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Grounds publishedDecided 14 Aug 2015
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High Court

Sports Connection Pte Ltd v Asia Law Corp and another

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[2015] SGHC 213Case no. Suit No 613 of 2011/Q

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  1. Belinda Ang Saw Ean J:

  2. Introduction

  3. [1] This action is brought by the plaintiff, Sports Connection Pte Ltd (“Sports Connection”) against its former solicitors for professional negligence in and about the conduct of Sports Connection’s assessment of damages in Suit No 630 of 1999 (hereinafter referred to as either “Suit 630” or “the Singapore Assessment”) against Mr N Swami and Mr Velekatt Krishnan Sankara Narayanan, the partners of a law firm, Messrs Swami & Narayanan (“S&N”) in Singapore (for ease of reference, the defendants in Suit 630 shall be referred to as S&N). S&N was engaged by Sports Connection to register its trademark in Malaysia in 1991, but the partnership ended up being sued by Sports Connection for botching that registration.

  4. [2] Sports Connection is a company incorporated in Singapore and is a wholesaler and retailer of sporting goods and equipment. It is also a manufacturer of luggage bags, brief cases and the like. Mr Yee Kok Chew (“Mr Yee”) and his wife, Ms Chang Hui Ming (“Ms Chang”), are the directors and shareholders of Sports Connection. Sports Connection is said to be the registered proprietor of the “BODYPAC + DEVICE” trademark in Singapore (“the Trademark”).

  5. [3] Sports Connection’s dissatisfaction with the outcome of the assessment of damages in Suit 630 against S&N subsequently led to the commencement of this action against three law firms on 1 September 2011, more than two years after the second defendant, Asia Law Corporation (“ALC”), ceased to have conduct of Suit 630.

  6. [4] The present action against the first defendant, Netto & Magin LLC (“N&M”), was discontinued on 13 November 2013. Sports Connection, however, continued with this action which proceeded to trial against ALC and the third defendant, Samuel Seow Law Corporation (“SSLC”). ALC and SSLC are hereafter referred to collectively as “the defendants”.

  7. [5] It was agreed on the first day of trial that this court would not be required to consider any issue of apportionment of liability between ALC and SSLC as this matter would be resolved between the firms. This was a sensible approach since the lawyer who had conduct of Suit 630 throughout his time at ALC and SSLC was Mr A. Shahiran Anis bin Mohamad Ibrahim (“Mr Shahiran”). Mr Shahiran continued to have conduct of Suit 630 when he moved between the defendant firms.

  8. [6] In this action, Sports Connection is represented by Mr Samuel Chacko (“Mr Chacko”) and counsel for the defendants is Mr Christopher Anand Daniel (“Mr Daniel”).

  9. Overview of the present proceedings

  10. [7] The case that Sports Connection seeks to make here involves Mr Shahiran’s advice (or lack of advice) over a range of matters connected with Sports Connection’s assessment of damages in Suit 630. Sports Connection’s contention is that, owing to the defendants’ negligence, it lost the chance of recovering substantial damages in Suit 630. The defendants deny that their scope of duty included giving advice as pleaded, deny breach and causation, allege a failure to mitigate and also assert contributory negligence. To the defendants, Sports Connection had not shown that it had suffered loss as a result of the defendants’ alleged failure to give relevant advice.

  11. [8] As a matter of practicality, it is hardly straightforward to prove that a case which was lost after a full hearing would have been won if it had been conducted differently. Ultimately, this action will determine whether Sports Connection’s failure to recover substantial damages in the Suit 630 was really due to the defendants’ professional negligence, or whether it was a case where Sports Connection would not have recovered substantial damages in any event.

  12. [9] Sports Connection’s complaints which formed the basis of its case against the defendants have been set out in broad and general terms in their pleadings even though they were crucial matters that would potentially fall for consideration. Sports Connection had advanced its case in both contract and tort. Insofar as Sports Connection argued that the same duty arose in contract because of an implied term of the retainer and in the tort of negligence, the analysis would be identical. This judgment will focus on the real issues in this case based on the basic principles of the law of negligence.

  13. [10] Other than its averment in the pleadings that ALC took over the conduct of the assessment of damages in Suit 630 from N&M in August 2006, there was no specific plea as to the precise scope and terms of the retainer save for an implied duty of skill and care in and about the conduct of Suit 630. Mr Daniel complained in the defendants’ Closing Submissions dated 30 January 2015 that Sports Connection’s claim against the defendants “has not been clearly or precisely framed or pleaded”. Mr Chacko disagreed. He nonetheless endeavoured to set out the thrust of Sports Connection’s case in his Reply Submissions dated 16 February 2015.

  14. [11] I agree that if the pleadings, evidence and arguments had been more focussed and precise, the real issues in this case would have emerged clearer and earlier for everyone concerned. The identification of the real issues in this case and my conclusions on the real issues follow from the arguments and distillation of the pleadings, voluminous bundles of agreed documents and a fair amount of evidence bearing to varying degrees upon the points.

  15. [12] As with most cases of professional negligence, the precise scope of the duty of skill and care established in the terms of engagement of the defendants to handle the litigation in Suit 630 is pivotal. In this regard, an important issue here is whether the defendants’ advice (or lack of advice) as pleaded fell below the standard of the reasonably competent lawyer. With this issue in mind, a good approach and starting point for this particular case is to ascertain what the non-negligent lawyer would have precisely advised in the particular circumstances in which the allegations of breach arose in order for this court to properly apply the relevant standard of the reasonably competent lawyer. Accordingly, Sports Connection has to establish the following matter: What advice in all the circumstances of the case would a reasonably competent lawyer in the position of Mr Shahiran have given? This question will hereafter be referred to as “the proper advice argument”.

  16. [13] An analysis of how matters stood when the advice was supposedly given or omitted is necessary. This analysis is significant as: (a) the defendants cannot be liable for any error of judgment in the course of a lawsuit, and (b) the defendants’ conduct is not to be assessed with the benefit of hindsight. As Lord Salmon observed in Saif Ali and another v Sydney Mitchell & Co (a firm) and other [1980] 1 AC 198 at 231:

  17. [14] Another important issue is causation. Was the advice (or lack of advice) as pleaded the reason for Sports Connection’s failure to recover substantial damages in Suit 630? In this regard, Sports Connection has to show a causal link between the defendants’ breach and the outcome of Suit 630. To show the relevant causal link, Sports Connection has to satisfy the court as to what action, if any, it would have taken to obtain the benefit or avoid the loss if the proper advice had been given. Put simply, the legal question that must be answered by Sports Connection is as follows: What action would Sports Connection, on a balance of probability, have taken if it had received proper advice? This question will hereafter be referred to as “the primary causation issue”.

