CATHAY PACIFIC AIRWAYS FLIGHT ATTENDANTS UNION v. THE DIRECTOR-GENERAL OF CIVIL AVIATION

CACV 324/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 324 OF 2005

(ON APPEAL FROM HCAL NO. 19 OF 2005)

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REASONS FOR JUDGMENT

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Hon Ma CJHC :

1.  This case involves a decision of the Director-General of Civil Aviation (the Respondent) made in December 2004 regarding the minimum in-flight rest period for cabin staff on what are known as Ultra Long Range (“ULR”) flights.  The decision was made approving a scheme (known as a Flight Time Limitation Scheme - FTLS) devised by Cathay Pacific Airways Limited (the Interested Party) for its cabin staff.  It was said on appeal by the Applicant in these proceedings (the Cathay Pacific Airways Flight Attendants Union) that the decision was made without proper consultation in a matter that affected the safety of both crew and passengers, and that the decision itself was an unreasonable one since, according to the Applicant, it had put in place a scheme that was “potentially unsafe”.

2.  The Applicant’s case just summarized was not the way in which the Applicant had approached the present judicial review in the court below before Hartmann J.  It was therefore necessary for leave to be obtained to re-amend the Form 86A application for judicial review.

3.  After hearing Mr Paul Harris SC (for the Applicant), we refused leave to amend and dismissed the appeal, with the reasons for judgment to be handed down in due course.  In summary, the reasons are that there appeared to be no point in allowing the new arguments to be introduced (they were academic), that they were in any event bad and further, there were no grounds for this court to exercise its discretion to allow these new points to be taken on appeal (involving as they did, matters of fact).  I shall presently deal in greater detail with these reasons but before doing so, I would like to set out the relevant background and also identify the Applicant’s approach in the court below.

Background

4.  For many, flying is a stressful experience even for those who have flown many times.  The need to cater for a wide range of persons (from children to the elderly, healthy to sick, polite to rude, quiet to demanding) can place much stress on cabin crew and requires them to be on full alert and to concentrate at all times.  It also goes without saying that the cabin crew are present to ensure that passengers are not only comfortable but will be safe.  The cabin staff of an aircraft have important responsibilities and are required to be excellent in the discharge of their duties.

5.  What is involved in the present case is the in-flight rest period for cabin staff on long haul flights.  Specifically, these are the flights involved in what are known as ULR operations, meaning non-stop flights where the place of commencement of the cabin staff’s duty (that is, the place of departure) and the place where that duty ceases (the place of arrival) has a time difference of 6 hours or more (for example, Hong Kong to New York).  For cabin staff, the flight duty period (“FDP”) commences when he or she reports for duty (normally 1 to 1½ hours before take off) and ceases when the aircraft engines are switched off.

6.  At the heart of the controversy between the parties is the minimum in-flight bunk rest time on ULR flights : where the FDP is 19 hours (the maximum permitted for a flight attendant), the Cathay FTLS mandates a minimum rest period of 4.5 hours.  The Applicant’s position is that this period should be longer.  The position taken on appeal is that the minimum period should be in the region of 6 hours.

7.  Rest periods for cabin staff are essential to enable them to operate to a satisfactory level of efficiency.  Ultimately, this is vital not just to the comfort of all those on board an aircraft but to ensure safety in both normal and unexpected situations.  As Hartmann J pointed out, the problem of fatigue is “invariably the result of having to endure prolonged periods of active performance or vigilance when the body’s circadian rhythms are disrupted.  Circadian rhythms dictate patterns of wakefulness and sleep and do not adjust rapidly to change.  The effect of the disruption is what the layman calls jet lag.”

8.  The whole question of rest periods has been under the scrutiny of the Respondent for quite some time.  It is unnecessary for me to deal at length with the legal context of the Respondent’s duties in this regard.  In his judgment, Hartmann J analyzed the relevant provisions in the Basic Law, the Civil Aviation Ordinance, Cap.448 and the Air Navigation (Hong Kong) Order 1995 (this Order still being in force as an Order in Council).  No submissions were made in this appeal regarding the correctness of this analysis, which appears to me to be impeccable.

