Aloha Chia Pei v Tee Heng Giap (MA-33-99-09/2024)

The solicitors on the record for the Petitioner apply for an order under Order 64 rule 5(1) of the Rules of Court 2012 declaring that they have ceased to be the solicitors acting for the Petitioner in this cause, and for an order that the costs of the application be borne by the Petitioner.

The cause itself is a contested petition under the Law Reform (Marriage and Divorce) Act 1976 [Act 164], in which relief is sought under sections 53 and 54 of that Act and, in respect of ancillary matters, under sections 76, 77, 78, 81 and 93. The petition was presented in 2024. It has since passed through case management and stands fixed for trial, which is now imminent.

The application does not touch the merits of the petition. It raises a narrower question, but one of some institutional importance: upon what basis, and upon what terms, will the Court permit solicitors to come off the record when the trial date is close at hand.

Two considerations bear upon that question and they do not point in the same direction. A retainer rests upon confidence. A solicitor who has lost the confidence of the client, or who is required to conduct a case in a manner she cannot professionally accept, cannot be compelled to remain in harness merely because a trial date has been fixed; and a client cannot be well served by a representation that has broken down in substance while subsisting in form. Against that, the Court has its own interest, distinct from the interests of either party, in the orderly progress of proceedings and in the integrity of the trial date. Dates fixed for trial are not private arrangements between solicitors. They are allocations of the Court's time made in the interest of all litigants awaiting hearing.

The question in this application is how those considerations are to be reconciled in the exercise of the discretion conferred by Order 64 rule 5, and what consequential directions are required so that the reconciliation is not merely stated but made effective.

Applications of this kind are frequently made shortly before trial, and there is a tendency to treat them as formalities to be disposed of without reasons. They are not formalities. Because the point recurs, I have thought it right to set out, after dealing with this application, the principles which should ordinarily guide the exercise of the discretion where discharge is sought close to trial.

The Petitioner has been represented in this cause by three firms of solicitors in succession. The first was appointed on 15.11.2024, the second on 10.12.2025, and the firm presently on the record on 25.03.2026. The circumstances in which the first two retainers came to an end are not before me, and I make no finding as to how, or at whose instance, they were terminated. The succession is nevertheless a matter of record, and it bears upon the terms on which the present application falls to be dealt with.

The firm of solicitors presently on the record was appointed by the Petitioner by an Authority to Act signed by her and dated 25.03.2026. That document appoints the firm to act for her in this cause and records her agreement to pay the legal fees, costs and disbursements to be incurred in the matter.

In the course of case management the Court fixed courtannexed mediation on 29.07.2026 and directed that the list of witnesses and the witness statements be filed on the same day, together with further directions. The trial stands fixed for 12.08.2026 and 13.08.2026.

On 24.07.2026 the firm wrote to the Petitioner. The letter refers to an exchange of messages between the Petitioner and the solicitor having conduct earlier that morning; states the firm's intention to discharge itself as her solicitors with immediate effect; and identifies the reason as the Petitioner's disagreement with the advice given to her concerning the calling of a named advocate as a witness at the trial, together with conduct said to be related to that disagreement. The letter records the advice that had been given, namely that the evidence of the intended witness, which concerned an unexecuted settlement agreement said to have been discussed between the parties before the petition was presented, might not be relevant and could not materially assist her case; and that the intended witness had himself informed the firm that morning that he did not wish to be involved in the matter and could not recall preparing the draft settlement agreement. The letter states that an application would be filed that day and served upon her once extracted, reserves the firm's claim for outstanding fees and disbursements under the Authority to Act, and invites her to effect a change of solicitors, failing which the firm would proceed with the hearing of the application.

The application was made on the same day, supported by an affidavit affirmed by the solicitor having conduct of the matter. The affidavit deposes to the firm's appointment on 25.03.2026; to a decision to cease acting taken on the ground that the professional relationship between solicitor and client no longer permits the representation to be continued, particularly because the Petitioner declined to accept the deponent's advice and repeatedly insisted that the named advocate be called as a witness notwithstanding advice that his attendance was unnecessary and no longer relevant; to the Petitioner having been informed of the intended withdrawal by message on the morning of 24.07.2026 and advised to appoint other solicitors, to which she is said to have agreed; and to the despatch of the letter of the same date. The Authority to Act and the letter are exhibited to the affidavit.

The application was certified as urgent. The certificate of urgency records the fixtures of 29.07.2026 and of the trial; states that, the professional relationship no longer permitting the representation to continue, the firm cannot proceed to file the witness statements of the Petitioner and of her other witnesses or to process the documents delivered by the solicitors for the Respondent in compliance with the direction to file on or before 29.07.2026; and asks that the application be heard before that date so that fresh directions may be given to the parties.

The application was fixed for hearing on 29.07.2026. That date is significant to the disposal of the application in two respects. It is the date fixed for mediation and for the giving of further directions, and it is also the date by which the list of witnesses and the witness statements were directed to be filed. The application therefore comes before the Court on the very day on which the pre-trial steps it puts in question fall due, and fourteen days before the first day of trial.

