John Simpson Warham and Others v. Cathay Pacific Airways Ltd and Another

HCMP 4400/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4400 OF 2001

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BETWEEN

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AND

HCA 2822/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2822 OF 2002

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BETWEEN

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AND

HCA 299/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 299 OF 2006

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BETWEEN

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AND

HCA 1405/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1405 OF 2006

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BETWEEN

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AND

HCA 807/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 807 OF 2007

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BETWEEN

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(Consolidated by Order of Master Levy
dated 6^th day of June, 2008)

Before: Hon Reyes J in Chambers

Date of Hearing: 4 December 2008

Date of Decision: 10 December 2008

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D E C I S I O N

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I.  Introduction

1.Cathay applies to strike out substantial parts of Mr. Warham’s Witness Statement (WS) and Supplemental Witness Statement (SWS). 

2.Mr. Warham was employed as a pilot by Cathay.  While so employed, he (along with the other Plaintiffs) were active members of the HKAOA (the trade union representing aircrew officers employed by Cathay).  The parts sought to be struck out are marked in red in the copies of the WS and SWS appended to the relevant Summonses issued by Cathay.

II.  Discussion

3.I think that the parts sought to be struck out should be struck out.  In my view, those parts are irrelevant to the factual issues which I have to determine at trial.  Those factual issues are essentially as follows:-

(1)     Whether, contrary to Employment Ordinance (Cap. 57) s. 21B(2)(b) and despite its denials,  Cathay in fact terminated the Plaintiffs’ employment (including that of Mr. Warham) on account of the Plaintiffs’ participation in trade union activities.

(2)     Whether, despite its denials, Cathay in fact terminated the Plaintiffs’ employment on the basis of perceived misconduct on the part of the Plaintiffs.

(3)     Whether, around the time when Cathay terminated the Plaintiffs’ employment, Cathay was justified in making statements to the effect that the Plaintiffs were:-

(a)    unprofessional pilots;

(b)   uncaring about Cathay’s interests as employer; and,

(c)   bad employees.

(4)     Whether the Plaintiffs’ have suffered loss and damage (and if so what) as a result of any breach by Cathay.

4.I propose briefly to run through the paragraphs (or parts of paragraphs) sought to be struck out and state why I take the view that the same should be deleted.

5.In relation to WS:-

(1)     §§18-19 and 21.

These assert that Mr. Warham’s view that Cathay was employing intimidation tactics in its dealings with HKAOA members.  Mr. Grossman SC (appearing for the Plaintiffs) submits that this is background material to provide the Court with the context in which the Plaintiffs’ were fired by Cathay.  I do not think that the material will be helpful at all at trial.  The material goes well beyond mere background.  It is not a pleaded issue that Cathay used intimidation tactics.  If this material were to remain it would mean that much time at trial would be wasted on determining whether or not Cathay used intimidation tactics, a non-issue.

(2)     §23 (last sentence).

This is double hearsay of an opinion allegedly taken by Captain Barley on behalf of Cathay.  It is worthless as evidence of anything.

(3)     §§26 (last sentence) & 27 (first and last sentence).

This purports to express a view on a document known as the “Maximum Safety Strategy” (MSS).  By his own admission, Mr. Warham “took no part in the compilation, editing, publishing or distribution of the document”.  The document will be before the Court at trial.  The Court can form its own view of the significance or otherwise of the document.  Mr. Warham’s view is irrelevant.

(4)     §39.

This asserts that the “firm view” of all the Plaintiffs that the termination of their employment was a result of their participation in HKAOA’s activities.  This is a submission as to what inference the Court should draw from primary facts.  It is not appropriate to a witness statement.

(5)     §§50-52.

These deal with irrelevant matters.  There are general assertions of intimidation and harassment of pilots by Cathay.  It is alleged that Cathay stubbornly (but wrongly) insisted on treating payments made in lieu of notice as taxable income and that Cathay failed to forward mail to pilots.  None of these are relevant to the issues at trial, even as background.

(6)     §53 (1st, 3rd, 5th and 6th sentences).

These are assertions of opinion.  It is alleged that reputations of pilots have been “besmirched” by “ill-informed and untrue statements” and that such are “deeply offensive”.  No specifics are given of the particular pilots involved.  Nor is it explained how Mr. Warham is able to give first-hand evidence on their behalf.  As evidence, the sentences are unhelpful.

(7)     §§55-60.

These purport to give evidence on how ailments (such as a common cold and insomnia) may affect a pilot’s performance.  These are strictly matters of expert opinion.  No leave has been given for such expert evidence and the effect of particular medical conditions on flying is not presently a subject of investigation for the forthcoming trial.

