Mina Labib Shehata v. Cognis Chemicals (HK) Ltd and Another

HCA 113/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 113 OF 2004

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HCA 1192/2006

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(CONSOLIDATED)

Before: Mr Recorder McCoy, SC, in Court

Date of Hearing: 27 February 2008

Date of Judgment: 4  March 2008

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JUDGMENT  ON  REVISION  OF
UNSEALED  JUDGMENT

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1.By informal application, not opposed as to form by the plaintiff, application is made by Mr. Paul Carolan on behalf of the 1^st defendant for the Court to reopen and revise one point of the judgment handed down some months ago, no sealed Order existing to give effect to that judgment.

2.Mr. Jonathan Harris SC for the plaintiff opposes the application on the basis that although a court may revisit its judgment before an order is sealed in relation to it, it may only do so as a matter of jurisdiction if there are strong reasons (synonymous with an exceptional case) to do so, which are absent here: Compagnie Noga D’Importation et D’Exportation SA v Abacha and another (as personal representatives of Sani Abacha (deceased)) [2001] 3 All ER 513, 526 per Rix LJ (mercifully noted hereafter as “Noga”).

3.In Sun Jianqiang v Trans-Island Limousine Service Limited [2004] 1 HKC 533, the Court of Appeal (Woo and Cheung JJA; Burrell J) in a reserved judgment adopted at para [25] the following headnote from Noga as accurately representing Hong Kong law. 

“The court’s jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interests of justice, which were out of the ordinary, extraordinary or exceptional.  An exceptional case did not have to be uniquely special, and ‘strong reasons’ was perhaps an acceptable alternative to ‘exceptional circumstances’.  It would necessarily be in an exceptional case that strong reasons were shown for reconsideration.  In the instant case, there were no such reasons.  It was a case where it was said that the judge had got it wrong, on points which had been argued.  The appeal process would be subverted if the application were granted.  There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal.  It was wrong, however, for a judge to be treated to an exposition such as would be presented to a court of appeal.  If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided: it would be made inevitable.  Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.  Accordingly, the application to reconsider the judgment would be dismissed.”

4.In Re Kennedy [2007] 5 HKC 75 the Court of Appeal (Tang VP; Yeung and Yuen JJA) to similar effect at para [4] stated that “It is common ground that before an order is sealed, a court has jurisdiction to vary its order.  However, strong reasons are required before the court would do so and this power would only be exercised in exceptional cases.”

5.The plaintiff had claimed over $6,750,000 but succeeded only against the 1^st defendant and only as to $247,936 or 3.67% of the claim, after a 7 day trial. 

6.Mr. Carolan’s application, (presented with an attractive combination of understatement yet forcefulness), is that although I found his client liable for the amount of $97,936 under one of the only two claims (the other being for $150,000) on which the plaintiff succeeded (out of the original nine advanced by the plaintiff), that in accordance with the approach outlined in the judgment, his client should be liable for only $4,382.63 under that particular claim.

7.The application to reopen the judgment pertains to pars [27] to [32] of it, which dealt with the approach to and calculation of unused annual leave under s41C(1) Employment Ord.  The employer submits that the formula applied was incorrect and indeed inconsistent with other parts of the passages in those paragraphs.  The employee however, submits that as the judgment had found that the denomination for the calculation should be 365 and that the numerator should be the number of calendar days of holiday, that the correct calculation is actually slightly lower than the judgment awarded.

8.The judgment had set out after full argument the terms of the formula to be applied, it would not be correct in terms of the jurisdiction threshold set out in Noga, for the court to fundamentally revisit the basis of the approach adopted.  If frailty exists and if it is sufficiently important to do so, it must be taken to another forum.  But, because the successful party accepts that there should be a slight downward modification against his interest in the award, I will accede to that proposal as being within the parameters of the jurisdiction.

9.The plaintiff is now awarded $95,122.35 (instead of the original $97,936); for the unused annual leave claim under the formula (monthly salary multiplied by months) by (calendar days of holiday, over days of year)

($92,000 x 12) x 107/365 = HK$323,638.25

minus $228,516 already paid = $95,122.35 

10.The employer’s application is dismissed with costs to the employee.

Mr Jonathan Harris SC, instructed by Messrs Hampton Winter and Glynn, for the Plaintiff

Mr Paul Carolan, instructed by Messrs Baker & McKenzie, for the 1^st Defendant

Mr Paul Carolan, instructed by Messrs Baker & McKenzie, for the 2^nd Defendant