Premalla A/P Navanthapany Samy v Tetuan Othman Hashim & Co (W-02(NCvC)(W)-2454-12/2022)

DATUK KESAVAN P. KRISHNAN (No. K/P: 551221-10-6329) ... RESPONDENTS [In The Matter of High Court of Malaya in Kuala Lumpur Civil Suit No: WA-22NCVC-270-06/2020 Between Premalla A/P Navanthapany Samy (NO. K/P: 681118-13-5856) ... Plaintiff

Tetuan Othman Hashim & Co (Sebuah Firma) ... Defendants] CORAM KAMALUDIN BIN MD. SAID, JCA SEE MEE CHUN, JCA HASHIM BIN HAMZAH, JCA JUDGMENT Introduction [1] This is the Appellant's appeal against the decision of the learned Judicial Commissioner ("JC") in dismissing the Appellant's claim for professional negligence and breach of fiduciary duty against the Respondents. Background Facts [2] The Appellant, in a Sale and Purchase Agreement dated 5.1.2015 ("SPA"), agreed to purchase a piece of land known as P.T.25974,H.S.(D) 96596, Mukim dan Daerah Petaling, Selangor Darul Ehsan ("the said Land"). [3] However, the said Land was already charged to RHB Bank Berhad ("RHB") as security for a loan by the seller, Normawati prior to the signing of the SPA. Normawati defaulted on her loan, leading to the foreclosure of the land by RHB and its subsequent auction to My Home Properties Sdn. Bhd. ("MHP"). [4] Later, the Appellant engaged the $ 2^{n d} $ Respondent as her counsel. The $ 2^{n d} $ Respondent is a partner in the $ 1^{s t} $ Respondent firm. In this case, the $ 1^{s t} $ Respondent is being sued for vicarious liability for the $ 2^{n d} $ Respondent's alleged professional negligence. [5] Acting upon the Appellant's instruction, the $ 2^{nd} $ Respondent filed a personal caveat dated 30.4.2015 on the said Land. Subsequently, the $ 2^{nd} $ Respondent filed a suit in the High Court of Shah Alam against Normawati seeking, among other things, for specific performance of the SPA. The Appellant's action was registered as Civil Suit No: 22NCvC-451-08/2015 ("the Initial Suit"). In the Initial Suit, the High Court had granted an order for specific performance in favour of the Appellant. [6] Subsequently, the $ 2^{\mathrm{nd}} $ Respondent filed a suit on behalf of the Appellant seeking for a declaration that the Appellant is the rightful owner of the said Land. MHP had also filed a separate suit claiming the same. The suits were registered as Civil Suit No: BA-22NCvC-373-06/2016 and BA-22NCvC-188-03/2017 ("the Subsequent Suits"). Both of these suits were heard together before the High Court of Shah Alam. [7] On 11.3.2019, after a full trial, the High Court delivered its judgment in favour of MHP and declared MHP to be the rightful owner of the said Land. DW2, who was an advocate and solicitor from the $ ^{1 \mathrm{st}} $ Respondent firm, attended the proceeding for the Appellant when the judgment was pronounced. DW2 had advised the Appellant not to proceed with an appeal against the said decision. This is the core issue in the present appeal, the details of which will be addressed later in this judgment. [8] The Appellant then filed a suit against the Respondents for professional negligence, breach of fiduciary duty and loss of chance allegedly suffered by the Appellant as a result of the Respondent's advice, which was claimed to be against the Appellant's best interest as their client. [9] The learned JC dismissed the Appellant's suit, hence this appeal. [10] We pause here to note that the Respondents had also filed an appeal against the decision of the learned JC in Civil Appeal No: W02(NCvC)(W)-85-01/2023. However, when the matter came up before us, the Respondents decided to withdraw their appeal, and there was no objection from the Appellant. We subsequently struck out the appeal with no order as to costs. Issues [11] Before us, the learned counsel for the Appellant raised the following issues to be determined by this Court, namely-a. whether the learned JC had erred in finding that the Respondents had not acted in breach of their duty of care towards the Appellant; b. whether the learned JC had erred in his finding that the Respondents had not breached their fiduciary duty towards the Appellant; and c. whether the learned JC had wrongly applied the doctrine of loss of chance in holding that the Appellant would not have succeeded in her appeal even if an appeal was filed against the decision in the Subsequent Suits. Our Findings [12] We have perused the appeal records and heard the submissions from all parties in this appeal. We have reached a unanimous decision, and our decision is as follows. First Issue: Professional Negligence [13] First and foremost, in order to succeed in her claim for negligence against the Respondents, the Appellant