  18. [15] It must be remembered that the law of causation in the context of lawyers’ negligence makes a distinction between a case where the negligence consists of giving advice, which is either bad or wrong, and a case where the negligence consists of failure to advise (ie, an omission). In the case of an omission, causation depends on the hypothetical question of what Sports Connection would have done if the omission had not occurred. Although the question is a hypothetical one, it is well-established that Sports Connection has to prove on a balance of probability that it would have taken action to obtain the benefit or avoid the risk if proper advice had been given (see Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 (“Allied Maples”) at 1610) cited in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] 4 SLR(R) 460 (“JSI Shipping”) at [147]). Evidentially, this issue could be a matter of inference to be determined from all the circumstances of the case. Where the evidential burden has shifted to the defendants, the inference could be rebutted by objective evidence to prove that the omission was not causative.

  19. [16] A feature of the pleadings on the issue of causation requires mention. Sport Connection’s Statement of Claim averred as to what it would have done had it received proper advice in relation to its claim for damages against S&N. The pleadings also asserted the “courses of action” supposedly opened to Sports Connection, for example, to halt and defer the Singapore Assessment pending completion of the assessment of damages in Malaysia in respect of an interlocutory judgment obtained in 2005 (see [30] below) (“the Malaysian Assessment”) and to use the amount adjudged in the Malaysian Assessment as evidence of Sports Connection’s loss. Mr Chacko argued that a final judgment obtained in the Malaysian Assessment would “constitute irrefutable and/or conclusive and/or persuasive evidence of Sports Connection’s losses” and as such it “would have been relevant to the Singapore Assessment and admissible as evidence in the Singapore Assessment”.

  20. [17] This Judgment will examine whether the evidence of Sports Connection’s principal witness, Mr Yee, gave any indication as to what “courses of action” as pleaded he would in fact have adopted. Suffice to say for now that the evidence does not appear to support Sports Connection’s pleaded case. In fact, the state of affairs that emerged reveals that the pleaded “courses of action” were not available and viable as options, or if available as an option, it was not followed through for reasons that were independent of the defendants’ conduct (see [98]–[184] below).

  21. [18] By focusing on the two questions at [12] and [14] above (ie, the proper advice argument and the primary causation issue), and scrutinising the subsisting state of affairs at different stages of the litigation in Suit 630, the court would be in a position to decide if the loss which Sports Connection says it had suffered was in fact caused by the defendants’ alleged failure to give relevant advice.

  22. [19] Sports Connection formulated its claim (ie, loss that arose from Mr Shahiran’s advice (or lack of advice)) as the “loss of a chance” to recover more money in Suit 630 than was in fact recovered in respect of its various heads of claim against S&N in Suit 630. Alternatively, if it had been so advised, Sports Connection claims there would have been a real or substantial chance that it would have accepted S&N’s offer to settle dated 31 March 2008 (“the March OTS”) and, hence, the opportunity to obtain an amount higher than the sum that was eventually awarded in the Singapore Assessment. I pause here to note that this alternative plea in respect of the March OTS is directed against SSLC.

  23. [20] A real and fundamental question is whether the doctrine of loss of a chance should even apply to this case. This query is necessary because of: (a) the nature of the claims as pleaded; and (b) the legal requirements that need to be proved on a loss of chance analysis.

  24. [21] In brief, applying Allied Maples, if the loss in question is not dependent on how a third party would have acted, it is not a loss of a chance case. In contrast, where the loss suffered depends on how a third party would have acted, either in addition to the action of Sports Connection or independently of it, the loss of chance analysis arises. Notably, this specific analysis arises only after the primary causation issue has been established, ie, that Sports Connection would, on the balance of probability, have acted in a certain way (ie, to avail itself of the chance) if advice had been given. In the analysis at this liability stage, the claim for loss of a chance is made out provided that Sports Connection shows that there was a real or substantial chance (rather than a negligible one) of the third party acting so as to confer the benefit on or avoid the loss suffered by Sports Connection. This consideration is distinct from the assessment of the value of the chance in the event that a real or substantial chance has been proved. The degree of the chance lost is a matter for the quantification of damages and this matter is held over now that the proceedings were ordered to be bifurcated; the trial before me only concerns the defendants’ liability.

  25. [22] It is thus important to discuss the question of the proper method of analysing the claim for loss of a chance. This case also demonstrates how evidence of causation remains of significance in the identification and correlation of both: (a) the scope of the professional duty (which does not exist in the abstract) that was allegedly breached; and (b) what the breach of duty was in respect of recoverable loss as pleaded. In other words, evidence on causation will have a bearing on evidence that pertains to the pleaded “advice”, existence of duty in relation to the “advice” and breach. Recoverable loss is at the other end of the causal link.

  26. Circumstances leading to Suit 630

  27. [23] The genesis of this case stems from the failure of S&N to register Sports Connection’s Trademark in Malaysia in 1991. The application was defective in that S&N omitted to file one of the forms required for the registration.

  28. [24] Unknown to Sports Connection, its sole distributors of “Bodypac” products in Malaysia between 1992 and 1996, Mr Kaw Ah Kin (“Mr Kaw”) and his wife, Ms Heng Nguang Keng (“Ms Heng”) (collectively, “the Kaws”) who were trading under the name of Evergreen Enterprises (“Evergreen”), managed to register themselves as the proprietors of the same trademark in Malaysia in 1994. The Kaws also traded under the name of Outdoor Outfitters. The couple incorporated a company named Bodypac (Malaysia) Sdn Bhd (“BM”) in July 1996 to sell Bodypac products supplied by Sports Connection to Outdoor Outfitters. Further, the Kaws sold counterfeit Bodypac products in Malaysia using BM as their vehicle after the supply of the Bodypac products from Sports Connection stopped. I shall refer to the Kaws and BM collectively as “the KL parties”.

  29. [25] In February 1997, Sports Connection discovered the misdeeds of the KL parties. Sports Connection thereafter incorporated Tearproof Sdn Bhd (“Tearproof”) in Malaysia in June 1997 to sell Bodypac products in Malaysia. Tearproof is effectively owned and controlled by Mr Yee and his wife, Ms Chang.

  30. [26] S&N’s carelessness duly engendered a series of related litigation which has lasted close to 18 years in Singapore and Malaysia. The following trademark infringement actions were started in Kuala Lumpur, Malaysia:

  31. (a) Suit No D5-22-1079-1997 was commenced by the KL parties against Sports Connection, Tearproof and Mr Yee on 23 October 1997. The action was for infringement and passing off, procuring breach of contract, intimidation and slander of goods. The counterclaim in Suit No D5-22-1079-1997 was brought by only Tearproof and it was against the KL parties for an injunction to restrain the sale of goods and an inquiry as to damages.

  32. (b) Suit No D1-22-1252-1997 was commenced by Sports Connection against the KL parties on 24 November 1997. This action mirrored the causes of action and relief sought in Suit No D5-22-1079-1997.

  33. (c) Originating Summons No D4-25-1-1998 was commenced by Sports Connection against the Kaws on 9 January 1998 to rectify the trademark register.

  34. [27] All the actions in items (a) to (c) above were consolidated. They are collectively referred to hereafter as “the KL Suits”. Sports Connection, Mr Yee and Tearproof were initially represented in the KL Suits by Messrs Sng & Co (“Sng & Co”) and subsequently by Messrs Michael Chai & Co (“MCC”).