9.  In August 1998, the Civil Aviation Department (of which the Respondent is the head) published a document known as CAD371 headed “The Avoidance of Fatigue in Aircrews”.  This document contained provisions on which flight operators had to base their FTLS as from 1 March 1999.  CAD371 is not in clear terms.  As the Judge said in his judgment : “It can be ambiguous and is often circuitous.”

10.  Partly perhaps because of the difficulties in construing CAD371, interested persons began having discussions over the ramifications of the document, in particular regarding the issue of in-flight rest periods on long haul flights.  These discussions were done through the medium of the Flight Time Limitations Working Group (“FTLWG”) which the Respondent had set up in January 1997 to deal with the advent of ULR operations.  The Group comprised government officials, medical experts, representatives of various Hong Kong airlines, representatives of the Hong Kong Airline Pilots Association and representatives of the Applicant.

11.  The question of the minimum in-flight bunk rest time for cabin crew on flights involving FDPs of 19 hours was specifically discussed at several FTLWG meetings and was controversial.  No consensus could be reached and this was no more apparent than as recorded in the minutes of the 19th meeting of the Group on 27 February 2001.  It was clear that the Respondent regarded at that point it was his responsibility to make a decision despite the absence of agreement of all concerned.

12.  By a letter dated 6 April 2001 to the Applicant, the Respondent intimated that a decision on the issue of in-flight rest periods on ULR flights would be made by way of a post-meeting note to the minutes of the 27 February 2001 meeting.  It was stated that the Respondent had carefully considered the matter and “decided that the best practice in the airline industry/regulatory authorities should be adopted”.  The letter ended as follows : -

“Finally, as a further step to enhance flight safety, CAD have commissioned the German Institute for Aerospace Medicine, in conjunction with the European Committee for Aircrew Scheduling and Safety (ECASS), to conduct studies on the avoidance of fatigue in aircrew, and specifically for cabin crew.  The Chairman of the FTLWG will let members know of the results when they become available.  Depending on the outcome of the study and the experience gained by ULR operators, the criteria in CAD371 Second Edition would be reviewed if necessary.”

This passage, referring to studies to be conducted by the European Committee for Aircrew Scheduling and Safety (“ECASS”), is relevant to the Applicant’s submissions based on legitimate expectation and the duty to consult.  I will deal with these matters further below.

13.  The Respondent’s decision was contained in the minutes of the 19th meeting (distributed on 10 April 2001) and was in the following terms : -

“Note : Post Meeting Decision by the DGCA

As no consensus was reached amongst WG members on the subject of Cabin Crew rest on ULR flights, in accordance with the Terms of Reference for the FTLWG as stated in paragraph 1.2.1 of the First FTLWG meeting held on 9 January 1997, a decision from the DGCA was sought.  Taking into account of the views expressed by WG members, DGCA has decided that the best practice in the airline industry/regulatory authorities should be adopted.  As a result, the maximum FDP shall be 19 hours provided all cabin crew boarded receive the following minimum bunk rest :-

FDP	Minimum Bunk Rest
14 hour and up to 16 hours	3 hours
More than 16 hours and up to 17 hours	3.5 hours
More than 17 hours and up to 18 hours	4 hours
More than 18 hours and up to 19 hours	4.5 hours

The FTLWG should also note that as further evidence of CAD commitment to flight safety, it has commissioned the German Institute for Aviation Medicine, in conjunction with the European Committee for Aircrew Safety and Scheduling (ECASS), to conduct studies for the avoidance of fatigue for aircrew, and specifically for cabin crew.”

14.  In early 2004, the Interested Party began planning the introduction of non-stop flights between Hong Kong and New York commencing on 1 July 2004.  These flights involved FDPs of up to 19 hours for cabin crew.  In June 2004, the Interested Party advised its cabin crew of the minimum in-flight rest periods on such ULR operations and this advice followed the Respondent’s direction contained in the April 2001 decision (see paragraph 13).  This caused considerable controversy and an exchange of correspondence followed between the Applicant, its solicitors and the Respondent, in which the Applicant made known its dissatisfaction over the stipulated rest periods.  The position taken by the Applicant appears to have been more over whether the rest periods laid down by the Interested Party deviated from CAD371 than over safety as such.  We have not been taken to any correspondence or document in which it was asserted by the Applicant that the in-flight rest periods advised by the Interested Party for ULR operations were somehow unsafe or potentially unsafe.