must establish the following elements, namely-a. the Respondents owe the Appellant a duty of care; b. the Respondents breach the duty of care; c. the Appellant suffers damage; and d. the damage suffered by the Appellant is not too remote. [14] See Wong Kiong Hung & Anor v Chang Siew Lan (f) [2009] 4 MLJ 183 (CA). Leave to appeal was not granted as reported in Chang Siew Lan (f) v Loh Chooi Teng (practising as Messrs CT Loh & Co a firm) [2009] 6 MLJ 776 (FC). See also Maelstrom Resources Sdn Bhd & Anor v Shearn Delamore (disaman sebagai firma) (and another suit) [2007] 1 AMR 754 (HC). [15] At the outset, the Respondents admitted, as they did in the High Court below, that their relationship with the Appellant at the material time was that of a client-solicitor relationship. The Respondents also admitted that they owed a duty of care towards the Appellant. [16] Richard Malanjum CJ (Sabah & Sarawak) (as he then was) speaking for the Federal Court in Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1 MLJ 773 held as follows: "[43] Once a solicitor-client relationship exists and thus a retainer, it put into operation the normal terms of the contractual relationship including in particular the duty' of the solicitor 'to protect the interests' of his client 'in matters to which the retainer relates by all proper means' (see Yong & Co v Wee Hood Teck Development Corporation)." (emphasis added) [17] The Appellant's complaint in the present case centres around the $ 2^{n d} $ Respondent's legal advice not to appeal against the High Court's decision in the Subsequent Suits. [18] In order to prove that the $ 2^{n d} $ Respondent had breached his duty of care towards the Appellant, the Appellant must therefore prove that the $ 2^{n d} $ Respondent's conduct had fallen short of the standard of care expected of a reasonably competent advocate and solicitor. [19] This can be done by either calling any advocate and solicitor to testify as to what a reasonably competent advocate and solicitor would have done in a similar situation or not depending of the factual circumstances of the case. [20] We affirm our earlier decision in Hijau Biru Envirotech Sdn Bhd v Tetuan Dzahara & Associates (sued as a firm) & Ors [2020] 5 MLJ 549 as follows: "[78] Turning next to the standard of care, no doubt, in the sessions court the appellant did not call any advocate and solicitor to testify as to what a reasonably competent advocate and solicitor would have done in a similar situation. [79] In this regard, we note that in Shearn Delamore & Co v Sadacharamani Govindasamy [2017] 1 MLJ 486; [2017] 2 CLJ 665; [2016] 6 AMR 797 CA, the Court of Appeal had posited that a client who sues their former solicitors for professional negligence have the burden proving that the solicitor's conduct had fallen short of the standard of care of a reasonably competent solicitor and that this is to be done by calling an advocate and solicitor to satisfy the element of breach of the standard of care (see also Ngan Siong Hing v RHB Bank Bhd [2014] 2 MLJ 449; [2014] 3 CLJ 984; [2014] 1 AMCR 829; [2014] AMEJ 0062 (CA)). [80] In Shearn Delamore's case, the former client had contended that the solicitors were negligent in respect of legal opinions which they had given on the subject of intellectual property rights. The former client did not call any advocate and solicitor who specialised in intellectual property law to testify in court. The appeal was allowed and the claim was dismissed. [81] However, in Nyo Nyo Aye v Kevin Sathiaseelan a/l Ramakrishnan & Anor [2020] 4 MLJ 380; [2020] 5 CLJ 82; [2020] 3 AMR 317 (CA), Suraya bt Othman JCA speaking for the Court of Appeal distinguished Shearn Delamore's case and stated that the failure to call an expert to testify as to the standard of care that is expected of an advocate and solicitor is not fatal in every case of professional negligence against an advocate and solicitor. [82] The issue in that case was a simple case, which pertained to the duty of a practitioner to inform and advise the client of the consequence of non-payment of security for costs (which was ordered by the court) which would result in the case being struck out (see para [64] of the judgment). [83] Thus, applying the principles that may be culled from the cases mentioned above, and looking at all the circumstances, we are satisfied that in the present case, the failure on the part of the appellant to call an advocate and solicitor to testify on how a reasonably incompetent advocate and solicitor would have handled the situation, is not fatal on the issue of breach of standard of care of a