The notice of application is addressed to the Petitioner personally at her last known address and to the solicitors on the record for the Respondent.

The material placed before the Court upon the causes of the breakdown consists of the affidavit in support and the letter exhibited to it. The Petitioner's own account of those matters is not before me. Nothing in these grounds is to be read as a finding upon the assertions made concerning her conduct, and, for reasons given below, no such finding is necessary to the disposal of this application.

Four questions arise, and they arise in sequence:

whether the threshold conditions in Order 64 rule 5(1) are satisfied, namely that the solicitor who has acted for the party has ceased so to act, and that the party has given neither a notice of change of solicitor nor a notice of intention to act in person;

if they are, whether the discretion conferred by that rule should be exercised in favour of the declaration sought, having regard in particular to the sufficiency of the cause relied upon, the adequacy of the notice given to the client, and the proximity of the trial;

what consequential directions, if any, are required in order to preserve the trial date and to place the Petitioner in a position to prepare for trial; and

the incidence of the costs of the application. GOVERNING LAW AND FRAMEWORK APPLICATION OF THE RULES OF COURT 2012 [17] These are matrimonial proceedings under Act 164 and are regulated by the Divorce and Matrimonial Proceedings Rules 1980. Rule 3(1) of those Rules provides that, subject to the Rules themselves and to any other written law, the rules of court governing the High Court apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in, the High Court. The reference is now to be read as a reference to the Rules of Court 2012. The Divorce and Matrimonial Proceedings Rules 1980 contain no provision governing a change of solicitors or the withdrawal of a solicitor from the record. Order 64 of the Rules of Court 2012 accordingly applies, and the application is properly brought under it. THE SCHEME OF ORDER 64 [18] Order 64 is a coherent scheme with a single object: the Court and the parties must at all times know who, if anyone, is on the record for a party, because the record determines to whom directions are given and upon whom documents are served. [19] Rule 1 permits a party to change solicitors without an order, but provides that unless and until a notice of change is filed and served in accordance with the rule, the former solicitor is, subject to rules 4 and 5, to be considered the solicitor of the party until the final conclusion of the cause. Rule 2 governs the appointment of a solicitor by a party who has previously acted in person. Rule 3 permits a party who has sued or defended by a solicitor to give notice of intention to act in person, in Form 137, which must contain an address for service. Rule 4 enables another party to apply for a declaration that a solicitor has ceased to act, in the circumstances there specified. Rule 6 provides that where an order is made under rule 4, or an order is made under rule 5 and the applicant has complied with rule 5(1), then unless and until the party appoints another solicitor or gives notice of intention to act in person, his last known address is deemed to be his address for service of documents not required to be served personally. [20] Rule 5(1) is the provision presently in issue. It provides that where a solicitor who has acted for a party in a cause or matter has ceased so to act, and the party has not given a notice of change in accordance with rule 1 or a notice of intention to act in person in accordance with rule 3, the solicitor may apply to the Court for an order declaring that he has ceased to be the solicitor acting for the party in the cause or matter, and the Court may make an order accordingly; but unless and until the solicitor serves on every party to the cause or matter a copy of the order, he is, subject to the foregoing provisions of the Order, to be considered the solicitor of the party until the final conclusion of the cause or matter. [21] Three features of the provision govern its operation and each has a consequence for this application. First, the opening words are conditional. The rule presupposes a state of affairs, namely that the solicitor has already ceased to act, and that the party has not regularised the record by a notice under rule 1 or rule 3. The order made under the rule is declaratory of that state of affairs for the purposes of the record. Second, the operative words are permissive. The Court may make an order accordingly. The rule confers a discretion, and confers it upon the Court, not upon the solicitor. Third, the order does not by itself remove the solicitor from the record. Until a copy of the order is served upon every party to the cause, the solicitor continues to be considered the solicitor of the party. Service is therefore a condition of the efficacy of the order and not a formality of enforcement. [22] Rule 5(2) requires the application to be made by notice of application in Form 140 and, unless the Court otherwise directs, to be served on the party for whom the solicitor acted; and it requires the application to be supported by an affidavit stating the grounds of the application. Order 1 rule 7 permits the prescribed forms to be used with such variations as the circumstances of the particular case require. The notice of application here follows Form 140 in substance and is addressed to the Petitioner personally, which meets the requirement of service upon the party for whom the solicitors acted. The order to be made is in Form 141, which is framed so as to take effect upon compliance with the requirements of rule 5(1). [23] Rule 5(3) is of some importance to the limits of this application. An order made under the rule does not affect the rights of the solicitor and the party for whom he acted as between themselves. The Court on such an application is therefore not adjudicating upon the retainer, upon the propriety of its termination as a matter of contract, upon fees, or upon any lien. Those are matters governed by the general law and, if disputed, must be pursued in the ordinary way. THE PROFESSIONAL DIMENSION [24] The discretion under rule 5 is exercised against a professional background which the Court cannot ignore. Rule 6(b) of the Legal Profession (Practice and Etiquette) Rules 1978 provides that an advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 24 of the same Rules imposes the correlative duty to be ready for the day fixed for trial. Rule 16 requires the advocate and solicitor to uphold the interest of the client, the interest of justice and the dignity of the profession. [25] The relationship between those Rules and Order 64 rule 5 requires precision, and it is easy to state it too loosely in either direction. The Practice and Etiquette Rules are not the source of the Court's power; they regulate professional conduct and their breach is a matter for the disciplinary process. But they