15.  In November 2004, the Interested Party submitted an FTLS to the Respondent and this included the minimum in-flight bunk rest schedule for cabin crew on ULR flights.  The schedule (which was in the same terms as the advice to cabin crew mentioned in the previous paragraph) was as follows : -

“More that 14 hrs and up to 15 hrs	3 hrs
More than 15 hrs and up to 16 hrs	3 hrs
More than 16 hrs and up to 17 hrs	3.5 hrs
More than 17 hrs and up to 18 hrs	4 hrs
More than 18 hrs and up to 19 hrs	4.5hrs”

16.  On 7 December 2004, the Applicant approved the FTLS submitted by the Interested Party and the scheme was to take effect on 1 January 2005.  This was the relevant decision that formed the subject matter of the present judicial review proceedings.

17.  On 2 February 2005, the Applicant applied for leave to apply for judicial review and this was granted the next day.

18.  Before dealing with the course taken by the Applicant in the court below, the following factual matters should also be highlighted : -

(1) The 19th meeting of the FTLWG on 27 February 2001 was the last one until the Group was reconvened on 29 November 2005.  The reason for this gap was that there was an industrial dispute involving three members of the Group.  This industrial action lasted between mid 2001 and mid 2005 (although Mr Harris indicated on instructions that it was much shorter).

(2) I have earlier mentioned the involvement of ECASS (see paragraph 12 above).  That body had been commissioned by the Respondent in December 2000 to give scientific advice on a number of questions including the minimum in-flight bunk rest periods for cabin crew on ULR flights (specifically where the FDP was 19 hours). ECASS comprises scientific personnel from Germany, Sweden, France, the Netherlands and the United Kingdom advising on aviation issues.  On 7 June 2002, ECASS published its report (ECASS 1) headed “Flight Time Limitations Studies”.

(3) ECASS 1, in dealing with the issue of in-flight bunk rest for cabin crew on ULR flights, remarked that there was a relative lack of information and data in relation to cabin crew compared with those that were available for pilots.  A tentative recommendation was therefore made that for ULR flights of 18 or 19 hours, the in-flight rest period should be approximately at least 6 to 8 hours.  It is this recommendation or suggestion that was seized upon by the Applicant in this appeal to attack the relevant decision.

(4) However, it is important to see this recommendation in context.  I have described it as a tentative one : it was made without there having been much information or data on the subject.  The conclusions of ECASS bear this out : -

“While a minimum rest period of less than 8 hours for flight duty periods of between 18 and 19 hours (as recommended for cockpit crew) could be considered for the cabin staff, a reasonable estimate of how much less would require a risk assessment which included an evaluation of the safety implications of the work of cabin crew.  However, until such an assessment has been carried out, it would be wise to ensure that the crews are provided with sufficient rest to limit the probability of severe fatigue and to maintain an adequate safety margin.

Although the full 8 hours recommended for the flight-deck crew may not be required for the cabin crew, we would recommend that the minimum bunk rest for cabin crew is not set below 6 hours for FDPs of 19 hours.  As with the limits for pilots, any limits that are presently recommended for cabin crew would need to be re-examined when more information is available from long duration long-haul flights.

…

The ECASS-group provides the conclusions and recommendations on the basis of its scientific experience and knowledge.  It cannot guarantee that its conclusions and recommendations will always lead in any case to a successful completion of a flight duty.  The ECASS-group, however, hopes that its advice will support provisions that enhance both, safety and efficiency, of flight operations.  It recommends that changes in flight duty time and rest regulations be further evaluated with respect to the effects on aircrew fatigue and performance, particularly when flight duty times exceed 13 h.”

Given the tentative nature of the ECASS recommendation and the fact that it was not based on actual studies or experience in ULR operations, this recommendation was regarded with some apprehension by the Respondent.

