口头协议的80千律师费, 律师败 [2021] MLJU 1374

案件背景：

  1. 案件性质：这是一起关于律师费支付的民事上诉案件。原告（NC & Co，一家律师事务所）声称被告（Greenery Development (S) Sdn Bhd）同意支付80,000令吉的固定律师费，但被告拒绝支付。原告因此提起诉讼，要求支付80,000令吉的律师费及20,000令吉的实物支付(payment in kind)，总计100,000令吉。
  2. 初审判决：初级法院（Sessions Court）判决原告胜诉，裁定被告需支付80,000令吉的律师费及5%的年利息，并支付5,825令吉的诉讼费用。然而，法院驳回了原告关于20,000令吉实物支付的请求，理由是原告未能提供足够的证据证明该部分索赔。
  3. 上诉理由：被告不服初级法院的判决，提出上诉，认为原告未能证明双方之间存在关于80,000令吉律师费的明确协议。

法官的判决分析：

  1. 合同法的适用：法官首先指出，本案的核心问题并非原告为被告所做的工作量是否值得80,000令吉的律师费，而是双方是否存在关于支付80,000令吉律师费的协议。因此，本案属于合同纠纷，而非律师与客户之间的费用评估程序。
  2. 证据的举证责任：根据《1950年证据法》第101条和第103条，原告有责任证明双方之间存在关于80,000令吉律师费的协议。法官引用多个案例，包括Achi a/p Suppiah v Devamurthy a/l Suppiah [2010] 8 MLJ 189，强调在民事案件中，举证责任在于主张事实的一方，且证据必须达到“概率平衡”的标准。
  3. 原告的证据：原告提供了三份主要证据：
    • PD(1)：原告于2016年1月15日向被告发出的账单，要求支付80,000令吉的律师费。
    • 2017年12月14日的信函：被告的新律师在信中表示“我们的共同客户将结清与贵所的所有未付账单”。
    • 2017年12月18日的信函：原告同意被告的新律师接管案件，并表示“我们的共同客户将在适当时候结清与我所的所有未付费用”。
  4. 被告的抗辩：被告否认双方曾就80,000令吉的律师费达成协议。被告的证人（DW1）表示，由于当时不清楚案件的工作量，双方同意在案件执行成功后再讨论律师费。此外，被告还指出，原告未能提供任何由被告签署的文件来确认80,000令吉的律师费。
  5. 法官对证据的分析：法官指出，尽管原告提供了PD(1)账单和两封信函，但这些文件并未明确表明双方就80,000令吉的律师费达成了协议。特别是PD(1)账单并未由被告签署，且原告未能提供其他证据证明被告同意支付该金额。此外，法官引用Sulaiman & Taye v Borneo Synergy (M) Sdn Bhd [2018] 9 MLJ 124一案，指出在该案中，原告提供了明确的发票和被告的回应，而在本案中，原告未能提供类似的证据。
  6. 律师费支付的法律规定：法官还引用了《1988年律师执业与礼仪规则》第54条和第55条，指出如果原告确实有未付的律师费，原告应行使留置权（lien）来保护其权益。然而，原告在2017年12月18日的信函中并未提及80,000令吉的律师费，而是笼统地提到“未付费用”。
  7. 判决结果：法官认为，初级法院在评估证据时存在错误，未能充分考虑原告证据的不足。因此，法官行使上诉管辖权，撤销了初级法院的判决，并裁定被告无需支付80,000令吉的律师费。

法官引用的其他案例：

  1. Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97：法官引用此案，强调在口头证据存在分歧时，法院应参考当时的书面证据来评估证人的可信度。
  2. Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229：此案进一步支持了法官的观点，即在口头证据与书面证据不一致时，书面证据应优先考虑。
  3. Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395：法官引用此案，指出上诉法院有权在初审法院错误评估证据时进行干预。

结论：

  1. 合同明确性的重要性：本案的核心问题在于双方是否就80,000令吉的律师费达成了明确的协议。法官指出，原告未能提供足够的证据证明双方之间存在明确的协议，特别是缺乏被告签署的文件。这提醒公司和员工在签订合同时，必须确保所有条款都明确且以书面形式确认，以避免未来的法律纠纷。
  2. 证据的举证责任：在民事案件中，举证责任在于主张事实的一方。本案中，原告未能提供足够的证据证明其主张，导致其索赔被驳回。这提醒公司在诉讼中必须准备充分的证据来支持其主张，尤其是在涉及口头协议的情况下。
  3. 律师费支付的法律规定：法官引用了《1988年律师执业与礼仪规则》第54条和第55条，指出律师在未收到费用时应行使留置权。这提醒律师事务所在处理客户案件时，应确保所有费用协议都以书面形式确认，并在必要时行使法律赋予的权利来保护其利益。
  4. 所以，无论是公司还是律师事务所，在签订合同和处理费用问题时，都必须谨慎行事，确保所有协议都以书面形式确认，双方签名。

Introduction

  1. This is an appeal by the Defendant (the Appellant) against the decision of the Sessions Court in allowing the Plaintiff (the Respondent)’s claim after a full trial in the sum of RM80,000.00 with interests of 5% per annum from the date of the writ until full and final settlement and costs of RM5,825.00.

