Pacific & Orient Insurance Co. Berhad v Tetuan K. Suganthi & Company (PA-22NCvC-172-10/2023)

HEMA MALINI A/P KOLANDASAMY (NO. K/P: 701216-08-5966) (DISAMAN SEBAGAI RAKAN KONGSI TETUAN K. SUGANTHI & COMPANY, PEGUAMBELA DAN PEGUAMCARA) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

This writ action is premised on allegations of professional negligence and breach of contractual duty arising from the Defendants' failure to plead fraud in a motor vehicle accident suit, which consequently resulted in liability and damages being awarded against the Plaintiff.

The material facts giving rise to this action may be summarized as follows.

Following an alleged motor vehicle accident on 13.03.2012 between Janice Chuah Chai Ming ("JCM") (the rider of motorcycle bearing registration number PDM 6452 ("motorcycle PDM 6452")) and Tan Hong Joo ("THJ") (the rider of motorcycle bearing registration number PGG 4368 ("motorcycle PGG 4368")) , along Jalan Sultan Azlan Shah, Pulau Pinang, JCM via her litigation representative filed a personal injury claim against THJ and Law Swee Beng ("LSB")(as the owner of PGG 4368) in the Georgetown Sessions Court in Pulau Pinang vide Suit No. PA A53KJ-33-02/2017 ("Suit 33").

As the insurer of motorcycle PGG 4368, the Plaintiff appointed M/s Ajmer Sandhu & Ong ("ASO") , a law firm, to defend them in Suit 33.

The Plaintiff also instructed the $ 1^{\mathrm{st}} $ Defendant to intervene in Suit 33, resulting in the Plaintiff being added as the $ 3^{\mathrm{rd}} $ Defendant therein. The intervener application ("IA"), filed on 14.07.2017, was premised on allegations of fraud and conspiracy between THJ and LSB, pursuant to the 1 $ ^{st} $ Defendant's legal opinions dated 23.09.2015 and 31.05.2017.

Suit 33 was heard before the Georgetown Sessions Court. On 31.01.2019, the said Court apportioned 50% liability against the Plaintiff and awarded damages in the sum of RM627,304-00 against them.

Aggrieved by the said decision, the Plaintiff unsuccessfully appealed to both the High Court and the Court of Appeal.

The dismissal of the said appeals led to the filing of the present action against the Defendants on 20.10.2023, wherein the Plaintiff alleges that the Defendants were negligent in their conduct of Suit 33.

Both the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants were the advocates and solicitors involved in the conduct and general care of the Plaintiff's case in Suit 33 and its subsequent appeals to the abovementioned appellate courts.

In defending this action, the Defendants have counterclaimed for abuse of process and seek damages from the Plaintiff.

The trial proceeded over five (5) days between 07.10.2025 and 04.02.2026, during which four (4) witnesses were called to testify: three (3) by the Plaintiff and one (1) by the Defendants.

The Plaintiff appointed the Defendants to represent its interests at all material times in relation to Suit 33.

In their legal opinions sent to the Plaintiff on 23.09.2015 and 31.05.2017, the Defendants advised filing an application to intervene in Suit 33 as they believed there were elements of fraud and/or collusion between JCM, THJ and LSB, and that the Plaintiff is to resist liability pending evidence from the Assistant Investigating Officer ("AIO").

Acting on these opinions, the Defendants were instructed to file an intervener application ("IA") premised on allegations of fraud and conspiracy. Consequently, the Plaintiff was allowed to intervene as the $ 3 ^{rd} $ Defendant in Suit 33.

The Plaintiff contended that, at all material times, THJ and motorcycle PGG 4368 were not involved in the road accident with JCM. Instead, JCM was a victim of a hit-and-run accident involving an unknown motorcar. Consequently, THJ was suspected of making a false police report to facilitate a fraudulent insurance claim against the Plaintiff.

The Plaintiff's appointed insurance adjusters, Jaya Adjusters Sdn Bhd ("JASB") had proceeded to investigate THJ's police report to obtain further information as to the authenticity of the claim.

Despite these facts being fully within the Defendants' knowledge, they failed to plead the same in the Statement of Defence in Suit 33. Instead, the Defendants merely pleaded bare assertions of denial within a brief six-paragraph Defence. The Defendants thereby failed and/or neglected and/or omitted to plead fraud and/or conspiracy and/or collusion and/or non-involvement of the Plaintiff in the Statement of Defence.

