Malaysia Court of Appeal clarifies principles pertaining to law of disqualification

20 December 2021

Dato’ Azizan Abdul Rahman & Ors v Pinerains Sdn Bhd [2021] 8 CLJ 839

In Dato’ Azizan Abdul Rahman & Ors v Pinerains Sdn Bhd, Pinerains Sdn Bhd (“respondent”) sought to recuse and/or disqualify the appellants’ counsel on the grounds that they (i) possessed confidential information of the respondent as they had previously acted as counsel for one Miss Chan, a former director and shareholder of the respondent, in another originating summons (“OS 264”), (ii) the facts and issues relating to OS 264 and the present appeal were closely related, (iii) by acting as counsel for Miss Chan in OS 264, and now for the appellants, the conduct of the appellants’ counsel was very subversive of the appearance that justice was being done, (iv) were in conflict by acting and/or continuing to act as counsel for the appellants, and (v) were in breach of rules 3, 4, 5 and 16 of the Legal Profession (Practice and Etiquette) Rules 1978.

The issues before the Court of Appeal were (i) whether there was a former solicitor-client or some fiduciary relationship between the appellants’ counsel and the respondent, (ii) whether the appellants’ counsel was in possession of confidential information relevant to the present appeal, and (iii) whether the respondent had a strong case to disqualify the appellants’ counsel.

In dismissing the appeal, the Court of Appeal held as follows:

• As Miss Chan had ceased to be a director and/or shareholder of the respondent, Miss Chan was not the respondent and whatever interest and/or shareholding she had in the respondent had ceased by the time the appellants’ counsel came on board as counsel for her, after the filing of OS 264. There could be no previous solicitor-client relationship between the appellants’ counsel and the respondent which would give rise to a duty to preserve the confidentiality of information at the material time. 
• The burden lay on the respondent, who sought to disqualify the appellants’ counsel, to place before the court full particulars of the relevant confidential information that was disclosed. The respondent produced a table consisting of many exchanges of email, but one particular paragraph placed before the court was found to not be confidential information. The respondent was found to not have discharged its burden. 
• Given that the purported confidential information was limited and found to not be confidential, it followed that the information could not possibly affect the respondent at all. It was also held that OS 264 had no relevance to the present appeal.