reasonably competent advocate and solicitor." (emphasis added) [21] In the present case, it is the Appellant's claim that the advice given by the $ 2^{nd} $ Respondent was not based on the $ 2^{nd} $ Respondent's duty to act in the best interest of the Appellant as their client. The Appellant claimed that the $ 2^{nd} $ Respondent wanted to preserve his reputation and avoid the High Court's written judgment that the $ 2^{nd} $ Respondent had committed fraud by not disclosing the successful auction of the said Land to MHP before the judgment was pronounced in the Initial Suit. Therefore, the Appellant claimed that the $ 2^{nd} $ Respondent had breached his duty of care towards her. [22] According to the learned counsel for the Appellant, the $ 2^{\mathrm{nd}} $ Respondent expressed his real intention in a meeting held on 16.3.2019 ("the said Meeting"). [23] In the said Meeting, the $ 2^{\mathrm{nd}} $ Respondent allegedly agreed to compensate the Appellant the current market value of the said Land, which was RM460,000.00, if the Appellant agreed not to appeal against the decision of the High Court in the Subsequent Suits. [24] It was further submitted that the subsequent conduct of the $ 2^{n d} $ Respondent after the said Meeting had shown that the $ 2^{n d} $ Respondent took active steps to ensure that the Appellant will not appeal against the decisions in the Subsequent Suits in consideration for the agreed payment as follows: a. an e-mail dated 15.5.2019 by the $ 2 ^{n d} $ Respondent to the Appellant appending a draft statutory declaration ("SD") which states that RM290,000.00 will be paid by the $ 2 ^{n d} $ Respondent to the Appellant in consideration for the Appellant signing the SD and agreeing not to appeal against the decision of the High Court in the Subsequent Suits; and b. a WhatsApp message from the $ 2 ^{n d} $ Respondent to the Appellant's husband on 13.7.2019 stating, among other things, that the $ 2 ^{n d} $ Respondent will pay RM290,000.00 to the Appellant in consideration of the Appellant signing the SD. [25] The learned counsel for the Appellant further submitted that there was no reason for the $ 2^{\mathrm{nd}} $ Respondent to draw up the draft SD if the advice not to appeal against the decision of the High Court in the Subsequent Suits was solely based on his legal opinion that an appeal was untenable. [26] According to the learned counsel for the Appellant, the only inference which can be deduced from the surrounding evidence is that the $ 2^{\mathrm{nd}} $ Respondent had agreed to compensate the Appellant monetarily for not appealing against the decisions of the High Court in the Subsequent Suits because the $ 2^{\mathrm{nd}} $ Respondent wanted to avoid the High Court's written judgment that the $ 2^{\mathrm{nd}} $ Respondent had committed fraud by not disclosing the successful auction of the said Land to MHP before the judgment was pronounced in the Initial Suit. [27] The learned counsel for the Appellant submitted that there was improper judicial appreciation of the evidence when the learned JC found that the Respondents had not breached their duty of care towards the Appellant and that the Appellant had failed to prove that the $ 2^{\mathrm{nd}} $ Respondent was negligent, even when presented with the abovementioned evidence. [28] We have perused the appeal records and the grounds of the learned JC's judgment. We do not agree with the submission by the learned counsel for the Appellant on this issue for the following reasons. [29] Firstly, regarding the said Meeting, the learned JC found that the evidence from the Appellant's witnesses was not credible (see paras. 46- 50 of the learned JC's Judgment). In particular, the learned JC found that the Appellant herself gave unreliable evidence when she kept changing her position throughout the case (see para. 79 of the learned JC's Judgment). In addition, evidence has also shown that the Appellant was only present for the earlier part of the meeting but had to leave shortly afterwards (pages 269 to 273 of Encl. 5). [30] Evidence of PW3, who was supposed to be present during the said Meeting, was also found to be not credible by the learned JC for the following reasons: "104. Nonetheless, I find that the Plaintiff's $ 3^{rd} $ witness, PW3, had a longstanding personal relationship with the Plaintiff and her husband. He had appeared many times as a witness for the Plaintiff in previous cases. It is also not clear why he was present at the said meeting and why his attendance was necessary in the first place. It is also not clear whether he was at the table where the discussion took