(5) As stated earlier, in early 2004, the Interested Party began planning for the introduction of the Hong Kong – New York non-stop flights which would involve FDPs for cabin crew of up to 19 hours.  During this time, the Respondent was aware that ECASS had been conducting further studies in collaboration with the Civil Aviation Authority of Singapore (CAAS) and Singapore Airlines (SIA) in preparation for the latter’s planned ULR flights to the USA.  The CAAS had directed that the ULR flights of SIA should carry a minimum in-flight bunk rest time of 4 hours for FDPs of 19 hours and 5 hours for FDPs exceeding that amount.  In view of these developments, the Respondent contacted ECASS in July 2004 to see whether its tentative recommendation in ECASS 1 should be revised.

(6) In November and December 2004, Captain Michael Davis (the Chief, Flight Standards of the Civil Aviation Department) had various telephone conversations and telephone conferences with ECASS representatives from Germany and the United Kingdom (Dr A Samel of the German Aerospace Center and Dr M Spencer of the UK Centre of Human Sciences).  He was given to understand that ECASS 1 would be revised to include a new recommendation that the minimum bunk rest time for cabin crew having FDPs of 19 hours could be, subject to certain rostering conditions, reduced to less than 6 hours.  Captain Davis was also advised of the CAAS direction (referred to in sub-paragraph (5) above).

(7) With this exchange in mind, the Respondent felt reinforced in its decision, made in April 2001 (see paragraph 13 above) that the minimum in-flight bunk rest time could be set at 4.5 hours for ULR flights involving FDPs of 19 hours.  This enabled the Respondent to approve the Interested Party’s FTLS on 7 December 2004 (see paragraph 16 above).

(8) On 15 January 2005, ECASS published its second report (ECASS 2) although it was not received by the Respondent until 17 February 2005.  In this report, the recommendation for the minimum in-flight bunk rest period for cabin crew on ULR flights where the FDPs was 19 hours, was revised to 4.5 hours, subject to 10 rostering conditions (such as that cabin crew were to be cleared of all duty at least 34 hours prior to take off and that all outgoing flights should take place before noon).  The Interested Party has complied and continues to comply with all the ECASS rostering conditions (in fact bettering them in some instances).

The proceedings in the court below

19.  The two ECASS reports and the Respondent’s evidence regarding how they were dealt with by him and the Interested Party were made available to the Applicant prior to the hearing of the judicial review application before Hartmann J.  No real issue was raised by the Applicant at that stage with regard to these matters, although (for reasons that will be elaborated on below), considerable reliance was made by the Applicant on these reports in the appeal before us.  For his part, the Judge hardly referred to the ECASS reports in his judgment.

20.  Instead, the focus of the Applicant’s submissions in the court below impugning the relevant decision made in December 2004 was on the true construction of CAD371 and how the December 2004 decision differed from that document.  In short, it was said that the Respondent had acted under an error of law in failing to abide by the terms and requirements of CAD371 when he arrived at the December decision approving the Interested Party’s FTLS.

21.  In his judgment, Hartmann J dismissed the application for judicial review on the basis that although the December 2004 decision did differ from CAD371, nevertheless the Respondent was entitled to alter his policy.  The Judge held this change of policy was clear and specific, and had been made following due consultation with all interested parties including the Applicant (the discussions of the FTLWG referred to above).

22.  The issue of safety was addressed by the Judge in the following terms : -

“The issue of safety

69.    By way of a postscript, I wish to emphasise that at no time during the hearing before me was it suggested that the Director-General had acted unlawfully by ignoring or failing to give proper weight to the merits of relevant safety issues.  I was at no time called upon to consider directly any issue of safety.”

This was supported by the stance taken by leading counsel for the Applicant.  In the course of his submissions, he said this : -

“Now, we are not suggesting for a moment that any of the flights that Cathay Pacific are actually operating are unsafe and we are happy to acknowledge that openly in open court, but we are saying that the FAU’s members are suffering and will continue to suffer while the provisions of CAD371 are not observed, and that the proper course is to make the declaration – and I will come to relief in a moment, if I may – and for everyone to take stock, in the light of your Lordship’s judgment, of what prerogative relief may then be available.”

23.  Nor did this aspect feature in the original Notice of Appeal.  However, when the Notice of Appeal was amended, the focus of the Applicant’s submissions shifted quite considerably.