inform the discretion, because they define what the profession itself regards as the minimum conditions of a proper withdrawal, namely sufficient cause and reasonable and sufficient notice. It follows equally that compliance with rule 6(b) does not entitle a solicitor to an order under Order 64 rule 5 as of right. The Court's discretion is directed to a different question from the disciplinary one: not whether the solicitor has behaved properly towards the client, but whether the record should be altered, and upon what terms, consistently with the due administration of justice in the cause. THE OVERRIDING OBJECTIVE AND THE COURT'S MANAGEMENT POWERS [26] The discretion is not at large. Order 1A directs the Court, in administering the Rules, to have regard to the overriding interest of justice. Order 2 rule 1(2) declares the Rules to be a procedural code subject to the overriding objective of enabling the Court to deal with cases justly, and requires the parties to assist the Court to achieve that objective. Order 34 rule 1 empowers the Court at any time after the commencement of proceedings to give such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economical disposal. Those provisions supply both the standard by which the discretion under Order 64 rule 5 is to be exercised and the means by which any disruption caused by a discharge can be repaired. ANALYSIS AND DETERMINATION THE THRESHOLD UNDER ORDER 64 RULE 5(1) [27] The first question is whether the condition precedent in rule 5(1) is met. The rule speaks of a solicitor who has acted for a party and who has ceased so to act. The tense is deliberate. The rule does not empower the Court to terminate a retainer; it empowers the Court to declare, for the purposes of the record, that a retainer has already come to an end. Termination of the retainer is effected by the act of the parties to it and is governed by the general law of contract and agency. The order operates upon the record, not upon the retainer. That reading is confirmed by rule 5(3), which expressly preserves the rights of solicitor and client as between themselves, and it is confirmed again by rule 5(1) itself, which contemplates that the solicitor continues to be treated as being on the record after the retainer has ended and until the order is made and served. [28] Applying that reading, the retainer was terminated by the firm by its letter of 24.07.2026, expressed to take effect immediately and communicated to the Petitioner both by message and in writing on that day. Whether that termination was contractually justified as between the firm and the Petitioner is not a question which this application requires or permits me to decide. [29] The second limb of the threshold is also satisfied. No notice of change of solicitor under rule 1 and no notice of intention to act in person under rule 3 has been filed. The consequence, absent an order, is that by force of rule 1(1) the firm continues to be considered the Petitioner's solicitor until the final conclusion of the cause, and continues to be treated by the Court and by the other party as the channel through which directions are given and documents are served. That is precisely the mischief at which rule 5 is directed, and it is a real one here: a firm which has ceased to act would otherwise remain answerable on the record for pre-trial steps falling due within days. [30] The threshold conditions in rule 5(1) are therefore satisfied. That conclusion does not dispose of the application; it merely opens the discretion. WHETHER SUFFICIENT CAUSE IS SHOWN [31] The discretion conferred by the word 'may' is a real one and it is exercised judicially. It would be wrong for the Court to treat an application under rule 5 as a matter of course, to be granted upon the mere assertion that a solicitor no longer wishes to act. The solicitor on the record is an officer of the Court and occupies a position of practical significance in the conduct of the cause. Removal from the record has consequences for the timetable, for the opposing party, and for the Court's list. The Court's concern is not confined to the two persons whose relationship has broken down. [32] At the same time, the Court will not require a solicitor to purchase an order by disclosing what she is not at liberty to disclose. Communications between an advocate and her client made in the course of and for the purpose of the employment are protected by section 126 of the Evidence Act 1950. An affidavit in support of an application under rule 5 must state the grounds of the application, as rule 5(2) requires, but the grounds may properly be stated at a level of generality which respects the privilege. It is ordinarily sufficient for the deponent to depose that the relationship of trust and confidence has broken down, or that the client's instructions are such that the representation cannot be continued consistently with professional duty, without descending into the detail of the communications themselves. Where such a statement is made by an officer of the Court, it will ordinarily be accepted at face value. What the Court then examines is not the interior of the retainer but its exterior: the timing of the application, the notice given, the state of preparation of the cause, and the effect of a discharge upon the trial. [33] What is deposed to here is a difference between solicitor and client upon the conduct of the trial, namely whether a named advocate should be called as a witness on a matter concerning an unexecuted settlement agreement discussed before the petition was presented, the solicitor having advised that his evidence was unnecessary and no longer relevant and having been told by the intended witness that he did not wish to be involved and could not recall preparing the draft. [34] The decision as to which witnesses to call, and how the case is to be presented at trial, is a matter upon which the solicitor conducting the case must be free to exercise independent professional judgment. That freedom is not a privilege of the profession; it exists because the client's case and the Court's process are both damaged when a trial is conducted upon a course which counsel has advised against and cannot support. Where a client, having received advice, persists in requiring that the case be conducted in a manner the solicitor has advised is unnecessary and irrelevant, and where the client no longer accepts the solicitor's advice generally, the foundation of the retainer is displaced. The confidence upon which the relationship rests has gone on the client's side, and the independence upon which it rests has been placed in question on the solicitor's side. In my judgment that state of affairs constitutes sufficient cause within the meaning of rule 6(b) of the Legal Profession (Practice and Etiquette) Rules 1978, and it is a proper foundation for the exercise of the discretion under Order 64 rule 5. [35] Two qualifications must be entered, and they matter. [36] The first is that I make no finding upon the further assertion that the Petitioner engaged in conduct