The Ethics of Applying for an Adjournment
The way I was raised, a court date is a sacred date. It must be attended. Unless I was very ill or about to die, an adjournment is out of the question. It does not matter why the court fixes the date. It can be for case management, mention, hearing, trial or even to ask how your grandmother is (has not happened). Whatever its purpose, as a lawyer, I must attend, either by myself or by my colleagues. An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day. Rule 6(a) Legal Profession (Practice and Etiquette) Rules 1978 (LPR78) Subject to any Rules of Court made on its behalf, an advocate and solicitor assigned as counsel or advocate and solicitor in any civil or criminal matter shall not ask to be excused for any trivial reason and shall always exert his best effort in that assignment. Rule 8 LPR78 An advocate and solicitor shall maintain a respectful attitude towards the Court. Rule 15 LPR78 An advocate and solicitors shall make every effort to be ready for trial on the day fixed. Rule 24(a) Legal Profession (Practice and Etiquette) Rules 1978 A respectful attitude towards the court under Rule 15 LPR78 means turning up at the appointed date and being ready to proceed with the case. These are reflected in firstly, Rule 6(a) LPR78 which prohibits a lawyer from accepting a case unless they can appear and represent the client. That means a lawyer must be ready to perform on the day he is to appear. That is reinforced in Rule 24(a) LPR78. In Sykt Siwa Teck Hwa Realty & Developments Sdn Bhd v Malek & Joseph Au [1999] 3 CLJ 184, the Plaintiff sued its lawyers for failing to turn up at the Federal Court hearing of its appeal, which was struck out for their non-attendance. The court allowed the negligence claim against the lawyer. The court held the lawyer’s conduct in failing to turn up to court for the hearing ‘fell short of that of a prudent or reasonable lawyer.’ The lawyer did not help himself by failing to offer a reason for his absence. The High Court rightly found against the lawyer for negligence. In Sashi Kumar Suppiah v Timbalan Menteri Dalam Negeri Malaysia & Ors [2010] 8 CLJ 349, the High Court decided the lawyer was in breach of both Rule 6(a) and 24(a) LPR78 when he accepted the case but failed to prepare for the hearing. His excuse that he wrote in for an adjournment but did not receive a response was not an acceptable reason for not being prepared for the hearing. In Mohamad Shafiq Zorkafl v Jakel Trading Sdn Bhd [2020] 1 LNS 1383, a judgment in default in favour of Plaintiff was entered against Defendant in the Sessions Court because his lawyer did not turn up for the continued hearing of the Plaintiff’s case. Additionally, Defendant’s counterclaim was struck out. When Defendant appealed against that decision, the High Court dismissed his appeal after deciding that the lawyer’s failure to turn up was a deliberate act, not a mistaken or accidental one. Justice Choo Kah Sing dismissed the Defendant’s lawyer’s excuse that she had a High Court hearing at the same time which took precedence over the continued trial in the Sessions Court and could not attend it. What his Lordship said is worth reproducing to such an excuse: The defendant’s counsel submitted that the matter in the High Court was more important, therefore, he had to attend the hearing at the High Court. This Court is of the view that all cases, no matter whether they are at the lower court or at the superior court, are equally important. [21] It is appalling for the defendant’s counsel to remark that the High Court case is more important than the defendant’s case at the court below. Once a solicitor has taken a brief or conduct of the matter, it does matter how trivial or serious the case is, or at what level of the court the case is. All cases are equally important in the administration of justice. Every case is important to the respective litigants. The solicitor who has taken conduct of the matter must treat all cases, no matter if they are at the subordinate courts or at the superior courts, with great responsibility and care. Further, advocates and solicitors must respect and adhere to Rule 24 (a) of the Legal profession (Practice and Etiquette) Rules 1978 which states ‘an advocate and solicitor shall make every effort to be ready for trial on the day fixed.’ The rule does not differentiate where the case is conducted, whether it is at the subordinate court or at the superior court. Mohamad Shafiq Zorkafl v Jakel Trading Sdn Bhd [2020] 1 LNS 1383, per Justice Choo Kah Sing In World Equipment Sdn Bhd v A’ Famosa Golf Resort Bhd [2009] 1 LNS 911, Plaintiff’s lawyer tried to have a continued trial adjourned because he was attending a case in another court at the same time. He appointed another lawyer to attend the continued trial date on his behalf to apply for an adjournment on the ground the Plaintiff was overseas. That was refused. The judge stood the case down for him to attend. When he failed to make it at the appointed time the stand-in lawyer applied for an adjournment on the ground that the lawyer in charge was conducting a trial elsewhere. That was refused and the trial proceeded. When it was the stand-in lawyer’s turn to cross-examine the Defendant’s witness, she declined because she ‘was not the counsel in charge of the case’. Judicial Commissioner Zaleha Yusof (as her Ladyship was then) held the effect of the stand-in lawyer failing to cross-examine Plaintiff’s witness meant that the court could ‘take the entire evidence of SD1 as being accepted and unchallenged.’ Plaintiff’s claim was dismissed. This was
