JJ Chan

JJ Chan is the Managing Partner of the Firm and prior to that, he was a partner at Shearn Delamore & Co, a leading law firm in Malaysia.

He is a member of the Honourable Society of Gray's Inn, London, and was called to the English Bar in 2001. He undertook the Bar Vocational Course at the Inns of Court School of Law, London [part of The City Law School, which has now joined University of London (UOL)], where he was graded 'Very Competent'.

JJ has an extensive practice in civil litigation with particular experience in medico-legal matters, defamation, directors and officers liability, corporate, commercial and construction litigation, banking and finance, and land matters, including acquisition cases. He also handles matters relating to disciplinary proceedings concerning legal and medical practitioners.

He has conducted trials and interlocutory hearings (including injunction and committal proceedings) and attended to appeals at the appellate courts through engagements by local and foreign clients, and as Counsel on instructions from other legal firms.

He has conducted more than 50 talks/briefings/presentations/trainings in Malaysia and Singapore on topics such as the applicable standard of care in medical negligence cases, the expanded test for vicarious liability in Christian Brothers’ Case (UK) and the doctrine of non-delegable duty as propounded in Woodland's Case (UK), Directors and Officers Liability and Insurance coverage and the exclusion clauses, and so on.

He has been involved in several cases which have received press coverage, and which have been the subject of comment in legal journals.

Some of his notable cases include:

Medical Negligence

  • Winning an Appeal before the High Court in setting aside the Sessions Court’s decision in finding a doctor liable for negligence - Dr Q v M & Ors [2012] 3 MLJ 379. The High Court held that it is incumbent for the claimant to adduce evidence by way of an independent expert witness in order to sustain a claim for medical negligence. The High Court’s decision was affirmed by the Court of Appeal. The grounds of judgment by the Court of Appeal remain pending. It would be the first decision by the Court of Appeal on this issue.

  • Defending a claim for medical negligence brought against a doctor before the High Court on the grounds, inter alia, that it is not for the doctor to disprove the allegations of negligence against a doctor (or hospital) as the legal burden of proof ‘always rests on the Plaintiff' - W v P & Anor [2011] 3 MLJ 506.

  • Winning an Appeal before the Court of Appeal in setting aside an award of exemplary damages handed down by the High Court against a doctor and hospital (L v Dr T & anor [2013] 9 MLJ 146). The High Court’s decision in awarding exemplary damages on the basis that the doctor and hospital had conceded on liability was unprecedented. However, it was successfully argued at the Court of Appeal that the concession of liability is an irrelevant consideration for the award of exemplary damages in medical negligence cases.

  • Defending a claim for medical negligence brought against a hospital before the High Court on the grounds that the Hospital were not vicariously liable for the acts and/or omissions of the doctors, because the doctors were independent contractors and not agents, employees and/or servants of the Hospital - S & Anor (as administrators of the estate of S, deceased) v Dr V & Ors [2012] 3 MLJ 817.

  • Involved with Tan Sri Dato’ Cecil Abraham (as amicus curiae) in an Appeal before the Federal Court, which had held, in a landmark decision, that the applicable standard of care in respect of a doctor’s duty of care on diagnosis and treatment is the Bolam Test (UK), subject to the qualifications as decided by the English House of Lords (now known as the Supreme Court) in Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 – Zulhasnimar Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 8 CLJ.

  • Involved with Tan Sri Dato’ Cecil Abraham (as amicus curiae) in an Appeal before the Federal Court, which involve the issues over, inter alia, the liability of private hospitals or medical institutions, on the basis of vicarious liability or non-delegable duty, pertaining to the negligence of doctors practising as independent contractors, and the award of aggravated damages in medical negligence cases. It is the first decision by the Federal Court on these issues – Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal [2018] 3 CLJ 427 .

  • Involved as co-Counsel in a Motion before the Court of Appeal, which had allowed the Applicant Hospital’s Motion at the Appellate stage to adduce fresh expert medical evidence in a medical negligence case (which was unprecedented) on the current condition and prognosis of the Respondent Patient with regard to quantum of damages. The Court of Appeal had, in the main Appeal, ultimately reduced the quantum of damages by revising the multiplier adopted by the High Court, having regard to the fresh expert medical evidence adduced before the Court of Appeal.