The arguments on appeal

24.  The original Notice of Appeal and Respondents’ Notices dealt with the same issues that had been before Hartmann J : whether the December 2004 decision was consistent with CAD371 and if not, whether there had been a justifiable change of policy.

25.  These issues were no longer pursued once the Amended Notice of Appeal was served.  The original grounds of appeal were abandoned.  The applicant’s arguments on appeal became on analysis as follows : -

(1) First, it was said that the Applicant had a legitimate expectation that it would be consulted based on ECASS 1 before the relevant decision was made.  Although there had been discussions and consultation involving the Applicant (in the FTLWG meetings), there was no separate dialogue involving ECASS 1.  This was despite the fact that an indication had been made to the Applicant that any report from ECASS commissioned by the Respondent would be made available to it : see the said letter dated 6 April 2001 from the Respondent to the Applicant (paragraph 12 above).  At no stage prior to December 2004 decision had ECASS 1 been forwarded to the Applicant.

(2) The alternative way in which the Applicant submitted this point was that there was in any event a duty on the Respondent’s part to consult the Applicant before making a decision.  Again, the foundation for this argument was ECASS 1 : with its publication, the Respondent ought to have consulted the Applicant.

(3) Secondly, it was submitted that the relevant decision was irrational in that the Respondent, by ignoring what was recommended in ECASS 1, had made a decision that affected the safety of all on board an aircraft in ULR flights.  The Applicant argued that ECASS was an expert body which had recommended in clear terms that the minimum in-flight rest time for cabin crew in such flights should be 6 hours.  This point was succinctly put in Mr Harris’ skeleton submissions : -

“It is irrational to commission and obtain an expert report from an authoritative source on a safety issue and then take a decision inconsistent with the recommendation of that expert report.”

The Applicant had, he said, a legitimate expectation that the best practice in the industry would be followed and this meant, ultimately, adopting the recommendation made in ECASS 1.

(4) Before us, Mr Harris made it clear that there was very much involved in the Respondent’s decision a question of safety (an issue which had not featured in the court below : see paragraph 22 above).  He articulated the Applicant’s case in the following terms : -

“The Cathay Pacific Approved Flight Time Limitation Scheme (AFTLS) approved by the Respondent in December 2004 is potentially unsafe because in setting the minimum period of in-flight rest required for cabin crew for a 19 hour Flight Duty Period (FDP) at 4.5 hours for all ultra long range (ULR) flights, the decision-maker has disregarded authoritative expert advice which it commissioned from the European Committee on Aircrew Scheduling and Safety (ECASS), namely that in order to provide an adequate margin of safety against severe fatigue in cabin crew, the minimum period of in-flight rest required for cabin crew for a 19 hour Flight Duty Period (FDP) on a ULR flight should be 6 hours, subject to possible reduction if certain rostering conditions were to be followed, which conditions have not been incorporated into the AFTLS.  The occurrence of severe fatigue in cabin crew is a safety issue because of the responsibilities of cabin crew in the event of an emergency evacuation of an aircraft.”

26.  None of these issues had been raised by the Applicant in the court below and they were only first raised in the Amended Notice of Appeal.  Nor were they raised in the Form 86A Notice for Application for Leave to Apply for Judicial Review and for that reason, leave was eventually sought to amend the Form 86A (the Applicant had initially taken the view that amendments were unnecessary but after some prompting by the court, an application was made).  Admittedly, in the original Form 86A, a safety issue was raised but this was only in general terms and the Applicant’s position had been made quite clear in the course of the arguments below (see paragraph 22 above).

27.  As I have stated earlier (see paragraph 3 above), there are three reasons why leave to amend the Form 86A was refused and the appeal dismissed : they were academic, they had no merit and the court could not in its discretion allow them to be raised at this late stage.  I now deal with these points in turn.

