The way I was raised, a court date is a sacred date. It must be attended. Unless I was very ill or about to die, an adjournment is out of the question.

It does not matter why the court fixes the date. It can be for case management, mention, hearing, trial or even to ask how your grandmother is (has not happened). Whatever its purpose, as a lawyer, I must attend, either by myself or by my colleagues.

An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

Rule 6(a) Legal Profession (Practice and Etiquette) Rules 1978 (LPR78)

Subject to any Rules of Court made on its behalf, an advocate and solicitor assigned as counsel or advocate and solicitor in any civil or criminal matter shall not ask to be excused for any trivial reason and shall always exert his best effort in that assignment.

Rule 8 LPR78

An advocate and solicitor shall maintain a respectful attitude towards the Court.

Rule 15 LPR78

An advocate and solicitors shall make every effort to be ready for trial on the day fixed.

Rule 24(a) Legal Profession (Practice and Etiquette) Rules 1978

A respectful attitude towards the court under Rule 15 LPR78 means turning up at the appointed date and being ready to proceed with the case. These are reflected in firstly, Rule 6(a) LPR78 which prohibits a lawyer from accepting a case unless they can appear and represent the client. That means a lawyer must be ready to perform on the day he is to appear. That is reinforced in Rule 24(a) LPR78.

In Sykt Siwa Teck Hwa Realty & Developments Sdn Bhd v Malek & Joseph Au [1999] 3 CLJ 184, the Plaintiff sued its lawyers for failing to turn up at the Federal Court hearing of its appeal, which was struck out for their non-attendance. The court allowed the negligence claim against the lawyer. The court held the lawyer’s conduct in failing to turn up to court for the hearing ‘fell short of that of a prudent or reasonable lawyer.’ The lawyer did not help himself by failing to offer a reason for his absence. The High Court rightly found against the lawyer for negligence.

In Sashi Kumar Suppiah v Timbalan Menteri Dalam Negeri Malaysia & Ors [2010] 8 CLJ 349, the High Court decided the lawyer was in breach of both Rule 6(a) and 24(a) LPR78 when he accepted the case but failed to prepare for the hearing. His excuse that he wrote in for an adjournment but did not receive a response was not an acceptable reason for not being prepared for the hearing.

In Mohamad Shafiq Zorkafl v Jakel Trading Sdn Bhd [2020] 1 LNS 1383, a judgment in default in favour of Plaintiff was entered against Defendant in the Sessions Court because his lawyer did not turn up for the continued hearing of the Plaintiff’s case. Additionally, Defendant’s counterclaim was struck out. When Defendant appealed against that decision, the High Court dismissed his appeal after deciding that the lawyer’s failure to turn up was a deliberate act, not a mistaken or accidental one.

Justice Choo Kah Sing dismissed the Defendant’s lawyer’s excuse that she had a High Court hearing at the same time which took precedence over the continued trial in the Sessions Court and could not attend it. What his Lordship said is worth reproducing to such an excuse:

The defendant’s counsel submitted that the matter in the High Court was more important, therefore, he had to attend the hearing at the High Court. This Court is of the view that all cases, no matter whether they are at the lower court or at the superior court, are equally important.

[21] It is appalling for the defendant’s counsel to remark that the High Court case is more important than the defendant’s case at the court below. Once a solicitor has taken a brief or conduct of the matter, it does matter how trivial or serious the case is, or at what level of the court the case is. All cases are equally important in the administration of justice. Every case is important to the respective litigants. The solicitor who has taken conduct of the matter must treat all cases, no matter if they are at the subordinate courts or at the superior courts, with great responsibility and care. Further, advocates and solicitors must respect and adhere to Rule 24 (a) of the Legal profession (Practice and Etiquette) Rules 1978 which states ‘an advocate and solicitor shall make every effort to be ready for trial on the day fixed.’ The rule does not differentiate where the case is conducted, whether it is at the subordinate court or at the superior court.

Mohamad Shafiq Zorkafl v Jakel Trading Sdn Bhd [2020] 1 LNS 1383, per Justice Choo Kah Sing

In World Equipment Sdn Bhd v A’ Famosa Golf Resort Bhd [2009] 1 LNS 911, Plaintiff’s lawyer tried to have a continued trial adjourned because he was attending a case in another court at the same time. He appointed another lawyer to attend the continued trial date on his behalf to apply for an adjournment on the ground the Plaintiff was overseas. That was refused. The judge stood the case down for him to attend. When he failed to make it at the appointed time the stand-in lawyer applied for an adjournment on the ground that the lawyer in charge was conducting a trial elsewhere. That was refused and the trial proceeded.

When it was the stand-in lawyer’s turn to cross-examine the Defendant’s witness, she declined because she ‘was not the counsel in charge of the case’. Judicial Commissioner Zaleha Yusof (as her Ladyship was then) held the effect of the stand-in lawyer failing to cross-examine Plaintiff’s witness meant that the court could ‘take the entire evidence of SD1 as being accepted and unchallenged.’ Plaintiff’s claim was dismissed. This was how the Judicial Commissioner saw it:

To me, the plaintiff’s counsel was not prepared for the hearing on that day. First they tried to get the case postponed by saying that their client was overseas. When that failed, they used another tactic that the counsel who appeared was not the counsel in charge of the case and that the main counsel was busy in another court. I believe the court has to be firm here. Counsels must always remember that they should not take more cases if they cannot handle them. This is against rule 8 of the Legal Profession (Practice and Etiquette) Rules 1978. They also cannot assume that the court will readily allow postponement if they request for it.

