Chong Yeo V Guan Ming Hardware

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30 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)
Chong Yeo and Partners and another

v
Guan Ming Hardware and Engineering Pte Ltd
[1997] SGCA 63
Court of Appeal — Civil Appeal No 111 of 1996

Yong Pung How CJ, M Karthigesu JA and L P Thean JA
5 March; 26 May 1997
Tort — Negligence — Defences — Immunity of counsel — Whether advocates and
solicitors entitled to immunity recognised in Rondel v Worsley
Tort — Negligence — Duty of care — Advocate and solicitor — Delay in summary
judgment application due to counsel’s default so that debtors wound up before
judgment could be executed — Whether counsel owed a duty of care in these
circumstances — Whether delay amounted to breach of duty of care
Facts
The plaintiff/respondent was the client of the defendants/appellants, a law firm.
The firm applied for summary judgment in the client’s claim against a debtor
under the recently amended The Rules of Court 1996 O 14. The firm failed to
exhibit the documents in the affidavit filed in support of the application as
required by the new O 14. The application for summary judgment was thus
adjourned. By the time the summary judgment was obtained, a receiver had
been appointed over the debtors and the company was eventually wound up.
The client sued the firm for negligence on the basis that the firm in failing to
exhibit documents in the O 14 application had breached its duty of care to the
client causing them damage. The firm’s defence was that there was no negligence
either because it did not owe a duty to take care or it had not breached its duty or
it had not caused any damage and it further argued that it possessed the
immunity from suit recognised in Rondel v Worsley [1967] 3 All ER 993. The
firm counterclaimed for its retainer fees. The judge found that the firm had been
negligent in the O 14 application, but found against the client on all other issues.
The judge also found that there was no immunity applicable in the
circumstances. The firm appealed.
Held, allowing the appeal in part:

(1) The position in Singapore on the immunity of counsel from negligence
actions on the basis of Rondel v Worsley was open so the judge below was free to
determine the scope of the rule. In determining whether the principle should
apply in Singapore, the public policy considerations might be categorised as:
(a) overriding duties; (b) general privilege; and (c) abuse of process: at [40] and
[42].
(2) In respect of the overriding duties, this encompassed consideration of the
cab rank rule, the principle of independence of counsel, and the duties owed to
the Court. The cab rank rule did not apply in Singapore but even if it did, it does
not necessarily lead to the conclusion that counsel should be covered by
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Chong Yeo and Partners v

[1997] 2 SLR(R) Guan Ming Hardware and Engineering Pte Ltd 31
immunity for negligence. If a barrister was under a duty to represent anyone

who was able to afford his services, the restriction on the freedom to refuse a
client could be dealt with by a restriction on the duty of care. The principle of the
independence of counsel was related to the duty owed by counsel to the court.
There was no reason why counsel should be torn between their duty to their
client and to the court. The duties owed to the court and counsel’s independence
were higher duties which might excuse the breach of the duty owed to the client:
at [42] to [45].
(3) The argument that if counsel were liable for negligence, they would
engage in defensive litigation by being prolix and pursuing unnecessary
arguments was also adequately controlled by imposing hearing fees, case-
management by the courts, intervention by judges and award of costs: at [47].
(4) In respect of the general privilege conferred on participants in a trial
which exempted them from actions in defamation, this did not grant immunity
from negligence but merely protected freedom of speech. It was therefore
irrelevant to this suit: at [49].
(5) In respect of the question of abuse of process, this concerned mainly the
fear of re-litigation of issues settled in the earlier hearing when counsel were
sued subsequently for negligence. However the difficulties with re-litigation
were not insurmountable. The fear was also strongest only in the context of
criminal trials where it was necessary to ensure that criminal convictions were
challenged in the proper forum as part of the criminal trial process. Many of the
problems highlighted in the English cases would not be faced in Singapore as
juries were no longer in use here. Any difficulties that did remain act as a
deterrent against frivolous suits by disgruntled litigants and militate strongly
against trigger-happy tendencies. In any case no such considerations applied to a
claim of negligence in the conduct of civil matters: at [51] to [53].
(6) Therefore, the public policy considerations that led to the Rondel v
Worsley immunity did not apply in Singapore. A claim in negligence against an
advocate and solicitor in respect of the conduct of proceedings in court was not
barred save where that claim was against the conduct of a criminal case. In such
a case, the bar to the suit arose not because of an immunity granted to the
advocate and solicitor but because the suit would be an abuse of the court
process: at [55].
(7) The only duty of care owed by the firm was the general duty to conduct
proceedings with due diligence and speed and not to cause any delays [at 56].
The firm did not owe a duty to guard against the winding up or appointment of
receiver over the debtor as there was not a sufficiently proximate relationship
between the parties to justify the imposition of such a duty. Holding the firm to
such a duty would impose too heavy a burden on advocates and solicitors
accepting a normal retainer: at [56] and [60].
(8) The firm failed to exhibit the necessary documents as required by the new
O 14 rules. This was clearly a breach of the duty of care they owed: at [74].
(9) The breach would normally only cause a delay in the client’s recovery of
the sums due to them. The winding up of the debtors was therefore a break in
the chain of causation unless it was likely to occur. On the facts, it was
questionable whether there was any likelihood, as opposed to a possibility, of the

winding up occurring: at [75] and [76].
(10) The actual loss to the client was being out of pocket for the period of delay
occasioned by the delay caused by the firm’s breach. The sum to be recovered
was therefore the loss of use of money: at [79] and [80].
(11) The firm’s counterclaim for its retainer was granted as they managed to
obtain judgment which would have returned a sum to the client if it were not for
the winding up: at [81].
Case(s) referred to
Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 (refd)
Carslogie Steamship Co Ld v Royal Norwegian Government [1952] AC 292 (refd)
Demarco v Ungaro (1979) 95 DLR (3d) 385 (refd)
Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172 (refd)
Roger John Massie Dunlop v Woollahra Municipal Council [1981] 2 WLR 693
(refd)
Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984]
AC 1296 (refd)
Faithfull v Kesteven (1910) 103 LT 56 (refd)
Giannarelli v Wraith (1988) 81 ALR 417 (folld)
Godefroy v Dalton (1830) 6 Bing 460; 130 ER 1357 (refd)
Hadley v Baxendale (1854) 9 Exch 341 (refd)
Harrington v Binns (1863) 3 F & F 942; 176 ER 429 (refd)
Kitchen v Royal Air Force Association [1958] 1 WLR 563; [1958] 2 All ER 241
(refd)
Koufos v C Czarnikow Ltd [1969] 1 AC 350 (refd)
Laidler v Elliot (1825) 3 B & C 738; 107 ER 907 (refd)
Lamb v Camden London Borough Council [1981] QB 625 (refd)
Levy v Spyers (1865) 1 F & F 5n; 175 ER 599 (refd)
Majid v Muthuswamy [1968–1970] SLR(R) 229; [1965–1968] SLR 325 (refd)
Oropesa, The [1943] P 32; [1943] 1 All ER 211 (refd)
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617
(refd)
Rees v Sinclair [1974] 1 NZLR 180 (refd)
Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 (not folld)
RSP Architects Planners & Engineers v Ocean Front Pte Ltd [1995] 3 SLR(R) 653;
[1996] 1 SLR 113 (folld)
Saif Ali v Sydney Mitchell & Co (a firm) [1980] AC 198 (folld)
Smith v Linskills (a firm) [1996] 1 WLR 763 (refd)
Somasundaram v M Julius Melchior & Co (a firm) [1988] 1 WLR 1394 (refd)
Wagon Mound, The [1961] AC 388 (refd)
Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu [1994] 1 SLR(R) 1004; [1994]
3 SLR 101 (refd)

Legislation referred to
Bankruptcy Act (Cap 20, 1996 Rev Ed) s 53(1)
Companies Act (Cap 50, 1994 Rev Ed) s 329
Rules of Court 1996, The O 14 r 2
Wong Meng Meng SC, Monica Chong and Nandakumar (Wong Partnership) for the
appellants;
Devinder Rai and Melvin Khoo (Harry Elias & Partners) for the respondent.
[Editorial note: The decision from which this appeal arose is reported at [1996] 2
SLR(R) 382.]
26 May 1997 Judgment reserved.