place, or he was simply sitting at an ancillary table to the parties. This was not established by the Plaintiff. I, therefore, do not lend much credence to the evidence of the Plaintiff's $ 3^{rd} $ witness, PW3, on this issue." (emphasis added) [31] On this issue, it is trite that the learned JC, as the trial judge, had the advantage of seeing and hearing the witnesses and is entitled to his finding as to their demeanour and credibility. This is a benefit that we, as an appellate court, do not have. [32] It is also trite that the finding of the trial judge as to the demeanour and credibility of the witnesses' evidence ought not be disturbed unless the appellate court is convinced that the finding is plainly wrong. [33] We are guided by the decision of the Federal Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 as follows: "[80] Coming back to our present appeal, in reversing the decision of the High Court, the Court of Appeal applied the 'plainly wrong' test and applied it in the sense of 'judicial appreciation of the evidence'. In this respect, we reproduced the relevant paragraph of the judgment of the Court of Appeal: [18] We are mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the witnesses before him or her. Generally, such finding ought not be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant any interference merely because the appellate court entertains doubt whether such finding is right (See: Lee Ing Chin & Ors v Gan Yook Chin [2003] 2 CLJ 19, Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309). [19] The appellate court must be slow to interfere with the findings made by the trial court unless it is shown that there was no judicial appreciation of the evidence adduced before it. (Emphasis added.) [81] From the aforesaid, although the Court of Appeal was correct in stating the principle to be applied in appellate intervention, the issue is whether the observation by the Court of Appeal that there 'was no judicial appreciation of the evidence' is sustainable in view of the findings made by the learned trial judge. We will address this in the following paragraphs." (emphasis added) [34] We also affirm our earlier decision in Kyros International Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2013] 2 MLJ 650 as follows: "... (f)it is also well settled that appeal is a rehearing of a case (see ss 29 and 69 of the Courts Judicature Act 1964 ('CJA 1964')). However, when a court sits in its appellate jurisdiction and interferes in the finding of facts of a trier of facts there is a duty and obligation to meticulously go through the pleadings, witnesses' evidence, notes of proceedings and very importantly, the memorandum of appeal in full, and provide grounds of judgment. In Coghlan v Cumberland [1898] 1 Ch 704, the Court of Appeal stated that: Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong.

(g)in such a case, three things must appear from the judgment of the court exercising its appellate jurisdiction. They are as follows (i) the court has applied its mind to reasons given by the trier of facts; (ii) the court's cognisance that the trier of facts had the advantage of seeing and hearing the witnesses the benefit of which the appellate court do not have; (iii) the court must give cogent reasons for disagreeing with trier of facts. There are a number of cases to support the proposition that no doubt an appellate court has undoubted jurisdiction to reconsider the oral evidence and reach a finding contrary to that arrived by the trial court or trier of facts (as the case may be) but this it can do only if the grounds of its judgment satisfied the three conditions stated above (see BN Bannerjee's Law of Civil Appeals and Revisions, (4th Ed), (1994), p 723);..." (emphasis added) [35] Coming back to our present appeal, there is nothing before us to show that the finding of the learned JC on the credibility of the Appellant's witnesses is plainly wrong. The finding is also based on the evidence before him as can be seen in the appeal records. There is therefore no reason for us to disturb the finding of the learned JC on this issue. [36] Secondly, regarding the e-mail appending the draft SD and the WhatsApp conversation, the learned JC found as follows: "112. When I consider these two documents, it is obvious to me that the discussions centred around a proposal by the $ 2^{n d} $ Defendant to settle the claims that the Plaintiff may have against him and in return that the Plaintiff agrees that she will not pursue any claims against the $ 2^{n d} $ Defendant. This was not agreed to by the Plaintiff and the discussion fell through.