  35. [28] In Singapore, Sports Connection sued S&N on 27 April 1999. Its heads of claim for damages in Suit 630 were for:

  36. (a) loss of profits due to the sale of Bodypac products in Malaysia by the KL parties (“the Loss of Profits Claim”); and

  37. (b) legal costs incurred in litigation in Malaysia against the KL parties (“the Legal Costs Claim”).

  38. [29] As the on-going KL Suits, inter alia, pertained to who was the rightful proprietor of the Trademark and who had infringed the Trademark, S&N applied and successfully obtained an order to stay the proceedings in Suit 630 pending the resolution of the KL Suits. This stay order was granted on 15 October 1999.

  39. [31] I pause to flag a point that was raised in this case on the relevance of assessing damages in Malaysia following the KL Interlocutory Judgment in order to aid Sports Connection’s claim for damages in Suit 630. Mr Shahiran’s case is that the damages ordered to be assessed in the KL Interlocutory Judgment pertained only to Tearproof and not Sports Connection and Mr Yee. I will come to his assertion later. Suffice to say for now that a closer scrutiny of the KL Interlocutory Judgment revealed that: (a) damages that were ordered to be assessed were in respect of the Counterclaim filed in Suit No D5-22-1079-1997; and (b) that Counterclaim was brought by Tearproof alone. Yet MCC reported to Mr Yee in an e-mail dated 28 January 2005 that in “respect of all 3 suits, the Judge also ordered damages to be paid by Kaw to you to be assessed by the Registrar.” The written grounds released by the Malaysian court on 6 May 2005 quite clearly stated that the order for damages to be assessed was in respect of Tearproof’s Counterclaim in Suit No D5-22-1079-1997.

  40. Outcome of Suit 630

  41. [32] On 26 August 2005, S&N consented to liability with damages to be assessed in Suit 630. As stated, Sports Connection failed to recover substantial damages in the assessment of damages that was heard by Assistant Registrar Teo Guan Siew (“AR Teo”) from 3 to 5 November 2008.

  42. [33] A summary of AR Teo’s decision of 15 January 2009 is as follows:

  43. (a) As regards the Loss of Profits Claim, Sports Connection had not proved its loss; there were insufficient documents and evidence before the court to show that Sport Connection’s sale of Bodypac products was adversely affected by any competing sales of infringing products by BM. No damages were ordered in relation to this head of claim.

  44. (b) As regards the Legal Costs Claim, the legal costs incurred by Sports Connection in the KL Suits were determined at RM 418,375.50. Sports Connection, however, was only entitled to 30% of that amount as 70% of such costs ought to have been claimed by Sports Connection as party and party costs against the KL parties and not against S&N. Sports Connection was awarded a further sum of RM 35,000 being costs of the conduct of the appeal to the Court of Appeal of Malaysia in relation to the KL Interlocutory Judgment. A total sum of RM 160,512.65 was ordered under this head of claim.

  45. Developments in Malaysia post-KL Interlocutory Judgment

  46. [36] A common theme in this case is Sports Connection’s lateness or non-payment of professional fees. Mr Yee would cite overcharging and taxation of the Malaysian lawyers’ fees as reasons to hold back payment. That stance obviously affected Mr Yee’s relationship with his Malaysian lawyers who were naturally reluctant to give their full attention to Sports Connection’s matters. Even with the best will in the world, MCC’s outstanding professional fees would have somehow dictated the pace of MCC’s efforts to entertain and attend to Sports Connection and its matters.

  47. [37] I will deal with the specific instructions in turn before covering the events that halted the assessment of damages in Malaysia prior to 2011.

  48. Appeal against one part of the KL Interlocutory Judgment

  49. [39] Although notice of appeal was filed in 2005, it was not clear if the requisite appeal papers were ever filed by 20 April 2005 (which was the original deadline intimated by MCC). The progress of the appeal could have been held up for an appreciable length of time on account of MCC’s unpaid professional fees. It is not clear whether MCC completed work on the appeal in 2007 except to say that the appeal was not disposed of until January 2010. It is Mr Shahiran’s evidence that he was not told of the appeal until receiving Mr Yee’s e-mail of 11 July 2007.

  50. Taxation of party and party costs of the KL Interlocutory Judgment

  51. [41] Besides that route, it was also open to Mr Yee to bankrupt Mr Kaw via a different set of proceedings in Johor Bahru. This was Johor Bahru High Court CS No 22-136-1997 commenced by Sports Connection against Mr Kaw for a liquidated sum in respect of goods sold and delivered by Sports Connection to Mr Kaw in 2005 (“the JB Suit”). Sports Connection’s lawyer in the JB Suit was one Shalini Sugumaran (“the JB lawyer”). I note that on 30 March 2006, the Malaysian High Court in Johor Bahru issued its judgment in respect of the JB Suit (“the JB Judgment”) and awarded Sports Connection a judgment sum of RM 373,447.94.

  52. [42] On 4 August 2005, N&M advised Mr Yee not to “slow down” in bankrupting Mr Kaw via the JB Judgment and went on to state:

  53. [44] Apparently, Mr Yee’s realised from reading the JB lawyer’s letter of demand to Mr Kaw that the JB Judgment was against Mr Kaw and that it could not be used to bankrupt Ms Heng. He then instructed the JB lawyer to make Ms Heng a bankrupt using the KL Interlocutory Judgment. He gave that instructions to the JB lawyer as MCC were disinterested in doing more work after Mr Yee had expressed an intention to tax MCC’s bills. Understandably, the JB lawyer who had experienced late payment of his professional fees asked for a deposit of RM 5,000 before proceeding.

  54. [45] On 12 June 2007, Mr Yee realised that it would make more sense to enforce the KL Interlocutory Judgment as that route would allow him to bankrupt both Mr Kaw and Ms Heng. He instructed the JB lawyer not proceed with making Mr Kaw a bankrupt on the JB Judgment. He e-mailed Mr Shahiran of this development. He also e-mailed MCC’s Mr Kenneth St James (“Mr KSJ”), instructing him to enforce the KL Interlocutory Judgment. Instructions to the same effect were again repeated in an e-mail dated 25 June 2007 wherein Mr Yee explained that he needed “to show this bankrupt proceedings to the [Registrar]/Court of Singapore”.

  55. [54] For reasons that are not entirely clear, there was renewed interest in bankrupting Mr Kaw via the JB Judgment after Mr Yee’s earlier instructions to the JB lawyer to bankrupt Mr Kaw had stalled for non-payment of legal fees and the provision of funds to proceed with the bankruptcy application. In or around June 2008, a different lawyer, one Mr Rajan Navaratnam (“Mr Rajan”), was engaged by Sports Connection to commence bankruptcy proceedings against Mr Kaw for non-payment of the JB Judgment. Mr Rajan agreed to proceed but Sports Connection was required to remit a deposit of RM 3,850 for disbursements. Mr Yee agreed to pay on receipt of the lawyer’s invoice. On 4 November 2008, Mr Rajan sent a letter to SSLC, stating that he had not served the bankruptcy notice as he was still trying to determine Mr Kaw’s latest address of service. By this time, the Singapore Assessment was already underway.

