Solicitor Duty of Care to Advise

Mulpha Kluang v Philip Koh 2015 HC

Facts: The Plaintiff contended that Defendants have breached the contractual duty, express and/or implied duty and/or duty of care to the Plaintiff when they failed, neglected and/or omitted to advise and/or notify Plaintiff of the implications of “Surrendered Area” for Lot 643 and Lot 644 and to conduct further and full investigations/inquiry on the endorsement stated in the land searches and issue document of title of Lot 643 and Lot 644 and/or to provide further professional advice on the said endorsement, including to insert the actual areas for Lot 643 and Lot 644 and also additional provisions in the 1stand 2ndS & P to protect and safeguard the Plaintiff’s interest.

Held: In our legal system, the solicitor and client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship the client places his or her confidence, good faith, reliance and trust in the solicitor, whose advice is sought in some matter. A fiduciary relationship creates many legal duties for the solicitor in whom the trust has been placed. Generally the solicitor must act in the best interests of the client including to act honestly and fairly in a client’s best interests; to act with due skill and diligence, reasonable promptness; and courtesy and communicate effectively and promptly with clients. In the context of a property transaction the case of Macindoe v Parbery (1994) Aust Torts Reports 81-290 held that it will include a duty to warn the client of anything that is unusual or anything which may affect the client obtaining the full benefit of a contract entered into.

The extent of a solicitor’s duty to their client is determined by both the retainer with the client and the solicitor’s general law duty of care. A general retainer for example, to act for a conveyance for a client, will encompass both specific duties under the retainer and the concurrent duties in tort. To fulfil these duties a solicitor under such a retainer will be required to take pro active steps to ensure to advise the client not only of the matters where advice is specifically requested, but also in relation to matters which the solicitor acting with reasonable skill and diligence would foresee as a risk to the client. The ultimate test is that; firstly, that the Defendant owes a duty of care; secondly, that he breached it; thirdly, that the Plaintiff have suffered a loss; and finally, that the Defendant’s conduct caused that damage (‘causation’).In Tan Sri Datuk Ibrahim Mohamed v Leong Tuck Onn & Anor [2012] 6 CLJ 662