Under those circumstances, I cannot consider that the Defendants had admitted to any form of liability to the Plaintiff. The Plaintiff did not agree to the proposal for settlement and therefore could not be considered as a form of admission in any way against the Defendants. ...

It is clear that the conditions as suggested by the $ 2^{n d} $ Defendant were not agreed to by the Plaintiff. The Plaintiff did not execute the Statutory Declaration and had chosen instead to pursue the claim against the Defendants. Therefore, I cannot find that there was any form of admission as suggested by the Plaintiff as the overtures made by the $ 2^{n d} $ Defendant were clearly an attempt to settle the dispute.

Having chosen not to agree to the terms offered, it is wrong for the Plaintiff to now resurrect this issue through an alleged admission of liability. This allegation clearly contradicts the two documents that were written and produced by the $ 2^{n d} $ Defendant at the material time. There was also no response from the Plaintiff or her husband to the email and the WhatsApp communication. Therefore, for the above reasons, I do not believe that the Plaintiff has proven her claim against the Defendants." (emphasis added) [37] We agree with the finding of the learned JC. Since the e-mail appending the draft SD and the WhatsApp conversation contain the $ 2^{n d} $ Respondent's proposal for the settlement of their dispute and the proposed settlement never materialised, the Appellant cannot rely on the contents of these documents to establish that the $ 2^{n d} $ Respondent had admitted liability. In fact, we would even hold that these documents and their contents were inadmissible in the first place. [38] We agree and adopt our learned brother Lee Swee Seng J's (as he then was) decision in RHB Trustees Berhad v Oilfab Sdn Bhd & Anor [2015] MLJU 2085 as follows: "The use of the label "Without Prejudice" is common in many correspondence between parties especially when there are terms of a settlement that are being proposed with parties posturing and positioning themselves and proffering options and concessions along the way. The law has thus developed that such communications made on a without prejudice basis shall be excluded from the evidence to be produced at trial if a settlement does not materialise; otherwise no parties would want to negotiate at all for fear that what is proposed in the process of negotiation would be led in evidence by the party trying to gain an advantage to prove its case to the detriment of the other. Such a principle is well entrenched in many cases. Suffice to refer to just a few here. The Federal Court in Malayan Banking Bhd v. Foo See Moi [1980] 2 MLJ 17 speaking through His Lordship Chang Min Tat FJ said at page 18: "It is settled law that letters written without prejudice are inadmissible in evidence of the negotiations attempted. This is in order not to fetter but to enlarge the scope of the negotiations, so that a solution acceptable to both sides can be more easily reached. But it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement, unless of course the agreement has become incorporated in another document which would then be the evidence of the agreement."... ... Conversely a without prejudice communication even if not expressly stated to be such, would be precluded from being disclosed at a trial for so long as there were negotiations towards a settlement. Sinojaya Sdn Bhd v. Metal Component Engineering Pte Ltd [2003] 1 SLR 281...” (emphasis added) [39] It is also trite that inadmissible evidence remains inadmissible even if no objections were taken by the parties. More recently, Her Ladyship Mary Lim FCJ speaking for the Federal Court in Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd-LLC & Anor and another appeal [2023] 2 MLJ 324 held as follows: [29] The admission of a translation, or of any of the four translations required under O 92 of the Rules of Court 2012 for that matter, does not ipso facto admit the copy of the original Abu Dhabi judgment which remains intrinsically inadmissible for want of compliance with ss 78 or 86. It is settled law that inadmissible evidence remains inadmissible even if no objections were taken by the parties; more so when erroneously admitted contrary to the relevant principles under the Evidence Act see Supreme Court in Malaysia National Insurance Sdn Bhd v Malaysia Rubber Development Corporation [1986] 2 MLJ 124." (emphasis added) [40] Hence, we are of the considered view that the learned JC was correct in holding that there was no admission of liability on the part of the $ 2^{n d} $ Respondent. [41] The Respondents, on the other hand, denied the Appellant's allegation and stated that the advice not to appeal was based on the current position of the law. [42] According to the learned counsel for the Respondents, MHP's title over the said Land takes precedence over the title claimed by the Appellant. The