Professional Negligence

Intro/ Definition
• Professional negligence is a breach of the duty of care between
professionals and their clients.  
• Professional negligence is where a professional person (solicitor) fails
to perform to the standards required of them, resulting in their client
suffering damage or loss.
• A professional person has a duty of care to their client to perform their job to
a reasonable standard and with reasonable care.
• Negligence occurs if the professional has not provided a reasonable level of
skill and care and the level of service or standard of work that could
reasonably expect from a professional working in those circumstances.
• Lawyers or practitioners who render their services to others for
remuneration is liable to perform his duties like a professional with
full devotion or commitment without negligence in his work.
• The duty of care is : where the client expects a level of
professionalism and standards held by those in the profession.  
• However if a solicitor himself conducts a court case and he has
devoted his best to present the case but the decision was not in
favour of his client, he is therefore not liable.
• It is common nowadays that advocates and solicitors are being sued
for negligence.
• Therefore those who are just entering the profession to be aware of
these potential claims and take steps in whatever way to maintain
the high standard of the profession. 
• The standard of care which is the duty of care is not a “ warranty
of perfection ”(not a guarantee as a good and outstanding lawyers)
but as a lawyer who professes specific (special) expertise may have
to exercise a higher standard of care.
• A person who retains a solicitor with special skills pays a higher fee
and demands a higher quality of legal services.
Example
• Giving advice to clients that causes them a loss
• Issuing claims after limitation has made the claim time barred
• Not following client instructions correctly
• Failing to sell or buy property properly
• Under settling compensation claims, this is especially true in personal
injury and medical negligence cases.
• Causing claims to be struck out by the courts
• Making errors in will drafting
• The standard of care was formulated in the leading case of Lanphier v.
Phipos by TindalC.J. (1838) 8 C. & 1’. 475,479:

• “ Every person who enters into a learned profession undertakes to bring to

the exercise of it a reasonable degree of care and skill. He does not
undertake, if he is an attorney, that at all events you shall get in your
case . . . but he undertakes to bring a fair, reasonable, and competent
degree of skill.”
Essential Element to prove:
• That the professional (solicitor) owed a duty of care,
• As there is a contract between you and them, or
• As there was a particular relationship that gave rise to the need for the
solicitor to be careful in their work.
• That duty must have been breached by poor advice or work.  
• The test is whether they did a poor job by comparing what a reasonably
competent professional in their position would have done.
• And the breach must have caused loss, whether to a physical asset or
pure financial loss. 
• In Malaysia, the claims for professional negligence may be based either on
contract or on tort.
• An action for breach of contract accrues at the time of breach whereas in tort it
accrues on the occurrence of damage.
• However for breach of contract, the actual damage which follows the breach is
not obvious or not immediate.
• It will take sometimes for us to realise that there is a breach of contract and to bring an
action for professional negligence.
• the doctrine of privity, only clients (as they are the parties to the contract) can bring
actions for negligence.
• A lawyer can be made liable for breach of contract if the client can show that
the act or omission complained of comes within the scope of the contract of
retainer or warrant to act.
• Here there exists a contractual relationship or fiduciary duties between lawyers and
clients.
• While in tort action, the client must show that a duty of care was
owed by the professional against them and that the duty was
breached.
• If they failed to exercise their duty they may be sued for professional
negligence.
• Therefor lawyers or practitioners must always be careful in exercising
their duty or professional skill towards client.
• For example if they are not clear on certain legal matters they might
keep the opinion to themselves and do further research to find out
the solution or to get themselves clear on the matter before giving
any advice to client.
• Section 3 of the LPA defines advocates & solicitors as ‘a person admitted and enrolled
under the LPA 1976.
• A client is a person who retains or employs an advocate and solicitor and is a person
who is liable to pay a solicitor’s costs.
• Section 114 LPA states that advocates & solicitors may enter into an agreement on
matters pertaining to the remuneration with the client (contractual relationship).
• Section 117(4) of the LPA states that any provision in the agreement which states that
the advocate and solicitor shall not be liable for negligence or that he shall be relieved
from any responsibility to which he would otherwise be subject as an advocate and
solicitor shall not be liable for negligence or that he shall be relieved from any
responsibility to which he would otherwise be subject as an advocate and solicitor
shall be wholly void.
• (This provision allows a client to commence a suit in negligence against advocate and solicitor,
no immunity against lawyers who failed to exercise their professional duty.)
• s. 117(4) LPA1976 – any agreement with a client absolving Advocate from negligence – wholly
void
• Miranda v Khoo Yew Boon [1968] 1MLJ 161
• Memorandum of Appeal was filed out of time.
• FC – any agreement relieving the Advocate & Solicitor for liability in negligence shall be wholly void. A &
S negligent. Fundamental duty keep accurate diary of cases and inform client.

