Vinodh Coomaraswamy discusses Rule 70 of the Legal Profession (Professional Conduct) Rules 1998
| Rule 70 |
| An advocate and solicitor shall not enter judgment by default against the other party who is on record represented by another advocate and solicitor, or take any advantage of delay in filing pleadings unless notice of his intention to do so has been given to the other advocate and solicitor and 48 hours (excluding Saturdays, Sundays and Public Holidays) have elapsed after delivery of such notice. |
There are four issues associated with the scope and application of Rule 70 which may concern legal practitioners:
If a solicitor enters judgment for his client in breach of Rule 70, is the judgment regular?
Can a solicitor give notice under Rule 70 even before there has been a default by the other party?
Does Rule 70 apply to the entering of judgments in default of appearance? and
Does Rule 70 apply to the entry of judgment under self-executing peremptory orders?
Regularity of judgment
This issue does not appear to have been considered in any reported case by the Singapore courts. However, it has been considered in a Malaysian case, Asia Commercial Finance (M) Bhd v Bank Bumiputra Malaysia Bhd & Ors [1988] 1 MLJ 33.
In brief, this case is convincing authority for the propositions that:
the purpose of the Rules as stated in section 71 of the Legal Profession Act is to regulate the professional practice, etiquette, conduct and discipline of advocates and solicitors;
the Rules do not regulate the procedure to be followed in legal proceedings in the Supreme Court, which is to be found exclusively in the Rules of the Supreme Court; and
therefore, non-compliance with Rule 70 does not render a judgment irregular.
Further, PL Construction Sdn Bhd v Abdullah bin Said [1989] 1 MLJ 60 is authority that there is no need to file an affidavit deposing to the fact that Rule 70 has been complied with when entering a judgment in default.
Notice before default
The issue arises, for example, in this way: can a solicitor give notice to his opponent 48 hours before the time stipulated for the filing of the opponent’s defence expires informing his opponent that if the defence is not filed precisely within the stipulated time, judgment will be entered immediately upon expiry of the stipulated time?
There is no authority on this point. Looking at it from first principles, however, it does seem as though there is no breach of Rule 70 in this situation. This is because there is nothing in Rule 70 which requires that one’s opponent be in actual default when the notice is given. Further, this construction of Rule 70 does not undermine the underlying spirit of Rule 70 which is to ensure that a solicitor does not take advantage of a fellow solicitors’ oversight or inadvertence. Finally, Rule 70 does not override the Rules of Court and should not be construed so that it has the effect of adding an extra 48 hours to the time periods stipulated therein.
When does Rule 70 apply?
By its terms, Rule 70 prevents a solicitor from entering judgment in default against another party ‘who is on record represented by another advocate and solicitor’. A solicitor is ‘on the record’ for a defendant only when he enters an appearance on behalf of that defendant. On that basis, it appears that the rule can have no application to the entering of judgment in default of appearance as, by definition, at that time there is no solicitor on the record for the defendant. The letter of Rule 70 therefore appears not to apply even where the plaintiff’s solicitor is well aware that the defendant is represented and may even have served the writ on the defendant’s solicitor.
This interpretation of Rule 70 is supported by the contrast with Rule 56 of the Malaysian Practice and Etiquette Rules 1978, which applies ‘where the name of the advocate and solicitor or his firm appears on the Court record or the fact of representation is known to the other side’. [Emphasis added.]
Self-executing peremptory orders Rule 70 precludes an advocate and solicitor from entering ‘judgment by default’ against a party represented by another solicitor. These words would appear to be wide enough to cover a judgment entered pursuant to a self-executing order ‘in default’ of one party’s compliance with the peremptory aspects of the order. Further, interpreting the rule in this manner would further its underlying policy, namely to ensure that the failure to comply with the peremptory aspects of the order is not due to a solicitor’s oversight or inadvertence. Therefore, it would seem that 48 hours’ notice should be given before entering judgment pursuant to a self-executing peremptory order.
Conclusion
Having explored the scope and application of Rule 70 of the Legal Profession (Professional Conduct) Rules 1998, members are nonetheless urged to be civil in their dealings with each other and to ensure that by entering any sort of default judgment in an action, they are not taking advantage of a fellow-solicitor’s oversight or inadvertence.
Vinodh Coomaraswamy
M/s
Shook Lin & Bok
Civil
Practice Committee, The Law Society of Singapore