Authority of a Lawyer to Act for His Client: The

Importance of Complying with Order 64, Rule 7

(Rules of Court)

This article focuses on the recent observations of the High Court in Tung Hui Mannequin Industries v Tenet Insurance Co Ltd & Ors [2005] 3 SLR 184 concerning the solicitor’s authority to pursue legal proceedings on behalf of his client.

Order 64, Rule 7

It should not be assumed that solicitors always have the authority to act for their clients in litigation. Indeed, a solicitor would be in breach of duty to his client if he fails to raise the issue of authority with the opposing solicitor in circumstances which suggest that the latter’s authority might be lacking. The two sub-rules of Order 64, rule 7 state:

(1) Every solicitor representing any party in any cause or matter shall obtain from such party or his duly authorised agent a warrant to act for such party, either generally or in the said cause or matter.

(2) The absence of such warrant shall, if the solicitor’s authority to act is disputed, be prima facie evidence that he has not been authorised to represent such party.

Sub-rule (1) is clear in its requirement and embodies a long established common law rule that a solicitor has a duty to obtain a written authority from his client before filing a suit in the name of that client.¹ Such authority must be in writing whether it is given by the client himself or through his (authorised) agent. Although this authority may be given ‘generally’, it is crucial that the general terms of the warrant are clear and precise enough to establish the authority of the solicitor in respect of the particular case which he is conducting for his client. As sub-rule (2) indicates, the purpose of the warrant or written letter of authority is to constitute proof of authority. The inability of a solicitor to produce a warrant or written letter of authority results in a presumption (a ‘prima facie’ case) that he has no such authority. The effect of this is that the solicitor or his client would have to establish his authority by sufficient evidence (normally that of the client himself if this is forthcoming) to rebut the prima facie case.²

Proper Practice

In Tung Hui Mannequin Industries v Tenet Insurance Co Ltd & Ors,³ Judith Prakash J expressed her concern that ‘... the function of a warrant to act and its place in legal practice is not well understood by many practitioners’⁴ and expressed the mandatory nature of the principle in no uncertain terms:⁵

... every solicitor who is representing a litigant or prospective litigant must obtain a warrant to act. The fact that it is a duty to obtain such a warrant and that this duty has been legislated as part of the Rules of Court indicates that the warrant is not simply a matter between the solicitor and his own client ... . The warrant is to serve as proof of the solicitor’s authority whenever such proof is needed and not only if the client himself subsequently disputes it.

Every solicitor must take into account the possibility that his authority may be challenged and anticipate this by ensuring that he has secured a warrant to act. If he is challenged, he must be prepared to disclose his warrant to act or other document establishing his authority.⁶ In practice, the authority of a solicitor is rarely challenged because of the seriousness of the imputation. Judith Prakash J explained the importance of attitude in these circumstances:⁷

Whilst the practice of law is an honourable profession and lawyers are, by and large, honourable persons, inasmuch as it is the duty of one lawyer to obtain authority before commencing action, it is the duty of the opposing counsel to defend his client’s interests by putting a stop to an unauthorised action at as early a stage as possible if there appears to be reason to suspect that the action is unauthorised. Solicitors therefore should not react with umbrage when asked to produce their warrants to act and especially when opposing counsel explains clearly the reason why there is a doubt regarding 
their authority.

However, although Order 64, rule 7 ‘necessarily implies that counsel are entitled to request opposing counsel to produce their warrants to act’,⁸ some discretion needs to be exercised in order to avoid abuse. A practice note issued by the Council of the Law Society (‘Requests for written warrants to act’) states:

Council is of the view that a law firm should as a general rule accept another law firm’s written representation that the latter is authorised to act for a particular client on the face value of the representation made, unless there are good reasons for suspecting that the representation has been falsely made.

This note characterises the duty of courtesy which solicitors owe to each other. However, it is a duty which is subject to the duty of a solicitor to his own client. Therefore, a law firm’s written communication is sufficient to confirm its authority unless there are circumstances which raise a reasonable suspicion that such authority is lacking. It is submitted that one ‘good reason’ may be a sufficient basis for reasonable suspicion (the note states: ‘good reasons’). Order 64, rule 7 obviously supports the challenge to a solicitor’s authority when this is justified. Judith Prakash J considered the practice note in the context of Order 64, rule 7:

Asking for warrants to act all the time can, however, become a nuisance and make practice unnecessarily difficult. That is why some practitioners think that you should not ask to see a warrant to act unless you have a good reason to do so or the circumstances are, in some way, exceptional. I agree with this view. So does the Law Society. For that reason, its practice note advised practitioners that they should usually accept a lawyer’s representation as to his authority at face value and should not ask to see another counsel’s warrant to act unless there were good reasons to doubt the authority in any particular case. Lawyers should not, however, interpret that practice note as meaning that they cannot ask to inspect a warrant to act or that a request from another lawyer to inspect their warrants to act is a request that casts aspersions on their professionalism and integrity.⁹

In general, therefore, I consider that a lawyer who receives a request to disclose his warrant to act should do so as a matter of course. He should not suspect the motives of the lawyer who makes the request unless there are other circumstances that indicate an ulterior motive. But, even if there is some ulterior motive, that is not a just excuse to withhold disclosure of the authority.¹⁰

Content of Warrant to Act

As for the content of the warrant, this should be limited to the words of authority as other communications between client and solicitor may be privileged and complicate the process for disclosure of the warrant. Her Honour observed:

If the warrant to act contains privileged material, the solicitor should either expunge that material before disclosing the warrant or obtain a further brief warrant that does not contain such material. To avoid having to expunge privileged material, warrants to act should be as brief as possible and simply describe the authority given without embellishment.¹¹

Striking Out and Costs

If the challenged solicitor is unable to establish his authority to act when challenged, the action may be struck out.¹² If the application to strike out is withdrawn because the client of the challenged solicitor deposes in an affidavit that he did give his solicitor the authority to pursue legal proceedings, the applicant may recover the costs of his application if the court concludes that the challenged solicitor and his client could have reasonably provided evidence of authority when initially asked for it. In Tung Hui Mannequin Industries, the first and fourth defendants applied to strike out the action on the basis that the opposing solicitors did not have the authority of the client-plaintiff (a partnership). The persons who constituted the partnership confirmed in a joint affidavit that they had authorised their solicitors to commence proceedings. Consequently, the first and fourth defendants withdrew their applications to strike out the action. The defendants were granted the costs of their applications because these had been necessitated by the ‘unreasonable refusal to produce any evidence of authority’.¹³

Jeffrey Pinsler

National University of Singapore

E-mail: lawpinsl@nus.edu.sg

Endnotes

1    Allen v Bone (1841) 4 Beav 493–494; 49 ER 429, at 430.

2    Tung Hui Mannequin Industries v Tenet Insurance Co Ltd & Ors [2005] 3 SLR 184, at para 42.

3    [2005] 3 SLR 184

4    Ibid, at para 39.

5    Ibid, at para 41.

6    [2005] 3 SLR 184, at para 43.

7    Ibid.

8    Ibid, at para 44.

9    Ibid, at para 44.

10  Ibid, at para 45.

11  Ibid, at para 45.

12  As pointed out in Tang Hui Mannequin Industries, at 
para 48.

13  Ibid.