Of Mentions and Mentioning on Behalf

A meditation on a mention date and an exploration into the implications of ‘mentioning on behalf’ of another party in court.

If you were a lawyer or someone who hung out in the hallways of justice a lot (loser!) you would often hear the phrase mention. A mention actually refers to what is known as a ‘mention date’ i.e. when your case is mentioned in court as opposed to being heard either by way of an application or trial. The use of the word mention therefore is apt. It suggests that the matter to be dealt with is one that require such a short period that it requires literally, a mere mention. But seasoned practitioners know just how long a mention can actually be amongst judicial officers who display outstanding advocacy and rhetoric on the bench and can turn a mention into a trial. Your trial, of course.

But what are mentions for? A mention was given judicial consideration in the decision of Ger-Mal Sdn Bhd v Zulkifli Hassan & Anor [2001] 6 CLJ 376 where Suriyadi J said as follows:

I need to add that even though the terminology of “mention” has no place in the Rules of the High Court 1980, courts have generally adverted to its usage not infrequently, due to its acceptability by the legal fraternity and the judicial system. In general, that word has been accepted to cover a date supplied by the court, specifically fixed to resolve certain questions, but certainly does not include a hearing date. To be more specific, a court may fix a mention date purposefully to obtain some feed back from the parties due to some reason or other, or for some other administrative reasons. In contradistinction, if a hearing date were supplied, it is universally accepted that on such a date a trial is anticipated (PP v. Ng Goh Weng[1978] 1 LNS 159; [1979] 1 MLJ 127; Chung Sow Mun v. TRR Kurup[1989] 3 MLJ cix). At that trial date there will be a final determination of the case, whereupon judgment may be given (Merlimau Pegoh Limited v. Collector of Land Revenue Jasin[1969] 248; Koperasi Serbaguna Cuepecs Tanggungan Bhd v. City Investments Sdn Bhd[1983] 1 LNS 13; [1983] 2 MLJ 33).

The unofficial explanation for mention dates in the subordinate courts as I understand it is to ensure that the file is kept active so that it doesn’t go missing. Furthermore, where long stretches of time pass before there is a need for the file again there is a tendecy for both sides of the dispute then forget about it and the file the ends up slumbering in the storerooms of justice. Another example when a mention date is appropriate is when some judges and registrars fix a mention date to ensure that both sides comply with the written submission schedule before fixing a decision date. So what happens is that on that mention date, both parties or more commonly, one party will go for it merely to confirm that the submissions are all in and to proceed to fix a hearing or decision date

So that is a mention or mention date. But earlier I wrote that more commonly one party would go for the mention date. Why is that you may wonder? That is because of this practise of ‘Mentioning on Behalf’ of the other, or what is known in the battlefield of litigation as ‘mob’ (you spell it out – em oh bee). This is one of the purest examples of a practical concept because it is not provided for in any of the procedural rule books (namely, Rules of the High Court 1980, Subordinate Court Rules 1980, Winding Up Rules 1972, etc.) nor Acts (nothing in the Legal Profession Act 1976, Courts of Judicature Act 1964 or Subordinate Courts Act 1948). It is not known however how, who, what, when or where it developed around here.

Richard Talalla J was the first to give this practise prime judicial recognition and consideration in Lee Oui Long v Lim Chu Ahiat & Anor [1993] 2 CLJ 88. In this case, the Judge was prepared to delivered his judgment but noticed that only the Respondent’s counsel was present and mentioning on behalf of the Appellant’s solicitors. The rest is left to his Lordship’s own words to which I can do no better than reproduce:

He was then asked what was meant by the expression above quoted and informed that as far as the Court could see there appeared to be no meaning to it inasmuch as the solicitors for the appellant were not parties to the proceedings and therefore there was no question of Counsel appearing on their behalf or mentioning on their behalf. In the latter regard the Court posed the question, “Mentioning what?” To this Counsel replied that Counsel for the appellant was engaged elsewhere and could not appear before the Court in this instance. That answer though typical had no relevance to the question asked. The point seemed to have been missed. As far as I can see Counsel normally appears for a party to the action. Counsel can properly appear at the same time on behalf of the opposing party, provided there is no conflict of interest between the parties, for example when the suit has been compromised and all that remains is to move the Court for judgment by consent. I do not see that Counsel can be seen to be appearing on behalf of a solicitor or Counsel for an opposing party. Even if Counsel can properly so act I do not understand what is meant by Counsel “mentioning” on behalf of the solicitor.

Counsel appeared to be taken by surprise and was somewhat perplexed, understandably so. I in turn assured Counsel that the purpose of the Court was not to embarrass him but to ascertain with a degree of finality whether this practice which has become rife of mentioning on behalf of an opposing solicitor or Counsel has legal validity. Counsel was invited to give consideration to the matter which was stood down in order to enable him to research.

