Somma Ltd v Goodwill Industries Ltd [2000] SBHC 41; HC-CC 178 of 2000 (27 October 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 178 of 2000

SOMMA LIMITED

V

GOODWILL INDUSTRIES LIMITED

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 25th October 2000
Judgment: 27th October 2000

Mrs N. Tongarutu for Plaintiff
Mrs L. Tepai for Defendant

JUDGMENT

(Kabui, J): Motis Pacific Lawyers is a Firm of Barristers and Solicitors whose office is situated in the Anthony Saru Building, Level 6, Coronation Avenue, P.O. Box 655, Honiara. They filed an amended Summons on 19/10/2000 seeking from the Court the following orders -

1. That leave be granted to Motis Pacific Lawyers to withdraw as advocates and solicitors acting for Goodwill Industries Limited, the Respondent in the above action;
   
2. That the costs of and occasioned by this application be paid by the Respondent; and
   
3. Such further or other relief the Court deems fit to make.
   

The Facts

Somma Limited filed an Originating Summons against Goodwill Industries Limited on 7^th June 2000. Motis Pacific Lawyers filed an appearance on 14^th June 2000 on behalf of Goodwill Industries Limited (the Respondent). The first hearing of the Summons was set down for 9:30 am on 12^th July 2000. Awich, J. heard the Application, adjourned it and made directions.

Awich, J. again dealt with the case on 18^th August, 2000. On the application of the Respondent, Awich, J. adjourned the hearing for 40 days to enable Motis Pacific Lawyers to contact their client, the Respondent, in order to file an affidavit by Mr. Tiew Kiong Ang. The period of 40 days having lapsed without the filing of the affidavit by Mr. Tiew Kiong Ang, prompted Motis Pacific Lawyers to apply to the Court for leave to withdraw from acting for the Respondent. They have not been successful in getting Mr. Tiew Kiong Ang to affirm his affidavit in Malaysia and return it to them for filing in the High Court. Mr. Tiew Kiong Ang had left the country due to the ethnic tension on Guadalcanal and have not returned to Solomon Islands. He was the General Manager of the Respondent whilst in Solomon Islands.

The Relief Sought

The relief sought by Motis Pacific Lawyers is leave to withdraw as advocates and solicitors acting for the Respondent in Somma Limited v Goodwill Industries Limited (Civil Case No. 178/2000). Mrs Tepai representing Motis Pacific Lawyers relied upon rule 20 (g) and (h) of the Legal Practioners (Professional Conduct) Rules 1995 L.N. 98/95 as the grounds upon which her application was based.

Rule 20(3) are in these terms –

“(3) Subject to rule 14(4) and rule 19(4), and to the High Court Rules, a legal practitioner may withdraw from representing a client –

(a) at any time and for any reason if the withdrawal does not cause significant harm to the client’s interests and the client is fully informed of the consequences of withdrawal and he voluntarily assents to it;

(b) if the legal practitioner reasonably believes that continued engagement in the case or matter would be likely to have seriously adverse effect upon his health; or

(c) if the client commits a significant violation of a written agreement regarding fees or expenses;

(d) if the client made material misrepresentations about the fact of the case or matter to the legal practitioner; or

(e) if the legal practitioner has an interest in any case or matter in which he is concerned for the client which is adverse to that of the client;

(f) where such action is necessary to avoid commission by him of a breach of these Rules;

(g) where the client fails or neglects to instruct the legal practitioner;

(h) by leave of the Court,

provided that the legal practitioner shall take reasonable care to avoid foreseeable harm to his client, including -

(i) giving due notice to the client;

(j) allowing reasonable time for substitution of a new legal practitioner;

(k) co-operating with the new legal practitioner; and

(l) subject to the satisfaction of any lien the legal practitioner may have, promptly turning over all papers and property and paying to the client any moneys to which the client is entitled.

(4) ......
(5) ......”