said Land was charged to RHB Bank as security for a loan prior to the signing of the impugned SPA. Subsequently, Normawati defaulted on her loan and the said Land was foreclosed. As a result, the Land was successfully auctioned off to MHP. There was also evidence to show that the Appellant knew about the said charge at the time when they signed the impugned SPA. [43] Similar is the facts in Gondola Motor Credit Sdn Bhd v Almurisi Holdings Sdn Bhd [1992] 2 MLJ 650; [1992] 1 CLJ Rep 112 (SC) in which the Supreme Court ultimately held that- "...any dealing subsequent to the charge and with notice of the charge, as here, cannot defeat the indefeasible interest of the registered chargee and through him the purchaser at a judicial sale." (emphasis added) [44] See also Bayangan Sepadu Sdn Bhd v Jabatan Pengairan dan Saliran Negeri Selangor & Ors [2022] 1 MLJ 701; [2022] 2 CLJ 1 (FC) and Rohaya Ali Haidar v AmBank (M) Bhd [2016] 4 CLJ 563 (CA). [45] Therefore, it is the Respondents' case that an appeal against the decision of the High Court in the Subsequent Suits was bound to fail and that was the reason why the Appellant was advised not to proceed with the appeal. [46] We are of the considered view that the learned JC was correct in his finding that the advice given by the $ 2^{\mathrm{nd}} $ Respondent to the Appellant was sound in consideration of all of the above authorities. [47] Therefore, there is no reason to hold that the $ 2^{n d} $ Respondent had acted below the required standard of care of a reasonably competent advocate and solicitor when the Appellant was advised not to file an appeal against the decision of the High Court in the Subsequent Suits. Ultimately, we agree with the finding of the learned JC that the $ 2^{n d} $ Respondent had not breached his duty of care towards the Appellant. [48] In a nutshell, based on the foregoing reasons, we disagree with the learned counsel for the Appellant that there was improper judicial appreciation of evidence by the learned JC. We are of the considered view that the findings of the learned JC were supported with overall evidence adduced before him. In addition, we do not see any appealable errors committed by the learned JC when he found that the $ 2^{\mathrm{nd}} $ Respondent had not breached their duty of care towards the Appellant. [49] There is therefore, no merits in this issue. Second Issue: Loss of Chance or Opportunity [50] It is trite that damage is an essential element in any cause of action for negligence. In order to succeed in her claim against the Respondents, the Appellant must be able to prove that loss have actually occurred and that it is recoverable before an award of damages can be made. We affirm our earlier decision in Penang Port Commission v. Kanawangi Seperumaniam (No.1) [1997] 1 CLJ 423 as follows: [5] Damages are not awarded simply because the plaintiff has thrown them at the head of the Court. The loss must be shown to have actually occurred and also be recoverable in law before an award can be made. In the absence of these materials the trial Judge must have erred in law in refusing the appellant's application for a stay of execution." (emphasis added) [51] Before us, the learned counsel for the Appellant submitted that the Appellant had a chance of success if an appeal was filed. [52] On this issue, we are of the view that the learned JC was correct in his observation that it is wrong for an advocate or solicitor to refute his client's claim by claiming that his client has a weak case when dealing with loss of chance claim. [53] This is because the question to be determined is not whether the Appellant would have succeeded in her appeal against MHP but whether the Respondent's negligence has occasioned the Appellant to lose a valuable right, cause of action, chance or opportunity to claim her loss. See Lim Soh Wah & Anor v. Wong Sin Chong & Anor & Another Appeal [2001] 2 CLJ 344 (CA), Tenaga Nasional Bhd v Tetuan Ariff & Co [2014] 1 CLJ 1112 (HC) and Muthiah Ramasamy v Muguthan Vadiveloo [2022] 7 CLJ 940 (HC). [54] In the UK Court of Appeal case of Mount v Baker Austin (a firm), [1998] Lexis Citation 2479, two firms of solicitors sued by the appellant had successively caused the appellant's claims to be struck out for want of prosecution. The firms had also failed to advise the appellant as to the hopelessness of his claim whilst they were respectively acting for him. On this, Simon Brown LJ stated: "With these considerations in mind I would state the applicable principles as follows:-

The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value ie. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success. (I say 'negligible' rather than 'speculative' - the word used in a somewhat different context in Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 1602- lest 'speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.)

The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.