By reason of the Defendants' acts and omissions, the Plaintiffs were held liable in Suit 33 by the Georgetown Sessions Court.

Acting upon the advice of the Defendants, the Plaintiff appealed to the High Court and the Court of Appeal, all of which were dismissed.

The Plaintiff thus contends that the Defendants further breached their duty of care in advising the Plaintiff to appeal when they knew, or ought to have known, that the said appeals were bound to fail due to the Defendants' own failure to plead the material facts of fraud, conspiracy, or collusion.

In defending the action, the Defendants case is set out in their submission, which is reproduced hereunder, with amendments made therein.

The Plaintiff simply did not have any evidence or adequate evidence but merely a suspicion that THJ is 'suspected' to have made a false report to facilitate a fraudulent insurance claim against the Plaintiff.

Further, the Plaintiff's adjuster ("JASB") reports do not disclose any plausible or admissible evidence and are, in substance, hearsay. Accordingly, the Plaintiff has no reasonable cause of action, and the present action constitutes an abuse of the Court's process.

The Plaintiff was not present at the scene of the accident and merely "suspects" that JCM was the victim of a hit-and-run involving an unidentified motor vehicle, without any concrete or credible evidence, based on JASB investigation.

To date, no evidence, whether credible or plausible, has been provided to enable the Defendants to plead fraud and/or conspiracy and/or collusion. In the absence of such evidence, the Defendants are unable to plead the same in the Statement of Defence, as to do so would amount to professional misconduct. Accordingly, the Defendants have denied all allegations contained in the Statement of Claim.

The Defendants, throughout the conduct of Suit 33, had exercised and performed their duties with due care, skill, and diligence, and at all material times met the requisite standard of care. The sole purpose of the Plaintiff's intervention as $ 3^{rd} $ Defendant in Suit 33 was to cross-examine THJ, who was suspected of making a false report. It was incumbent upon ASO to secure the attendance of THJ in Court to enable the Defendants to cross-examine THJ.

The Georgetown Sessions Court's decision was not based on the Defendants' pleadings. In any event, the decision was not wholly in favour of JCM.

All parties had appealed to the High Court and the Court of Appeal where all three appeals were dismissed without cost.

The Defendant's non-pleading of fraud were not raised at all in the High Court and the Court of Appeal. Instead, the decision was based on JCM's pleading and the Defendants had advised the Plaintiff of this fact. The Defendants have at all times given the Plaintiff feedback throughout Suit 33 and had acted based on the consideration that the Plaintiff had not provided the Defendants with any adequate relevant evidence. The Defendants cannot recklessly plead based on any mere suspicion.

There is no adequate evidence identifying the party who allegedly committed the fraudulent act, nor is there any evidence establishing collusion or conspiracy between any parties to commit fraud. In the absence of any concrete evidence, the Defendants were unable to file a Statement of Defence in the manner now pleaded by the Plaintiff.

The Georgetown Sessions Court's decision was based on the evidence presented before it. The Defendants cannot be held responsible for THJ's refusal to attend and testify in court. ASO had attempted to secure THJ's attendance but failed to do so.

The Plaintiff had no real prospect of success as there was no evidence of fraud. THJ's police report was marked as an exhibit and could not be challenged for its veracity. The Defendants witnesses in Suit 33 could only provide hearsay evidence and THJ had failed to testify as the Defendant in Suit 33 for the Defendants herein, to cross examine. Furthermore, the AIO's testimony confirmed the accident did occur and was corroborated to the damage by THJ's motorcycle.

The Defendant's short answer to the Plaintiff's case is that the Defendants simply did not have any evidence or adequate evidence to enable the Defendants to plead an allegation of fraud, conspiracy or collusion in Suit 33.

The Plaintiffs by their reply to the Statement of Defence and by their Answers to the Interrogatories have now pivoted from the Statement of Claim and now claim that they are relying on JASB's report dated 29.01.2014 in claiming that there was sufficient evidence provided in the report to plead fraud, conspiracy or collusion between THJ and LSB.

The Defendants by the counterclaim are claiming that the Plaintiff's case is an abuse of process and are seeking damages from the Plaintiff. ISSUE

Whether the Defendants had fallen below the standard of care of a reasonable competent solicitor thus negligent in failing to plead fraud

In any event. it is undisputed that the Defendants owed a duty of care to the Plaintiff.