Yong Pung How CJ (delivering the judgment of the court):
1 This is an appeal against a decision of Christopher Lau JC finding that
the appellants were negligent in the conduct of a matter for which they were
retained by the respondents, and disallowing the appellants’ claim for their
retainer. After hearing arguments from both sides, the court took time for
consideration. Judgment is now given.
The facts
2 In late 1991, the respondents were owed money by Argos Engineering

Pte Ltd (“AE”) and Argos Steel Structure (S) Pte Ltd, which were, as their
names show, related companies. Larry Lee (“Mr Lee”), the managing
director of the respondents, decided to commence legal proceedings against
the Argos companies and in October 1991, the respondents retained the
appellants, the second appellant being the partner having conduct of the
matter.
3 Although a number of allegations were made by the respondents

below as regards the conduct by the appellants of the matters against both
AE and Argos Steel, the present appeal is only concerned with the
proceedings against AE, which owed the respondents $82,920.40. On or
about 24 October 1991, the respondents received a cheque for $20,600.30
from AE in part payment of the money owed. There was a dispute in the
court below about whether the appellants actually advised the respondents
to return this cheque. What is relevant is that through matters related to the
cheque there is some indication that the appellants learnt subsequently, by
about 20 November 1991, that AE owed money to a number of creditors.
4 The respondents filed a writ on 24 October 1991, and AE entered

appearance on 31 October 1991. On 20 November 1991, the appellants
applied for summary judgment under O 14 r 2(8) of the Rules of the
Supreme Court 1970. Order 14 was at the time recently amended, with the
amendments having come into effect on 1 August 1991. The application

was supported by an affidavit without any documents exhibited. There is no
dispute that by that time the appellants had in their possession copies of
documents relating to the money owed.
5 At the hearing date, on 13 January 1992, upon an objection taken by
solicitors for AE, the senior assistant registrar came to the conclusion that
the appellants failed to exhibit the necessary documentary evidence in
support of the respondents’ claim as required by O 14. The senior assistant
registrar adjourned the hearing to 16 March 1992 to allow the appellants to
file a supplementary affidavit which would cure the shortcomings in the
original affidavit by exhibiting the necessary evidence. The second
appellant tried to convince the senior assistant registrar otherwise on
14 January, but failed.
6 Meanwhile, another creditor of AE, First Hydraulics Pte Ltd obtained
judgment against AE on 25 January 1992. In March 1992, First Hydraulics
managed to recover about $99,000 from AE. Evidence was given of this by
First Hydraulics’ solicitor.
7 On 16 March 1992, after the adjourned hearing of the O 14
application, judgment was obtained against AE for $82,920.40, costs and
$1,976.46 interest. Upon Mr Lee’s instructions to garnish, the appellants
obtained a garnishee order nisi on 31 March 1992. Order absolute was to be
granted on 4 May 1992, but, before then, a winding-up petition was
presented by another of AE’s creditors on 24 April 1992. The hearing for
the order absolute was adjourned sine die. The petition was eventually
dismissed on 22 May 1992, but, before then, on 20 May 1992, a receiver of
the company was appointed. Eventually, AE was ordered to be wound up
on 17 July 1992.
8 The respondents then sued the appellants for negligence. A number of
allegations were made, but the only live one at this point is that the
appellants had been negligent in not exhibiting documents in the affidavit
filed in support of the application for summary judgment. If the appellants
had done so, the respondents say that they would have been able to recover
the money owed to them. The appellants replied contending that there was
no negligence, or causation. Further, even if they had been negligent, they
were protected by an immunity recognised in Rondel v Worsley [1967] 3 All
ER 993. The appellants counterclaimed for the retainer owed to them in
respect of proceedings against AE as well as Argos Steel.
The judgment
9 The judge found against the respondents on most issues save that the
appellants had been negligent in the O 14 application. The judge considered
that there was no immunity applicable in the circumstances. While the case
of Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 reformulated the

immunity identified in Rondel v Worsley, extending it to cover matters

affecting the conduct of the case in court, the judge considered that a surer
guide to determining the scope of the immunity was to examine the
underlying concerns of public policy identified by the law lords in Rondel v
Worsley itself. In this regard, the judge did not consider that he was bound
by the Federal Court decision on appeal from Singapore in Majid v
Muthuswamy [1968–1970] SLR(R) 229 as the statements endorsing Rondel
v Worsley there were dicta.
10 Four policy considerations were identified: the cab rank rule, the duty
owed by the advocate and solicitor to the court; the need for independence
of counsel and the fact that a claim in negligence would amount to a de
facto retrial of the original case, which constituted a collateral attack on the
prior decision. The judge concluded that the independence of counsel and
the duty owed to the court really only go to the question whether a breach
was committed: they do not affect the existence of a duty. As for the cab
rank rule, the judge considered that this rule, the force of which is doubted
even in England, was irrelevant in a fused profession. That only left the
need to protect against collateral attacks, which was the only basis for the
immunity in Singapore. It was not considered that limiting the immunity
would result in an excessive exposure of lawyers to negligence claims.
11 Turning then to the question of breach, the judge found that the
requirements of the amended O 14 r 2(8) were clear, and that the failure of
the appellants to provide any evidence in support of the application was
negligent. The view taken by the second appellant that he could decide what
to include was not reasonable in the light of the clear words. Since the
application eventually succeeded, and no attack as made on a decision of
court, the immunity did not apply.
12 The burden of proving causation lay on the plaintiffs. A third party

act will not break the chain of causation where it was within the tortfeasor’s
duty to prevent. Here the appellants had a duty to exercise skill and care in
the litigation, avoiding unnecessary adjournments, and executing
judgments promptly. No break in causation thus occurred. As for
remoteness, the judge considered that the damage was too remote in
contract, but not in tort. The respondents managed through the evidence
given by First Hydraulics’ solicitor to show that in March 1992 money was
available which would have satisfied the respondents’ claim; it was
immaterial that this money was recovered otherwise than through
execution.
13 Dealing then with the appellants’ counterclaim, the judge disallowed

the appellants’ claim for fees in regard to the AE action as no real benefit
was obtained by the respondents through the judgment eventually obtained
for them by the appellants. Interest on the money not recovered was
ordered to run from the date the garnishee order absolute was adjourned
sine die.
The appellants’ case
14 The appellants’ first contention is that the judge erred in his

interpretation of O 14 r 2(8). It is said that the reference to affidavits in the
rule is to prevent the never-ending filing of affidavits by parties. However,
more than one affidavit may be filed by each of the parties within the time
frame stipulated. Nothing in the rule requires that the first affidavit filed by
a party should contain all the necessary evidence to support the application.
Such necessary evidence need only be given by the time the application
comes up for hearing. Otherwise, the applicant would have to anticipate the
respondent’s defence at a very early stage.
15 The appellants had also provided all necessary evidence. In the

context of an application for summary judgment, such evidence would be
either evidence so satisfactory as to allow the court, in the absence of cause
shown, to give judgment, or, if cause is shown, as is necessary to reply. Thus
the applicant need not exhibit all documents relating to the claim. On the
facts of this appeal, the appellants had to decide what to exhibit as there
were 586 pages of invoices and costs, which may not be fully recoverable,
would be incurred.
16 The appellants exercised their professional judgment, coming to the

conclusion that exhibiting the documents was unnecessary. The appellants
did not know on 20 November 1991 that AE would be wound up; the
appellants could only have known that AE had numerous creditors on
21 December 1991. So there was no knowledge of this at the time when the
first affidavit was prepared. There was no certainty that no further evidence
would have been required. The respondents have to show that the senior
assistant registrar would have granted judgment on 13 January 1992 if the
first affidavit had contained all the necessary evidence. In any event, if there
is any ambiguity in the order, this should be interpreted in favour of the
party who would otherwise suffer from a contrary reading: Bennion,
Statutory Interpretation (2nd Ed, 1992) referred to.
17 Even if the affidavit was defective, the appellants’ act amounted to a