amounting to harassment. That assertion is untested, the Petitioner has not been heard upon it, and it is unnecessary to determine it. Sufficient cause is established without it, by the objective facts that the retainer was terminated with immediate effect, that the stated ground concerns the conduct of the trial itself, and that the difference is of a character that cannot be resolved before the trial begins. [37] The second is that nothing in this judgment should be understood to suggest that a client's insistence upon calling a particular witness is, without more, a matter of reproach. A litigant is entitled to press her view of her own case, and firmly. The point is narrower and turns upon what a trial requires. Once the difference between solicitor and client is such that the solicitor cannot conduct the trial in accordance with her own professional judgment, and the client no longer accepts her advice, the retainer cannot usefully be carried into the trial. To insist that it be carried there would be to guarantee an unsatisfactory hearing for the litigant and an unsatisfactory trial for the Court. WHETHER REASONABLE AND SUFFICIENT NOTICE WAS GIVEN [38] Notice was given to the Petitioner on 24.07.2026, first by message and then by a letter of the same date which set out the reason for the withdrawal, informed her that an application would be made and served, and invited her to effect a change of solicitors. The notice of application is addressed to her personally at her last known address. She has therefore been told, in terms, that she must make fresh arrangements for her representation and that the matter would come before the Court. [39] The affidavit further asserts that the Petitioner agreed to the withdrawal. No record of the exchange said to contain that agreement is exhibited, and I do not rest this decision upon the asserted consent. I would add that consent, even if established, would not be determinative. The discretion under rule 5 is exercised in the interest of the administration of justice and not only in the interest of the parties to the retainer; a client cannot by agreement relieve the Court of its concern for the orderly conduct of the cause. What is material, and what is established, is that notice was in fact given, that it was given in writing with reasons, and that it was accompanied by the advice to appoint other solicitors. [40] Whether notice is reasonable and sufficient cannot be measured in the abstract. It must be measured against what remains to be done before trial, and by whom. Here two things remain. The first is the fixture of 29.07.2026, which is the date of this hearing, at which mediation was to be conducted and by which the list of witnesses and the witness statements were to be filed. The second is preparation for the trial itself. Notice given nineteen days before the first day of trial is not generous. It is, however, workable, provided that the Court re-times the pre-trial steps which the outgoing solicitors cannot now perform, that the papers necessary for the trial reach the Petitioner or her new solicitors promptly, and that the trial date itself is preserved. The order I make is designed to secure each of those conditions. THE TRIAL DATE AND THE INTEGRITY OF THE TIMETABLE [41] This is the consideration to which the exercise of the discretion is most sensitive, and it deserves to be stated plainly. The fixing of a trial date is an exercise of the Court's authority in the management of its own list. It is not an arrangement between solicitors, and it is not held at the disposal of the retainer. Once fixed, a trial date is an allocation of judicial time made in the interest not only of the parties to the cause but of every other litigant whose case awaits a hearing. [42] It follows that a discharge of solicitors does not carry with it, and must never be permitted to become, an entitlement to vacate the trial. If it were otherwise, the consequence would be plain enough to state and impossible to control: the vacation of trial dates would pass out of the hands of the Court and into the hands of any litigant willing to part with her solicitors at a convenient moment, and a late discharge would become the most reliable means of postponement known to practice. The Court is bound to guard against that result, and it must do so at the point where the discharge is granted rather than later, when the trial date has already been lost. [43] The discretion under Order 64 rule 5 is therefore to be exercised with the trial date treated as a fixed point about which the other arrangements must be reorganised. Where a discharge is allowed close to trial, the order should ordinarily record that the trial date stands and that neither the discharge nor any change of representation consequent upon it is of itself a ground for an adjournment; and the Court should exercise its powers under Order 34 rule 1 to re-time whatever interlocutory steps have been disturbed so that the trial can proceed as fixed. [44] Applying that approach to this cause, the trial dates of 12.08.2026 and 13.08.2026 leave a period of fourteen days from the date of this order. That is sufficient for the Petitioner to instruct new solicitors if she wishes to do so, provided she acts at once and provided the papers are released to her without delay. The immediate pre-trial obligation, namely the filing of the list of witnesses and the witness statements by 29.07.2026, cannot now be performed by the outgoing solicitors, and it would be idle to pretend otherwise. But that is a difficulty in the timetable and not in the trial date. [45] The coincidence of dates requires the Court to act now rather than later. This application is heard on the very day fixed for mediation, for further directions and for the filing of the witness statements. If the discharge were granted and the existing directions simply left undisturbed, the Petitioner would be in default of an order of the Court within hours of losing her solicitors, and the mediation would proceed, if it proceeded at all, with one party unrepresented and only that morning informed that she must fend for herself. Neither consequence is acceptable, and neither is a reason to move the trial. The proper course is to adjourn the mediation, to substitute a fresh timetable for the outstanding steps under Order 34 rule 1, and to fix an early case management date at which representation and readiness can be confirmed, all within the period remaining before 12.08.2026. [46] It is right to weigh the alternative, since the discretion is a real one and could be exercised the other way. To refuse the application would compel the firm to conduct the trial in which it does not enjoy the client's confidence and cannot exercise its own professional judgment upon the calling of witnesses. That course would serve neither the Petitioner, whose case would be presented by solicitors she has ceased to trust, nor the Respondent, nor the Court. If the Petitioner elects not to appoint new solicitors and comes to trial in person, that is a consequence of