It is further undisputed that the Statement of Defence filed by the Defendants was premised solely on a denial of collision and/or involvement, alongside a denial of negligence on the part of THJ.

The Plaintiff contends that the Statement of Defence filed by the Defendants consisted of only six (6) paragraphs of bare assertions of denial. It is further argued that notwithstanding the two (2) letters of opinion dated 23.09.2015 and 31.05.2017 issued by the Defendants to the Plaintiff, fraud and/or collusion and/or conspiracy between THJ and LSB as well as the Plaintiff's non-involvement in the alleged accident, were completely omitted from the Statement Of Defence.

Conversely, the Defendants argue that the two (2) aforesaid letters of opinion were based merely on suspicions of fraud, as the adjuster's ("JASB") reports lacked sufficient evidence to substantiate the allegation against THJ; hence, fraud was not pleaded in the Statement of Defence.

In the two (2) letters of opinion dated 23.09.2015 and 31.05.2017 addressed to the Plaintiff (see pages 12 - 19 of Common Bundle of Documents Part B2 @ Encl 157), the Defendants had appraised the development of Suit 33 and highlighted the following-

that both THJ and LSB were not cooperating with the adjusters ("JASB").

that the wife of THJ ("THJ-W") revealed that her husband, THJ was never involved in the alleged accident and that THJ merely helped one of his friends to lodge a police report.

that the Plaintiff's aunty, i.e. Chuah Bee Heng, informed the adjusters ("JASB") that the Plaintiff was a victim of a hit and run case.

that LSB was unaware of the alleged accident between THJ and JCM and that he had sold the said motorcycle PGG 4368 three (3) months ago.

that there were no hospital records of THJ seeking treatment pursuant to the alleged accident.

that the investigation officer confirmed that the case is still pending investigation.

In any event, the adjuster's ("JASB") reports were duly referred to in both the two (2) letters of opinion.

In the letter of opinion dated 31.05.2017, the Defendants repeatedly stated their belief that there was an element of fraud surrounding the alleged accident, and opined that liability should be resisted pending the evidence of the Assistant Investigation Officer ("AIO").

The relevant paragraphs in the said letter are reproduced below for ease of reference (see pages 16 and 19 of Common Bundle of Documents Part B2 @ Encl 157). Liability Based on the above, we believe that there is an element of fraud in this matter as we are of the opinion that liability should be resisted pending evidence of the Assistant Investigation Officer ("AIO"). CONCLUSION Based on the above, we believe that there is an element of fraud in this matter as we are of the opinion that liability should be resisted pending evidence of the Assistant Investigation Officer ("AIO"). (emphasis added)

From the contents of the aforesaid letter, it is thus evident that the Defendants maintained a firm belief and not a mere suspicion that an element of fraud surrounded the alleged accident. The use of the word "believe" infers that the Defendants held a genuine conviction and accepted that an act of deception had taken place, based on the facts and evidence available to support that belief.

Consequently, upon the instructions of the Plaintiff, the Defendants filed an intervener application ("IA") on 14.07.2017.

The IA filed, supported by affidavit in support (see pages 107 - 176 of Common Bundle of Documents Part B2 @ Encl 157) highlighted the identical facts set out in the $ 1^{\mathrm{st}} $ Defendant's letter of opinion dated 31.05.2017. Crucially, it was this very legal opinion that contained the Defendants' explicit conclusion that an element of fraud was involved in the alleged accident.

Next, the Defendants filed the following additional documents in Suit 33 that highlighted facts and assertions giving rise to fraud and/or collusion and/or conspiracy between THJ and LSB as well as noninvolvement of the Plaintiff in the alleged accident-

seven (7) adjuster's ("JASB") reports dated

29.01.2014 (see pages 9-27 of Common Bundle of Documents Part B1 @ Encl 156);

(ii) 21.03.2014 (see pages 28-29 of Common Bundle of Documents Part B1 @ Encl 156);

(iii) 23.06.2014 (see pages 90 - 102 of Common Bundle of Documents Part B2 @ Encl 157);

(iv) 10.01.2018 (see pages 207 - 212 of Common Bundle of Documents Part B2 @ Encl 157);

17.01.2018 (see pages 213 - 216 of Common Bundle of Documents Part B2 @ Encl 157);

(vi) 28.06.2018 (see pages 41 - 43 of Common Bundle of Documents Part B3 @ Encl 158); and

(vii) 28.06.2018 (see pages 44 - 47 of Common Bundle of Documents Part B3 @ Encl 158).

additional bundles containing newspaper articles from the Guang Ming Daily, The Star and Berita Harian which highlighted the accident involving motorcycle PDN 6452 (the vehicle ridden by JCM) and an unknown motorcar.