• Ngeo Soo Oh v Rethinasamy[1984] 1 MLJ 126

• A Solicitor who did not conduct a land search and failed to inform the client that the subject land was
gazzetted for compulsory acquisition.
• Held:- liable to compensate in tort for breach of duty of care in failing to discharge his duties. Also liable
contractually for breach of contractual duty as the client’s Solicitor.

• Sykt. Siaw Teck Hwa Realty & Developments S/B v Malek & Joseph Au (sued as a firm)
[1999]5MLJ 588
• A FC appeal was struck out because Counsel failed to appear in court.
• HC Held – professional negligence. Blatant non-compliance of the Rules and total disrespect to the FC.

• Lim Soh Wah & Anor. v Wong Sin Chong & Anor.[2001]AC1AMR 2001
• A & S absent in court on the trial date and failed to inform client of trial date.
• CA:-case struck out. Negligence of the advocate & solicitor.
• English law accorded the Barrister immunity from being sued for
negligence.

• Advocate's immunity is a doctrine of the common law which operates to

prevent an unhappy litigant from suing their lawyer over the lawyer's
conduct of the litigation

• That immunity was confirmed in the modern starting point, considered in

the case of:

• Rondel v. Worsley[1967] 3AER 993

• In the first place, the administration of justice was seen to require a barrister to
carry out his duty to the court, fearlessly and independently.
• the ancient immunity available to English barristers, founded on principles of public
policy and considerations of the interest of the administration of justice under the
cab-rank rule
• overriding duty to court – may conflict with client’s personal interests
• every counsel has a duty to his client to fearlessly raise every issue, advance every argument
and every question, however distasteful, which he thinks he will help’s his client’s case
• As an officer of the court lawyers should focus on the administration of justice
• Cab- rank principle – barristers do not pick and choose briefs
• barrister is obliged to act for any person if their matter falls within the barrister's
usual area of practice and the person is prepared to pay the appropriate fee.
• The main benefit of the rule is that it ensures that every person receives
representation, regardless of their reputation and of how unattractive their case
might be. It was feared that the rule might not be followed if barristers
identified a person as likely to sue if the case were lost.
• Absolute privilege – in respect of proceedings in court
• However, 20 years later the House of Lords changed its approach, in 3
joined cases

• Arthur J S Hall & Co v Simons;

• Barratt v Ansell; and [2000] 3WLR 543
• Harris v Scholfield Roberts & Hill

• HL in a majority decision rejected the previous arguments for

immunity
• Lord Hoffmann dealt with the principle issues in challenging the immunity accorded:-

• Evidential Difficulties –
• The plaintiff has to prove that the lawyer’s negligence caused him loss. His case may become weak with the
passage of time, but that itself is no reason for giving lawyer’s immunity from suit. 

• Invidious (Unfair) Judgments –

• On the issue of the impracticality of deciding how a judge would have reacted if the advocate had advanced a
different argument or evidence,- such argument was imaginary, since it must be presumed that the judge would
have behaved rationally and judicially

• Conflicting Judgments –
• On the issue of relitigation by collateral means - not all relitigation of the same issue would be manifestly unfair
to the party or bring the administration of parties into disrepute, and secondly, when relitigation, for one or the
other reason is an abuse, the court has the power to strike it down. 

• Cab rank principle – in reality the barrister has a clerk who is free to choose and quote fees.

• Absolute privilege – freedom of speech in court has nothing to do with immunity from negligent conduct.

• Overriding duty to court – a similar conflict of interest is faced by other professionals eg. doctors.
Other jurisdictions

• Canada - Demarco v Unggaro [1979]95 DLR(3d) 385 lawyers no immunity.

• USA - no immunity
• Europe – no immunity
• Australia – Gainarelli & Ors. v Daryl Wraith & Ors. [1988] 9LR 17 p 1- lawyer accorded
immunity
- D’Orto-Ekenaike v Victoria Legal Aid [2005] HCA 12 – principle of immunity
overturned

• New Zealand - Lai v Chamberlains [2007] NZLR 7 – principle of immunity overturned.

• Singapore – Majid v Muthusamy [1968]2MLJ 89 – no immunity