IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 92 OF 2010
(ON APPEAL FROM HCLA NOS. 3, 4, 5, 7, 8 & 9 OF 2009)
BETWEEN and BETWEEN and BETWEEN and BETWEEN and BETWEEN and BETWEEN and
Before: Hon Tang Ag CJHC, Le Pichon JA and Cheung JA in Court
Date of Hearing: 19 April 2011
Date of Decision: 19 April 2011
Hon Tang Ag CJHC:
1. The details can be found in our judgment of 17 March 2011 and I will not repeat them.
2. In the Labour Tribunal, the appellant succeeded in relation to “Line Duty Allowance” (“LDA”), “Ground Duty Allowance”(“GDA”) and “Duty Free Sales Commission” (“DFSC”) but failed on “Outport Allowance” (“OA”). The Deputy PresidingOfficer also held in favour of Ms Jenny Ho that she had not received any holiday pay at all.
3. On appeal and cross-appeal to Stone J, the learned judge found in favour of Cathay Pacific Airways Limited (“CPA”) and againstthe appellants on every issue. There were two days of hearing.
4. On appeal to us, essentially, we have restored the decision of the Labour Tribunal. The appeal had only taken one day. We havealso made an order nisi that the appellants should have 60% of the costs of the appeal and at first instance.
5. CPA applies to vary the order nisi. Mr Coleman SC, for CPA submits that there should be no order as to costs both here and below. He makes the point, correctly inmy view, that more time was spent at the hearing on OA than on the other issues.
6. What Nourse LJ said at page 1214 in Re Elgindata Ltd (No 2)  1 WLR 1207, in the English Court of Appeal, is often cited in the present circumstances.
7. Nourse LJ said:
8. That is also the approach of this Court. See La Chemise Lacoste SA v Crocodile Garments Ltd  4 HKC 317. But even so, as Rogers VP explained (at 327E):
9. I also note what Lam J said in Hong Kong Kam Lan Koon Ltd v. Realray Investment Ltd (No 4)  4 HKC 162 at 166:
10. It is unnecessary for me to say whether OA should be regarded as a distinct “event” for the present purpose.
11. The court is entitled to take a global view of the matter. We can also take into account how counsel’s fees are normally structured. If the appeal had been confined to the issues on which the appellants have succeeded, it is doubtful whether it would have madeany or any substantial difference to counsel’s fees.
12. So far as solicitor’s fees are concerned, since they are time-based, it should not be difficult to segregate the fees attributableto OA.
13. In two recent appeals, Oriental Daily Publisher Ltd and Anor v. Ming Pao Holdings Ltd and Ors, CACV 139/2010 (unreported, 15 April 2011, Tang Ag CJHC, Le Pichon and Cheung JJA); Ansar Mohammad v. Global Legend Transportation Ltd, CACV 162/2010 (unreported, 24 March 2011, Tang Ag. CJHC, Le Pichon and Cheung JJA), where the appellants succeeded on quantum butfailed on liability this Court made orders nisi that the appellants should have the costs of the appeal. They were, of course, only orders nisi and are liable to be changed on application, however, they illustrate that costs are very much in the discretion of the court. Also,that very often it is the bottom line which is the critical event on appeal.
14. In this case, I believe an order that CPA should pay 60% of costs of the appellant both here and below is right, although the appellantsmight well think that they should be given all their costs. In all the circumstances, that is the fair order to make in this case.
15. I would therefore make the cost order nisi absolute.
Hon Le Pichon JA:
16. I agree with the judgment of Tang Ag CJHC.
Hon Cheung JA:
17. I agree.
Hon Tang Ag CJHC:
18. The costs order is made absolute. The appellants to have the costs of this application.
Mr Russell Coleman, SC, instructed by Messrs Mayer Brown JSM, for the Respondent
Mr Erik Shum, instructed by Messrs Keith Lam Lau & Chan, for the Claimants