The testimonies of the four (4) witnesses called by the Defendants in Suit 33—namely, Ong Wueh Lam from JASB ("SD1"), Lim Choon Lean, a reporter from the Guang Ming Daily newspaper ("SD2"), Ernest Kalaivalan A/L Lawrence from JASB ("SD3") and Tan Sin Chow, a reporter from The Star newspaper ("SD4")—were all aimed at disputing the authenticity of JCM's claim, establishing the noninvolvement of both THJ and motorcycle PGG 4368 (i.e. LSB's motorcycle) in the alleged accident, and challenging the contents of THJ's police report dated 14.03.2012, which was marked as exhibit P3 in Suit 33 (see page 73 of the Common Bundle Of Documents B1 @ Encl 156).

In addition thereto, the questions posed during cross-examination were specifically directed at establishing the non-involvement of LSB's motorcycle PGG 4368 in the alleged accident.

For instance, Inspector Harris Safuan Bin Muhammad ("PW1") testified that the police investigation was inconclusive.

Evidence confirming the involvement of a motorcar in the alleged accident—rather than motorcycle PGG 4368—was established through the testimony of Chuah Bee Heng ("PW3"), JCM's aunt and caregiver at the material time.

Furthermore, Korporal Mohamed Aktar Bin Chu ("PW4"), the traffic police photographer, admitted to having no personal knowledge regarding the alleged accident.

Finally, Dr Jayasilan ("PW5") testified that the collision involved a motorcycle and a motorcar, relying on the "History of Admission" remarks in the discharge note as well as the medical report dated 03.08.2012 (which was marked as P7 in Suit 33).

Hence, the Defendants were undeniably conducting their case along the lines of fraud and/or collusion and/or conspiracy between THJ and LSB, alongside the Plaintiff's complete non-involvement in the alleged accident.

The cross examination of witnesses and the additional documents adduced in Suit 33 were all aimed in establishing the noninvolvement of motorcycle PGG 4368 in the alleged accident. This, in turn, demonstrates that THJ's police report was untrue and false, thereby establishing fraud and/or collusion and/or conspiracy between THJ and LSB as well as the Plaintiff's complete noninvolvement in the alleged accident.

Moreover, as submitted by the Plaintiff's solicitors, the Defendants in their post-trial submissions in Suit 33 dated 25.09.2018, had explicitly raised and ventilated issues pertaining to fraud.

Excerpts of the said submissions, particularly highlighting the specific usage of the word "fraud" as evidenced on page 166 of the Common Bundle of Documents B3 @ Encl 158, are reproduced below for the ease of reference.

SD1 memberi keterangan bahawa kes ini adalah satu kes fraud.

SD3 juga memberi keterangan bahawa kes ini adalah kes melibatkan fraud.

Had the Defendants been of the opinion that there was insufficient plausible evidence of fraud and/or collusion and/or conspiracy and non-involvement of the Plaintiff in the alleged accident in Suit 33, they would not have conducted the trial in that manner.

Furthermore, the Defendants had also repeatedly opined in their two (2) letters of opinion that they believe there is an element of fraud and that the Plaintiff is to resist liability pending the evidence of the AIO, which directly led to the filing of the intervener application (IA) on 14.07.2017.

Notwithstanding the abovesaid actions of the Defendants, fraud and/or collusion and/or conspiracy between THJ and LSB and noninvolvement of the Plaintiff in the alleged accident, were completely omitted from the Statement of Defence in Suit 33.

In response, the Defendants contend that even if they had pleaded those issues, such pleadings could not have been sustained by the evidence. They argue that the learned Sessions Court Judge would have rejected the contention in any event, and would have proceeded to apportion liability on a 50:50 basis relying on THJ's police report.

However, it is trite law that lawsuits are built strictly upon the factual allegations set out in the pleadings, whether in a Statement of Claim or a Statement of Defence. It was entirely permissible—and indeed mandatory—for the Defendants to plead fraud, collusion, conspiracy, and the Plaintiff's non-involvement in the accident; unless and until tested at trial, such assertions inevitably remain mere allegations.

