Tan Lay Ean v 1. ) Kenneth Yoong Ken Chinson St James 2. ) Bar Council Malaysia

Case Significance

Confirms that in reviewing a decision of the Advocates and Solicitors Disciplinary Board the court asks whether an alleged breach of the right to be heard was material to the outcome, and will not set the decision aside where the breach was insignificant or made no difference.

This Court of Appeal decision concerns a challenge to a decision of the Advocates and Solicitors Disciplinary Board and the significance of an alleged denial of the right to be heard. The appellant had filed an originating summons in the High Court under section 103E of the Legal Profession Act 1976, seeking to overturn a disciplinary outcome; the underlying complaint concerned whether it was professional misconduct for the appellant to describe an opponent litigant — who was himself, by profession, an advocate and solicitor — as a frivolous and vexatious litigant. The High Court dismissed the originating summons, and the appellant appealed. A central ground of appeal was that the Disciplinary Board should have accorded the appellant a right to be heard before making its decision.

The Court of Appeal accepted the importance of the right to be heard but held that not every breach of that right will automatically vitiate a disciplinary decision. Applying the approach in the Federal Court's decision in Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd, it reasoned that a court must consider whether any breach was of real significance — whether it was serious enough to have had a genuine impact on the outcome. A mere breach of the right to be heard, where it was insignificant or made no difference to the final decision of the Disciplinary Board, is insufficient in itself to justify setting the decision aside or overturning the High Court's refusal to intervene.

The Court of Appeal dismissed the appeal and affirmed the High Court order, with no order as to costs. The judgment illustrates that in reviewing a disciplinary decision the court asks not merely whether a procedural right was breached, but whether the breach was material to the outcome, and it will decline to set aside a decision where the breach had no real impact.