Campbell Richard Blakeney-williams and Others v. Cathay Pacific Airways Ltd and Another

CACV 268/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 268 OF 2009

(ON APPEAL FROM CONSOLIDATED ACTIONS

HCMP4400/2001, HCA2822/2002, HCA299/2006, HCA1405/2006 AND HCA807/2007)

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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

HCA 2822/2002

HCA 299/2006

HCA 1405/2006

HCA 807/2007

CACV66/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 66 OF 2009

(ON APPEAL FROM CONSOLIDATED ACTIONS HCMP 4400/2001,
HCA 2822/2002, HCA 299/2006, HCA 1405/2006 AND HCA 807/2007)

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HCMP 4400/2001

HCA 2822/2002

HCA 299/2006

HCA 1405/2006

HCA 807/2007

Before: Hon Stock VP, Kwan JA and Lam J in Court

Date of Hearing: 22 July 2011

Date of Judgment: 22 July 2011

Date of Reasons for Judgment: 28 July 2011

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons of the Court):

1.On 24 December 2010 we handed down judgment in these actions.

2.These are applications for leave to appeal to the Court of Final Appeal pursuant to the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484.  The contention is that there are involved in the appeals questions of great general and / or public importance.  It was said that were we not to grant leave on that basis, we should grant leave on the “or otherwise” aspect of that statutory provision.

3.On 22 July 2011, we declined to grant leave and said we would give reasons later.  This we now do.

4.The applications arose in respect of those parts of the defendants’ appeals which were successful, namely:

(1)  in respect of a claim for wrongful termination of contract where the issue was whether, on a proper construction of the contracts of employment, the defendants were in the circumstances of the case entitled to terminate the employments without cause on giving notice or payment in lieu of notice without instigating disciplinary procedures; and

(2)  the reduction by the Court, in respect of each plaintiff, of the amount awarded by the court below as damages for defamation.

5.In respect of the wrongful termination issue, the important questions which are said to arise are these:

“(1)  Whether the Court should look beyond the wording of the letters of termination to determine whether the Plaintiffs were dismissed for disciplinary reasons or without cause.

(2)  Whether it was open to the Defendants to bypass the Disciplinary and Grievance Procedures (“DGP”) by not referring to any disciplinary matters in the letters of determination.

(3)  Whether the DGP would be triggered if the underlying reasons for the dismissal of the Plaintiffs were matters of a disciplinary nature.”

6.Apart from the fact that we did not consider the issues to be reasonably arguable as a matter of law, the questions are contract specific, and therefore not appropriate as questions of general importance.

7.In relation to the damages awards for defamation, the issues of importance which were said to arise are these:

“(4) Whether, in assessing general damages in defamation cases, it is permissible or desirable to cross-check against awards for damages in personal injury cases.

(5) Whether the award of HK$700,000 is sufficient compensation to professionals who have been accused of being unprofessional and have suffered great loss of earnings as a result thereof.

(6) Whether, in assessing the Applicants’ claims for damages for defamation, the Court should take into account the fact that the trade union to which the Applicants belonged was involved in a communications campaign with the Defendants.

(7) Whether aggravated damages should be awarded against the Defendants because:

(a) despite their knowledge of the falsity of their own statements (to be inferred from their inability to justify their own statements), had persistently refused to make an apology,

(b) they continued to publish and repeat the defamatory matters up to the time of trial.”

8.Save for question (4), the questions are case-specific.

9.As for question (4), we think the answer is beyond argument but in any event was not in this case determinative of the quantum issue.

10.There was a notice of motion by the defendants for leave to cross-appeal on certain questions arising in relation to the Employment Ordinance but, given our determination in respect of the plaintiffs’ applications, the defendants’ application was not pursued.  We accordingly made no order in respect of that application.

11.We ordered that the costs of the plaintiffs’ applications be to the defendants, to be taxed if not agreed.

Mr Clive Grossman, SC and Mr Kam Cheung, instructed by Messrs Chiu, Szeto & Cheng, for the Plaintiffs

Mr Robin McLeish, instructed by Messrs Mayer Brown JSM, for the Defendants