  56. [55] For completeness, Mr Kaw was made a bankrupt on 9 June 2009 by a creditor bank. Ms Heng was made a bankrupt on 11 September 2013 by Sports Connection.

  57. No positive steps were taken to assess damages in Malaysia after the KL Interlocutory Judgment until 2011

  58. [56] Shortly after the KL Interlocutory Judgment was handed down on 28 January 2005, there was talk between MCC and Mr Yee about taking steps to assess damages against the KL parties. The idea in the early days (ie, 2005) was for the Malaysian Assessment to proceed concurrently with the Singapore Assessment. Hence, there were exchanges of e-mails between MCC and N&M where MCC in an e-mail dated 14 June 2005 promised to attend to the assessment of damages in the KL Suits “in due course”. Prior to that, Mr Yee’s e-mail of 26 April 2005 reminded MCC to “try to keep up” with Suit 630 given the faster pace of proceedings in Singapore. There was also a meeting on 14 July 2005 in Singapore that was attended by Mr KSJ, the case-handler of the KL Suits, Mr Leslie Netto of N&M (“Mr Netto”) and Mr Yee. Mr KSJ had requested the meeting to “brainstorm to come up with the best method to compute [Mr Yee’s] damages”.

  59. [57] After S&N consented to liability on 26 August 2005, Mr Yee sought MCC’s views on the quantum of damages to be claimed in Singapore. He wanted, in particular, MCC’s formula to compute damages. Mr Yee wrote to KSJ in these terms:

  60. [58] KSJ replied on 14 October 2005, stating that he needed more time to finalise the computation and that he required further particulars and documents from Sports Connection. KSJ also stated that “if the Singapore assessment of damages and the Malaysian assessment of damages run concurrently and at a different pace, we should proceed with each of the respective proceedings accordingly. In other words, perhaps it is not expedient to allow one proceeding to hold up or be dependent on the other [emphasis added]”.

  61. [59] In cross-examination, KSJ explained his frame of mind in stating the above:

  62. [60] I have already mentioned MCC’s unpaid bills and Mr Yee’s November 2006 reply set out at [47] above to which I refer for context. By November 2006, Mr Yee did not require MCC to take steps to assess damages or come up with a formula to compute damages.

  63. [61] I mentioned earlier in [45] above that on 12 June 2007, Mr Yee realised that it would make more sense to enforce the KL Interlocutory Judgment as that route would allow him to bankrupt Ms Heng. I have also mentioned that Mr Yee instructed Mr KSJ to execute bankruptcy proceedings against the KL parties in an e-mail dated 25 June 2007 wherein Mr Yee explained that he needed “to show this bankrupt proceedings to the [Registrar]/Court of Singapore”.

  64. [62] MCC’s bills were still not paid. Mr KSJ informed Mr Yee in July 2007 that work at his end was held up because MCC’s professional fees were not paid. Thereafter on 2 August 2007, specific instructions to tax the party and party bill instead of proceeding with the assessment of damages in Malaysia were given to MCC.

  65. [64] Chronologically, the Malaysian Assessment was left dormant since the KL Interlocutory Judgment was pronounced in January 2005. On 27 April 2011, the defendants were told that Sport Connection intended to sue for negligence in respect of the defendants’ failure to advise Sports Connection to proceed with the Malaysian Assessment. Sports Connection’s purpose of reviving the Malaysian Assessment was to claim as damages in this action the amounts awarded to Sport Connection in the Malaysian Assessment.

  66. Outcome of the Malaysian Assessment in 2012

  67. [65] The hearing of the Malaysian Assessment was unchallenged. It proceeded in the absence of the Director General of Insolvency for Mr Kaw (who was adjudicated a bankrupt on 9 June 2009), in the absence of Ms Heng and in the absence of the Director General of insolvency for BM (the company was wound up by a creditor bank on 19 April 2006).

  68. [66] On 28 March 2012, Sports Connection, Tearproof and Mr Yee were awarded damages in the Malaysian Assessment in the following sums (“the 2012 Judgment”):

  69. (a) damages in the sum of RM 6,975,754;

  70. (b) interest at the rate of 8% per annum on the sum of RM 6,975,754 from 16 August 1994 to 28 February 2011 and thereafter at a rate of 4% per annum from 1 March 2011 until full settlement;

  71. (c) RM 500,000 in damages for the loss of goodwill and reputation; and

  72. (d) costs of the Malaysian Assessment.

  73. [67] In the Malaysian Assessment in 2012, reliance was placed on the expert report of Ferrier Hodgson, Malaysia. According to Mr Shahiran, the expert’s report: (a) did not contain additional and relevant documents from BM; and (b) included the JB Judgment as a head of claim for damages in the Malaysian Assessment and that was erroneous as the JB Judgment was distinct from the KL Suits.

  74. [68] Sports Connection blamed Mr Shahiran for not advising it to assess damages in Malaysia before the hearing of the Singapore Assessment in Suit 630. I have already recounted the reasons as to why the Malaysian Assessment was left dormant and it is against that backdrop that Sports Connection’s allegations that Mr Shahiran in the conduct of Suit 630 did not advise on the following matters must be examined. The alleged failures to advise were as follows:

  75. (a) The failure to advise Sports Connection on the effect of not proceeding with the Malaysian Assessment in light of the evidential value of the evidence that Sports Connection intended to present at the Singapore Assessment for its Loss of Profits Claim.

  76. (b) The failure to advise Sports Connection to stay the Singapore Assessment pending completion of the Malaysian Assessment, and to thereafter present the outcome of the Malaysian Assessment (ie, the 2012 Judgment) in the Singapore Assessment (“Course of Action 1”).

  77. (c) The failure to advise that in the Malaysian Assessment, Sports Connection could have “obtained evidence in discovery and/or affidavit evidence from the [the KL parties] which would have been useful for and relevant to the Singapore Assessment” (“Course of Action 2”).

  78. [69] This leads me to the question of causation in the light of Sports Connection’s formulation of its claim for damages as “loss of a chance” and the proper method of analysing the claims.

  79. Is this properly a “loss of chance” case?

  80. [70] Sports Connection claims that it has suffered the following losses:

  81. (a) A real or substantial chance that Sports Connection would have been awarded damages at the Singapore Assessment for its Loss of Profits Claim.

  82. (b) A real or substantial chance that Sports Connection would have been awarded the full solicitor and client costs (ie, the remaining 70% of the solicitor and client costs) that Sports Connection had incurred if:

  83. (i) Sports Connection had been advised of its duty to mitigate its losses for the Legal Costs Claim by proceeding with the party and party taxation in Malaysia and attempting to recover the same from Mr Kaw and Ms Heng;

  84. (ii) Sports Connection had proceeded accordingly and was unable to recover the party and party costs from Mr Kaw and Ms Heng; and

  85. (iii) Sports Connection had presented evidence of item (ii) at the Singapore Assessment.

