This case concerns our Client’s successful professional negligence claim against a lawyer. It is a cautionary tale of the consequences of failing to follow a client’s instructions. Whilst the case concerns lawyers, it applies to professional advisers of any specialism.
In this case, the Court ruled in our Client’s favour, finding that the said lawyer owes both a contractual and tortious duty of care to our Client and decided that the said lawyer was liable to compensate our Client for the loss caused by his negligence and breach of duty of care. The Learned Judge further awarded General Damages, Exemplary and Punitive Damages with interest at 5% per annum on the judgment sums from the decision date until full settlement and costs to our Client.
The lawyer has appealed further against the decision of this court.
Brief Facts
Our Client, a Chartered Accountant by profession, who is a Malaysian citizen, resides and works in the Netherlands. In the year 2020, our Client was embroiled in a dispute involving a company based in Kuala Lumpur. This led our Client to seek legal advice and representation from the lawyer to defend her in that civil suit. Due to mismanagement of our Client’s case, the lawyer failed to follow our Client’s instructions, failed to attend Court for mention, and failed to comply with the Court’s directions, which ultimately resulted in judgment being entered against our Client for our Client’s “purported disobedience” to the Court’s instructions.
Our Client, however, was not informed of the judgment that had already been entered against her. Our Client had attempted to seek updates on the progress of her case but was met with silence, prompting our Client to assume that her case was still ongoing. It was only until the following year that our Client knew that she had lost her case by default when our Client’s bank informed her that her banking account had been garnished and all monies in it seized by the opponent. As a result of the professional negligence, our Client lost by default the opportunity to defend a claim with a good prospect of success, had her monies garnished from her account, and had a bad credit rating.
How to Prove Professional Negligence?
(a) That the lawyer owed a duty of care – This is usually established when you have instructed a lawyer to act on your behalf. For instance, the lawyer’s retainer or terms of service will also set out the agreed scope of work.
(b) That the lawyer breached that duty of care– A lawyer will generally be found to have breached their duty if their actions fell below a certain standard of care.
(c) That this breach caused you to suffer a financial loss – If you can prove that a duty of care exists and that it was breached, you will need to prove that the lawyers’ actions directly caused you to suffer a financial loss. Often, the starting point for establishing causation is the ‘but for’ test, which outlines that the professional will only be responsible for your loss if such loss would not have occurred ‘but for’ the professional’s negligence.
Further, in some instances, it will be relatively easy to quantify a loss, but in other circumstances, it will require some forensic work to establish just how much has been lost or how much should have been gained had the professional’s advice not been negligent. A person or business must mitigate their losses, meaning they need to have taken reasonable action to reduce the loss caused by the professional’s negligence. You cannot recover damages for losses that you could have avoided or are deemed to be unreasonable.
Speak to Us
If you have a claim against a professional and want expert legal advice, please call us at +603 6419 9511 or email us at info@chernco.com.my so we can assess your case.
Note: This Article does not constitute legal advice. For further information, don’t hesitate to contact our Kuala Lumpur office.