mere error of judgment, so there was no breach: Saif Ali v Sydney Mitchell
& Co ([9] supra) cited. Only errors of judgment which amount to gross
negligence are actionable: Godefroy v Dalton (1830) 6 Bing 460; 130 ER
1357; Faithfull v Kesteven (1910) 103 LT 56. The interpretation of the rule,
which was then a recent amendment, was a point of doubtful construction,
and no rulings had been made on it. The appellants made a tenable
construction, and were not negligent: Roger John Massie Dunlop v
Woollahra Municipal Council [1981] 2 WLR 693; Laidler v Elliot (1825) 3 B
& C 738; 107 ER 907. No clearly right manner of compliance existed at the

time: Levy v Spyers (1856) 1 F & F 5n; 175 ER 599. That on hindsight the
appellants would have done things differently should not be taken against
them: Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172, 185. The
courts should not be ready to find the appellants negligent: Rondel v
Worsley ([8] supra). While the senior assistant registrar did disagree with
the appellants concerning the interpretation of O 14 r 2(8), this does not by
itself show that they were negligent. The error was not one which no
reasonably well-informed and competent member of the profession could
have made: Saif Ali v Sydney Mitchell & Co cited. The appellants’ mistake
was not glaringly wrong: Kitchen v Royal Air Forces Association [1958] 2 All
ER 241.
18 The appellants were not aware as at 20 November 1991 that AE would
be wound up, and it was not until either 21 January 1992 or
21 December 1991, that the appellants were aware of the number of
creditors against AE. In any event, the senior assistant registrar could have
either awarded judgment or refused to do so for a variety of reasons. The
summary judgment was obtained on the strength of affidavits which did
not contain all the invoices or delivery orders relating to the claim.
19 In the oral arguments before the Court of Appeal, the appellants did
not press the issue of immunity. However, in the written submissions, this
was discussed at some length. The appellants recognise that the immunity
accorded to lawyers rests on public policy reasons: Rondel v Worsley; Saif
Ali v Sydney Mitchell & Co; Jackson & Powell on Professional Negligence
(3rd Ed, 1992) referred to. These are the independence of counsel; the
danger of prolonging of litigation; the bringing into disrepute of the
administration of justice; the cab rank rule; and the general immunity
conferred on all trial participants. The immunity has been recognised in
other jurisdictions: Rees v Sinclair [1974] 1 NZLR 180; Giannarelli v Wraith
(1988) 81 ALR 417. The actual label attached to a lawyer is unimportant:
Giannarelli v Wraith. That immunity has been recognised as extending to
Singapore: Majid v Muthusamy ([9] supra).
20 The judge erred in his analysis, for the public policy considerations
are not relevant in applying the test enunciated in Rondel v Worsley. The
correct approach is to apply the intimate connection test as clarified in Saif
Ali v Sydney Mitchell & Co. The judge’s concern that the intimate
connection test would not be easily applied should not have prevented him
from applying it in the present appeal. The judge had concluded that, if the
intimate connection test were applied, it would follow that all affidavits
would be protected by immunity but this does not touch on the present
appeal which is only concerned with the filing of affidavits as part of the
O 14 procedure. The intimate connection test must be sensibly construed:
Saif Ali v Sydney Mitchell & Co. The drafting of such an O 14 affidavit
would fall within the ambit of the immunity as it would dispose of the
matter, and was a preliminary decision affecting the conduct of the cause.
21 The need to prevent collateral attacks differs from the immunity

accorded to an advocate and solicitor: Somasundaram v M Julius Melchior
& Co (a firm) [1988] 1 WLR 1394, and this was recognised by the judge. A
failing of the judge’s reasoning was that, if there had been a failure to obtain
judgment, the alleged breach here would have fallen within the restricted
immunity.
22 The other policy reasons should not have been discarded, as they have
been consistently adopted by the courts: Rondel v Worsley; Saif Ali v Sydney
Mitchell & Co; Gainnarelli v Wraith. The threat of litigation would by itself
be sufficient grounds to cause counsel to be overly cautious, endangering
the administration of justice. There can be no analogy with defensive
medicine, and the judicial process is unique: Rondel v Worsley. The
immunity conferred upon advocates and solicitors is part of the general
immunity conferred upon all persons participating in court proceedings:
Rondel v Worsley; Saif Ali v Sydney Mitchell & Co and Giannarelli v Wraith.
23 The appellants were in no position to prevent the winding up of the

company or the appointment of a receiver and manager. The appellants
could only try to obtain judgment and execute with reasonable speed. The
appointment of the receiver and manager was a sufficient break of
causation. The length of the adjournment ordered by the senior assistant
registrar was independent of the appellants’ negligence: Carslogie Steamship
Co Ld v Royal Norwegian Government [1952] AC 292, and was not
reasonably foreseeable or expected.
24 The judge misapplied the test of remoteness in Overseas Tankship

(UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound)
[1961] AC 388. What is reasonably foreseeable depends on the state of
knowledge at the particular time, and at the time when the affidavit was
filed in November 1991, there was no evidence that AE would be wound up
or that other events would prevent the recovery of the respondents’ claim.
At the very most, what was foreseeable was that the respondents would not
be able to recover such sums in the bank accounts or other assets of AE, and
this would not necessarily have been the entire claim against AE. On the
evidence, the respondents could only have recovered the $42,000 in the
bank accounts which were the subject of the garnishee orders nisi. The
judge’s reliance on the fact that First Hydraulics had recovered about
$99,689.80 is incorrect. As the First Hydraulics recovery was not by way of
enforcement, it cannot be found that the same amount would have been
available to the respondents. Even if judgment was obtained in
January 1992, as the appellants themselves recognise, there is no evidence
that they would have been able to recover the full amount. Additionally,
interest on the damages should accrue only from the date of loss, and not
from the date of the supposed breach. No indication has been made that the
respondents have not recovered any sums in the winding up of AE.

25 If there was any negligence, the work done was not fruitless, for a
judgment had been obtained. The negligence had not wholly caused the
non-recovery, and there were other causes preventing such recovery. The
counterclaim should thus be allowed.
26 In the course of arguments before this court, responding to a query

from the bench, the appellants pointed out that the payment out to First
Hydraulics was within three months of the winding up, and thus
constituted an undue preference falling foul of s 329, Companies Act
(Cap 50, 1994 Ed) and s 53(1), Bankruptcy Act (Cap 20, 1996 Ed). Similarly,
there could not have been any recovery by the respondents since any
payment to them would also have fallen foul of these provisions.
The respondents’ case
27 The respondents do not dispute the facts as stated by the appellants.
28 The respondents firstly contend that O 14 r 2(8) is not ambiguous.

