PUTRAJAYA, July 11 — The Court of Appeal will decide on August 11 whether former prime minister Datuk Seri Najib Razak will succeed in disqualifying two lawyers from representing former attorney general (AG) Tan Sri Tommy Thomas in a lawsuit involving a RM1.9 million compensation claim.
Court of Appeal judge Datuk Hanipah Farikullah, who chaired a three-judge panel, said: “We thank parties for the written submissions and comprehensive oral submissions. We will reserve our decision to August 11, Friday, 9am, which is a month from today, as we need time to consider submissions from parties and authorities cited by parties.”
Court of Appeal judges Datuk Azimah Omar and Datuk Azhahari Kamal Ramli were also on the panel today.
Earlier today, the Court of Appeal panel heard Najib’s appeal against his previous failed bid at the High Court to disqualify the two lawyers from representing Thomas.
Najib had disagreed that two partners from the law firm Tommy Thomas — which was co-founded by Thomas — should be allowed to represent the former AG in a lawsuit. In that lawsuit, Najib is suing Thomas for alleged wrongful prosecution in four criminal cases and wants at least RM1.9 million in compensation.
On August 19, 2022, the High Court dismissed Najib’s application to disqualify the two lawyers — Alan Adrian Gomez and Mervyn Lai Wei Shiung — from being Thomas’ lawyers.
Today, Najib’s lead lawyer Datuk Firoz Hussein Ahmad Jamaluddin objected to Alan and Lai being Thomas’ lawyers in this case, claiming that Thomas has pecuniary interest or financial interest in relation to the law firm.
Firoz also questioned the two lawyers’ ability to maintain professional independence since they are in the same law firm as Thomas.
Firoz cited the Legal Profession (Practice and Etiquette) Rules’ rule five, where no lawyers should accept a case if it would make it difficult for him to maintain his professional independence or if it would be incompatible with the best interests of the administration of justice.
Firoz said he was not casting any aspersions on the two lawyers but argued that this rule should apply to this case, saying: “Because it would be difficult to maintain professional independence of counsel where the counsel is representing the founding partner and consultant of a law firm.”
Firoz suggested that it would be hard to maintain “professional distance” and fulfil their duty to the court if a lawyer represents a partner from their law firm.
Firoz however agreed that the law firm Tommy Thomas has no links to the five criminal cases which Najib is being prosecuted for, and that Thomas would have pecuniary interest if he lost the lawsuit where Najib is suing him for alleged wrongful prosecution.
“The firm is not linked to the charges, that one we all accept, the firm did not charge Datuk Seri Najib. But Tan Sri Tommy Thomas was the founding partner of Tommy Thomas, and he remains a consultant there. So let’s say for the sake of argument, Tommy Thomas loses the suit, then he will be liable to pay damages; therefore, there is a pecuniary interest,” he said.
Firoz argued that the potential conflict of interest between a duty to the client and to act professionally and independently could be easily solved by appointing an independent outside lawyer who has no link with Thomas, with the aim of ensuring proper administration of justice.
But Alan said Thomas had given up all his interests in the law firm when he was appointed as AG in June 2018 and had resigned as AG in February 2020.
Alan added that Thomas had rejoined the law firm in September 2020 as a consultant, and not a partner, stressing that he is not a member of the law firm and holds no interest in the law firm to date.
Alan argued that the test was not whether Thomas has an interest in the law firm, but whether the partners of the law firm have a “direct pecuniary interest in the outcome” of Najib’s lawsuit against Thomas.
Alan highlighted that Thomas was sued over alleged misconduct during his time as AG for pressing criminal charges against Najib in five cases and not over his role as a partner in the law firm, and said that it would not be the law firm that would have to pay if Thomas lost the lawsuit and that the law firm too would not receive money if Najib lost the lawsuit.
“So it is for those reasons that we see this is clearly a case where the partners of the firm have no pecuniary interest in the outcome of the suit, and therefore, that is a non-starter,” he said.
Alan also argued that there is no conflict of interest between lawyers’ duties to their client and their duty to the courts, as the overriding duty is to the courts.
Saying that he has been practising for over 20 years as a lawyer with the view of the overriding duty being to the courts, Alan said: “There cannot be conflict because the interest of the court overrides the interest of anything else.”
Alan also said that it was Thomas himself who decided as AG to charge Najib in those five criminal cases, and the partners of his law firm did not play any role in that, and that Najib’s current lawsuit against Thomas was about his role as AG, and not as a partner.
Alan also said the High Court did not query the conduct of the two lawyers representing Thomas and did not even say that they had somehow acted with disregard to independence or administration of justice.
Yesterday, a different three-judge panel at the Court of Appeal had allowed Najib’s application to be present physically in the courtroom today for the appeal hearing.
Najib, who has spent more than 10 months as a prisoner at Kajang Prison, was present in court today.
In the courtroom, Najib, who was dressed in a light grey suit, was seen sitting on a bench with his son, Mohd Nazifuddin sitting on his right, while his wife Datin Seri Rosman Mansor, who was clad in blue, sat on his left.
Other lawyers who represented Najib today are Daniel Annamalai, Woo J Enn and Melody Tham Cheng Yee, while Thomas was also represented by Lai and Haikaldin Mahyidin.
Najib sued Thomas and the Malaysian government on October 26, 2021 for the 35 criminal charges against him in four trials (which does not include the trial over SRC International Sdn Bhd’s RM42 million for which he is currently serving a 12-year jail sentence).
On September 8, 2022, Najib dropped the Malaysian government as a defendant in the lawsuit but continued his bid to seek RM1.9 million compensation from Thomas over the alleged wrongful prosecution.
While today’s hearing is over Najib’s bid to disqualify Thomas’ lawyers in the lawsuit, the RM1.9 million lawsuit itself was struck off before it could be heard.
The High Court on November 25, 2022 allowed Thomas’ application to strike out Najib’s lawsuit, and the Court of Appeal is scheduled on October 4 to hear Najib’s appeal against the striking out of the lawsuit. In other words, Najib is seeking to restore the lawsuit in order for the High Court to hear it.