World Equipment Sdn Bhd v A’ Famosa Golf Resort Bhd [2009] 1 LNS 911 | Paragraph 3 under Findings and Decision

The law is clear. If the court fixes a date, it must be attended. Only in exceptional cases will a court countenance the non-appearance of a litigant’s lawyer. A lawyer that fails to attend a court appointment is a negligent one. The court is entitled to make an unfavourable order against the absent party.

Since a court date is a sacred date, it follows that it cannot be changed casually or whimsically. Once a court date is fixed, lawyers and litigants will arrange their work around and towards being ready for that date. We set our schedules around the court schedule. The court also is not keen to change dates because it has other cases to manage. The taking off of one or a batch of dates will have a cascading knock-on effect on the rest of the court’s schedule. Therefore adjourning a court date inevitably inconveniences not just the court but all the other lawyers and litigants affected by the change of that date.

General Rule is we do not ask for an adjournment of a court date. Rules 6(a), 15 and 26(a) LPR78 clearly point in that direction. Section 77(3) of the Legal Profession Act 1976 (LPA76) provides that any lawyer that breaches the LPR78 would be vulnerable to disciplinary proceedings. A breach of any LPR78 rules can be the subject of a disciplinary complaint.

That General Rule applies to the courts too. Morally, though. It should not adjourn dates whimsically on its own motion because that unduly inconveniences both lawyers and litigants. A court that adjourns cases whimsically disrespects litigants and in so doing cultivates a healthy disrespect against it.

The Federal Court in Lee Ah Tee v Ong Tiow Pheng & Ors [1984] 1 CLJ Rep 187 held that whether an adjournment is granted or refused was at the judge’s discretion and gave guidelines on how an adjournment application should be considered:

First, to give or refuse an adjournment is the judge’s discretion. She must exercise her discretion based on her view of the facts.

Second, her discretion is unfettered.

Third, the question to ask is whether there are adequate or sufficient reasons to refuse the adjournment with reference to the facts.

Fourth, an appellate court may interfere with a judge’s discretion but it will be slow to do so.

Finally, an appellate court will interfere with a judge’s discretion only when the judge fails to consider necessary facts or the decision was made arbitrarily.

An adjournment should only be applied when there are very good reasons for it. Even if we have good reasons, we are duty-bound to explore and seriously consider any other alternative available to us to ensure the case goes on the appointed date – even if it means we are taken off the case. That is the depth and extent of commitment we should meet in attending a court appointment.

I rarely apply for an adjournment of a hearing or a trial. We only apply for an adjournment in exceptional circumstances. And it must never be for a matter of our or client’s convenience. It’s the court’s schedule that takes precedence. If we don’t have a good reason, be ready for the appointed date and just get on with the hearing or trial. If help is needed, get it. But whatever the case, be ready to proceed and proceed.

I take such a view because adjourning a hearing or trial court date is disruptive and disrespectful to the administration of justice. We need very good reasons before doing so. I also dislike adjournments or being adjourned because it means my preparation was wasted and I have to prepare again on the next set of dates. It is best to just be ready for the date and not allow anything to get in the way of that court date.

I am mindful of the salutary words by Justice KN Segara in Malayan Banking Bhd v Syed Mansor Syed Salim [1999] 6 CLJ 578:

The conduct and attitude of counsel in not being ready, able and willing to proceed with the trial on 25 June 1996, as scheduled, is contumelious. This is even more so when the court was prepared to stand the case down to enable counsel to get the plaintiff’s witness to attend court that very morning itself in order to get on with the trial, but the offer was not taken up.

Now, if we have to apply for an adjournment, I suggest taking the following course of action:

First, only do so if we have a very good reason, not a trivial one. If we don’t have a very good reason, don’t apply and make arrangements for someone to take over the case for that day alone or take over the entire case. If we can’t attend the case for important parts of the case, we’re not prepared to take the case on, and we should give it up.

Secondly, if we have a good reason, we must notify the other side(s) as soon as possible. Do not leave it late. Explain why you are applying and seek their consent. An adjournment is always likelier if the other side is not objecting. If they are, it’s difficult.

If they are agreeable, get their free dates so the hearing/trial dates can be refixed as soon as possible, if the court is so minded. Actually, get it even if they are not agreeable. Miracles happen. On occasion.

Thirdly, after obtaining the other side’s feedback, immediately write to the court to apply for the adjournment. Inform the court of the position taken by the other parties. Be honest. If the other side objects, disclose it. If they agree, disclose it but italicize, bold and underline the disclosure passage in our letter. I kid. Inform the court of the parties’ free dates.

Fourth, prepare for the trial, or make arrangements for the trial to be attended to. Just because an application has been made, we cannot assume an adjournment will be given even if the other side does not object or agrees to it. If we do not receive a response from the court to the application for adjournment, assume it was declined.

And if our adjournment application is declined, we should be prepared for it or get another lawyer to be prepared for it, so the case goes on.

Whatever happens, avoid doing a Tey tarik.