The points raised by the Applicant were academic

28.  In their written submissions, Mr Nicholas Cooney (for the Respondent) and Mr John Bleach SC (for the Interested Party) both argued that the new points made by the Applicant were academic in the sense that whatever their merits, there was simply no point in allowing them to be run.  This was because in the event that the court were to take the view that the December 2004 decision could be impugned, there was no point in quashing it since there was now in place a fresh decision of the Respondent that had overtaken past events.  In an affidavit of Captain Davis that was served after the Notice of Appeal had been amended, evidence was given of the 20th FTLWG meeting that had taken place on 29 November 2005 (some 3 months after the judgment was handed down in the court below).  Following that meeting, on 15 December 2005, the Respondent published his decision contained in a document known as CAD371 (December 2005).  For present purposes, the significance of that decision was that as far as ULR operations were concerned, the same table as that contained in the 10 April 2001 decision (see paragraph 13 above) was adopted.

29.  Three points are of note here : -

(1) This decision is now the operative one as far as in-flight rest times in ULR flights are concerned.

(2) The decision came about following discussion within the FTLWG, which included the Applicant.

(3) By the time the 20th FTLWG meeting took place, all parties (including the Applicant) had already had sight of ECASS 1 and ECASS 2.  It is clear from the minutes of the meeting that there were discussions over these two reports and that they were taken into account.

30.  In these circumstances, there is I think much force in the submission that the present appeal is academic.  Whatever the merits of the new points made by the Applicant on appeal, they really go nowhere.  There would be no point in quashing the December 2004 decision since the result would be the same : both the Applicant and the Interested Party (and any other airline) would still have to abide by the decision made in December 2005 which confirmed the same minimum periods of in-flight bunk rest time on ULR flights as those approved under the December 2004 decision.

31.  There was no real answer to this point.  Mr Harris did submit that the December 2005 decision might itself be impugned on the basis that it did not make compulsory the rostering conditions identified in ECASS 2 but the propriety of the December 2005 decision was not the relevant decision that was attacked in the present judicial review proceedings.  Nor was ECASS 2 relevant either since it post-dated the December 2004 decision with which the present proceedings were concerned.

32.  Of course, sometimes the court, particularly in public law cases, does entertain points regarded as academic but this is very much the exception.  For a discussion of this, see Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at 472-3 (paragraph 20) and Leung v Secretary for Justice [2006] 4 HKLRD 211, at 227-8 (paragraph 28(7)-(8)).  However, none of the situations in which the court may entertain so-called academic points existed in the present appeal.  The facts which support the Applicant’s case on appeal were one-off or have been overtaken by events.  There was not even the question of costs at stake : the points relied on by the Applicant in the appeal were not raised in the court below.

33.  For these reasons alone, the new points should not be permitted to be raised.

The points were in any event bad

34.  It is apparent from the outline of the Applicant’s arguments on appeal that they centered on the alleged failure of the Respondent to forward to the Applicant and consult it on ECASS 1, and the subsequent failure to adopt the recommendation contained in that report when the December 2004 decision was made.  I am of the view that the Applicant’s arguments have no merit.

35.  On legitimate expectation and the duty to consult, it is first important to identify precisely just what was the Applicant’s legitimate expectation and the extent of the Respondent’s duty.  The doctrine of legitimate expectation was broadly summarized in the following passage in the judgment of four of their Lordships of the Court of Final Appeal in Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR 1, at 41 (paragraph 92) : -

“92.   The doctrine recognizes that, in the absence of any overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court.  Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.  See, eg A-G of Hong  Kong v Ng Yuen Shiu [1983] 2 AC 629 and R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482.”

36.  This decision of the Court of Final Appeal marked an important milestone in public law in Hong Kong : for the first time and unequivocally, the doctrine of legitimate expectation was recognized to carry both substantive and procedural rights.

37.  There are four facets of this doctrine that are relevant in the present case : -

(1) First, it is important always to determine exactly what the legitimate expectation is.  The authorities make it clear that where a representation is relied on to constitute a legitimate expectation, it must be clear and unambiguous.  In particular, the court will be anxious to analyze just what are the limits of the expectation.  Where there is ambiguity (meaning that there are reasonable competing interpretations), the correct approach is to accept the interpretation that has been applied by the public authority in reaching the relevant decision.  See here Ng Siu Tung at 44-45 (paragraph 102-104).

(2) Secondly (and this is really a part of the exercise of construction and identifying the legitimate expectation claimed), any legitimate expectation must be reasonable (the terms ‘legitimate’ and ‘reasonable’ being the same) : - see Ng Siu Tung at 43 (paragraph 101) referring to A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, at 636E-G.