her own election, made with the trial date and her position known to her; the order will ensure that she is told the position plainly and in time. SUCCESSIVE CHANGES OF REPRESENTATION [47] There is a further matter which the Court should raise of its own motion rather than await. The firm applying to come off the record is the third to have acted for the Petitioner in this cause. If the application is granted, she will be without solicitors for the third time in the life of the petition, and on this occasion fourteen days before the first day of trial. [48] The history raises two separate questions, and each must be answered on its own terms. The first is whether the earlier changes of solicitors weaken the cause shown for the present discharge. The second is what that history requires by way of the terms upon which a discharge, if granted, should be made. As to the first, the earlier changes do not weaken the cause shown. Sufficient cause is measured by reference to the retainer now in question and to the events which brought it to an end. This retainer was ended by the solicitors and not by the Petitioner, and on a ground concerning the conduct of the trial itself. A party's record of changing solicitors cannot turn a cause that is otherwise sufficient into one that is not, and it cannot justify compelling solicitors who have properly ceased to act to resume acting. To hold otherwise would be to make the outgoing solicitors bear the consequences of a history for which nothing before the Court shows them to be responsible. [49] As to the second question, the history is of real weight. Successive changes of representation, whatever their cause, consume the time allowed for preparation and tend to generate applications to vacate hearing dates. A cause in which representation has changed three times in some twenty months has already absorbed more of the Court's indulgence than most, and the risk that the trial date will be attacked on the ground of unpreparedness or absence of representation is no longer theoretical. The Court is entitled, and in my view bound, to have regard to that cumulative effect when settling the terms of the order. [50] The appropriate response is not to refuse a discharge which is otherwise justified. It is to remove the trial date from the field of argument. The order will accordingly declare the trial dates peremptory, will state that no further application to vacate or adjourn the trial founded upon a change or absence of representation will be entertained, and will require that the Petitioner be told in writing, in terms she cannot misunderstand, that the trial will proceed on 12.08.2026 and 13.08.2026 and that she must either appoint solicitors within the time fixed or be ready to conduct the trial herself. A direction of that kind is of little use if the party learns of it only when the trial is called on; it must reach her now, with the order. [51] I repeat, so that the position is not mistaken, that no finding of blame is made against the Petitioner in respect of the earlier changes. The terms just described do not rest upon any such finding. They rest upon the objective state of the cause and upon the Court's responsibility for the date it has fixed. DELIVERY OF THE PAPERS AND OUTSTANDING STEPS [52] A discharge granted on terms which leave the client unable to prepare would be a discharge in name only, and would in practice place the trial date at risk by another route. The documents in the cause, being the cause papers filed, the orders and directions given, and the documents delivered by the solicitors for the Respondent in compliance with those directions, must reach the Petitioner or her new solicitors quickly if the trial is to proceed as fixed. [53] Rule 5(3) preserves any lien which the outgoing solicitors may claim, and this Court does not determine whether such a lien exists or what it extends to. It is enough to observe that a lien is a right to retain, not a licence to obstruct the hearing of a cause; and the practical accommodation, which protects both interests, is the delivery of copies of the documents necessary for the trial within a fixed time, leaving any lien over originals and any question of fees to be dealt with elsewhere. I will make an order in those terms, with liberty to apply should any real difficulty arise. THE EFFECT OF THE ORDER AND THE NECESSITY OF SERVICE [54] The concluding words of rule 5(1) require particular attention in a case where the trial is near. Until the outgoing solicitors serve a copy of the order upon every party to the cause, they continue to be considered the solicitors of the Petitioner. An order pronounced but unserved therefore changes nothing on the record, and in the interval the solicitors remain exposed to directions and service while being, as between themselves and their client, without a retainer. Where the interval between the order and the trial is measured in days, that is an unsatisfactory position for all concerned. The order will accordingly fix a short time for extraction and service and require proof of service to be filed, and I draw attention to rule 6, which provides that until the Petitioner appoints new solicitors or gives notice of intention to act in person, her last known address is deemed to be her address for service. COSTS [55] The application seeks an order that its costs be borne by the Petitioner. An application under Order 64 rule 5 is, in the ordinary case, an application made by solicitors for their own relief, and the starting point is that they bear the costs of obtaining it. An order against the client is not excluded, but it presupposes a finding that the client's conduct made the continuation of the retainer impossible, and such a finding cannot properly be made upon assertions which the client has had no opportunity to answer and which I have expressly declined to determine. [56] There is a further reason of principle. The firm's contractual entitlement to fees, costs and disbursements arises under the Authority to Act of 25.03.2026 and is expressly preserved by rule 5(3), which provides that an order under the rule does not affect the rights of solicitor and client as between themselves. That entitlement, and any dispute about it, is to be pursued in the ordinary way. It should not be converted, by means of a costs order in the cause, into an adjudication in proceedings to which the retainer is not the subject matter and in which the client's position on the merits of the dispute has not been examined. The just order is that there be no order as to costs. GUIDANCE FOR APPLICATIONS TO DISCHARGE MADE CLOSE TO TRIAL [57] Applications of this kind recur, and they recur most often at the point where they are most disruptive. What follows is offered as guidance drawn from Order 64, from Order 34 rule 1 and the overriding objective, and from the professional obligations already described. It is not a code, it is not exhaustive, and it does not fetter the discretion of the Court in any particular case, which must always be exercised upon the facts before it.