Consequently, it is not open to the Defendants to unilaterally assert that these pleadings would have been unsustainable, particularly when the material facts and particulars of the fraud were completely withheld from the learned Sessions Court Judge's consideration to begin with.

Ultimately, it is the sole province of the learned Sessions Court Judge, as the trier of fact and law, to review the totality of the evidence and determine whether the allegations of fraud, collusion, conspiracy, and the Plaintiff's non-involvement in the alleged accident have been successfully established.

As evidenced by paragraphs 82 and 83 of the grounds of judgment of the learned Sessions Court Judge—referred to by the Defendants in their submissions herein—the following findings were made-Para 82 The Court found similarity in this case in which the 1st Defendant has admitted that he while riding 2nd Defendant's motorcycle, grazed with the Plaintiff's motorcycle. The Defendants have failed to show to Court that P3 (THJ's police report) was made with fraud, false intent or collusion of justice. b) Para 83 - In fact, fraud or collusion was never pleaded in the Defendant's defence.

A reading of both aforesaid paragraphs indicates that the findings of liability and damages were heavily grounded on the police report lodged by THJ. Furthermore, the issue of fraud or collusion was reduced to a mere passing remark precisely because the Defendants had failed to plead the same.

In the absence of an explicitly pleaded defence of fraud or collusion, it was entirely unnecessary for the learned Sessions Court Judge to deliberate further on the matter. To do so would amount to making assumptions or presumptions on unpleaded issues, thereby violating the fundamental rules of civil procedure and natural justice.

As such, it was not within the province of the learned Sessions Court Judge to delve into or adjudicate upon the unpleaded issue of fraud or collusion; had it been properly pleaded, the court's findings would not have been restricted to a mere one-line remark.

In Suit 33, THJ's police report was admitted into evidence as proof of his involvement in the alleged accident. That factor, coupled with the absence of a pleaded alternative case showing that the other parties were wholly liable, led the learned Sessions Court Judge to apportion liability on a 50:50 basis.

Accordingly, the learned Sessions Court Judge ordered that liability be shared equally between JCM and all three Defendants in Suit 33.

It therefore follows that had fraud, collusion, conspiracy between THJ and LSB and non-involvement of the Plaintiff in the alleged accident been pleaded in the Statement of Defence, such pleadings would have had a material impact on the findings of the court.

This is especially true given that the testimonies of PW1 and PW4 clearly established that they could not confirm the occurrence of the alleged accident between JCM's motorcycle and the motorcycle ridden by THJ.

Thus, had fraud, collusion, conspiracy between THJ and LSB and non-involvement of the Plaintiff in the alleged accident been pleaded in the Statement of Defence, the learned Sessions Court Judge would have been properly equipped to find THJ's police report highly questionable. This is heavily supported by the testimonies of DW1 to DW4, the cross-examination of the Plaintiff's witnesses, the supplementary documents adduced, and the Defendants' own post-trial submissions in Suit 33.

At the risk of repetition, had the Defendants pleaded fraud and/or collusion and/or conspiracy between THJ and LSB and noninvolvement of the Plaintiff in the alleged accident in the Statement of Defence, that substantive defence would have been properly considered and assessed by the appellate courts.

As the record stands, both the High Court and the Court of Appeal were constrained to evaluate a mere defence of bare denial, as it was the sole defence advanced within the pleadings.

In other words, even if the learned Sessions Court Judge had dismissed the defence of fraud or collusion at first instance, that defence would have remained preserved and available for assessment by both the High Court and the Court of Appeal.

Accordingly, as rightly submitted by the Plaintiff's solicitors, the failure to plead fraud and/or collusion and/or conspiracy between THJ and LSB and non-involvement of the Plaintiff in the alleged accident completely deprived the Plaintiff of the opportunity to have the case adjudicated on that substantial basis.

Moving on, as evidenced by the 1 $ ^{st} $ Defendant's letter to the Plaintiff dated 04.05.2018, the Defendants were fully aware of the importance and necessity of THJ's presence as a witness in Suit 33 to establish the falsity of his police report.

