LIM CHOON LAI v 1. ) HELIOZ (M) SDN BHD 2. ) NG YIM HOCK

Case Significance

Affirms that disqualifying a party's chosen advocate and solicitor is not a trivial step: the right to counsel of choice is treated as a constitutional right, and strong, cogent reasons are required before a solicitor who drafted a disputed agreement will be restrained from acting.

This High Court decision at Shah Alam, delivered by Judge Noor Hayati binti Haji Mat, concerns an application by the defendants to disqualify the firm Messrs E.J. Ong & Partners, and its solicitors, from continuing to represent the plaintiff, brought under Rules 3, 4, 5 and 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978. The underlying suit arose from a tenancy of premises in Kota Damansara, Petaling Jaya, let by the plaintiff to the first defendant company under a tenancy agreement, with the second defendant standing as guarantor. That agreement had been drafted and prepared by Mr Ong, the sole partner of the firm, who later acted for the plaintiff in commencing the suit. The defendants contended that because their principal defence was that the tenancy agreement was tainted with illegality and therefore void, and because Mr Ong had advised on and drafted that agreement, he would be a potential witness, giving rise to a conflict of interest and possible embarrassment that ought to bar the firm from acting.

The court rejected the contention. It observed that the defendants did not deny the existence of the agreement in a way that would require the solicitor to testify for or against them, and had not shown that Mr Ong or the firm acted for the defendants in the execution of the tenancy agreement beyond the fact that the defendants had paid the fees. Nor had they demonstrated any pecuniary interest of the solicitor in the outcome. The court emphasised that disqualifying a solicitor is not a trivial matter: a party's right to be represented by the advocate and solicitor of its choice is a constitutional right, and disqualification on insubstantial grounds should not be entertained unless strong and cogent reasons are shown. Finding no real conflict of interest, embarrassment, or breach of natural justice, the court dismissed the application with no order as to costs, its reasons being furnished because the defendants had appealed to the Court of Appeal. The judgment is a concise statement of the high threshold for restraining a litigant's chosen solicitor from acting.