(8)     §61.

This gives evidence on matters of law.

(9)     §§63-68.

These contain further allegations of intimidation.  It is asserted that, prior to October 1998, Cathay was suffering from a chronic pilot shortage.  None of these allegations are issues at trial.  As far as I can see, the allegations go beyond mere “background” material necessary for the Court’s understanding of the factual issues.

This section also purports to interpret an internal Cathay document to which Mr. Warham was not privy.  The document will presumably be available for use in cross-examination of Cathay’s witnesses at trial, insofar as relevant.  Mr. Warham’s opinions on the document’s meaning cannot be relevant evidence.

(10)   §§106-113.

These purport to give evidence in relation to Mr. Gregory England.  Mr. England died on 29 January 2002, but his estate remains as a Plaintiff in this action.  Mr. Warham consists essentially of matters of submission and conjecture on Mr. Warham’s part.  These are not appropriate to a witness statement.

6.In relation to SWS:-

(1)     §4.

This relates to expert evidence.

(2)     §5.

This is essentially a bare assertion that Cathay dismissed the Plaintiffs for involvement in HKAOA activities.  That is a conclusion for the Court to draw or reject after considering relevant primary facts.

(3)     §§10-12, 24-25, 38-40, 50-51, 52 (2^nd, 3^rd, 5^th and 6^th sentences), 53-56.

These again deal with alleged intimidation of pilots.  None of this is pleaded.  Nor is the material of any relevance or assistance to the determination of the real issues at trial.  The allegations go well beyond the bounds of reasonable background material.

(4)     §§13-23, 26-37, 41-47, 48 (1st sentence).

There is an overlap between these paragraphs and those which I have just listed.  These particular paragraphs largely deal with an alleged deterioration of safety margins in Cathay’s flight services.  Whether or not there was such deterioration is not an issue for trial.  Mr. Grossman submits that the material is there to show, by way of background, that the pilots had concerns about safety margins.  But to my mind the material goes well beyond background and in effect accuses Cathay of cutting corners and compromising safety.  It is no part of the forthcoming trial to investigate or pronounce on the accuracy or falsity of such allegations.  Accordingly, the material is irrelevant to the trial.

7.Mr. Grossman submits that, if I strike out a significant part of the WS and SWS, that will “hamstring” the Plaintiffs’ ability to rebut matters alleged in a witness statement of Mr. Nicholas Rhodes filed on Cathay’s behalf.

8.Save on one matter, I do not think that Mr. Rhodes’ much shorter statement strays beyond the bounds of providing a reasonable degree of context.  In contrast to Mr. Warham, Mr. Rhodes does not dwell in any detail on the long-term disputes between Cathay and the HKAOA.

9.Nonetheless, Mr. Adrian Huggins SC (appearing for Cathay) accepts that §24 of Mr. Rhodes’ Statement (which gives Mr. Rhodes’ opinion of the nature of the MSS) may be irrelevant.  He volunteered to have that paragraph struck out.

10.I believe that the paragraph is unhelpful.  I will therefore strike out §24 from Mr. Rhodes’ Statement.  The Court can read the MSS for itself and come to its own view of the document to the extent relevant.

11.For the avoidance of any doubt, I should make it clear that the forthcoming trial will largely concern the factual issues which I have identified.  The trial cannot be (and I will not allow it to become) a forum where one party (whether the Plaintiffs or Cathay) is at liberty to air whatever grievances against the other party beyond the ambit of the pleaded issues.

12.It is not the function of the coming trial to resolve old scores (whether justified or not) that one side may harbour against the other in relation to acrimonious union/management disputes in the 1990s.  Such extraneous disputes, however important they may have been and remain to the parties concerned, are not for the Court to resolve.

III.  Conclusion

13.Cathay’s strike out summonses succeed in their entirety.  Mr. Rhodes’ Statement §24 is also struck out.

14.There will be an Order Nisi that the Plaintiffs are to pay Cathay’s costs (to be taxed if not agreed) in any event.  Although both sides instructed leading counsel and juniors for this hearing, I do not believe that this was a matter which called for the instruction of 2 counsel.

Mr. Clive Grossman, SC and Mr. Kam Cheung, instructed by Messrs Chiu, Szeto & Cheng for the 2^nd, 4^th, 7^th, 8^th, 10^th, 14^th, 17^th, 18^th and 22^nd Plaintiffs in HCMP 4400/2001 and the Plaintiffs in HCA 2822/2002, HCA 299/2006, HCA 1405/2006 & HCA 807/2007

Mr. Adrian Huggins, SC and Mr. Robin McLeish, instructed by Messrs JSM, for the Defendants in all actions