JOHN SIMPSON WARHAM AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

HCMP004400/2001

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
JOHN SIMPSON WARHAM and the other 22 persons listed in the Schedule to the Statement of Claim Plaintiffs
AND
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
VETA LIMITED 2nd Defendant

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HCA 2822/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2822 OF 2002

____________________________________

BETWEEN
JOHN SIMPSON WARHAM and Others Plaintiffs
AND
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
VETA LIMITED 2nd Defendant

(Consolidated by order of Master A. Ho dated the 13th day of September 2002)

Coram: Hon Sakhrani J in Chambers

Date of Hearing: 1 April 2003

Date of Judgment: 1 April 2003

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J U D G M E N T

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1. This is an application by the plaintiffs for further and better particulars of the defence. The plaintiffs in the consolidated actionare pilots who were employed by the 1st defendant, Cathay Pacific Airways Limited or the 2nd defendant, Veta Limited. Veta Limitedis a wholly owned subsidiary of Cathay Pacific Airways Limited who employ aircrew who live in countries other than Hong Kong or theUSA.

2. The plaintiffs are 23 of about 50 pilots who were dismissed by the 1st defendant or the 2nd defendant by letters dated 9 July 2001.The dismissals followed an industrial dispute between the Hong Kong Aircrew Officers Association (“the Union”) and the defendants.On 3 July 2001 the Union implemented a Maximum Safety Strategy whereby its members performed their duties in strict compliance withthe defendants’ Operation Manuals.

3. By letters dated 9 July 2001 the plaintiffs were dismissed by letters of termination and payment of wages in lieu of notice underthe Employment Ordinance.

4. The plaintiffs’ primary claim in HCA No. 2822 of 2002 is that they were dismissed because they took part in trade union activities.The cause of action is a statutory cause of action said to be in contravention of s. 21B(2)(b) of the Employment Ordinance, Cap. 57. The plaintiffs, save for the 7th plaintiff who has since passed away, seek compensation under the Employment Ordinance. Para. 7 of the amended statement of claim particularizes the plaintiffs’ primary claim.

5. The plaintiffs’ further or alternative claim is in HCMP No. 4400 of 2001. This is for damages for breach of their contracts of employment.The contracts of employment of the plaintiffs incorporated the Conditions of Service 1999. One such condition relied on was thatthe Disciplinary and Grievance Procedures contained in the Conditions of Service were incorporated in the plaintiffs’ contracts ofemployment. Thus, where an aircrew officer is accused of a disciplinary offence he had a right to go through the Disciplinary andGrievance Procedures. Each of the plaintiffs asserts that his contract of employment was purportedly terminated and that he was dismissedfor alleged misconduct and/or for disciplinary reasons. Particulars are given in para. 17 of the amended statement of claim. It isalleged that the defendants were not entitled to dismiss them without first implementing or completing the contractual disciplinaryprocedure. The claim is for damages for breach of contract.

6. The defendants’ case is that as a matter of employment law and contract they are not obliged to give reasons for termination. Theydeny that the plaintiffs’ contracts of employment were terminated for taking part in trade union activities. They also deny thatthey were dismissed for misconduct or for a disciplinary offence. They deny that the Disciplinary and Grievance Procedures were applicable.

7. The defence, however, goes on to make positive allegations in para. 7 of the defence the paragraph under which the bulk of the requestsare made. I agree with Mr. Bell that vague and general allegations are made in para. 7 of the defence which require the defendantsto provide sufficient particulars.

8. I have been reminded of the function of a properly particularized pleading set out in marginal note 18/12/1 of the Hong Kong White Book. These are well known and it is not necessary for me to repeat them. However, it is particularly important for each of the plaintiffsto know what positive allegations with sufficient particularity are made against him so that he is not taken by surprise at the trial.It is also important for him to know what evidence he ought to be prepared with and to prepare properly for trial. The plaintiffsrightly wish to tie the hands of the defendants so that they cannot go into matters not included in the particulars at the trial.I now turn to the specific requests.

9. As to request 1, Mr Hunsworth accepted that the use of the words “salary and other benefits” in para. 6 of the defence has perhapsconfused the matter. He said that “wages” as defined in the Employment Ordinance had been paid and accepted by the plaintiffs. He agreed that it was a simple matter to provide these particulars which he proposedto do by the amendment to the defence which has not yet been filed and served. The plaintiffs are entitled to these particulars.

10. As to request 2, I do not think that the plaintiffs are entitled to the particulars requested. The defence is clear. Save for thematters specifically pleaded in para. 7 of the defence, para. 7 of the amended statement of claim is not admitted. The plaintiffis not entitled to further particulars of the non-admission.

11. As to requests 3, 4 and 6, these go to the positive allegations pleaded by the defendants in paras. 7(3), 7(6) and 7(8) respectively,of the defence. I agree with Mr Bell that the plaintiffs are entitled to the requests made. They are not matters of evidence butmatters of particulars of allegations made. Each of the plaintiffs is entitled to know how to properly prepare his case for trial.He is entitled to tie the hands of the defendants to prevent surprise at trial.

12. As to request 5, Mr Hunsworth in effect provided the answer to Request 5(i) and this can easily be incorporated in an answer to therequest. As to Request 5(ii), the plaintiff is entitled to these particulars.

13. As to request 7, the plaintiff is not entitled to the particulars sought. It seems to me that the plea in the defence is not a pregnantnegative. It is simply a denial of the plaintiffs’ allegation in para. 16 of the amended statement of claim and particulars cannotbe sought of a denial.

14. Request 8 no longer arises as Mr Hunsworth has confirmed that para. 16 of the defence will be deleted in the amended defence whichwill be filed and served. That amended defence will be a consequential amendment to the amended statement of claim and by the deletionof para. 16 of the defence this request no longer arises.

(Arjan H Sakhrani)
Judge of the Court of First Instance

Representation:

Mr Adrian Bell instructed by M/s Haldanes for the plaintiffs in consolidated action

Mr Hunsworth of M/s Johnson Stokes & Master for the defendants in consolidated action