They support the judge’s conclusion that the words of the rule are clear.
Any suggestion that a plaintiff is entitled to file a bare affidavit defeats the
purpose and intention behind the amendments to O 14. The second
appellant himself had admitted that a bare affidavit would be open to an
attack because it is defective, and that, if the necessary evidence was
exhibited, there would have been no objection by counsel representing AE.
The failure to exhibit the necessary evidence arose not out of any ambiguity
or the exercise of professional judgment but simply because the appellants
were not aware of changes to O 14, as is shown by the affidavit being in the
same form as required by the order as it stood before being amended. The
appellants are liable for the consequences of ignorance or non-observance
of the rules of practice: Godefroy v Dalton ([17] supra).
29 If the appellants had actually exercised their judgment on the

exhibition of evidence then they would have realised that the decision not
to do so would be clearly wrong. The statement of claim filed by the
appellants against AE did not set out sufficient particulars; and a request
had been made by the solicitors for AE for particulars and documents. In
these circumstances, the appellants should have annexed the invoices to the
affidavit, and, if they had exercised their professional judgment, they would
have. The second appellant admitted as much. A solicitor is liable for doing
something in a doubtful way where another is clearly right: Levy v Spyers.
30 The affidavit filed was in the same form as the old prescribed affidavit,
indicating that there was no exercise of judgment. Liability cannot be
avoided by merely describing a mistake as an error of judgment: Wai Wing
Properties Pte Ltd v Lim, Ganesh & Liu [1994] 1 SLR(R) 1004. The judge
was correct in finding that the appellants were grossly in error, and that it
could not be said to be one only of judgment.
31 The appellants are wrong in contending that a distinction has to be

drawn between the justification for the existence of the immunity and the
test to be applied to determine whether an act is covered by that immunity.
The overriding consideration locally is whether the interests and
confidence of the public in the administration of justice is served by the
immunity. The judge recognised that some immunity should be accorded
to advocates and solicitors but the basis for doing so differs from that in
England. The judge correctly noted that the position in Singapore has not
been finally determined: Majid v Muthuswamy ([9] supra) distinguished. It
was open to the judge to consider the scope of the immunity. The intimate
connection test is difficult to apply. The correct approach, as adopted by the
trial judge, is to examine whether the interest of the public is served in
extending or denying the immunity. The most cogent reason for the
existence of the immunity in Singapore is that it is necessary to prevent
collateral attacks on the prior decisions of the court. The judge applied this
to the circumstances of the case. Since the senior assistant registrar’s
determination is not put in doubt by the claim in negligence, the immunity
should not be extended to cover the drafting of the affidavit. The judge had
not erred by considering the general principles for its existence. The judge’s
approach leaves it open to the changing expectations of the public. In any
event, even if the intimate connection test was applicable, the immunity
only applies if the matter proceeds to trial.
32 There was no break in causation. As for foreseeability, this does not

depend upon the parties’ state of knowledge at the material time: Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound) ([24] supra) and Overseas Tankship (UK) Ltd v The Miller
Steamship Co Pty [1967] 1 AC 617 cited; Koufos v C Czarnikow Ltd
[1969] 1 AC 350 and Hadley v Baxendale (1854) 9 Exch 341 distinguished.
The evidence of the solicitor for First Hydraulics was that his clients had
recovered $99,689.80 from AE on 6 March 1992, and this was in
consideration of First Hydraulics not proceeding with execution of
judgment. The judge was also correct in finding that the damage arose from
the date the garnishee hearing was adjourned sine die.
33 The loss of recovery of the judgment means that there was no benefit
from the appellants’ work, and their counterclaim fails.
The Appeal
34 The appellants do not dispute the existence of a duty, either in

contract or in tort, owed to the respondents. Neither do they take issue with
the possibility that such a duty may exist concurrently in both tort and
contract. Consideration will only be made of the position in tort, since it is
clear from the judgment below that the loss suffered is too remote in
contract.

35 The issues will be considered in the following order:

(a) the immunity;
(b) the duty owed;
(c) breach; and
(d) the retainer claimed.
The immunity
36 The locus classicus in support of the existence of the immunity is

Rondel v Worsley ([8] supra), which was approved of in a local Federal
Court decision, Majid v Muthuswamy ([9] supra). Rondel v Worsley was
considered by the judge below. Here, the Court will focus on the leading
judgment of Lord Reid. His Lordship accepted that the rule conferring
immunity is based on considerations of public policy and not merely on the
inability of the barrister to sue for his fees. These considerations were:
(a) that a barrister may not refuse to act for a person in a field he
practices, so long as fees can be paid (the cab rank rule);
(b) the duty owed by the barrister to the court;
(c) the need for counsel to be independent;
(d) the general privilege accorded to persons involved in judicial
deliberations; and
(e) the need to prevent collateral attacks on prior decisions of the
court.
37 Subsequently, in Saif Ali v Sydney Mitchell & Co ([9] supra), the

House of Lords had to consider whether the immunity extended to a
decision made out of court by a barrister as to which parties should be
joined. A majority of the Lords there considered that the immunity
extended to work done out of court, following the New Zealand decision of
Rees v Sinclair ([19] supra). Note should also be taken that the English
Court of Appeal in Somasundaram v M Julius Melchior & Co (a firm) ([21]
supra) considered that the rule against abuse of process would prevent re-
litigation even where the Rondel v Worsley immunity was not applicable;
see also Smith v Linskills (a firm) [1996] 1 WLR 763.
38 The Rondel v Worsley immunity, as clarified by Saif Ali v Sydney

Mitchell & Co, was subsequently followed by the High Court of Australia in
Giannarelli v Wraith ([19] supra). While a majority of the Justices were, for
various reasons, content to impose either a common law or statutory
immunity, it is notable that Deane J inclined to the view that no reasons
would justify the immunity recognised in Rondel v Worsley.
39 As can be seen, Rondel v Worsley has been accepted in much of the

Commonwealth. However, the High Court of Ontario in the case of
Demarco v Ungaro (1979) 95 DLR (3d) 385 declined to follow the House of
Lords. Krever J, after reviewing Rondel v Worsley and Saif Ali v Sydney
Mitchell & Co said, at 404–405:
I have come to the conclusion that the public interest (another phrase
used in the speeches in Rondel v Worsley) in Ontario does not require
our courts to recognise an immunity of a lawyer from action for
negligence at the suit of his or her former client by reason of the
conduct of a civil case in court. It has not been, is not now, and should
not be, public policy in Ontario to confer exclusively on lawyers
engaged in court work an immunity possessed by no other professional
person. Public policy and the public interest do not exist in a vacuum.
They must be examined against the background of a host of
sociological facts of the society concerned. Nor are they lawyers’ values
as opposed to the values shared by the rest of the community. In the
light of recent developments in the law of professional negligence and
the rising incidence of “malpractice” actions against physicians (and
especially surgeons who may be thought to be to physicians what
barristers are to solicitors), I do not believe that enlightened, non-
legally trained members of the community would agree with me if I
were to hold that the public interest requires that litigation lawyers be
immune from actions in negligence. …
Krever J noted that to deprive members of the public of recourse in the

event of negligence would not be consistent with the public interest,
particularly where recently qualified lawyers would be representing clients
in court in large numbers.
40 For the reasons noted by the judge below, the position in Singapore is
open. The statements in Majid v Muthuswamy, a decision of the Federal
Court on appeal from Singapore, supporting the application of Rondel v
Worsley were obiter for that case was disposed of on the inadequacy of
pleadings. The judge below was thus free to examine the scope and extent of
the duty recognised in Rondel v Worsley.
41 The appellants criticise the judge for considering the public policy
reasons behind the existence of the immunity, and limiting the application
of the immunity to the extent required by relevant public policy
considerations. However, this criticism is wholly misguided since in Rondel
v Worsley itself, the House of Lords recognised that the immunity arose
solely out of policy, and that the immunity could only exist if it was
necessary to safeguard the ultimate interests of the public. In the instant
appeal, the judge was guided by Rondel v Worsley in appreciating that the
immunity has to be justified by policy, for it is solely based on policy. The
judge, having considered the possible reasons for the existence of the
immunity, found that only one justified it: the immunity that does exist in
Singapore is only one that exists to protect decisions of the court from

collateral attacks; it is narrower than the Rondel v Worsley immunity, but is

in a sense still the same type of immunity as that recognised in Rondel v
Worsley as it protects advocates and solicitors against liability in negligence
for conduct in court.
42 In determining whether the judge was correct, the court must

