1. ) TEY CHIN HUI 2. ) TEY CHIN SOON v TETUAN ARISSA TAN, CHIEN & CO. (Didakwa sebagai sebuah Firma)

Case Significance

Illustrates the requirement of a solicitor-client relationship as the foundation of a professional-negligence claim against a law firm, and the unsuitability of the originating-summons procedure where material facts are in dispute and must be resolved at a full trial.

This High Court decision at Johor Bahru concerns a professional-negligence claim against a firm of solicitors and the suitability of proceeding by originating summons. The plaintiffs sued the defendant law firm, Tetuan Arissa Tan, Chien & Co, over the administration of a deceased person's estate. A presumption-of-death order had been obtained not by the plaintiffs but by the deceased's mother, acting through the defendant firm; the firm then handled the application for a grant of letters of administration and the subsequent order for distribution of the estate. The plaintiffs alleged that the firm had deliberately or negligently obtained the grant and the distribution order without involving them as heirs, in breach of professional and fiduciary duties owed to them, and sought declarations and damages. The firm denied the allegations. The court examined whether the claim could properly be determined on affidavit evidence by originating summons. It held that the plaintiffs had not raised a prima facie case fit to proceed in that form. There were substantial disputes of material fact and, critically, there was no solicitor-client relationship between the plaintiffs and the defendant firm, the firm having acted for the deceased's mother rather than for the plaintiffs. Because a claim of professional negligence of this kind, resting on contested facts and a disputed duty, was not suited to the summary originating-summons procedure, the court dismissed the originating summons with costs of RM4,000, while noting that the plaintiffs remained free to bring their claim by writ, though the absence of any basis for liability might make that course futile. The court's approach shows that a claim in professional negligence depends first on a duty owed by the solicitor to the claimant, and that where the retainer ran only to another person the alleged heirs must establish some independent basis of duty before any negligence can be examined. The judgment is a useful illustration of the requirement of a solicitor-client relationship as the foundation of a professional-negligence claim, and of the unsuitability of originating summons where material facts are in dispute.