  86. (c) Wasted costs of litigation in respect of the amount of costs paid by Sports Connection to one Ms Subitra, the solicitor who had conduct of the taxation of Sports Connection’s solicitor and client costs in Malaysia, and the amount of costs Sports Connection was ordered to pay to Sng & Co and MCC in relation to the petition to tax their bills.

  87. (d) Alternatively, a real or substantial chance that Sports Connection would have accepted the March OTS and obtained a higher amount than the sum that was eventually awarded by AR Teo at the Singapore Assessment.

  88. (e) Alternatively, the wasted costs of litigation in respect of Sports Connection’s Loss of Profits Claim, as Sports Connection was not awarded any damages for this head of claim in the Singapore Assessment, even though it incurred significant legal costs in that respect.

  89. [71] In outline, the case which Sports Connection has to make involves: (a) negligent advice; (b) establishing what Sports Connection would have done if advice had been given; and (c) if it is established that Sports Connection would have acted in a certain way but the question whether loss has been suffered depends on how third parties would have acted, the question becomes whether Sports Connection lost a chance. Chances that are regarded as real or substantial will suffice; those that are negligible will be ignored. The court’s task is to do its best to place the chance within its proper range given the wide spectrum where certainty of a chance falls on the extreme end of the spectrum and a chance which is nil or negligible falls at the other end.

  90. [72] On the basis of the approach in Allied Maples, the losses in items (d) and (e) above (at [70]) are not dependent on how a third party would have acted and they are, therefore, not “loss of a chance” claims. Instead, Sports Connection’s loss depends on what Sports Connection would have done if advice had been given. The primary causation issue is whether Sports Connection would have accepted the March OTS and not proceeded with the Singapore Assessment if it had received the advice it claimed that SSLC omitted to give. Sports Connection has to show on a balance of probability that but for Mr Shahiran’s breach, it would have accepted the March OTS.

  91. [73] On the face of Sports Connection’s formulation of items (a), (b) and (c) above at [70], the issue of proof of loss of a chance is the “real and substantial chance” analysis and this arises if it is first established, on a balance of probability, that Sports Connection would have acted in a certain way had the relevant advice been given. I will elaborate on this below.

  92. What must be proved on a loss of chance analysis?

  93. [74] Apart from a denial that the defendants were under any duty to give advice as set out above at [68], for matters of causation and damage, Mr Daniel’s main focus was that Sports Connection had not established any loss. Having failed to do so, the causal link between the alleged failure to give advice and loss as a result of the failure to give relevant advice is missing. The analysis goes further as causation is dependent on what would have happened if Sports Connection had been given the alleged advice. The claim for a loss of a chance arises: (a) if it is established that Sports Connection would have acted in a certain way; and (b) the question whether loss has been suffered depends on how third parties would have acted.

  94. [75] The leading case on causation in the context of lawyer’s negligence is Allied Maples, a decision cited by Sports Connection. In that case, Stuart-Smith LJ (at 1609–1614) stated the relevant principles in these terms:

  95. [76] Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd and another [2005] 1 SLR(R) 661 (“Asia Hotel Investments”) approved the legal framework set out by Stuart-Smith LJ, and our Court of Appeal, on the facts of that case, went on to apply the third proposition in Allied Maples.

  96. [77] The plaintiffs in Allied Maples wanted to take over certain assets and businesses from the Gillow group of companies. The plaintiffs instructed the defendant-solicitors to act for them. The defendant-solicitors drafted an agreement which included a warranty by the vendor that its subsidiary had no outstanding contingencies or liabilities. During the course of negotiations, the defendants negligently allowed the clause to be amended in such a way that it no longer had its effect as a warranty as originally intended by the plaintiffs. After the agreement was entered into, the subsidiary (now belonging to the plaintiffs) faced substantial liabilities which would have been covered by the warranty had the defendants not negligently allowed the amendment. The plaintiffs therefore brought an action against the defendants. On appeal, Stuart-Smith LJ in the English Court of Appeal held that the plaintiffs had to prove on the balance of probability that if they had been given the right advice, they would have sought to negotiate further with Mr Gillow to obtain protection (at 1610). Once that was proved, it was not necessary to go further to prove that Mr Gillow would, on the balance of probability, have acted to confer on the plaintiffs the benefit of the warranty. It was sufficient that the chance (ie, the chance that they would have successfully negotiated for total or partial protection) was a real or substantial one.

  97. [78] In JSI Shipping, our Court of Appeal also applied this proposition. The plaintiff’s complaint in that case was also one of negligence – the plaintiff sued the defendant-auditors for negligently auditing the accounts, allowing its Asia Director to siphon off substantial amounts of funds. One of the plaintiff’s claims was for loss of chance to recover the sums misappropriated or to prevent further misappropriation. The Court of Appeal stated that in order to avail itself of this claim, the plaintiff had to prove on the balance of probability that if the defendants had not been negligent, it would have taken the necessary steps to investigate the matter (at [148]). One reason why the Court of Appeal held that this had not been proved was because the plaintiff’s other director had not even read the audit report which the plaintiff complained was negligently prepared. To that extent, it was in fact this director’s “general indifference” and “laxity in management” which lead to the misappropriation; in other words, it was not proved on the balance of probability that the plaintiff would have put in measures to avail itself of a chance of discovery, prevention or recovery (see [147]–[156]).

  98. [79] In the context of solicitors’ negligence, the following passage set out by Neuberger J (as he then was) in Peter Michael Harrison and another v Bloom Camillin (a firm) (No 2) [2001] PNLR 7 is instructive (at [83]):

  99. Does the loss of chance analysis apply on the facts to the Loss of Profits and Legal Costs Claims?

  100. [80] An interesting approach to the loss of chance analysis advanced by Sarah Green in Causation in Negligence (Hart Publishing, 2015) (“Causation in Negligence”) is to distinguish between chances that are interlinked with the breach and those that exist independently of the breach of duty. In short, the distinction is between independent and interdependent chances.

  101. [81] I begin the analysis by referring to cases where the English Courts have declined to recognise loss of chance as an appropriate head of claim in medical negligence cases. In Gregg v Scott [2005] 2 WLR 268 (“Gregg v Scott”), the claimant developed a lump under his left arm, whereupon he attended at the defendant’s medical practice, and was told by the defendant that it was benign and needed no further action. Subsequently, he saw another doctor, and it was discovered that the tumour was in fact cancerous and had spread to his chest. The claimant sued the defendant in negligence, claiming recovery for the loss of chance to have a better prospect of recovery if he was diagnosed earlier. The trial judge found that even if the defendant had accurately diagnosed the cancer earlier, the claimant would only have a 42% chance of cure (defined as surviving for more than ten years). The expert evidence was that the delay in the diagnosis reduced the claimant’s chance of cure from 42% to 25%. The trial judge held that because the claimant would not have been cured anyway, the delay had not deprived the claimant of the prospect of a cure and dismissed the claimant’s action.

