Cheng Hoe Soon v Ezekiel Peter Latimer formerly practicing in the style of M/s Peter Ezekiel & Co

Mr Cheng Hoe Soon, a taxi hirer, was in a collision with a lorry on or about 31 January 2008 and sued the lorry driver in the District Court in DC 1462/2009. He later engaged Mr Ezekiel Peter Latimer as his solicitor. It was undisputed that Mr Ezekiel failed to set the case down for trial by 31 March 2015 as a court order required, so the claim was struck off; his application for more time was refused, and he did not attend the appeal hearing. In July 2019 Mr Cheng sued him in Suit No 654 of 2019, alleging negligence and breach of retainer, through a new firm, S K Kumar Law Practice LLP (SKK).

Between April and August 2022, SKK's solicitors repeatedly failed to attend pre-trial conferences or sent someone without a valid practising certificate. Mr Cheng was ordered to pay $3,000 in wasted costs, and the assistant registrar warned that the statement of claim would be struck out if no SKK solicitor attended on 27 September 2022. On that date a lawyer from another firm, Mr Foo, appeared on SKK's instructions but was not on record and did not know the stage of the case. The assistant registrar struck out the statement of claim. A second assistant registrar dismissed Mr Cheng's application to set aside that order or extend time to appeal, with $2,000 costs. Mr Cheng appealed in Registrar's Appeal No 334 of 2022, now represented by Mr Foo.

1. Whether the second assistant registrar had jurisdiction to decide on the merits an application to set aside another assistant registrar's striking-out order.
2. Whether striking out Mr Cheng's statement of claim was a proportionate response to his solicitors' repeated failures to attend.
3. Whether the solicitors, rather than Mr Cheng, should bear the costs caused by their conduct.

On the first issue, the general rule is that one assistant registrar cannot be asked to rule again on a point already argued before and decided by another. That did not apply here. At the 27 September 2022 conference, the first assistant registrar refused to treat Mr Foo as representing Mr Cheng and did not let him make submissions, and SKK's request for a rehearing was refused. The merits of whether striking out was the right consequence were never argued, so the second assistant registrar could hear the application.

On the second issue, the court found SKK's solicitors' conduct plainly contumelious and unacceptable. But under Mitora, even a contumelious breach of an unless order does not automatically lead to striking out; the sanction must be proportionate. Nothing suggested Mr Cheng caused or knew of the absences. Mr Ezekiel had suffered no irremediable prejudice and had already received costs. Unlike Pakirisamy, where the litigants themselves were absent and the claim was weak, Mr Cheng appeared to have a strong case, as Mr Ezekiel did not dispute that his failure to set down the earlier suit caused it to be struck off. Suing SKK instead would be an unjust extra hurdle after Mr Cheng had already lost his accident claim once through a solicitor's default.

On the third issue, the court called on the solicitors to show cause why they should not pay costs personally. Mr Foo undertook in a letter dated 23 February 2023 that he and SKK would bear the earlier costs orders and the costs of the appeal and that Mr Cheng would not be charged, which made personal costs orders and a referral unnecessary.

The High Court allowed the appeal, so the striking-out order no longer stood and Mr Cheng could pursue his claim against Mr Ezekiel. On their written undertaking, his past and present solicitors, not Mr Cheng, were to bear the earlier costs orders and the costs of the appeal, and the court found no need to refer them to the Law Society. The court would hear the parties on the quantum of those costs.