ARCHER, HAROLD DEAN v. THE HONG KONG CHANNEL LTD.

FACV No. 8 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 155 OF 1997)

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JUDGMENT ON COSTS AND ON THE RATE OF INTEREST

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Mr Justice Litton PJ:

1. This is the judgment of the Court on the two matters left outstanding in our judgment dated 27 November 1998: (i) costs and (ii) the rate of interest on the award for long service payment in the sum of $75,410. The parties were given 21 days to make written submissions on these two matters. They have done so in relation to costs, but have made no submissions as regards the rate of interest.

Costs

2. The appeal concerned one matter only: the appellant's entitlement to long service payment under section 31R of the Employment Ordinance, Cap. 57. He was wholly successful in his appeal. It matters not that the specific point on which he succeeded had not been raised in the courts below. It was a pure point of law. It did not emerge from any unresolved issues of fact. The appellant was unrepresented in the lower courts whilst the respondent was represented throughout by solicitors and counsel. The usual rule as regards the award of costs must apply and the appellant should have all the costs incurred in the appeal, commencing from the time of his application to the Court of Appeal for leave to appeal to this Court. We so order.

3. As to the costs in the courts below: (1) At trial, as mentioned earlier, the appellant was unrepresented. Among the various heads of claim in his statement of claim he sought an award under s.31R for long service payment. But the judge failed to give effect to that claim because, as explained in our judgment of 27 November 1998, a statutory provision crucial to that claim was overlooked. The judge erroneously held that the appellant had "received more than his contractual entitlement in respect of wages in lieu of notice". Although the judge awarded the appellant $82,356 overall, the appellant in effect lost at trial because the respondent succeeded in its counterclaim which substantially reduced the award in the appellant's favour. The judge ordered the appellant to pay the respondent's costs of the counterclaim. Had the judge acceded to the appellant's claim for long service payment the award in his favour would have been substantially more. The failure to give proper effect to the Employment Ordinance cannot be laid at the appellant's door. The proper order, in these circumstances, is to discharge the judge's order for costs, leaving each party to pay its own costs. We so order.

(2) The appellant remained unrepresented in the Court of Appeal. He succeeded in relation to two small items of claim and had the award increased by $8,571. But as to the long service payment claim, he once again failed, and had costs awarded against him. In our judgment the Court of Appeal's order for costs must be discharged, leaving each party to pay its own costs. We so order.

Rate of interest

4. In our judgment the long service payment award in the sum of $75,410 should carry interest at the rate of 2% above the prime rate from time to time, commencing from the date of the appellant's claim in the Labour Tribunal. We so order.