  • Involved as co-Counsel in winning an Appeal before the Court of Appeal and setting aside the High Court’s decision in finding a private hospital liable for negligence. The Court of Appeal held that the private hospital is not vicariously liable for the negligence of the defendant orthopaedic surgeons, essentially because they are independent contractors and operate independent businesses within the private hospital. The Court of Appeal also held that the private hospital is not in breach of non-delegable duty for the negligence of the said orthopaedic surgeons, essentially because there was no antecedent relationship between the private hospital and the claimant patient, who had chosen the lead orthopaedic surgeon, and who in turn had brought in the other orthopaedic surgeon to be involved in the surgeon in question – Kee Boon Suan & Ors v Adventist Hospital & Clinical Services (M) & Ors And Other Appeals [2018] 6 CLJ 334.


    Defamation

  • Defending a claim for libel brought by a prominent businessman against a leading newspaper publication before the High Court - Tan Sri T v The New Straits Times Press (M) Bhd & Ors and Another suit [2010] 2 MLJ 694. This was the first Court decision to acknowledge a more extensive and broader form of defence of qualified privilege (ie. ‘media privilege’ or ‘responsible journalism’) available to newspaper publications on matters of public interest, as propounded in the decisions of the English House of Lords in Reynolds v Times Newspapers Ltd (1999) All ER 609 and Jameel and Anor v Wall Street Journal Europe SPRL (2006) 4 All ER.

  • Acting as lead Counsel in defending a claim for libel before the High Court brought against an individual for writing a letter of complaint to her former solicitors and copied to the Consumer’s Association of Penang. It was argued that the letter had been published on an occasion of qualified privilege and hence, immune from suit.

  • Defending a claim for slander and/or malicious falsehood before the Sessions Court brought by an individual against the committee of an established private members’ club in respect of words allegedly said in the course of a meeting held by the committee. It was argued that the discussions and/or communications made by and between the members of the committee were all made on an occasion of qualified privilege and hence, immune from suit.


    Banking and Finance

  • Acting as lead Counsel in defending a bank against a claim for RM4.8million brought by its customer for alleged unauthorised transactions involving forgery of signatures, and succeeding in the bank’s counterclaim for outstanding loan facilities amounting to RM4.2million – Goh Hock Hai v EON Bank Bhd [2011] 3 MLJ 189.

  • Winning a claim brought before the High Court by a bank against a private company and 4 guarantors in respect of loan facilities totalling RM3.8million. The High Court held, inter alia, that the discharge of one of the guarantors under a guarantee does not discharge the other guarantors, and that the 'principal debtor’ clause in a guarantee obviates the need for service of a notice of demand upon a guarantor as a pre-condition to commencing suit – Hong Leong Bank Berhad v HGM Machinery Sdn Bhd & Ors [2013] 9 MLJ 413.


    Construction

  • Winning a construction claim for outstanding architect interim certificates, progress claims and (part of) retention sum totalling more than RM5.5million brought by a main contractor against the land owner (a wholly owned company of the ministry of finance incorporated), a decision which has been upheld by the Court of Appeal and Federal Court – PPH Development (M) Sdn Bhd v Fabina Development Sdn Bhd & Anor [2005] 5 MLJ 435 and JKP Sdn Bhd v PPH Development (M) Sdn Bhd [2007] 6 MLJ 243.

  • Winning a construction claim and obtaining judgment in the aggregate sum of RM2million – Kumpulan Teknik Sdn Bhd v Murad Hashim Communication Sdn Bhd & Anor [2012] 8 MLJ 573. That case involved the issues over joint venture agreements, assignment of rights, quantum meruit and Section 71 of the Contracts Act, 1950.

  • Winning in part an Appeal before the Court of Appeal and setting aside the High Court’s decision in dismissing an employer’s claim against the contractor for liquidated damages arising from delay in the completion of works. It was argued that the employer would, even in the absence of any evidence of actual loss or damage caused by the delay, be entitled to claim for the sum of liquidated damages as agreed in the construction contract (or such sum to be determined by the Court).


Nuisance

  • Acting as lead Counsel in resisting in part an Appeal before the Court of Appeal in respect of the High Court’s decision in finding a Hotel liable for negligence and/or nuisance caused to the renowned Cheong Fatt Tze building in Penang (also known as the ‘Blue Mansion’). The Court of Appeal affirmed, inter alia, the High Court’s unprecedented award of general damages of RM500,000.00 granted to a company in respect of a claim for negligence and/or nuisance caused to property.