  102. [82] On appeal, the House of Lords, by a bare majority of three to two, rejected the claim for loss of chance because the claimant had not shown on the balance of probability that the defendant had caused the adverse health consequences; the claimant had, at all times, at least a 58% chance of suffering those consequences irrespective of the defendant’s breach. Lord Hoffmann was one of the three judges in the majority. He stated:

  103. [83] Is the distinction between cases involving financial losses like Allied Maples and Asia Hotel Investments on the one hand and medical negligence cases like Gregg v Scott on the other based on principle or policy? Sarah Green argues for understanding the distinction as based on principle. She suggests in Causation in Negligence that the factual scenarios divide into two types (at p 154):

  104. [84] On this analysis, Type 1 cases are therefore cases like Allied Maples and Asia Hotel Investments where the chance is independent of the defendant’s breach. In Allied Maples, the plaintiff’s chance of a successful negotiation with Mr Gillow was independent of the defendant’s breach in failing to include the warranty. Similarly, in Asia Hotel Investments – which I should highlight was a contract case – the plaintiff’s chance of obtaining the benefit sought (being a certain stake in the Grand Pacific Hotel) subsisted independently of the defendant’s breach of a non-circumvention agreement (“NCA”). The defendant’s breach of the NCA did not decrease the plaintiff’s chances of obtaining the stake, but erased it. In both cases, the defendant’s breach, on the balance of probability, caused the relevant chance to be lost.

  105. [85] In Type 2 cases however, the chance is interlinked with the breach. Thus, in Gregg v Scott, the probability of whether the claimant could be cured was already latent in the claimant – the defendant’s failure to accurately diagnose the condition affected the claimant’s probability of cure by decreasing it. However, no independent chance was lost. To claim for loss of chance in such a case is to beg the question as to whether a chance in fact existed. Sarah Green explains (p 164–165):

  106. [86] The author thus concludes that while Type 1 cases are true loss of chance cases, Type 2 cases are not true loss of chance cases, as there is no independent chance which could have been lost.

  107. [87] In the present case, however, the complaint is not that an independent chance of succeeding at the Singapore Assessment had been lost, although it is couched as such. If one examines the claim and the facts in closer detail, the chance is not in fact independent of the defendants’ breach. Sports Connection’s true complaint is that if not for the defendants’ breach, it would have had X% chance of success, but because of the breach, it had (X-Y)% chance of success instead. As the loss in fact eventuated, the legally relevant question must be the extent to which the defendants’ alleged breach caused that loss. From this perspective, Sports Connection’s case falls squarely into the Type 2 situation advocated by Sarah Green. As a Type 2 case, Sports Connection must show, on a balance of probability, that but for the defendants’ breach, it would have obtained a more favourable outcome at trial. This is the conventional analysis of “but for” causation.

  108. [88] If Sports Connection’s claims were bad to begin with (defined as having a less than 50% chance of success), it is not clear why it should be indemnified for the loss of any percentage chance of that success from its allegedly negligent solicitors, since the failure at the Singapore Assessment, on a balance of probability, would be more likely to be due to the fact that the claim was bad, rather than the defendants’ negligence. I am mindful that no case was pleaded that Mr Yee in fact thought the claim for damages in Suit 630 was hopeless but Mr Shahiran failed to advise Mr Yee accordingly.

  109. [89] I say no more about this matter as the parties are in agreement as to the basis of a loss of chance analysis. Nevertheless, it is open to this court to examine whether on the evidence the claim for loss of a chance in this particular case in fact existed. Given the spectrum of chances, where certainty of chance is at one end and nil or negligible chance is at the other extreme end, the court’s task is to do its best to place the alleged chance within its proper range. It seems to me that the arguments on loss of chance in this case are premised on “a chance upon a chance” and that begs the question as to whether a “real chance” in fact existed. I use the words “real chance” because that reflects the language used by Stuart-Smith LJ in Allied Maples. Clearly, a chance upon a chance is not a real chance.

  110. A chance upon a chance is not a real chance

  111. [90] The question whether Sports Connection lost a chance of being better off financially than it did as a result Mr Shahiran’s advice on the litigation in the Singapore Assessment depends on many questions of chances at different stages. In the end, what has to be considered is the real chance of Sports Connection being financially better off than what it got in the Singapore Assessment if the advice as pleaded had been given.

  112. [91] Sports Connection has put its case for loss of a chance to recover its claim for loss of profits in a way that is illustrative of the many questions of chances that can arise at different stages. For example, what chance would Sports Connection have had of staying the Singapore Assessment? What chance would Sports Connection have had of proceeding with the Malaysian Assessment without staying the Singapore Assessment? What chance would Sports Connection have had of assessing damages in its name back in 2006 to 2008 when the counterclaim for damages in the KL Suits was brought only by Tearproof and not Sports Connection and Mr Yee, and that the decision of the Malaysian Judge on damages was in favour of Tearproof? What was the chance of the Malaysian Assessment going ahead uncontested in 2006 to 2008? The Malaysian Assessment in 2012 was not contested because the KL parties did not show up at the hearing. By then BM was wound up and Mr Kaw was already a bankrupt. All these questions bring into focus a case of “a chance upon a chance” that would render Sports Connection’s claims formulated on “loss of a chance” (based on the likely actions of third parties) completely uncertain and hence fanciful.

  113. Loss of Profits Claim

  114. Approach to the issues of duty, breach, causation and loss

  115. [92] In brief, Sports Connection blamed Mr Shahiran for not advising it to assess damages in Malaysia before the hearing of the Singapore Assessment in Suit 630, given “the paucity of supporting evidence”, an expression used by Mr Chacko. Sports Connection’s case is that Mr Shahiran should have given such advice while he had conduct of the Singapore Assessment. Crucially, there were various opportunities for Mr Shahiran to have rendered this advice, such as when various expert reports were produced. Significantly, an analysis of how matters stood when the advice was supposedly omitted is pivotal, and I will go through this point in detail below. The Statement of Claim averred to what Sports Connection would have done had it received proper advice in relation to its claim for damages against S&N. The omission was “to advise” on, what I have termed, “courses of action” supposedly open to Sports Connection to take and which Sports Connection would have taken if advice had been given. I have set out the two main “courses of action” pleaded in the Statement of Claim at [68] above. For convenience, I repeat them here:

  116. (a) Course of Action 1: To stay the Singapore Assessment pending completion of the Malaysia Assessment, and to thereafter present the amount assessed in the Malaysian Assessment as evidence of Sports Connection’s claim for loss of profit in the Singapore Assessment.

  117. (b) Course of Action 2: That in the Malaysian Assessment, it could have “obtained evidence in discovery and/or affidavit evidence from the [the KL parties] which would have been useful for and relevant to the Singapore Assessment”.

