Tang Siew Kooi v Teoh Ai Bin

Case Significance

Illustrates that establishing a solicitor's duty of care — even to two clients as a common solicitor — is only the starting point: the client must still prove breach of that duty or of a fiduciary obligation and resulting recoverable loss, and the claim fails where breach and loss are not made out, whether or not expert evidence is led.

This High Court decision concerns a claim of professional negligence and breach of fiduciary duty against a solicitor, tried to its conclusion. The plaintiff and the defendant are natural persons referred to here by their roles; the defendant is an advocate and solicitor who was alleged to have acted negligently and in breach of fiduciary duty in the drawing up of an agreement. The case is a useful illustration of what a client must prove to succeed against a solicitor, particularly where the solicitor acted for more than one party to a transaction.

The court identified the issues: whether the defendant had acted as the common solicitor for the plaintiff and another party in drawing up the agreement, and if so the existence and scope of the duty of care owed; whether the plaintiff's failure to call an expert witness was fatal to the claim; whether there had been a breach of the duty of care or of fiduciary duty; and whether the plaintiff had suffered loss or damage.

On these issues the court made findings that, taken together, defeated the claim. It found, first, that the defendant "did indeed act as common solicitor and owed a duty of care" — so the relationship and a duty were established. Second, it held that the plaintiff's failure to call an expert witness "was not fatal", because the court could itself ascertain the position on the facts and evidence before it. But, third, the court found that the plaintiff "has failed to establish that [the defendant] was negligent or had breached any fiduciary duty"; and, fourth, that the plaintiff "failed to prove loss and damage". Since a negligence claim requires proof of breach and of resulting loss, the failure on both was decisive, and the plaintiff's claim was dismissed.

The judgment is a useful reminder that establishing a solicitor's duty of care — even a duty owed to two clients as a common solicitor — is only the starting point: the client must still prove that the solicitor breached that duty or a fiduciary obligation and that the breach caused recoverable loss, and a claim fails where breach and loss are not made out, whether or not expert evidence was led.