I reproduce it to show the circumstances in which a legal practioner may withdraw from representing a client. This application however only concerns (g) and (h) above. In the Summons filed by Mrs Tepai on 19^th October 2000, she relied on (h) but cited (g) in argument as well. I think that is not strictly correct because to do so is rather confusing. It is confusing because of the drafting style used in rule 20(3). One interpretation is that (h) is in the same position as (a) to (g) and that being so it is also a ground that forms the basis for the withdrawal of legal representation from a client. This interpretation is quite compelling because that is on first impression the meaning and intention of rule 20(3). The other interpretation is that (h) cannot be a ground constituting the basis for withdrawal of legal representation from a client for “leave of the Court” is the authority of the Court (the legal blessing) needed to complete the process of withdrawing legal representation. For this reason, (h) cannot be in the same position as (a) to (g). This is the confusion that can arise from the drafting style used in rule 20(3) if one combines (h) with (a) to (g) or any of them. It leads to confusion in the application of rule 20(3) in terms of the correct interpretation. As for me, I adopt the latter interpretation. It makes sense. Leave of the Court in (h) is a choice that is open to the legal practitioner if he or she wishes to invoke the authority of the Court in presenting any of the circumstances in (a) to (g) above. Thinking back now, it would seem that that is exactly what Mrs Tepai was trying to convey to the Court but in an unconnected fashion. It would have been clearer if Mrs Tepai had included in her Summons, (g), as being the ground for seeking leave under (h) for that must surely be the intention of rule 20(3) of the Legal Practitioners (Professional Conduct) Rules 1995. That is to say, a legal practitioner may choose to invoke the leave of the Court basing his or her application on any of the circumstances in (a) to (g) in rule 20 (3) above. I say this because (h) being leave of the Court is not a set of facts giving rise to a legal practitioner making up his or her mind to withdraw from representing his or her client. Rather, leave of the Court is an authority recognising a set of facts in favour of withdrawing of legal representation. As I have said, to invoke (h) is a matter of choice but not as the ground for withdrawing of legal representation but as the authority for doing so. That is to say, a legal practitioner may act in any of the circumstances in (a) to (g) with the leave of the Court. That is the impression one gets from reading rule 20(3) above. The true intention however, is not so clear but as I have said the better view though not conclusive (as the point has not been argued) is that where the legal practitioner chooses to withdraw legal representation from a client, he or she must seek leave of the Court by presenting to the Court which of the circumstances in (a) to (g) or any combination of them that forms the basis of his or her application for leave. In my view, the better practice is to always seek leave of the Court. If that view is acceptable to the Bar Association, then (h) should be deleted and the words “leave of the Court” be inserted between the words “may” and “withdraw” in the second line in rule 20(3) above so that leave of the Court becomes a pre-requisite in any application to withdraw representation for a client based upon any of the circumstances in (a) to (g) above. In other jurisdictions, the corresponding rule is laid down in the High Court or Supreme Court rules of practice. In this jurisdiction, the position is as stated by Palmer, J. in Solomon Islands Broadcasting Corporation v Mark Bisili (Civil Case No. 218/98) in which Palmer, J. pointed out Order 7, rule 4 of the Rules of the Supreme Court 1883 being our corresponding rule by virtue of Order 71 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). This case was cited by Mrs Tepai as an authority in this issue of concern. At page 3 of the judgment, Palmer, J. said,

“Rule 4 above sets out in meticulous terms how a Solicitor who wishes to withdraw his services is to act. In essence an order would have to be obtained from the Court before such Solicitor can regard himself as having been discharged. In the facts of this case, it is clear no such order had been obtained.”