Upon resumption Counsel informed me that he had consulted a number of legal practitioners more senior and experienced than himself all of whom did not seem to be able to provide any justification or legal basis for such a practice.

Counsel then cited Practice Direction No. 6 of 1989 which he considered might be of assistance. It reads as follows:

Re: Attendance of Counsel and clients on mention dates before the magistrates’ courts

The Honourable the Chief Justice of the High Court (Malaya) has directed that counsel and clients in civil actions need not have to attend before the magistrates’ courts on mention dates if another counsel has been authorized by them to attend on their behalf.

Magistrates’ Courts mention cases on appointed dates, usually to enable Counsel to appear and obtain a hearing date if the matter is to be litigated further or if compromised either to withdraw the action upon agreed terms or enter consent judgment. Invariably there is no conflict of interest between the parties in regard to the business to be transacted when the Court mentions the case. Hence the Practice Direction, which I construe as lending support to the view that Counsel should properly appear on behalf of a litigant and not on behalf of the opposing solicitor or Counsel.

In any event Counsel’s office and professional composition is so exclusive and specialised, that it is impossible for another person, albeit qualified, to represent Counsel. Rather it is for Counsel, and it is well within the scope of Counsel’s authority in an appropriate case, to request that other person to appear in place of Counsel and upon the request being acceded to that person would appear, not on behalf of requesting Counsel, or on behalf of the solicitor instructing requesting Counsel, but on behalf of the litigant, the client of the instructing solicitor and the lay client of the requesting Counsel. That being the case it behoves substituted Counsel to be fully briefed and ready to fulfil Counsel’s duty to the Court as well as to the litigant just as ably as requesting Counsel. Unfortunately, that is often not the case when Counsel appears purporting to mention on behalf of the solicitor or Counsel for the opposing party. Invariably when the Court enquires of pertinent matters, Counsel appearing is unable to provide an effective answer, pleading lack of instructions and emphasising that Counsel is only “mentioning on behalf of the opposing solicitor or Counsel”.

It is at its worst on the day of hearing of an action. Counsel for the defendant appears and claims also to be mentioning on behalf of the plaintiff, then seeks an adjournment of the hearing purportedly by consent. The plaintiff is absent. When asked by the Court why the plaintiff is consenting to an adjournment when the plaintiff should ordinarily be seeking the claimed relief as soon as possible, Counsel replies that he does not know, superciliously repeating that he is merely mentioning on behalf of the solicitors for the plaintiff. That is tantamount to there being no appearance on behalf of the plaintiff and consequently the action standing in danger of being struck out, to the peril of the plaintiff and the plaintiff’s solicitor. The alternative is a postponement, resulting in delay and adding to the backlog of cases. In the overall interest of justice the former course is preferable to the latter. The preferred course will place the onus on the accountable party to meet the criteria set out in the case law if restoration of the action to the list is sought. Ordinarily in the circumstances being mulcted in costs should be a relief compared to the tortious aspect.

There is reason to believe that the practice arises by reason of lack of preparation by solicitor on record or Counsel and consequent unreadiness to proceed. The predicament is then sought to be resolved by referring the matter to unwitting Counsel on the other side who, out of goodwill or maybe on the basis of mutual assistance should the latter at some subsequent time find himself to be in a like position of unreadiness, agrees to appear in Court purportedly “to mention on behalf of the former.” I take the view that the practice is inappropriate, indeed undesirable. It is a device which has the effect of clogging the hearing lists; especially in the lower Courts where the practice is rampant.

It is of interest to take note that his Lordship ‘decline[d] to entertain Counsel as “mentioning on behalf of the solicitor for the appellant” but then delivered his decision after the Respondent counsel declared that he was acting for both the Appellant and the Respondent.

There are a few observations that can be made from this case. Firstly, counsel can only properly mention on behalf of the other party, namely the client itself, not it’s solicitor/counsel. Secondly, it should be only for such business that would not place the counsel in a position of a conflict of interest such as obtaining a decision or to inform the court about the progress of settlement. Thirdly, counsel appearing for both parties must be fully briefed about both parties’ cases in the event the Court makes any inquiries regarding either one. This is a natural consequence of the first observation. Fourthly, sadly, all the things the Judge complains of still goes on: an atrocious example of this can be seen in Resort Villa Development Sdn Bhd v Niwatime Health Management Sdn Bhd [2005] 7 CLJ 336.

