Hilborne K E v Tang Tiang Quee [1971-1973] SLR (R) 461; [1972-1974] SLR 85 (folld)

Mainz v James & Charles Dodd (A Firm) (1978) 122 Sol Jo 645 (folld)

Mansouri v Bloomsbury Health AuthorityThe Times (20 July 1987) (folld)

Miranda v Khoo Yew Boon [1968] 1 MLJ 161 (folld)

Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu [1994] 1 SLR (R) 1004; [1994] 3 SLR 101 (folld)

Companies Act (Cap 50,1990 Rev Ed)s 254 (2)

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)O 57r 9 (4)

Public Authorities Protection Act1893 (c 61) (UK)

Chew Swee Leng (Cooma, Lau & Loh) for the plaintiff

G Raman (G Raman & Partners) for the defendant.

Lai Siu Chiu J

The facts

1 The plaintiff, together with his wife, was the defendant in Suit No 803 of 1994 (“the suit”) in an action brought by J & V Development Pte Ltd (“the claimant”) for recovery of possession of a property situated at 4 Lorong 33, Geylang, Singapore (“the property”).

2 On his part the plaintiff commenced proceedings against the claimant for adverse possession of the property in Originating Summons No 519 of 1994; the proceedings were stayed pending the outcome of the suit.

3 The claimant applied for and obtained summary judgment against the plaintiff in the suit on 21 October 1994 (“the judgment”) and the plaintiff's appeal against the judgment was dismissed on 20 December 1994.

4 Sometime in late December 1994, the plaintiff through two representatives consulted the defendant law firm (which is a sole proprietorship) on the possibility of appealing against the judgment. Relying on the professional advice rendered to him, that he had a 40% chance of success, the plaintiff retained the services of the defendant and paid $20,000 to the defendant as a deposit to account of the costs and disbursements to be incurred for the appeal. The plaintiff agreed, on the defendant's recommendation, to appoint another lawyer CYH as senior counsel for the appeal.

5 The defendant filed a notice of appeal to the Court of Appeal on 6 January 1995 followed by a notice of change of solicitors on 10 February 1995 to take over conduct of the matter from the plaintiff's previous solicitors (“the previous solicitors”) after writing to the previous solicitors on 3 February 1995 and obtaining their reply thereto (on 9 February 1995), that they did not object to the...