consider the following categories of public policy factors: (a) overriding
duties; (b) general privilege; and (c) abuse of process. Category (a)
encompasses the cab rank rule, the independence of counsel, and the duties
owed to the court. Category (b) concerns the general privilege accorded to
judges, witnesses, parties and counsel as to matters occurring inside the
courtroom. The last category covers the prohibition against collateral
attacks, which are an abuse of the process of court.
Category (a) situations
The cab rank rule
43 The rule does not apply locally, but even if it did, however laudatory
this rule may be, it is not apparent that it necessarily leads to the conclusion
that counsel should be covered by an immunity for negligence. The rule is
founded upon the desire to ensure that unpopular causes or parties are
represented. It is believed that since a barrister has no choice over briefs, he
should not be liable for negligence either. It must be noted that judicial
opinion is not unanimous in regarding the rule as a valid justification for
the immunity: see, Lord Diplock in Saif Ali v Sydney Mitchell & Co ([9]
supra); Macarthur J in Rees v Sinclair ([19] supra); Wilson J and Dawson J
in Giannarelli v Wraith ([19] supra). In any event, that the law does impose
a duty on a barrister to represent anyone who is able to afford his services
does not mean that no consequences should follow from a breach of the
duty of care. It may be that the assumption of responsibility is qualified
since the barrister is not free to refuse a client. But all that this qualification
requires is a restriction of the duty of care. Additionally, the force of the
objection that the barrister is not at liberty to refuse a client is very much
lessened by the fact that the barrister is paid for his services. It is not an
involuntary assumption of responsibility that is gratuitous, which would
possibly have justified protection against liability. In return for payment,
the client is entitled to expect some level of competence.
The independence of counsel and his duty to the court
44 The independence of counsel is related to the duty owed by counsel to

the court; the former arises from the latter. These questions really go to the
question whether a particular act or omission amounts to a breach of the
duty of care. As noted in the court below, where counsel purports to omit to
do something, or actually does something against the interests of his client
in furtherance of his duty to the court, the duty owed to the court operates
as a justification of his breach of duty to the client. The court trumps the
client, and such breaches are excused.
45 The main concern is that if counsel were subjected to claims in

negligence, they would not be able to discharge their higher duties to the
court: they would be in effect torn between the two sets of duties, and
because of the immediacy of claims by their clients, they would make the
wrong choice. There is no basis for this view. Since the duties owed to the
court and counsel’s consequent independence are higher duties which
excuse breach of the duty owed to the client, counsel should not be so torn.
It is manifestly clear which way they should turn. Wilson J put the matter
aptly in Giannarelli v Wraith at 433–434:
There is no reason to suppose that counsel would be deterred by the
possibility of a negligence claim from discharging a clear duty to the
court in preference to observing the wishes of the client. Counsel could
never be in breach of duty to the client by fulfilling the paramount
duty.
46 A concern was also raised that counsel would be overly exposed and
their exercise of discretion overly scrutinised. In Saif Ali v Sydney Mitchell
& Co, Lord Diplock recognised that a barrister would be under conflicting
duties to his client and the court, and that judgment would have to be
exercised concerning the rules governing his conduct. But His Lordship
noted at 220:
The fact that application of the rules that a barrister must observe may
in particular cases call for the exercise of finely balanced judgments
upon matters about which different members of the profession might
take different views, does not in my view provide sufficient reason for
granting absolute immunity from liability at common law. No matter
what profession it may be, the common law does not impose on those
who practice it any liability for damage resulting from what in the
result turn out to have been errors of judgment, unless the error was
such that no reasonably well-informed and competent member of that
profession could have made.
Though that statement was made in the context of a consideration whether

the immunity should extend to out of court work, Lord Diplock’s words
apply generally.
47 It is also said that if counsel were liable for negligence, they would
engage in a form of defensive litigation by being prolix and pursuing
unnecessary arguments. However, such prolixity in litigation can be
adequately controlled – by imposing hearing fees, case management by the
courts, intervention by judges and the award of costs. In Demarco v Ungaro
([39] supra), in dealing with arguments for the imposition of an immunity
because of the conflicting duties owed by counsel, Krever J said at 406:

With respect to the duty of counsel to the court and the risk that, in the
absence of immunity, counsel will be tempted to prefer the interest of
the client to the duty to the court and will thereby prolong trials, it is
my respectful view that there is no empirical evidence that the risk is so
serious that an aggrieved client should be rendered remediless. … A
very similar argument is advanced in many discussions of the law of
professional negligence as it applies to surgeons. Surgeons, it is
claimed, are deterred from using their best judgment out of fear that
the consequence will be an action by the patient in the event of an
unfavourable result. This claim has not given rise to an immunity for
surgeons.
48 An objection persists that an appropriately framed standard of care

would not be adequate protection for counsel, since claims could be made
against him, while an immunity enables such claims to be struck out. But it
is difficult to see how different the situation faced by counsel would be from
that faced by other professionals, or even a solicitor performing
conveyancing work. Such persons face the possibility of claims being made
for any work that is done by them. The threat of litigation hangs over all
persons in the course of their work. It cannot be avoided.
Category (b) situations
49 The appellants rely on the privilege conferred upon participants in a

trial which exempts them from actions in defamation for remarks made.
This privilege, for it is not really an immunity, was thought to be a further
reason in support of the immunity of counsel: Rondel v Worsley ([8] supra);
Saif Ali v Sydney Mitchell & Co ([9] supra) and Giannarelli v Wraith ([19]
supra). But it is to be noted that the privilege protects not liability in
negligence but freedom of speech. It is irrelevant here.
Category (c) situations
50 That leaves then really only the need to ensure that there is no abuse
of process in collateral attacks on prior decisions. The trial judge here was
content to limit the immunity to this extent. But in Demarco v Ungaro
([9] supra), it was held that this was not a sufficient reason to prevent
liability. Krever J did not think that the question of re-litigation was
material, at 406:
As to the second ground – the prospect of re-litigating an issue already
tried, it is my view that the undesirability of that event does not justify
the recognition of lawyers’ immunity in Ontario. It is not a
contingency that does not already exist in our law and seems to me to
be inherently involved in the concept of res judicata in the recognition
that a party, in an action in personam, is only precluded from
relitigating the same matter against a person who was a party to the
earlier action. I can find no fault with the way in which Hagarty, CJ,
dealt with this consideration in Wade v Ball et al (1870) 20 UCCP 302
at p 304: ‘Practically, such a suit as the present may involve the trying
over again of Wade v Hoyt. This cannot be avoided.’ Better that than
the client should be without recourse.
This view has been echoed by an English barrister, H Evans, in his

monograph, Lawyers’ Liabilities (1996) at least as regards prior civil
decisions.
51 In contrast, in Rondel v Worsley ([8] supra), Lord Morris was
particularly worried with the supposed dangers of re-litigation. His
Lordship said, at 1012:
If someone has been tried on a criminal charge and has been convicted,
it would not be of any purpose for him to assert that his counsel had
been unskilful, unless he could prove that he would have been
acquitted had his counsel conducted the case with due care and skill.
He would have to prove that on a balance of probability. He would,
however, only have been convicted if the jury had been sure that his
guilt had been established. If he asserts that, had his counsel asked
some more questions than he did ask, the jury in the criminal case or
the magistrates would have acquitted him, would he be entitled in his
negligence action to call as witnesses the members of the jury or the
members of the bench of the magistrates who had convicted him? I
have no doubt that it would be against public policy to permit any such
course. If there were a conviction by a majority verdict of ten to two,
could any one of the ten be called to say that had there been further
questions put to some witness he would have agreed with the two
jurors? Again, that, in my view, would be procedure that ought not to
be permitted. If there were a jury in the civil action for negligence they
would have to decide whether, on the assumption that the additional
questions had been put, there probably would have been an acquittal.
Presumably they would have to review all the evidence that had been
given in the criminal case. They would either need to have a transcript
of it or they would have to hear the witnesses who had previously given
evidence. After a period of time the witnesses might not be available.
The transcript might not be obtainable. If obtainable it might relate to
a trial that had taken not days but weeks to try.
Assuming, however, that all the necessary evidence was available and
assuming that memories were not dimmed by the passing of time, the
civil jury would be in effect be required to be engaged in a re-trial of the
criminal case. That would be highly undesirable. And supposing that
after a criminal trial a person was convicted and then appealed against
unsuccessfully against his conviction and later brought a civil action
against his counsel alleging negligence: if he succeeded, would any
procedure have to be devised to consider whether or not it would be
desirable to set aside the conviction. The conviction (as in the present
case) might have taken place years before. Any sentence of
imprisonment imposed might have been served (as in the present case)
long before. If in the civil action the suggestion was made that, had
there been further evidence called or further questions put in the