Contrary to his Lordship’s view, mob’ing has flourished.I think that is why when the practise came up again for judicial consideration before Abdul Hamid Embong J, his Lordship didn’t express severe views on it. Instead, his Lordship had the cleverness and foresight to develop the practise further in Hong Siew Kai v Lim Tong Han [2000] 4 CLJ 501. If you can’t beat them, might as well mould them. The facts are as follows:

The notes of proceedings showed that on that date plaintiff’s counsel appeared before the learned magistrate and also mentioned the case on behalf of defendant’s counsel. The latter as well as the defendant were not present. There were two applications pending before the magistrate. Encl. 22 was the defendant’s counsel’s application to discharge himself. Encl. 23 was the defendant’s application to set aside the default judgment (ie the subject of this appeal), which was supported by his solicitor’s affidavit. The learned magistrate allowed the application for discharge (Encl. 22) and accordingly discharged the defendant’s counsel. The learned magistrate then proceeded to hear the defendant’s application at encl. 23 ie to have the default judgment set aside. It is not obvious from the notes of proceedings whether this application was heard at the behest of plaintiff’s counsel or at the court’s own motion. The notes of proceedings also do not disclose if plaintiff’s counsel had advanced any submission on that application although it was noted that plaintiff’s counsel said that encl. 23 should be heard first, thus inferring that it was he who has moved the court to hear the application at encl. 23. Be that as it may, the record shows that the application was dismissed with costs.

This is the relevant portion of his Lordship’s decision:

The Effect Of Mentioning A Case On Behalf Of An Opposing Counsel

When the defendant’s application at encl. 23 was heard and decided on 29 September 1999, it was done in the absence of the defendant or his counsel. Counsel for the plaintiff had appeared and also mentioned the case on behalf of defendant’s counsel. This court may therefore assume that plaintiff’s counsel had been in communication with defendant’s counsel and that both counsels must have come to an understanding that the application would not be heard in the absence of the defendant or his counsel. Such an undertaking may be inferred as it is common practice for a counsel to appear before the courts and have a matter mentioned on behalf of his absent adversary, pursuant to some arrangement or undertaking . Although not provided for under the Legal Profession Act and, seemingly there is no legal basis for such a practice, the courts over the years, have been flexible in allowing lawyers to appear and mention a case on behalf of their absent brethren. It has now become an accepted practice, one necessitated by convenience and time management in a lawyer’s busy schedule. Thus, except for matters where counsels for both parties are required to be in personal attendance, the courts have been magnanimous in dispensing with counsels’ presence in appropriate situations. There are, of course, various instances where the presence of counsels of both parties are not required and where it may be sufficient that only one counsel appears. Normally, that situation occurs when a matter before the court is fixed only for a mention to obtain a hearing date, or where the parties have consented to some agreements and to record the terms of settlements or to have a matter withdrawn.

In Lee Oui Long V. Lim Chu Ahiat & Anor. [1993] 2 CLJ 88 (unreported Civil Appeal No: 12-17-90) see Mallal’s Digest 4 edn. p. 387, the High Court at Muar had held that, when a counsel mentions a case on behalf of another requesting counsel, the attending counsel actually appears not on behalf of the requesting counsel but on behalf of the litigant, and as such, the attending counsel should be fully briefed, and be ready to fulfil counsel’s duty to the court as well as to the litigant as ably as the requesting counsel. I would subscribe to that view and would add that an attending counsel who mentions on behalf of the requesting counsel also assumes an undertaking to both that counsel and his client.

Where, as in the instant case, the court had decided to proceed with the hearing of the outstanding matter, the least that the appearing counsel could do, in my view, was to have the matter stood down and inform his absent opponent, for whom he had mentioned the case. I am also of the view that when a counsel appears before a court to mention on behalf of his adversary he is deemed to have given an undertaking, both to the court and his opponent and client, that the matter would not, in fairness, be heard in the absence of his adversary. The Legal Profession (Practice and Etiquette) Rules 1979 (LPR) requires utmost good faith, openness and fairness in counsel’s conduct in such a situation. Rule 19 emphasises such conduct stating -

19. The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness.

Similarly, an advocate is also required to treat his adversary with fairness (see r. 33 LPR). Besides that, the appearing counsel is also required to fulfil his undertaking to his adversary.

As regards a counsel undertaking it is perhaps apt to quote a few passages from the English Court of Appeal decision in Silver & Drake v. Baines [1971] 1 QB 396 to emphasise the seriousness of the matter. That case involved a dispute between two firms of solicitors in which the legal assistant of the respondent firm had given an undertaking to repay an advance of 4000 pounds given by the appellant firm which the principal partner denied any knowledge of having been given. Although the Court of Appeal decided that it was not an appropriate case for the court to give summary judgment against the appellant firm’s principal partner, the remarks made by Lord Denning MR and Widgery LJ on a solicitor’s undertaking are worth repeating to apply to the instant case before me.

per Lord Denning MR -

This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it: see Myers v. Elman [1940] A.C. 282. This jurisdiction extends so far that if a solicitor gives an undertaking in his capacity as a solicitor the court may order him straightaway to perform his undertaking. It need not be an undertaking to the court.