Personal Injury

  • Winning in part an Appeal before the High Court and overturning the Sessions Court's decision not to award special damages in respect of repatriation costs and hospitalization charges incurred in the UK. That case involved the issues over subrogation of rights, whether medical expenses duly paid by the insurer were claimable by the insured, and whether annuity and pension payments do constitute earnings within the meaning of Section 7(3)(iv)(a) of the Civil Law Act, 1956 - Jennifer Anne Harper (sued in her own capacity and as executrix of the estate of Bernard Alfred Harper, deceased) v Timothy Theseira [ 2009] 7 MLJ 711.


Contract/Commercial litigation

  • Acting as lead Counsel in defending a claim for outstanding electricity bills brought before the High Court against a private development company on the grounds of limitation – Tenaga Nasional v Pearl Island Resort Development Sdn Bhd (formerly known as PPH Resorts (Penang) Sdn Bhd). The case involved the issue over whether the enforcement of a bank guarantee constitutes ‘payment’ within the meaning of Section 26(2) of the Limitation Act, 1950. The High Court’s decision was upheld by the Court of Appeal – Tenaga Nasional Bhd v Pearl Island Resort Development Sdn Bhd (2015) 1 CLJ 1114.

  • Involved as co-Counsel in resisting an Appeal before the Court of Appeal and affirming the High Court's decision in holding that there was a valid and binding sale and purchase agreement based on the conduct of the contracting parties and the exchange of correspondence as between them – Loh Hoot Yeang v Derrick Edwin David (2006) 2 CLJ 66.

  • Acting as lead Counsel in winning an Appeal and setting aside the High Court's decision in striking out a claim for fraud and/or misrepresentation arising from representations that the claimant would be a shareholder of a foreign incorporated company set up by the defendant for purposes of property development in China.


    Civil Procedure

  • Winning an Appeal before the Court of Appeal and overturning the High Court's decision involving a claim for late delivery of an office unit. The Court of Appeal's decision was affirmed by the Federal Court. The Court of Appeal held that the maker of a document need not be called as a witness, provided that the conditions of 73(A) and/or 32 of the Evidence Act, 1950 are satisfied. The Court of Appeal also held that if the findings of the High Court were not ‘specific findings of ostensible facts, but facts that could be inferred from specific facts’, the Appellate Court would not be restrained to form its own opinion on the conclusion on facts drawn by the High Court - IJM Corp Bhd v Zamri bin Hj Ibrahim & Anor [2014] 2 MLJ 335.

  • Acting as lead Counsel in winning an Appeal before the High Court and setting aside the decision of the Advocates & Solicitors Disciplinary Board in dismissing a complaint made against lawyers. The Appeal was allowed essentially on the grounds that the Disciplinary Board had committed a procedural error in dismissing the Complaint pursuant to Sections 100(6) and (7) of the Legal Profession Act, 1976, when they ought to have dismissed the complaint pursuant to Section 100(5) of the Act if, at all, they were of the view that there is no merit in the complaint.

  • Involved as co-Counsel in winning an Appeal before the Court of Appeal and setting aside the High Court's award of general damages for loss of profits and capital. The Court of Appeal held that it was necessary to produce the account books or necessary support documents in respect of the audited statements of account upon which a claim for damages was based. The Court of Appeal also endorsed the principle that the failure or omission to object to evidence not admissible or relevant under the Evidence Act, 1950 does not make the evidence admissible in law – Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 2 MLJ 229.

  • Involved as co-Counsel in a Motion before the Federal Court involving a pertinent and pivotal issue of procedure pertaining to the power or discretion of the Federal Court to review its previous decision, in contrast with the established doctrine of finality in litigation – Joceline Tan Poh Choo & Ors v V Muthusamy (2007) 6 MLJ 485.



Qualifications
LLB Hons (University of Westminster, London)
Bar Vocational Course (Inns of Court School of Law, London)
Barrister-at-law of Gray's Inn, London
Advocate & Solicitor, High Court of Malaya

Admission to the Bar
England and Wales (2001)
Malaya (2002)

Professional Memberships
Malaysian Bar
Honourable Society of Gray's Inn
Medico Legal Society of Malaysia
Medico Legal Society of Singapore


Reach JJ Chan at jjchan@cbe.law