The relevant paragraph of the aforesaid letter is reproduced hereinbelow-Conclusion We believe that this matter be resisted. We also believe that your Insured Rider should testify and enable us to cross-examine him on the genuineness of his police report compared to the newspaper article and the medical report from Hospital Pulau Pinang that alleges that a motorcar was involved with the Plaintiff. (emphasis added)

As such, the Defendants should and ought to have called THJ, THJ-W and LSB as witnesses, as their testimonies would have assisted the court in establishing the falsity of THJ's police report.

At the very least, pitting THJ's testimony against the testimonies of the other witnesses and the documentary evidence adduced by the Defendants would have severely undermined THJ's credibility and rendered his police report highly questionable.

Moreover, the Defendants were legally entitled to call THJ, THJ-W, and LSB as witnesses and subject them to cross-examination to ascertain the veracity of their testimonies in comparison to the contemporaneous documents adduced in Suit 33. In the event these witnesses proved adverse, the Defendants retained the liberty to apply to treat them as hostile witnesses pursuant to s.154 of the Evidence Act 1950.

Moving on, the Defendants' conduct amounts to a clear instance of approbating and reprobating to suit their changing narrative, a practice which the law does not countenance.

On one hand, they claim a lack of evidence to plead fraud and/or collusion and/or conspiracy in the Statement of Defence. Yet, on the other hand, they actively attempted to establish those very elements in Suit 33 by adducing supplementary documentary evidence, eliciting testimony from their own witnesses, conducting targeted cross-examinations of the Plaintiff's witnesses, and ventilating those issues in their post-trial submissions.

The principles on approbating and reprobating are well-established, as recently reaffirmed in Dyson Manufacturing Sdn Bhd v Ketua Pengarah Kastam, Jabatan Kastam Diraja Malaysia [2024] 4 MLJ 136 where the Court of Appeal held as follows- "[51] Such irreconcilable contradiction also represents a form of approbation and reprobation on the part of the respondent, which the law does not countenance. Regard may usefully be made to the decision of this court in the case of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761 which stated as follows- ... In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383-384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance." (emphasis added) (see also the Federal Court case of Nabors Drilling (Labuan) Corp v Lembaga Perkhidmatan Kewangan Labuan [2020] 12 MLJ 54).

The abovementioned actions and conduct of the Defendants coupled with the failure by the Defendants to call material witnesses—namely, THJ, THJ-W, and LSB—caused the Plaintiff to bear a judgment in the sum of RM778,476-86 awarded by the learned Sessions Court Judge. This omission severely prejudiced the Plaintiff's position in Suit 33 and consequently compromised the Plaintiff's prospects of success on appeal.

Based on the aforesaid reasons, this Court finds no merit in the Defendants' contention that their non-pleading of fraud and/or collusion and/or conspiracy between THJ and LSB and noninvolvement of the Plaintiff in the alleged accident in the Statement of Defence was due to an insufficiency plausible evidence of same.

The finding of this Court is further fortified by the $ 1^{\mathrm{st}} $ Defendant's letter dated 09.02.2022 to the Plaintiff (see pages 101-104 of Common Bundle of Documents Part B5 @ Encl 160), wherein the Defendants themselves admitted to omitting the plea of fraud in their Statement of Defence.

The relevant paragraph in the aforesaid letter pertaining to the admission is reproduced below- "When we filed our Defence, we had denied involvement, however, we had omitted to plead fraud in our Defence." (emphasis added)

The inclusion of the word 'omitted' constitutes clear evidence that the Defendants were fully cognizant of their legal duty and/or obligation to plead fraud in their Statement of Defence, which they nonetheless failed to do.

In the upshot, this Court finds that the Plaintiff has proved on a balance of probabilities that the Defendants' overall conduct fell well below the standard of care expected of a reasonably competent solicitor.

The Defendants' counterclaim is premised on the tort of abuse of process, wherein they allege that the Plaintiff initiated this suit for the collateral purpose of avoiding or reducing their liability to pay the Defendants' legal bills, under the guise of a frivolous and unmeritorious negligence claim.

It is submitted that Suit 33 concluded on 31.01.2019. Between 31.01.2019 until 21.07.2022, the Plaintiff continued to retain the Defendants, assigning a total of 323 files to them during this period.

The allegation of negligence only surfaced on 31.05.2023—more than four (4) years after the conclusion of the trial—and occurred when the Defendants sent their bills for the work done in Suit 33 and its subsequent appeals before the High Court and the Court of Appeal.