  118. [93] All in all, Sports Connection must satisfy three conditions in its claim for negligence and breach of retainer in the conduct of Suit 630. The first condition is the proper advice argument which is whether the defendants’ advice (or lack of advice) as pleaded fell below the standard of the reasonably competent lawyer. The critical question, which has been set out at [12] above is, what advice in all the circumstances of the case would a reasonably competent lawyer in the position of Mr Shahiran have given?

  119. [94] The second condition is the primary causation issue. As stated at [14] above, the legal question that must be answered by Sports Connection is as follows: what action would Sports Connection on a balance of probability have taken if it had received proper advice?

  120. [95] With these two conditions analysed, the court is well placed to examine the third condition, viz, whether the loss which Sports Connection claimed that it had suffered was in fact caused by the failure to give the relevant advice. This collective approach as outlined was explained by Slade LJ in Boateng v Hughmans (a firm) [2002] EWCA Civ 593 at [35], and I gratefully adopt the explanation and approach in this particular case.

  121. [96] As alluded to earlier, the evidence and arguments in this case are closely intertwined in that matters pertaining to the core issue of causation have a significant bearing on all the other issues of negligence and vice versa. I propose to examine the evidence that is common to issues of scope of duty, breach, causation and loss before returning to answer the three specific conditions above.

  122. [97] An analysis of the common features of this case foreshadows at an early stage the flaw that underlines the Loss of Profits Claim. In fact, the state of affairs that emerged is tellingly simple: in the particular circumstances of the case, the pleaded Courses of Action were illusory and fanciful to qualify as “advice” that would fall within Mr Shahiran’s scope of duty for no reasonably competent lawyer in the position of Mr Shahiran would have advised Sports Connection to take them.

  123. State of the evidence in relation to the claim for Loss of Profits in Suit 630

  124. Summary

  125. [98] Right from the time Sports Connection restored Suit 630 for hearing in May 2005, it experienced tremendous difficulties gathering relevant documents and information to substantiate its Loss of Profits Claim. For over three years, delays were encountered so often that deadlines to give discovery of documents and furnish proper answers to Further and Better Particulars requested by S&N had to be repeatedly extended. Consequently, trial dates were vacated no less than six times. The state of the documentary evidence remained incomplete to the very end in November 2008. The state of affairs subsisting at different periods in time demonstrated that Mr Yee was, and I so find, fully aware that documents bearing upon Sports Connection’s Loss of Profits Claim were incomplete to substantiate its claim.

  126. [99] Initially, Sports Connection cobbled together an exaggerated claim amount of S$38m as the quantum of its Loss of Profits Claim. This was in February 2006. It was a figure that Mr Yee knew could not be supported. He was told by Sports Connection’s auditor, Mr Dickson Poon, that some of the numbers that his firm had used to put forward this quantum of S$38m were either not audited or verified. By February 2007, the claim figure of S$38m was drastically reduced to between S$1,762,649 and S$1,958,499 by its expert witness, Mr Tam Chee Chong (“Mr Tam”) of Deloitte. After Mr Shahiran took over the conduct of Suit 630 in August 2006, Deloitte was appointed “to quantify [Sports Connection’s] loss of profit in relation to the Malaysian market for sales of BodyPac products for the period since the ex-distributor registered the trademark “BodyPac” (ie. 1994) to 2004”. Not only did Deloitte find the figure of S$38m inflated, it could not support Mr Yee’s target claim figure of S$4m despite numerous documents produced by Sports Connection to Deloitte.

  127. [100] Mr Tam’s expert report was criticised by Mr Foong Daw Ching (“Mr Foong”) of Baker Tilly Consultancy (S) Pte Ltd, S&N’s expert who looked into the Loss of Profits Claim. In the Baker Tilly Report dated 15 October 2007 (“Baker Tilly Report”), Mr Foong opined that there was nothing in the disclosed documents that could be used meaningfully to assess the Loss of Profits Claim. At the Singapore Assessment, AR Teo agreed with Mr Foong’s testimony, amongst other things, and dismissed Sports Connection’s entire claim for Loss of Profits.

  128. [101] It was against this backdrop of AR Teo’s findings outlined above that Mr Yee argued that Mr Shahiran was negligent in not advising Sports Connection to stay the Singapore Assessment and proceed with the Malaysian Assessment first. In substance, the picture that emerged revealed that Sports Connection’s plea that Mr Shahiran ought to have advised Sports Connection to take the Courses of Action as pleaded were not, in light of the evidence, feasible and viable Courses of Action. Based on the evidence, suffice to say for now that the so-called Courses of Action were illusory and fanciful and could hardly be said to be “advice” that would fall within Mr Shahiran’s scope of duty for no reasonably competent lawyer in the position of Mr Shahiran would have advised Sports Connection to take them. I will elaborate on this below at [145]–[173]. .

  129. Claim amount of S$38m

  130. [102] Mr Netto of N&M wrote to the High Court on 13 April 2005 to restore Suit 630 for hearing. A Pre-Trial Conference (“PTC”) was held on 9 May 2005. At PTC, trial dates for 29 August to 1 September 2005 were given. Those dates were vacated after S&N consented to liability. Interlocutory Judgment with damages to be assessed was entered on 26 August 2005.

  131. [103] Mr Yee was aware that Sports Connection had to come up with a methodology for the Loss of Profits Claim and to produce documentary evidence to substantiate the claim. As early as 22 April 2005, N&M asked Sports Connection to provide documentary evidence to support the Loss of Profits Claim:

  132. [104] Mr Yee asked MCC to suggest a formula to best compute quantum of the Loss of Profits Claim. There was a meeting in Singapore on 14 July 2005 that was attended by Mr KSJ, Mr Netto and Mr Yee. Mr KSJ had requested the meeting to “brainstorm to come up with the best method to compute [Sports Connection’s] damages”.

  133. [105] I note that in July 2005, Mr KSJ told Mr Netto and Mr Yee at that meeting that there was no hard evidence in support of the Loss of Profits Claim. Mr KSJ was questioned in cross-examination about that meeting. His testimony that there was no hard evidence in support of the Loss of Profits Claim turned out to be spot on:

  134. [106] N&M had also urged Mr Yee to get documents from Evergreen otherwise the Loss of Profit Claim would be “speculative”. On 21 September 2005, N&M sought Sports Connection’s instructions on the quantification of the damages. Mr Netto e-mailed Mr Yee on 14 October 2005 as follows:

  135. [107] Again, on 11 November 2005, Mr Netto pressed for Evergreen’s documents. He wrote to Mr Yee:

  136. [108] Mr Yee approached Mr KSJ for assistance. He queried Mr KSJ whether it was possible to require Mr Kaw to reveal his sales of Bodypac products. Importantly, he remarked:

  137. [109] Again, on 24 October 2005, Mr Yee e-mailed Mr KSJ, stating that he needed the latter to get Mr Kaw to give information on Mr Kaw’s Bodypac business from 1994 to 2005. Again, no reply was forthcoming. In cross-examination, Mr KSJ’s testified that by the middle of 2005, he had been instructed not to proceed with the formal application for the Malaysian Assessment, but to only assist in the computation of the assessment of damages in Singapore. It is however difficult to see how Mr KSJ could have assisted in the assessment of damages in Singapore when he ignored e-mails from Mr Yee and Mr Netto on the matter.