criminal case, there might have been a disagreement rather than a

conviction, this only serves to demonstrate how difficult it would be
for a court to decide on a balance of probabilities what the jury in the
criminal case would have done had there been different material before
them. A trial on a trial would raise speculation on speculation.
But these reasons are concerned largely with the difficulties of re-litigation.
They are not insurmountable. Many of the problems highlighted would not
be faced locally as juries are no longer in use here. Any difficulties that do
remain act as a deterrent against frivolous suits by disgruntled litigants and
militate strongly against any trigger-happy tendencies.
52 Far stronger was Lord Morris’ further reasons for denying a suit
because of the fear of re-litigation. His Lordship continued at 1013:
It may be said that these considerations merely point to the difficulties
that would lie in the way of success by a convicted person who brought
an action … In my view, the considerations to which I have referred
are of deeper and more fundamental significance. The procedure
regulating criminal trials and the machinery for appeals in criminal
cases is part of the structure of the law. Much of it is statutory. In
practice the judges who preside at criminal trials do what they can to
ensure that the case of an accused person, whether he is represented or
whether he is not, is fairly and adequately presented. If there is an
appeal there are rules which regulate the approach of the appeal court,
and which apply to such matters as whether evidence will be heard on
appeal or whether a new trial will be ordered. In practice it is unlikely
that, owing to some want of care, counsel would refrain from calling at
the trial a witness who was thought to be dependable and whose
testimony would certainly secure an acquittal. It is to be remembered
also that an accused person is at liberty to give evidence on his own
behalf. A system which is so devised so as to provide adequate and
reasonable safeguards against the conviction of innocent persons and
to provide for appeals must nevertheless aim at some measure of
finality. If the system is found not to be adequate then it can be altered
and modified: it can be kept continually under review. I cannot think,
however, that it would be in the public interest to permit a sort of
unseemly excrescence on the legal system whereby someone who has
been convicted and who has, without success, exhausted all the
procedures for appeal open to him should seek to establish his
innocence (and to get damages) by asserting that he would not have
been convicted at all but for the fact that his advocate failed to exercise
due care and skill.
The real concern then is to ensure that criminal convictions are challenged
in the proper forum: because of the interests of the state, attacks on such
convictions should only be made as part of the criminal trial process. It
would be invidious if the conviction of a criminal were to be found by a civil
case to have resulted from the negligence of his advocate and solicitor, for it
follows then that the conviction was wrong. A wrong conviction ought not
to stand at all.
53 But no such considerations apply to a claim of negligence in the

conduct of civil matters. The state has no interest in civil litigation between
private individuals. Lord Morris however maintained that similar
considerations apply to allegations of negligence in civil suits as in criminal
trials, at 1013:
It is true that courts must not avoid reaching decisions merely because
there are difficulties involved in reaching them. It may not be
impossible in certain circumstances for one civil court to decide that an
earlier case in a civil court (one, for example, tried by a judge alone)
would have had a different result had some different course been
pursued, though in most cases there would be likely to be various
difficulties in the way of reaching such a conclusion. It would, in my
view, be undesirable in the interests of the fair and efficient
administration of justice to tolerate a system under which, as a sort of
by-product after the trial of an action and after any appeal or appeals,
there were litigation on litigation with the possibility of a recurring
chain-like course of litigation.
With respect, the supposed threat of re-litigation only arises because the
breach of duty arose in the course of earlier litigation. Though the earlier
suit would be part of the circumstances giving rise to the claim in
negligence, that claim is a new cause of action independent of the earlier
one. It is therefore not a re-litigation of the issue before the earlier court. It
may be necessary in the negligence suit to go over the evidence given in the
earlier trial, but as noted above, with respect to Lord Morris, this acts as a
deterrent against frivolous appeals. As for the complexity of evidence and
the need for a finding on what the earlier court would have decided, these
cannot pose any greater difficulties for a court than are presented by issues
in any commercial or arbitration matter which ordinarily comes before it.
54 This conclusion raises a question whether such an attack would

amount to an abuse of process, which is a ground denying liability
independent of the immunity recognised in Rondel v Worsley ([8] supra):
Somasundaram v M Julius Melchior & Co (a firm) ([21] supra) and Smith v
Linskills ([37] supra). In Somasundaram v M Julius Melchior & Co (a firm),
the Court of Appeal relied largely on Lord Morris’ reasoning reproduced
above, although it was extended to apply to situations where the Rondel v
Worsley immunity was unavailable. It follows then that the Somasundaram
v M Julius Melchior grounds for denying re-litigation only really belong in
the context of attacks on prior criminal decisions, and not civil ones. It has
to be noted as well that Somasundaram v M Julius Melchior and related
cases were concerned with suits against parties who were not privy to the
impugned decisions. In a case where a new suit is launched against parties

actually privy to earlier decisions, the doctrine of res judicata would apply,
and such attacks would clearly be an abuse of process.
The existence of the immunity

55 In summary, therefore, for the reasons above, the Rondel v Worsley
immunity does not apply in Singapore. A claim in negligence against an
advocate and solicitor is not barred save where that claim is against the
conduct of a criminal case; in such a case, the bar arises not because of an
immunity, but because the action is an abuse of the court process.
The scope of the duty

56 Next, the court must turn to consider the scope of the duty owed. A
general duty of care would have obliged the appellants to proceed with all
due diligence and speed, and possibly if the appellants had done so, they
would have avoided the receivership or winding up. But in the case here,
even if they had been in breach of that normal duty, in the normal course of
things the appellants would have been able to recover the debt for the
respondents, albeit at a later point. The respondents could not have shown
that but for the breach, they would have recovered the debt.
57 The appellants must rely then on a duty of care that is enlarged and
covers the need to guard against the appointment of a receiver or the
winding up of the company. While an enlarged scope of duty did not attract
much discussion in the argument before the Court of Appeal, it was the
actual basis of the trial judge’s conclusion. The trial judge (Guan Ming
Hardware & Engineering Pte Ltd v Chong Yeo & Partners [1996] 2 SLR(R)
382) said, at [102]:
The purported winding up and actual receivership of AE were similarly
matters which the defendants ought to have guarded against. The
defendants’ duty included one of executing judgments promptly
(Harrington v Binns ([81] supra)). That obligation must include
ensuring that judgments are not frustrated because of delays. There
was therefore no break in causation.
The trial judge thus considered what the appellants’ duty had to include,
although he postponed this discussion to the section of his judgment
dealing with causation. That this was an analysis of duty is reinforced by the
fact that the citation made was of Harrington v Binns (1863) 3 F & F 942;
176 ER 429, a duty case.
58 If, as found by the judge, the duty encompassed an obligation to avoid
the frustration of judgments because of delays, including the winding up of
the judgment debtor, then the supposed intervening act was the very thing
that should have been guarded against, and there can be no break. Oliver LJ
said in Lamb v Camden London Borough Council [1981] QB 625 in the
context of a third party’s wrongful act, at 640:
What is referred to as the ‘chain of causation’ may be broken and the

most common example of a break in the chain is the intervening act of
a third person whom the tortfeasor can exercise no control. Such an
intervention does not always break the chain, and in particular, it will
not do so where the very breach of duty relied on is the duty of the
defendant to prevent the sort of intervention which has occurred …
59 There is apparently no direct authority on the question whether an