Promptness. The application should be made as soon as the retainer has broken down and not deferred until the eve of trial. A solicitor who knows that the relationship has failed and who nevertheless allows the pre-trial timetable to run on before applying can expect the delay to weigh against the application. The Court is entitled to ask when the difficulty first arose and why the application was not made then.

The content of the affidavit. The grounds must be stated as rule 5(2) requires, but privilege under section 126 of the Evidence Act 1950 is not to be breached in order to satisfy the Court. A statement by an officer of the Court that the relationship of trust and confidence has broken down, or that the client's instructions cannot be carried out consistently with professional duty, will ordinarily suffice. The Court should not press for particulars which would compel disclosure of privileged communications, and where some further explanation is genuinely necessary it may be received in a manner which protects the privilege.

Non-payment of fees. Non-payment may amount to sufficient cause, but its weight varies with the stage of the proceedings. What may readily justify a discharge months before trial may not justify one on its eve, when the practical consequence is that the client faces trial unrepresented and the timetable collapses.

Notice to the client. Reasonable and sufficient notice is required by rule 6(b) of the Legal Profession (Practice and Etiquette) Rules 1978, and service of the application upon the client is required by Order 64 rule 5(2) unless the Court otherwise directs. The notice should state, in terms the client can act upon, the date fixed for trial, the steps then outstanding and their due dates, the client's right to appoint new solicitors or to act in person, and the effect of Order 64 rule 6 upon service of documents if she does neither.

The client's consent is not decisive. Consent removes a source of objection but does not convert the application into one to be granted as of right. The Court's concern extends beyond the parties to the retainer.

The trial date is the fixed point. Neither the discharge nor a change of representation consequent upon it is of itself a ground for an adjournment of the trial. Where the discharge is allowed, the order should say so expressly, so that the position is placed beyond argument before the trial judge and before any newly appointed solicitors.

Re-timing rather than vacating. Where the discharge disturbs pre-trial steps, the proper course is to re-time those steps under Order 34 rule 1, and where necessary to fix an early case management date, rather than to move the trial. The Court should identify the disturbed steps and deal with each of them in the order itself.

The papers. The Court should ordinarily direct delivery of copies of the cause papers and of the documents necessary for the trial, within a short fixed time, to the client or to her new solicitors. Any lien is preserved by Order 64 rule 5(3) and is not adjudicated on such an application, but the assertion of a lien cannot be allowed to prevent a fixed trial from proceeding.

Effect and service of the order. The order takes effect against the parties only upon service in accordance with Order 64 rule 5(1). Where the trial is near, the order should fix a short time for extraction and service and require proof of service, so that the record is regularised before the trial.