Having raised this allegation, the Plaintiff then made an offer of RM25,200-00 as full settlement for the Defendants' outstanding bill of RM98,977-10. The Defendants thus argue that the allegation of negligence is devoid of substance and was manufactured for the collateral purpose of pressuring the Defendants into accepting a significantly lesser sum.

It was further argued by the Defendants that if the Plaintiff was seriously contending that the Defendants were negligent, the Plaintiff would not have continued to instruct and retain them for 323 files. The Plaintiff's conduct and the substantial delay itself is reflective of the frivolous nature of the Plaintiff's allegations of negligence.

In any event, it is undisputed that to-date, the issue of the outstanding bills arising from numerous cases handled by the Defendants remains resolved. Consequently, the Plaintiff initiated taxation proceedings in respect of the Defendants' bills in the Kuala Lumpur High Court ("KLHC") vide Civil Suit Nos. WA-17D-42-12/2023; WA- 17D-18-05/2024 and WA-17D-9-03/2025 （'three taxation suits"），all of which are currently pending.

Be that as it may, the civil suit before this Court is premised strictly on the tort of negligence. Given that the taxation proceedings have already been filed by the Plaintiff in the KLHC, the Defendants' counterclaim regarding the unpaid bills should properly be addressed, ventilated and heard before the KLHC.

As such, this Court is not the proper forum to adjudicate the Defendants' counterclaim on the said matter. To prevent an unwarranted multiplicity of proceedings and the risk of conflicting judicial findings, the billing issues raised herein ought to be determined exclusively by the KLHC.

The Defendants also pray for a declaration that the Plaintiff's claim is barred by the six-year (6) limitation period under s.6 of the Limitation Act 1953.

The statutory limitation period of six (6) years would run from the date on which the Statement of Defence in Suit 33 was filed, i.e. on 27.10.2017, meaning that limitation would only set in on 26.10.2023.

As the Writ and Statement of Claim were filed on 20.10.2023, the Plaintiff's action against the Defendants for professional negligence was commenced well within the statutory limitation period.

In any event, in Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [2024] 3 MLJ 544, the Federal Court while referring to the English case of Bell v Peter Browne & Co (a firm) held "in actions founded in tort, damage is an essential element, without which there is no complete and actionable claim. Time runs from when damage occurs and not when the negligent act or omission occurred."

Thus, based on the aforesaid principles, the Plaintiff's cause of action accrued on the day the learned Sessions Court judge in Suit 33 apportioned liability against them for the payment of RM778,476-86, marking the point at which actual damage was sustained. Thus, 31.01.2019 being the date of the judgement in Suit 33, constitutes the date on which the six-year limitation period commenced.

Given this Court's finding that the Defendants breached their legal and professional duties by falling below the standard of care expected of a reasonably competent solicitor in Suit 33, it follows that the Plaintiff's action in negligence is neither frivolous, unmeritorious, vexatious, nor an abuse of the process of court.

Accordingly, the Defendants have failed to prove on a balance of probabilities that the Plaintiff's claims were filed with a collateral motive constituting an abuse of process of court. The Defendants have also failed to demonstrate that they are victims of punishable behavior in that they have been affected by the oppressive conduct of the Plaintiffs which would warrant the intervention of this Court through an award of exemplary damages.

Based on the reasons aforesaid, this Court allows the Plaintiff's claim with costs of RM100,000.00, subject to the payment of allocator fees. Consequently, the Defendants' Counterclaim is dismissed with costs of RM100,000.00, also subject to the payment of allocator fees. Counsel(s): Dato' Abd Shukor Ahmad and Mr. Aaron Aiman from Shukor Baljit & Partners for the Plaintiff. Mr. Raj Shankar, Mr. Muawair, Cik Darshni Sugumaran and Ms. Kireeninderjit Kaur from Messrs. Raj Shankar for the Defendant. Dato' Habib Rahman and Ms. Noroziyana from EzriLaw Firm as Intervener. Case(s) referred to: Ngan Siong Hing v RHB Bank Bhd [2014] 2 MLJ 449; Dyson Manufacturing Sdn Bhd v Ketua Pengarah Kastam, Jabatan Kastam Diraja Malaysia [2024] 4 MLJ 136; Nabors Drilling (Labuan) Corp v Lembaga Perkhidmatan Kewangan Labuan [2020] 12 MLJ 54; Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [2024] 3 MLJ 544; Bell v Peter Browne & Co.