advocate and solicitor here has a duty to guard against the receivership or
winding up of the client’s debtor. Resort must thus be had to the basic
formulation of the duty of care. In determining whether there is a
relationship justifying the existence of a duty of care, the court is merely
concerned in each instance with weighing all the relevant considerations
pointing towards and against such a duty: RSP Architects Planners &
Engineers v Ocean Front Pte Ltd [1995] 3 SLR(R) 653. As noted by L P
Thean JA in that case, at [68]:
Whatever language is used the court is basically involved in a delicate
balancing exercise in which consideration is given to all the conflicting
claims of the plaintiffs and the defendants as viewed in a wider context
of society.
That exercise may be facilitated by the use of a framework of analysis as to

when a duty should be found; which particular framework is in fact selected
does not matter. The one enunciated in Caparo Industries plc v Dickman
[1990] 1 All ER 568 requires that it be shown that there is foreseeability,
proximity and that it is just and reasonable that a duty is imposed. Here,
primary consideration will be given to proximity.
60 There was not a sufficiently proximate relationship between the

parties to guard against the winding up or the appointment of a receiver of
the debtor company. Such an obligation would impose too heavy a burden
on advocates and solicitors accepting a normal retainer. It would require
them to exercise care in proceedings beyond what would normally be
expected since whether a company is wound up or a receiver appointed is
determined by many commercial factors, not all of which would be within
the ken or control of advocates and solicitors. It is conceivable that in some
situations an advocate and solicitor would assume such responsibilities, but
here, there was no evidence that the appellants had done so. Though the
evidence possibly shows that the appellants knew of other creditors, and of
the demands made by these creditors, this is not enough to lead to the
conclusion that they assumed the responsibility of ensuring that they
proceeded with such care that they would avoid the occurrence of a
winding up. It was incumbent upon the respondents to show that there was
such a voluntary assumption of responsibility. This they did not do.
61 Though an expanded duty is denied is as a matter of proximity, it

could conceivably as well have been made as matters of policy negating the

prima facie existence of a duty of care or as factors showing that it is not just
or reasonable for liability to be imposed. Additionally, it is considered that
the imposition of such a duty would likely lead to a corresponding increase
in the costs of retainer without protecting any accrued benefit or conferring
any new one.
62 In conclusion, the only duty of care which was owed by the appellants
was the general duty to take care in the conduct of the proceedings, and not
to cause any delays.
Breach
63 For a breach of that duty of care to have occurred, the appellants must
have, on the balance of probabilities, omitted to do a thing which a
reasonably competent advocate and solicitor in their position would have
done: Godefroy v Dalton ([17] supra). Such a reasonably competent
advocate and solicitor must comply with all rules of court to protect his
client’s interests.
64 Here, the appellants are said to have breached their duty to the
respondents by failing to comply with what is now O 14 r 2 of the Rules of
Court 1996 (in pari materia with the Rules of the Supreme Court 1970 as
amended) which reads:
(1) An application under Rule 1 must be made by summons
supported by an affidavit or affidavits.
…
(8) An affidavit or affidavits for the purpose of this Rule must
contain all necessary evidence in support of or in opposition (as the
case may be) to the claim, or a part of the claim, to which the
application relates, and unless the court otherwise directs, may contain
statements of information or belief with the sources and grounds
thereof.
65 The appellants contend that it was reasonable for them to have

supposed that they could have included the evidence in support in a
subsequent affidavit in reply. The judge on the other hand came to the
conclusion that the effect of the rule in its amended form was clear (Guan
Ming Hardware and Engineering Pte Ltd v Chong Yeo and Partners [57]
supra at [78]):
By the time the application was made, four months had passed since
the amended rules came into force. While mere novelty or
unfamiliarity is no excuse for negligence, it may be said that a
reasonable lawyer may commit an error of judgment in dealing with
the unfamiliar, but in this case, in my view, the amendment was clear
in its effect. Anyone reading the provision would have understood
what the rule meant.
66 The intention of the amendments is clearly to expedite the hearing of

applications for summary judgment. If all a judge has before him is
conflicting testimonies or affidavits, a finding will have to be made solely on
such assertions. Stipulating that any required documentary evidence should
be exhibited assists in the finding of facts, or in the case of an application for
summary judgment, whether the application is made out. The plain words
of the section reflect this. The affidavit or affidavits must contain all
necessary evidence in support.
67 The amended rule envisages a three-stage process. First, the affidavit
in support of the application is filed. Next, the defendant is supposed to
come in. It is imperative at this stage that the necessary evidence have [has]
been put in to enable the Defence to know what it is up against. Then the
applicant has a right to reply. The rule as it stands at present, just as it did at
the material times, specifies a timetable. And in order to facilitate the tight
scheduling, it is necessary for the cards to be laid on the table as soon as
possible. The appellants’ contention would clearly result in a pointless
prolonging of the proceedings. The affidavit in support would be a waste of
effort, paper, time and serve no purpose whatsoever. Given all this, the
appellants’ contention cannot be accepted, and no reasonably competent
advocate would have so interpreted the rules.
68 The appellants belabour the point that the rule speaks of “affidavit or
affidavits”, contending that this indicates that the rule envisages that a
number of affidavits at different times may be filed in support of a single
application. It is said then that the evidence may be exhibited in subsequent
affidavits. It is hard to see why if this was the true interpretation that any
amendment to O 14 r 2(8) would have been necessary. The previous rule
stated:
(1) An application under Rule 1 must be made by summons
supported by an affidavit in Form 18 verifying the facts on which the
claim, or the part of the claim, to which the application relates is based
and stating that in the deponent’s belief there is no defence to that
claim or part, as the case may be, or no defence except as to the amount
of any damages claimed.
(2) Unless the Court otherwise directs, an affidavit for the purposes
of this Rule may contain statements of information or belief with the
sources and grounds thereof.
Form 18 is a mere statement that the defendant to an action does owe

money to the plaintiff, and that the plaintiff believes that there is no
defence. On the appellants’ argument, all that the amendments achieve is to
prescribe a specific time frame for the filing of the relevant affidavits, and
for the exhibition of the necessary evidence. This is contrary to the plain
words of the rule. The amended rule allows for the filing of a number of
affidavits simply because it may be possible, particularly in commercial
transactions, that no single person would have knowledge of all the facts.

69 The appellants further make the contention that the interpretation

favoured by the judge requires anticipation of the defence. The short
answer to this is that it does, at least to the extent that the plaintiff ought to
show that there is documentary evidence to support his application so that
the defendants must answer with something more than a bare denial, which
may in any event be sufficient to counter a bare affidavit in support.
70 Though not all the relevant documents were eventually exhibited

before judgment was granted, this does not indicate that the failure to file a
proper affidavit was not a breach of the rules – once again it must be noted
that the appellants had failed initially to exhibit any evidence whatsoever.
On the approach taken, there is no ambiguity and the appellants had clearly
erred in failing to exhibit the necessary evidence. It is said that the
appellants exercised their professional judgment in determining whether or
not to exhibit such evidence. This is not borne out by the evidence. It would
seem really, that no thought whatsoever was directed to this question. The
respondents correctly point out that the affidavit initially filed was in the
Form 18 format. The probable inference then is that the appellants were
ignorant of the changes wrought by the amendments to O 14, and were
content to continue with the practice before the changes.
71 As for what constitutes necessary evidence, the judge noted that it was
not necessary for him to actually determine this point. The fact is the
appellants failed to exhibit any of the documents that they had by that time.
It may be debatable whether the appellants should have displayed each and
every invoice, or whether a general statement of account should be
sufficient, but on the facts, since nothing at all was exhibited, the issue does
not arise. The appellants further contend that they could not have been
expected to have exhibited these documents as the costs were prohibitive,
and not recoverable. That may be grounds for not exhibiting all of the
documents, and selecting a few only. In such circumstances, a decision to
select may be defensible, but again that is wholly irrelevant since no
documents were exhibited at all.
72 The appellants contend that the rule should be construed in such a