The parties

  1. The Defendant was the client of the Plaintiff, a legal firm, the latter having taken over the conduct of the suit No. S22-19-2007 (“the 2007 Suit”) from another legal firm vide a Notice of Change of Solicitors dated 15.01.2016.

The dispute

  1. The dispute concerned the payment of alleged fixed or agreed legal fees due from the Defendant to the Plaintiff in the 2007 Suit. The Plaintiff claimed that the Defendant, through its director and shareholder, one LSS (DW1) had agreed and promised to pay legal fees in the sum of RM80,000.00 and late payment of legal fees in kind to the value of RM20,000.00.
  2. Subsequently, the Defendant engaged its current solicitors to take over the conduct of the 2007 Suit from the Plaintiff. The Plaintiff averred that in reliance of the Defendant’s promise to pay its legal fees, it had agreed to the Notice of Change of Solicitors vide a letter dated 18.12.2017.
  3. However, subsequently and despite demands from the Plaintiff, the Defendant refused, neglected and or failed to pay the said sum of RM80,000.00 as legal fees and RM20,000.00 payment in kind. By this action, the Plaintiff claimed for a total sum of RM100,000.00, statutory interests and costs.

The decision of the Sessions Court

  1. The Sessions Court accepted the Plaintiff’s evidence that the Defendant through DW1 had promised to pay the sum of RM80,000.00 as agreed legal fees. In so doing, the court relied on the Notice Bill dated 15.01.2016 (exhibit “PD(1)”) issued by the Plaintiff to the Defendant for the sum of RM80,000.00 and the letter from the Defendant’s solicitors dated 14.12.2017 in which the said solicitors had inter alia stated that “our mutual clients will settle all outstanding bills with your office”.
  2. The Sessions Court, however, did not allow the Plaintiff’s claim for the RM20,000.00 payment in kind, stating that the Plaintiff had not led any evidence to prove the claim. There was no cross-appeal by the Plaintiff against this part of the Sessions Court’s judgment.

This Court’s decision

  1. It must first be amplified that the issue before this Court is not how much legal fees were due to the Plaintiff for the work they had done on behalf of the Defendant in the 2007 Suit. In other words, the present action is not a taxation proceedings as between the solicitor and his client. The Plaintiff’s claim is simply that there was a promise, or an agreement between the Plaintiff and the Defendant that the Defendant was to pay RM80,000.00 as legal fees to the Plaintiff. The present action is therefore, purely a contractual claim. PW3 himself alluded to this fact when he answered in cross- examination (Q/A 7, NOP):

Q: I put it to you that this claim by the Plaintiff is based on the agreed legal fees and not a claim for the alleged work done. Do you agree?

A: I disagree because we the Plaintiff put up the fees for work done and whereby the Defendant can discharge us anytime but with the payment of the legal fees agreed.

  1. It is relevant to reproduce the following averments by the Plaintiffs in their Amended Statement of Claim on the alleged agreement:

“4. During the negotiation between LSS for and on behalf of the Defendant and the Plaintiff, the Defendant had agreed and promised to pay the Plaintiff the sum of Ringgit Malaysia Eighty Thousand (RM80,000.00) legal fees to continue to pursue the said Suit (hereinafter referred to as “the Legal Fees”).