Palmer. J.’s remarks above tallies with what I say in this judgment is the better view in interpreting rule 20(3) above. Whilst rule 20(3) above and Order 7 rule 4 of the Rules of the Supreme Court 1883 are not exactly the same in drafting form, they are the same in spirit and intention. That is, the leave of the Court must be obtained before the legal practitioner regards himself or herself as having been discharged from his or her client’s case. At page 1060 of the Supreme Court Practice 1973, volume 1, the authors state thus –

“The general rule is that a retainer to conduct or defend an action continues till the client discharges the solicitor, or the solicitor discharges himself, or till death or incapacity of either party, or a change in the solicitor’s firm, or till the final conclusion of the cause or matter, and moreover such a retainer is, as a general rule, an entire contract to conduct or defend the action to the end ... But the retainer is subject to implied terms enabling the solicitor to withdraw for good cause and upon reasonable notice, and enabling the client to withdraw the retainer at any time (ibid). Thus, a solicitor may withdraw for good cause where the client fails to provide a reasonable sum of money for disbursements, or the solicitor is being burdened and prevented by the client in properly conducting the action, e.g., by failing to give instructions (ibid.; see also Robins v. Goldingham (1872), [1872] UKLawRpEq 16; L.R. 13 Eq. 440. If a solicitor refuses to proceed without good cause and without giving reasonable notice to the client to pay him money or give him instruction, etc., he commits a breach of contract and cannot sue for his fees (ibid.), and the Court may refuse to make an order under this Rule.”

The Need for Evidence

This brings me to the next point. If the legal practitioner decides to seek leave of the Court, evidence must be produced by affidavit. The Court cannot decide whether to grant leave or not on the basis of evidence from the bar table. The application for leave must be supported by affidavit evidence for obvious reasons. The evidence must however include the matters mentioned in the proviso to rule 20(3) above to be complete in terms of its content.

This Application

In this application, no affidavit has been filed in support of the application. There is no evidence other than remarks from the bar table made by Mrs Tepai and a letter dated 13^th October 2000, written by Mr. Hapa of Motis Pacific Lawyers to the Registrar of the High Court informing the Registrar of their difficulty in getting Mr. Tiew Kiong Ang from Malaysia to affirm an affidavit required of him. There is therefore no sworn evidence upon which I can made up my mind whether to grant leave or not. This is an omission on the part of Motis Pacific Lawyers. Mrs Tepai however in her submission said this omission was deliberate in that they did not wish to compromise the position of whoever took their place as the next solicitor acting for the Respondent. She said they expected the new solicitor to proceed on from where they left. With due respect, I do not agree. The proviso to rule 20(3) says otherwise. The first thing that a legal practitioner must do is to take reasonable care to avoid foreseeable harm to his or her client. Secondly, due notice must be given to the client. Thirdly, the practitioner must allow reasonable time for the client to find a new solicitor. Fourthly, co-operation must be given to the new solicitor. And lastly, if there are any papers and property they must all be passed on to the new solicitor including any money belonging to the client. The withdrawal of representation is obviously to be done in an orderly manner and within a reasonable mark time.

Certainly, it should not be done with abruptness and unreasonableness. Having said all these, I am tempted to say that this application be dismissed on the ground of lack of evidence to support it. However, in my view, that is not doing justice in this case. The appropriate course of action in this case is for me to adjourn it generally and in so doing make direction orders for the future conduct of this case. Exercising my powers under Order 63, rule 5 of the High Court Rules, I order that this case be adjourned generally with liberty to apply for re-listing and direct that –

1. Motis Pacific Lawyers file within 21 days from to-day affidavit evidence in support of this application;
   
2. The Summons filed on 19^th October 2000 be amended to state the ground upon which this application is being made;
   
3. No Costs be awarded.
   

I order accordingly.

At the hearing of this application, Mrs Tongarutu, Counsel for the Plaintiff, in Civil Case No. 178 of 2000 also appeared before me. In my view, Mrs Tongarutu should not have appeared in the first place. This application does not in any way concern her client. This application concerns Motis Pacific Lawyers and their client only. The heading of the amended Summons filed on 19^th October 2000 is also misleading. In fact, it should be styled as “In the Matter of” and “In the Application of” etc. in order to be more specific in terms of the nature of this application and its purpose. The incorrect heading of this application must have attracted the attention of Mrs N. Tongarutu to appear in Court on behalf of client.

F.O. Kabui
Judge