Just because a lawyer appears in Court for a client does not necessarily mean that s/he has the authority to act. Although a written authorisation is not always necessary, nevertheless it serves a good purpose to establish a clear right for the lawyer to represent her/his client.
Hence, many legal firms require clients to sign a letter of authority also known as a warrant to act. This warrant to act merely signifies that the lawyer is duly authorised to represent the client. If the authority of the lawyer is brought into question, then the lawyer can produce either this warrant to act or any other documentation to prove that s/he has adequate authority. This position was recently explained in the High Court case of China Commercial Foreign Trade (Singapore) Pte Ltd v KLS Diversified (M) Sdn Bhd  9 MJL 274 (“China Commercial case”).
Facts of the case
The parties in the case entered into an agreement to purchase refined bleached deodorised palm oil. The Plaintiff arranged for a letter of credit to be issued by CIMB Bank in favour of the Defendant. However, the Plaintiff afterwards alleged that the Defendant had misrepresented them. The Plaintiff then claimed for a declaration that the Defendant is not entitled to the letter of credit and to injunct the Defendant from benefiting from it.
The defendant initially filed its appearance via Messrs Mohd Zawahid & Co and subsequently a notice of change was filed by Messrs Zaharudden Harun & Co.
During this period, three attempts were made by the Plaintiff to request from the Defendant’s lawyer a copy of the warrant to act. Unfortunately, despite assurances given to the judge that the warrant would be produced, the Defendant’s solicitor failed to produce the warrant to act.
The Plaintiff then applied for the notice of change filed by Messrs Zaharudden Harun & Co to be struck out.
The Court’s decision
The Court allowed the striking out application, as the Defendant’s solicitor “failed to provide evidence to show the requisite warrant or authority to act on behalf of the Defendant company”. The Court was of the view that in light of the requirements of the Defendant’s own articles of association, there ought to be some evidence that a majority of the board of directors supported the appointment of Messrs Zaharudden Harun & Co.
However, the Court also made it clear that it is not in fact the actual warrant to act that is required to be produced since such a document would be privileged. Instead, the solicitors merely had to produce any documentary proof to show that they have been properly authorised to act.
Lessons from the case
If there is any reason to suspect that the opposing solicitor is not authorised to act, one may challenge the authority in Court. Once challenged, it would be for the solicitor to produce either a warrant to act or any other documentary proof to show that s/he had been properly authorised. A solicitor who acts without proper authorisation would have committed a misconduct, and may be liable for costs on a personal basis. However, such a challenge should not be resorted to unless there is some reasonable suspicion with regard to the opposing solicitor’s authority.
Lycia Goh, pupil-in-chambers ([email protected])