Costs. The ordinary order is that the outgoing solicitors bear the costs of their own application. A costs order against the client requires a proper foundation in findings which the Court is in a position to make, and untested affidavit assertions are not such a foundation.

Where the application should be refused or deferred. Where the cause shown is inadequate, or where the discharge is sought so late and in such circumstances that the client cannot realistically be ready and the trial would in practice be lost, the Court may refuse the application, or grant it conditionally or with effect from a later date, or defer it to be dealt with at or after the trial. The Court retains the power to require solicitors on the record to discharge the obligations already fallen due, so far as that can be done without requiring them to act contrary to their professional duty.

Whether an order is needed at all. Where the client is willing to regularise the record, the simpler and cheaper course is a notice of change of solicitor in Form 136 or a notice of intention to act in person in Form 137, neither of which requires an order. Solicitors should invite that course before applying. An application under Order 64 rule 5 is the residual remedy for the case where the client will not or does not act.

The affidavit should place the timetable before the Court. In addition to the grounds, it should state every fixture within the next three months, every outstanding direction and its due date, the steps already performed, and the extent to which the client has been placed in a position to comply with what remains. A certificate of urgency should identify the specific fixture said to be imperilled rather than assert urgency in general terms.

Listing of the application. Where a fixture or a due date is imminent, the application should so far as possible be listed before that date. Where that is not possible and the application is heard on the same day, the Court should not grant the discharge and leave the existing directions standing, since the immediate effect would be to place the client in default of an order of the Court. Substituted directions should be given in the same order.

Ensuring the client is heard. Where the client does not appear, the Court should satisfy itself that notice was given and that the application was served or brought to her attention. It may stand the application down, or grant a short adjournment, so that she can be heard, particularly where the discharge may leave her unrepresented at trial. A client who has been served and stays away, however, cannot afterwards complain that she was not heard.

Privilege and the presence of the opposing party. The opposing party has no legitimate interest in the internal affairs of the retainer. Where an explanation cannot be given without touching privileged matters, the Court may hear that part of the application in the absence of the opposing party. The Court should not, in its reasons, record privileged detail which the disposal does not require.

Fees are not to be used as leverage. An application timed so that the prospect of facing trial without solicitors operates as pressure to pay outstanding fees will be examined with care. The firm's claim to fees and any lien are preserved by Order 64 rule 5(3) and are to be pursued in the ordinary way; they are not enforced, and are not to be advanced, through the timing of an application to come off the record.

Repeated changes of representation. Where a party has changed solicitors more than once in the same cause, the Court should approach the application with the whole history in view, and should ask how many changes there have been and at whose instance, whether each was accompanied by an application to extend time or to vacate a hearing, and what the cumulative effect upon the timetable has been. Five propositions follow:

The history does not bear upon the sufficiency of the cause shown by the applicant solicitors. Cause is judged by reference to the retainer in question and the events which ended it. A party's record of changing solicitors cannot make an otherwise sufficient cause insufficient, and cannot justify restoring to a retainer solicitors who have properly ceased to act.

(ii) The history bears directly upon the terms of the order. The greater the disruption already caused, the stronger the case for declaring the trial date peremptory, for compressing the time allowed to regularise the record, and for stating expressly that no further application founded upon a change or absence of representation will be entertained.

(iii) The Court should distinguish between changes made at the client's instance and discharges sought by solicitors, but should be slow to attribute responsibility upon untested affidavit material. It is rarely necessary to do so, because the terms which the timetable requires will be much the same either way, and a finding of blame is not the foundation of those terms.

(iv) The party must be told the consequences directly and in writing, not left to infer them from the order. Where she may face trial in person, the notice should say so in plain terms, identify the date by which representation must be regularised, and state that the trial will proceed in any event.

Costs occasioned to the opposing party by successive changes are a matter for that party's own application. Where a further change is made in disregard of a peremptory direction, the Court retains its ordinary powers under Order 34 rule 1, including the power to proceed with the trial as fixed.

Parties under disability and the interests of children. Where a party is under disability, or where the cause concerns the custody, maintenance or welfare of children, the Court should weigh the effect of any resulting delay upon those interests before allowing a discharge which places the hearing at risk, and should consider whether the discharge ought to be conditional upon steps being taken to secure alternative representation.

Time-sensitive obligations. Before withdrawing, the solicitor should inform the client in writing of any limitation period, appeal period, peremptory order or unless order then running, and of the consequences of failing to comply. A discharge which leaves a client ignorant of a deadline about to expire is not a proper discharge, however sufficient the underlying cause.

Undertakings survive. An order under Order 64 rule 5 does not release the outgoing solicitor from any undertaking given to the Court or to the other side, nor from obligations already accrued in respect of documents or moneys held.

The position of the opposing party. The order should be served on every party, as rule 5(1) requires, so that the opposing solicitors know to whom documents are henceforth to be sent. Any costs thrown away as against the opposing party are a separate matter and may be dealt with on that party's own application.