  1. As the Defendant, had no money to pay for the Legal Fees at that material time, the Defendant had agreed to pay the said Legal Fees after the settlement of the said Suit or when a new Solicitors are engaged by the Defendant to take over the said Suit from the Plaintiff.”
  2. PW3 testified that on 15.01.2016, DW1 came to his office wanting to appoint the Plaintiff to take over the conduct of the 2007 Suit. PW3 said they both agreed on the legal fees of RM80,000.00.
  3. PW3 further testified that there was no deposit paid by the Defendant as DW1 had pleaded with him to do the work first and for the legal fees to be paid upon settlement of the 2007 Suit. PW3 agreed and caused his staff, PW4 to prepare exhibit “PD(1)”. Once PW3 signed it, he handed it over to DW1 in the presence of his other staff, PW5. PW3 confirmed that apart from exhibit “PD(1)”, no other invoice was issued by the Plaintiff to the Defendant.
  4. Relying on Section 2(e) of the Contracts Act 1950 and the case of Achi a/p Suppiah v Devamurthy a/l Suppiah [2010] 8 MLJ 189, it was submitted by the Plaintiff that the oral promise or agreement by the Defendant through DW1 was enforceable in law. The Plaintiff also relied on the case of Sulaiman & Taye v Borneo Synergy (M) Sdn Bhd [2018] 9 MLJ 124 (upheld by the Court of Appeal in Borneo Synergy (M) Sdn Bhd v Sulaiman & Taye (suing as a law firm) [2019] MLJU 7) which dealt with a claim for fixed legal fees. The plaintiff in that case claimed that there was an oral agreement between the parties that the defendant was to pay RM260,000.00 as fixed legal fees. The court allowed the plaintiff’s claim, preferring to accept the evidence of the plaintiff’s 2 witnesses that there was such oral agreement.
  5. For the Defendant, DW1 testified that he was introduced to PW1 by a counsel with the State Attorney General’s Chambers in the 2007 Suit in or around January 2016. He said he had told PW3 that there was a Consent Order dated 02.04.2013 in the 2007 Suit wherein the Defendant was awarded 500 acres of land in the district of Tongod, Sandakan. The Defendant wanted the Plaintiff to pursue the execution of the Consent Order namely for the Defendant’s 500 acres of land.
  6. DW1 denied that there was an agreement for legal fees in the sum of RM80,000.00. Instead, he said that as it was unclear at that juncture what amount of work would be involved, he understood it to be that the legal fees would only be discussed upon the successful execution of the Consent Order. He denied seeing exhibit “PD(1)” before the trial and or the list of alleged work done by the Plaintiff as stated in PW3’s witness statement.
  7. The Plaintiff had called 3 witnesses (PW3, PW4 and PW5) to testify on the alleged agreement on the legal fees of RM80,000.00. PW4 and PW5 who had both been working with the Plaintiff for some 20 years testified on the Plaintiff’s behalf. Their evidence ran along the same lines as that of PW3 namely that on 15.01.2016, DW1 came to the Plaintiff’s office to discuss about the 2007 Suit and to appoint the Plaintiff. They said they heard DW1 agreeing to the legal fees of RM80,000.00 and that upon being instructed by PW3, PW4 prepared exhibit “PD(1)” while PW5 typed the envelope in which exhibit “PD(1)” was handed over to DW1 by PW3.
  8. However, neither PW4 nor PW5 actually testified as to who had allegedly proposed the said sum of RM80,000.00. PW3 himself was silent on this in his evidence-in-chief. It was only in cross- examination that PW3 said that it was DW1 who had “uttered” the legal fees. However, this allegation was never suggested to DW1 during his cross-examination. In fact, it was not even a pleaded point.
  9. As noted earlier, DW1 ‘s version of events was that the parties had not agreed on the legal fees to be paid by the Defendant to the Plaintiff as at that material time it was unclear as to what work would be involved. DW1 said that the legal fees would only be discussed upon the successful execution of the Consent Order (Q/A 4, DWS-1(1 5)).
  10. Although there were voluminous documents filed for the trial, much of the Plaintiff’s case hinged on exhibit “PD(1)”, a letter dated 14.12.2017 from the Defendant’s current solicitors to the Plaintiff and a letter dated 18.12.2017 from the Plaintiff to the Defendant’s current solicitors.
  11. Exhibit “PD(1)” was signed and stamped by the Plaintiff but it did not bear any signature of DW1 or anyone from the Defendant to acknowledge its receipt and or its contents. As noted above, DW1’s evidence was that he did not see exhibit “PD(1)” until after the commencement of the action.
  12. At this stage, it must be appreciated that the Defendant was at the material time, a new client without any previous dealing with the Plaintiff. However, despite this fact, the Plaintiff did not insist on a deposit from the Defendant. PW3 was cross-examined on this matter:

Q: So are you saying that in spite having just met LSS for the first time, and knowing that the travel and accommodation costs involved due to the case being in Sandakan, you agreed to take over the case without a deposit or even a letter signed by the Defendant to confirm the alleged legal fees?

A: Yes. For my Learned friend’s information I am quite well off and I can afford to pay my expenses to Sandakan to do the work and expect to be paid by the Defendant when he has the money or after settlement of the claim against the Lands & Surveys and the State Government under suit no.S-22-19 of 2007.”