way that they should not be penalised, referring to the canon of
construction that provisions should not be interpreted to penalise except
clearly. That canon cannot be of any application in this instance. The rule
does not penalise – it merely sets out a particular procedure. The penalty
does not come from the rule, but from failure to abide by the stipulations
contained in the rule. The canon serves to protect vested interests, such as
property rights, or the personal liberty of individuals. The appellants have
not identified the interest which is to be protected by the canon. In relation
to the rule, they had none.
73 If the rule was clear in its requirements, then any failure by the
appellants to comply cannot be said to be a mere error of judgment. Such an
error must necessarily concern a matter which is doubtful, questionable or

capable of admitting different solutions. Where the matter does not admit
of doubt, no judgment need be exercised. There is no evidence what the rest
of the profession thought of the changes. But even if the construction
advocated by the appellants was generally accepted by the profession at the
time, since it is contrary to the clear words of the rule, it must nevertheless
be considered negligent. That the practice of the entire profession could
have been otherwise is immaterial: Edward Wong Finance Co Ltd v Johnson
Stokes & Master (a firm) [1984] AC 1296.
74 In summary then, the appellants were in breach of the duty to exercise

due care in the conduct of the case.
Loss and causation
75 As found above, there was no duty laid upon the appellants to guard
against the appointment of the receiver or the winding up of AE. That
leaves then only the duty to act with due care in the proceedings, and not to
cause delay. For a tortfeasor to be liable, it must be shown that as a matter of
fact his breach is a cause of the loss:
If you can say that the damage would not have happened but for a
particular fault, then that fault is the cause of the damage; but if you
can say that the damage would have happened just the same, fault or
no fault, the fault is not the cause of the damage (per Denning LJ, Cork
v Kirby Maclean Pte Ltd [1952] 2 All ER 402, at 407).
It will be seen that the breach here was not such a cause. Suppose no
winding up had occurred. If there had been no breach at all, the
respondents could have got the full sum. But since there was a breach, and
this caused some delay, recovery could not occur immediately but only at a
later date. In either situation, recovery would have been possible eventually.
It follows then that the breach did not cause the failure to recover. The
breach was neither a necessary nor sufficient cause of the failure to recover.
76 The appellants’ breach only allowed an opportunity for the winding

up to intervene. In such a situation, the winding up would normally be a
break in the chain of causation, unless it was likely to occur: The Oropesa
[1943] 1 All ER 211. There is much controversy over the degree of
likelihood required, particularly where the tortfeasor has no control over
the acts of others. Oliver LJ in Lamb v Camden Borough Council ([58]
supra) at 644, referring to situations where the tortfeasor has no control
over the occurrence of the intervening act, thought that there may be
circumstances where what would be required is a very high degree of
likelihood, or in His Lordship’s words, “almost amounting to inevitability”.
It is questionable whether, on the facts, there was any likelihood, as opposed
to a possibility, of winding up occurring. It may be that there were a large
number of creditors owed money, and Argos Engineering had difficulties

paying the money owed to the respondents, but these would not by
themselves have indicated that it was likely that the company would be
wound up, as recovery could have been made through an input of funds, or
through some improvement in cash flow for instance.
77 The situation in this appeal differs from that where the breach would
have resulted in the final dismissal of the respondents’ action against Argos
Engineering. If there had been no breach, recovery could have been made.
If there was a breach, no recovery at all would have been possible. The
winding up of Argos Engineering would not have been relevant, for it
would not have affected the result in the latter situation.
78 It is unnecessary therefore to go into much examination whether the
respondents showed loss. The court in the course of arguments noted that
the payment out to First Hydraulics was within the six-month period
preceding the winding-up petition relating to Argos Engineering. It
possibly stood as a preferred debt, which could have been avoided: s 329
Companies Act (Cap 50, 1994 Ed) read with ss 99 and 100 of the
Bankruptcy Act (Cap 20, 1996 Ed). The respondents’ own recovery could,
even if there had been no breach, have fallen within this period, and it was
for them to show that it would not.
The actual loss suffered

79 Thus the only actual loss suffered by the respondents was being out of
pocket for the period of delay occasioned by the breach. This period would
have ended with the winding up of the company. Here the sum to be
recovered was a total of $84,896.86.
80 While the adjournment of the O 14 matter resulted in an eight-and-
half-week delay, part of this time was probably to allow for the filing of the
defence and any reply. These would have taken up about five weeks in all.
Thus the delay directly occasioned by the failure to exhibit the documents
was about four weeks or so. The loss of use of money, at 6% per annum, is
about $425.
The counterclaim
81 The appellants claim the retainer. They are entitled to it in that they
managed to obtain judgment which would have returned a sum to the
respondents if it were not for the winding up. The failure to recover was not
their fault, and did not affect their right to the retainer. The retainer should
be reduced by the amount given to the respondents for the delay. The
resultant sum is $4,675 ($5,100 - $425). Interest is to run at 6% from the last
letter of claim from 8 September 1992, the date when their bill was sent.
Costs
82 The appellants succeeded on two out of the four main points relied
upon. Taking a broad brush approach, the court will not order costs.
Conclusion
83 In conclusion therefore, the court finds that there was a breach of
duty, and there was no immunity; but the loss of the money owed was not
caused by the breach thus and the appellants are not liable save for the loss
of use of the funds. The appellants on the other hand are entitled to their
retainer. The appeal is thus allowed in part.
Headnoted by Lim Lei Theng.

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30 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

Chong Yeo and Partners and another

Court of Appeal — Civil Appeal No 111 of 1996

Held, allowing the appeal in part:

Chong Yeo and Partners v

immunity for negligence. If a barrister was under a duty to represent anyone

32 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

questionable whether there was any likelihood, as opposed to a possibility, of the

Chong Yeo and Partners v

26 May 1997 Judgment reserved.

2 In late 1991, the respondents were owed money by Argos Engineering

3 Although a number of allegations were made by the respondents

4 The respondents filed a writ on 24 October 1991, and AE entered

34 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

amendments having come into effect on 1 August 1991. The application

Chong Yeo and Partners v

immunity identified in Rondel v Worsley, extending it to cover matters

12 The burden of proving causation lay on the plaintiffs. A third party

13 Dealing then with the appellants’ counterclaim, the judge disallowed

36 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

The appellants’ case

14 The appellants’ first contention is that the judge erred in his

15 The appellants had also provided all necessary evidence. In the

16 The appellants exercised their professional judgment, coming to the

17 Even if the affidavit was defective, the appellants’ act amounted to a

Chong Yeo and Partners v

38 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

21 The need to prevent collateral attacks differs from the immunity

23 The appellants were in no position to prevent the winding up of the

24 The judge misapplied the test of remoteness in Overseas Tankship

Chong Yeo and Partners v

26 In the course of arguments before this court, responding to a query

The respondents’ case

27 The respondents do not dispute the facts as stated by the appellants.

28 The respondents firstly contend that O 14 r 2(8) is not ambiguous.

29 If the appellants had actually exercised their judgment on the

40 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

31 The appellants are wrong in contending that a distinction has to be

32 There was no break in causation. As for foreseeability, this does not

34 The appellants do not dispute the existence of a duty, either in

Chong Yeo and Partners v

35 The issues will be considered in the following order:

36 The locus classicus in support of the existence of the immunity is

37 Subsequently, in Saif Ali v Sydney Mitchell & Co ([9] supra), the

38 The Rondel v Worsley immunity, as clarified by Saif Ali v Sydney

42 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

39 As can be seen, Rondel v Worsley has been accepted in much of the

Krever J noted that to deprive members of the public of recourse in the

Chong Yeo and Partners v

collateral attacks; it is narrower than the Rondel v Worsley immunity, but is

42 In determining whether the judge was correct, the court must

Category (a) situations

The cab rank rule

The independence of counsel and his duty to the court

44 The independence of counsel is related to the duty owed by counsel to

44 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

45 The main concern is that if counsel were subjected to claims in

Though that statement was made in the context of a consideration whether

Chong Yeo and Partners v

48 An objection persists that an appropriately framed standard of care

Category (b) situations