  138. [110] I note that given the difficulties in substantiating the Loss of Profits Claim, Mr Yee accepted in two e-mails of 21 October 2005 that the loss was Tearproof’s rather than Sports Connection’s.

  139. [111] In the background, S&N was similarly asking for Evergreen’s documents, amongst others. On 5 July 2005, Messrs Rajah & Tann (“R&T”) representing S&N sought discovery of documentary evidence in support of Sports Connection’s Loss of Profits Claim due to the sale of Bodypac products in Malaysia by the KL parties. R&T required discovery by 19 July 2005, a deadline which N&M agreed to. However, Sports Connection was not able to meet that deadline, and on 21 July 2005, N&M told R&T that “there has been a delay caused by our client’s attempts to obtain certain document[s] from Malaysia”. A list of documents was compiled for the purposes of discovery by 27 July 2005. The discovered list of documents was found to be incomplete even though the list was said to be the “best” that Sports Connection could provide. Dissatisfied, R&T sought specific discovery of documents on 3 August 2005. The categories of documents included the following:

  140. (a) Sports Connection’s accounts for the period 1991 to 1998; and

  141. (b) documents evidencing Sports Connection’s sales figures from 1991 to 1998.

  142. [112] On 28 April 2006, R&T wrote to N&M, stating that Sports Connection had failed to provide, inter alia, the following documents:

  143. (a) the affidavit of Evergreen, which Sports Connection referred to in providing the Further and Better Particulars dated 28 February 2006;

  144. (b) the accounting records of Evergreen from 1991 to 2005;

  145. (c) the documents showing Evergreen’s infringing sales of Bodypac products; and

  146. (d) Sports Connection’s audited accounts from 1991 to 2005.

  147. [113] In reply, N&M informed R&T on 8 May 2006 of the following:

  148. (a) There were no accounting records of Evergreen or evidence of their infringing sales, but Sports Connection had already provided invoices from 1992 to 1995.

  149. (b) Sports Connection had already provided their audited accounts for the years 1993 to 2004. There were no audited accounts for the years 1991 and 1992, and the audited accounts for 2005 would be provided in a supplementary list of documents.

  150. [115] Sports Connection served its answers to the Further and Better Particulars dated 28 February 2006 on 1 March 2006. In there, the claims were quantified as follows:

  151. (a) S$38.49m for loss of profit;

  152. (b) S$1m for loss of goodwill, reputation and value of the Trademark; and

  153. (c) RM 633,590.40 in legal costs incurred in Malaysia.

  154. Downward revision of the claim amount by Deloitte

  155. [117] Mr Shahiran took over conduct of Suit 630 on 15 August 2006. By that time, directions given at PTC held on 3 August 2006 were, inter alia, as follows: (a) Affidavits of Evidence-in-Chief (“AEIC”) of factual and expert witnesses to be exchanged by 28 September 2006; and (b) two days set aside in the week of 20 November 2006 for the hearing of assessment of damages. On Mr Shahiran’s advice, Mr Tam was appointed as Sports Connection’s expert witness to quantify Sports Connection’s loss of profits in relation to the Malaysian market for sales of Bodypac products for the period 1994 to 2004. That appointment was made more than one year after S&N consented to liability.

  156. [118] At the time of Mr Tam’s appointment, the court’s directions required Sports Connection to produce the expert report and expert’s AEIC by 22 September 2006. Unsurprisingly, Deloitte required an extension of the 22 September 2006 deadline in light of the scope of work that it had to undertake. Mr Shahiran applied for an extension of time on 26 September 2006 and the court extended the time for the filing of Deloitte’s Report to 24 November 2006. The trial was also re-fixed to 12 and 13 of February 2007. As we now know, this new deadline was difficult for Deloitte to meet for the reasons discussed below. The deadline was duly extended to 28 February 2007 on 24 November 2006 pursuant to another application taken out by Mr Shahiran. Consequently, trial dates in February 2007 were vacated.

  157. [119] On 30 October 2006, R&T wrote to Mr Shahiran, requesting further particulars of Sports Connection’s Statement of Claim as it was of the view that the particulars provided by Sports Connection on 28 February 2006 (while N&M was still Sports Connection’s solicitors) were insufficient. These requests included, but were not limited to: (a) details of Evergreen’s profits; and (b) details of how the loss of goodwill claim was computed. R&T also took the view that Sports Connection had not complied with its discovery obligations. In particular, Sports Connection had not disclosed certain pages from its annual financial reports as well as its income tax documents from 1991 to 2005.

  158. [120] It is convenient to refer to R&T’s letter of 10 January 2007 to ALC for a snap shot of the events that happened in the proceedings after S&N consented to liability on 26 August 2005:

  159. [121] I should explain R&T’s comment that the Further and Better Particulars dated 28 February 2006 had become nugatory. R&T was alluding to Sports Connection’s withdrawal of the quantum of the heads of claim provided in the Further and Better Particulars dated 28 February 2006. In fact, R&T was told in November 2006 that the Loss of Profits Claim would be based on Mr Tam’s report which was being prepared.

  160. [122] In the meantime, promises were made in November 2006 to give discovery of a substantial number of documents that were from Malaysia and that the bulk of the documents would be received in December 2006. As it turned out, the promises were not kept. As at 23 January 2007, Sports Connection still had not furnished the documents. Mr Swami complained in an affidavit affirmed on 24 January 2007 that Sports Connection’s repeated delays had affected S&N’s ability to prepare for assessment of damages and the delays had resulted in the parties’ repeated attendances in court to extend deadlines.

  161. [123] The preparation of Mr Tam’s expert report (ie, the Deloitte Report) took five months. For its report, Deloitte asked Sports Connection for documents such as:

  162. (a) a copy of BM’s affidavit;

  163. (b) a copy of Sports Connection’s Malaysian entity’s audited accounts;

  164. (c) Sports Connection’s annual sales and cost of sales for Bodypac products in Malaysia from 1994 to 2004; and

  165. (d) a copy of BM’s financial statements for the period from 1994 to 2004.

  166. [124] Deloitte also wanted Tearproof’s management accounts from the date of its incorporation, but they were not available. According to Sports Connection, it was not Tearproof’s practice to keep such accounts. Sports Connection also only had BM’s financial statements from 1997 to 2000. Nothing fruitful appeared to have materialised from Mr Poon’s request to the “Malaysian CPA” for those documents. I note Deloitte’s terms of appointment highlighted that possible limitations to the preparation of the expert’s report, one of which was that the financial statements of BM for certain years may not be available. In fact, Deloitte had even, via its office in Kuala Lumpur, tried to obtain BM’s financial statements post-2000. That avenue was also unfruitful.

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