  1. The Plaintiff is a legal firm and PW3, was at the time, already a seasoned practitioner. Thus, the Plaintiff would have been well aware of the need for acknowledgments of documents for record purposes. What more in this case when at the time of the Plaintiff’s appointment in 2016, they would not have known when the 2007 Suit would be settled. On the other hand, it would have been the easiest thing for the Plaintiff to get DW1 to counter-sign exhibit “PD(1)” when it was allegedly prepared and handed over to him on the same day but PW3 failed to explain why this was not done so.
  2. This brings me to the case of Sulaiman & Taye cited by the Plaintiff. In that case, the plaintiff had issued an invoice dated 03.07.2013 to the defendant for RM260,000.00 as agreed fees and RM15,600.00 as 6% service tax. In the present case, exhibit “PD(1)” did not state that the sum of RM80,000.00 was agreed or fixed legal fees. Instead, the particulars were stated as follows: “To our professional fees to take over the abovementioned case from Messrs GH & Co.”
  3. In addition, in Sulaiman & Taye, the defendant responded contemporaneously on 10.07.2013 disputing the work done by the plaintiff and stating that the fees were unjustified and oppressive. The court held that despite the defendant’s objection, the defendant in its letter never denied the oral agreement of fixed legal fees of RM260,000.00. This is to be contrasted from the present case where apart from exhibit “PD(1)”, there was no other invoice or demand issued by the Plaintiff. In fact, when the Defendant’s new solicitors wrote to the Plaintiff on 14.12.2017 to take over the conduct of the 2007 Suit, the Plaintiff did not write to the Defendant to seek for payment of the alleged agreed legal fees at all. PW3 stated in evidence that he merely called DW1 to seek for payment.
  4. Next, the Plaintiff relied on the 2 letters – one dated 14.12.2017 from the Defendant’s current solicitors to the Plaintiff and the other, a letter dated 18.12.2017 from the Plaintiff to the Defendant’s current solicitors. The Sessions Court held that these letters evidenced that there were “outstanding bills” due from the Defendant to the Plaintiff.
  5. In the letter dated 14.12.2017, the Defendant’s current solicitors stated as follows: “We have been instructed by Greenery Development to act in your stead in respect of the above matter. We have been given to understand that our mutual clients will settle all outstanding bills with your office. If you have no objection for us to act in your stead, kindly forward to us all court process documents for our further action as soon as possible.”
  6. It was submitted for the Plaintiff that these letters support their claim that the agreed legal fees in exhibit “PD(1)” were still outstanding and that the Defendant was well aware of the same.
  7. For the Defendant, it was contended that the letter dated 14.12.2017 was merely in compliance of Rule 54 of the Advocates (Practice and Etiquette) Rules 1988 which provides as follows:

“54. Where in any matter or proceeding, the name of any advocate or the name of his firm appears on the records for any party, or an advocate is known to be acting for a party, in a matter whether in a court or not, no other advocate shall knowingly agree to appear or to act or continue to appear or to act for such party in such matter or proceeding unless (a) he obtains the consent of the first-named advocate; or (b) he is satisfied that the proper professional remuneration of the first-named advocate has been paid or he undertakes that the same will be paid;…”

  1. The Defendant further added that there was nothing in the said letter to suggest that there was an outstanding legal fees of RM80,000.00 to be paid by the Defendant.
  2. I agreed with the Defendant’s submissions on this issue. If indeed there were agreed legal fees due to the Plaintiff by the Defendant, the Plaintiff would have exercised their lien under Rule 55 of the Advocates (Practice and Etiquette) Rules 1988. However, in their letter dated 18.12.2017 the Plaintiff merely stated as follows: “As our mutual clients will settle all outstanding fees with our office in due course, we have no objection for you to act for the said Greenery Development.”
  3. PW3 had reasoned that they were “influenced and encouraged by the nice words” in the Defendant’s solicitors’ letter dated 14.12.2017. Respectfully, this was a rather flimsy reasoning as PW3 is not a lay person who in the circumstances would have been ignorant of the rights of an advocate under the Rules.
  4. In any event, even if the Defendant’s solicitors had represented that the Defendant will pay outstanding bills to the Plaintiff, there was nothing in the letter to suggest that the “outstanding bills” referred to the alleged agreed legal fees of RM80,000.00.
  5. As shown above, the Sessions Court had erroneously accepted the evidence of the Plaintiff without sufficient evaluation of their weight as against the Plaintiff’s claim. Had the Sessions Court not done so, it would have reached a conclusion that the probability of the evidence did not support the Plaintiff’s claim that the Defendant had agreed to the fixed legal fees of RM80,000.00 at the time of the Plaintiff’s appointment as its solicitors.

Conclusion

  1. In the circumstances, the Court exercised its appellate jurisdiction and set aside the judgment of the Sessions Court with costs here subject to allocatur.

Source: Greenery Development (S) Sdn Bhd v NC & Co [2021] MLJU 1374. High Court Sandakan. Celestina Stuel Galid J.

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