If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim (or defence) than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty and quite possible, indeed, that that is why the original action was struck out in the first place. That, however, is not inevitable: it will not be the case in particular (a) where the original claim (or defence) turned on questions of law or the interpretation of documents, or (b) where the only possible prejudice from the delay can have been to the other side's case.

If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra. 505 comes into play. With some regret, however, I conclude that the application of these principles cannot avail the appellant here. He would inevitably have lost his claim against Lloyds Bank: that is plain as a matter of law on the unambiguous wording of the guarantee. Similarly, he would have failed to defeat the Bank's counter-claim for interest: the contemporary documents were wholly inconsistent with his case that Mr Godfrey, the local bank manager, had committed the Bank to waive all interest due to it under the guarantee. The passage of time has in no way increased the appellant's difficulties in this regard; if anything, Mr Godfrey's death in January 1985 had removed one obstacle from his path. The plain fact is that the documents and surrounding circumstances were insuperable. Surprising and highly unsatisfactory though it is, I must conclude that both firms of solicitors were negligent not merely in allowing the appellant's successive claims to be struck out but also in not having properly advised him as to their worthlessness. Heavy though it was, the respondents here discharged the evidential burden upon them. I too, therefore, would dismiss this appeal." [55] We affirm our earlier decision in Pang Yeow Chow (practising at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490 as follows: [9] In addition, it must be noted when a matter is struck out there will be at least two types of damages for client. One is actual damage for costs to reinstate or refilling inclusive of instructing new solicitors to take conduct of the matter as the case may be and the other the 'loss of chance to sue'. To say 'actual damage' will not arise upon the case being struck out is a fact quite difficult to comprehend. However, on the second part of 'loss of chance' there will not be any liability if there is no actual loss and/or reasonable prospect of success as advocated in the submission of the appellant." (emphasis added) [56] On this issue, we agree with the learned JC that "the prospect of success is so low that an appeal is negligible and does not justify any form of damages to be imposed against them". [57] At the risk of repetition, this is based on the earlier finding of the learned JC that an appeal against the decision of the High Court in the Subsequent Suits was bound to fail with reference to the cases of Gondola Motor Credit Sdn Bhd (supra), Bayangan Sepadu Sdn Bhd (supra) and Rohaya Ali Haidar (supra). We see no reason to depart from his findings. [58] Therefore, we would hereby dismiss this issue for lack of merits. Third Issue: Whether There Is a Breach of Fiduciary Duty by The Respondents against the Appellant [59] The learned counsel for the Appellant submitted that the $ 2 ^{n d} $ Respondent had breached his fiduciary duty against the Appellant for the same reason above. It was further submitted that the learned JC erred in holding that the Respondents did not breach any fiduciary duty to the Appellant on the same ground. [60] It is important to note at the outset that the learned JC had made a remark in his grounds of judgment that the learned counsel for the Appellant had notified the Court that the Appellant would not be pursuing her claim for breach of fiduciary duty against the Respondents. [61] Regardless of the above, the Appellant relied on the same facts above to establish that the $ 2^{n d} $ Respondent had breached his fiduciary duty towards the Appellant. [62] Since our finding is concurrent with the learned JC that the $ 2^{\mathrm{nd}} $ Respondent's advice not to appeal against the decision of the High Court in the Subsequent Suits was objective and had not fallen short of the standard of care expected of a reasonably competent advocate and solicitor, we found this issue to be devoid of merits. Conclusion [63] In conclusion, based on all of the above, we found no merits in the Appellant's appeal. We hereby dismiss the appeal with costs of RM15,000.00 to the Respondents subject to allocator. The decision of the High Court is hereby affirmed. Dated: 21 May 2024 Solicitors For The Appellant: Latheefa Koya, Zaid Abd Malek & Khairun Nabila Khairuddin Tetuan Daim & Gamany Unit A-1-1, Block A 8 Avenue Jalan Sungai Jernih 8/1 Seksyen 8, Petaling Jaya Selangor Solicitors For Respondent: Wong Hok Mun & Tan Ying Xuan Tetuan Azim, Tunku Farik & Wong Unit 5.03, 5th Floor Wisma Badan Peguam Malaysia No.2, Leboh Pasar Besar 50050 Kuala Lumpur