Assisted persons. Order 64 rule 5(4) provides its own regime where the legal aid certificate of an assisted person within the meaning of the Legal Aid Act 1971 is revoked or discharged. In that event the solicitor ceases to act by force of the rule, and an order under rule 5(1) is unnecessary.

Discharge at or on the eve of trial. An application made when the trial is about to begin, or after it has begun, should be made to the trial judge and not dealt with in chambers as a matter of routine. The trial judge may refuse it and require the trial to proceed, may grant it and proceed nonetheless, or may grant it upon terms; and the Court should give short reasons in every case, since the exercise of the discretion bears directly upon the trial date and is amenable to review.

The history should be disclosed. Where solicitors know that they are not the first to have acted,the affidavit should say so and should state,so far as it is known,when the earlier firms were appointed and when they came off the record. The Court cannot settle appropriate terms without that history, and it is not information which should have to be extracted from the file at the hearing. CONCLUSION [58] The threshold under Order 64 rule 5(1) is met, sufficient cause has been shown for the termination of the retainer, and reasonable notice was given to the Petitioner. Those matters open the discretion but do not by themselves determine its exercise. What determines it is that a discharge can be given effect in this cause without displacing the trial. The difference between solicitor and client concerns the conduct of the trial itself and cannot be repaired before it; the only pre-trial obligation immediately disturbed is one that can be re-timed; and the interval remaining allows the Petitioner to instruct new solicitors if she acts at once and if the papers are released to her promptly. A refusal would secure nothing except a trial conducted by solicitors without instructions they can accept, which is no service to the litigant and no assistance to the Court. [59] The application is accordingly allowed, but upon terms directed to the matters just identified. The terms are not incidental to the order; they are the condition upon which it is made, and they are framed so that the discharge alters the record without altering the trial date. This being the third change of representation in the life of the petition, those terms include a declaration that the trial dates are peremptory and a requirement that the Petitioner be told, in writing and at once, what that means for her. ORDERS OF THE COURT [60] I make the following orders:

A declaration under Order 64 rule 5(1) of the Rules of Court 2012 that the firm presently on the record for the Petitioner has ceased to be the solicitors acting for the Petitioner in this cause, such order to take effect upon compliance with the requirements of Order 64 rule 5(1).

The order shall be extracted within two (2) days and a sealed copy served upon the Petitioner personally at her last known address and upon the solicitors on the record for the Respondent, and an affidavit of service shall be filed within two (2) days after service.

The Petitioner shall, on or before 05.08.2026, file and serve either a notice of appointment or change of solicitor in Form 136 or a notice of intention to act in person in Form 137. Until she does so, her last known address shall, pursuant to Order 64 rule 6, be deemed to be her address for service of any document not required to be served personally.

The outgoing solicitors shall, within three (3) days of the date of this order, deliver to the Petitioner or to her newly appointed solicitors copies of the cause papers filed in this cause, the orders and directions made, and the documents delivered to them by the solicitors for the Respondent pursuant to the directions given, such delivery being without prejudice to any lien claimed by the firm, the rights of the firm and the Petitioner as between themselves being preserved by Order 64 rule 5(3).

The trial dates of 12.08.2026 and 13.08.2026 shall stand and are peremptory. Neither this order nor any change of representation consequent upon it shall of itself constitute a ground for an adjournment of the trial, and no further application to vacate or adjourn the trial founded upon a change or absence of representation will be entertained.

The mediation fixed for today, 29.07.2026, shall stand adjourned and may be re-fixed on the application of either party before the trial. The time for filing the list of witnesses and the witness statements is extended to 05.08.2026. The cause is fixed for case management on 06.08.2026, at which the Petitioner shall attend in person or by newly appointed solicitors, and at which compliance with these directions and the readiness of the parties for trial shall be confirmed.

The sealed copy of this order served on the Petitioner shall be accompanied by a written notice informing her, in plain terms, that the trial will proceed on 12.08.2026 and 13.08.2026; that she must appoint solicitors and regularise the record on or before 05.08.2026 or else be ready to conduct the trial in person; and that no adjournment of the trial will be granted on the ground that she is unrepresented or has changed solicitors.

There shall be no order as to costs, without prejudice to any claim the firm may have against the Petitioner for fees, costs and disbursements, which is preserved by Order 64 rule 5(3) and is to be pursued in the ordinary way.

Liberty to apply. Dated 29 July 2026 (MELAKA) Lawyer For Petitioner : Puan Geetha a/p Ravindran Royan Tetuan J Azmi & Associates Peguambela dan Peguamcara No. 1-25, Jalan PM 3, Plaza Mahkota, Bandar Hilir, 75000 Melaka. Lawyer For Respondent : Encik Sugandra Rao Naidu bersama Puan Sarah Shaqeena binti Abdullah Tetuan Rao & Co. Peguambela dan Peguamcara No. 11 & 11-1, Jalan KL 3/13, Taman Kota Laksamana, Seksyen 3, 75200 Melaka.