Nor need it be given in connection with legal proceedings.

per Widgery L.J. -

This was not the common case of an undertaking given to the court in which any default is akin to a contempt and naturally attracts the remedy of attachment and committal. The undertaking in question here was not given to the court. It was not even given in the course of litigation. There is clear authority, however, from the earliest days that a solicitor, being an officer of the court, is liable to attachment for a breach of an undertaking even though the undertaking is not given to the court itself. But the first requirement of the exercise of that jurisdiction, as Lord Denning M.R. has pointed out, is that the undertaking in question must have been given by the solicitor in the course of his activities as

a solicitor. It must be given by him professionally as a solicitor and not in his personal capacity. The reason for that is clear enough, because a remedy of this kind is intended primarily to discipline the officers of the court, to ensure the honesty of those officers.

The court is thus concerned only with their activities as solicitors, and anything done by a solicitor in his private capacity is outside this jurisdiction.

Similarly, in the instant case, this court’s concern is that of the undertaking given by the appearing counsel to his opponent and the latter’s client, when the matter was mentioned on behalf of both the latter. It need not be overly emphasised that an undertaking given by an advocate and solicitor in the course of their professional duties is not a matter to be lightly treated. The above quoted passages emphasise the rigid observance required on such undertakings, a breach of which will demand intervention by the courts.

In this case, even though the defendant’s counsel had been discharged (when his application at encl. 22 was allowed) he remains on record as the solicitor acting for the defendant, until the sealed copy of the order for discharge had been served on the parties to the cause or matter (see O.11 r. 5 SCR). As such, it cannot be suitably said that the undertaking no longer exists to be fulfilled. I believe it was upon this wrong impression of the appearing counsel that he was no longer obliged to his absent adversary that encl. 23 was requested to be heard. However, my view is that to proceed with the outstanding application behind the back of his adversary, is, ungentlemanly conduct, or worse, in breach of a counsel’s undertaking which should attract this court’s intervention, or in appropriate cases, invoke its disciplinary jurisdiction where a counsel may summarily be called upon to perform his undertaking. (see United Mining and Finance Corporation Ltd v. Becher [1910] 2 KB 296, and Re A Solicitor [1936] 1 LNS 43). I hasten to add that the counsel who appeared before the learned magistrate is not the same counsel who appeared before me.

There are a few observations to make here. Firstly, there is an automatic undertaking presumed to be given by the attending lawyer to the other party’s lawyer and client that he would not proceed with the application/trial in their absence. Secondly, the court is willing to enforce such undertaking though not given to it. What I find amusing is that the court is willing to enforce an entirely fictional undertaking. But then much of the law is ficiton. I would prefer if the judges were a bit more intellectually clear and honest about it and make it a rule of natural justice and say that it is wrong to proceed with an application in the absense of the other party instead of setting up these entirely useless legal fictions about undertakings. Thirdly, enforcement would result in disciplinary measures by the Court. This is what I find strange. Unless the attending counsel misled or lied to the court about the mob, i do not think it should attract such severe measures. This is because the court can always decline to act even if the attending counsel moves the court to do so. In short, no harm done. Perhaps a severe tongue lashing would suffice.

Finally, it is fortunate his Lordship has provided guidance on what to do for both parties in a case where the Court intends to go on with the hearing. And by both parties I mean the Court and attending counsel:

the least that the appearing counsel could do, in my view, was to have the matter stood down and inform his absent opponent, for whom he had mentioned the case.

I take this to mean that the Courts must give reasonable time for the other side to come before proceeding with the hearing and thankfully and ultimately, the attending counsel would not be called upon by the court to argue the other party’s case for them!

A fair question to ask about the mention is why doesn’t the court just keep the matter off its cause list until the parties do what they are supposed to? Once this is done parties can then write in to inform the court that it has been done and request for a hearing/trial date to be fixed. This would save parties time, expenses and effort instead of going to court for a mere mention because lawyers do not have to go to court for such minor/petty matters, especially those that can more expeditiously be dealt with by correspondence or telephone. That is the probably sometimes with our Malaysian courts and its judicial officers, they only see the saving of time, effort and expense from the perspective of the bench, not the litigants, or the lawyers, whom they tend to forget are also officers of the court and entitled to some degree of mindfulness from the courts.

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Posts by Fahri Azzat

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 28 November 2008. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to Of Mentions and Mentioning on Behalf

  1. Lawyers in Chd

    Wonderfully written and important piece of work. thanks for sharing with everyone.
    Lawyers in Chandigarh

  2. Lawrence

    One question, does a pupil has a right to mention on behalf in a CM?

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  7. Yudistra Darma

    You enlighten me Fahri.

    Thanks for this, a good read.