(3) Thirdly, where a legitimate expectation has not been complied by the decision maker, it will usually, but not invariably, follow that the relevant decision will be quashed.  The “failure to take account of a relevant consideration will only be exercised when the decision is materially affected by that failure” : - see Ng Siu Tung at 42 (paragraph 98).

(4) Fourthly, where a legitimate expectation has not been followed by the decision maker, the reasons for this should be made apparent so that they may be tested by any reviewing court : - Ng SiuTung at 42 (paragraph 95).  This reinforces the flexibility of this (and indeed any other) public law doctrine : there may sometimes exist justification for what may at first appear to be transgressions.

38.  The legitimate expectation contended by the Applicant was that once advice was obtained from ECASS (as indicated in the said letter dated 6 April 2001), that advice would be disclosed to the members of the FLTWG including the Applicant and would be considered by the Group; alternatively that the Applicant would have an opportunity to make submissions in relation to it before any major decision was reached.  In the context of what had already occurred, namely the consultations and discussions that had taken place through the medium of the FTLWG meetings, the only legitimate expectation that could reasonably exist, in my view, was that any advice from ECASS would be forwarded to the Applicant for the purpose of furthering discussions only if this had any significant impact on the decision that had been made in April 2001 so as to necessitate a review.  I attach some significance to the words “if necessary” in the said letter.

39.  ECASS 1 did not have any significant impact on the April 2001 decision.  The advice or recommendation it made was on analysis tentative and one that was not based on any empirical studies or evaluation.  It was specifically stated that there would have to be a re-examination once more information was made available.  It was in these circumstances that the Respondent took a cautious view of the recommendation made in ECASS 1.  Quite simply, he felt in effect that report did not advance the discussions that had already led to the April 2001 decision.  I do not think that the Respondent could be criticized for his approach.

40.  Of course, as we have seen, the relevant decision of the Respondent in December 2004 was only made after he had further consulted representatives of ECASS (see paragraph 18(6) above).  It will be recalled that at the time Captain Davis spoke with Dr Samel and Dr Spencer in November and December 2004, additional information had become available regarding ULR flights.  He was told that subject to certain rostering conditions, the recommended in-flight bunk rest time could be reduced to less than 6 hours (it was in fact eventually recommended in ECASS 2 that there could be a minimum of 4.5 hours in-flight bunk rest time for ULR flights involving FDPs of 19 hours).  With this in mind and also the practice adopted by CAAS and SIA, the December decision was made by the Respondent.  In my view, he cannot be criticized for having arrived at the decision in this way.  In particular, he cannot be criticized for having reached the decision without further consulting the Applicant : as stated above, there had been discussions within the FTLWG spanning a number of years and the information that was available to the Respondent in December 2004 served only to reinforce the validity of the decision made in April 2001 (it will be remembered that the December 2004 decision followed the April 2001 one).

41.  Three further points can conveniently be made in this discussion : -

(1) First, it was stated by Captain Davis in an affidavit (his second affidavit in the proceedings) that ECASS 1 could not be discussed by the FTLWG owing to the industrial action that was taking place at the time.  Admittedly, Captain Davis does say that it would have been “normal practice” to do so and this was seized upon by the Applicant to contend that this was in effect an admission on the Respondent’s part that they ought to have consulted the Applicant on ECASS 1; at least the Applicant should have been given a copy of it.  I do not agree with this analysis.  There was no admission to this effect at all.  In the context of the rest of this affidavit, all Captain Davis was saying was that while normally (if there had been no industrial action) ECASS 1 would have been discussed at a FTLWG meeting, it could not be on this occasion.  He was not saying that ECASS 1 was of such importance that there had to be further consultation or even that the Applicant should have been given a copy.  In fact, he was ultimately asserting quite the opposite.

(2) Secondly, Mr Harris made the point that the rostering conditions recommended in ECASS 2 were not and have not been made compulsory by the Respondent.  Although these conditions have been met by the Interested Party (actually in fact bettered by this airline in some respects), they have only been adopted on a voluntary basis.  This point, even if otherwise valid, did not arise in the present judicial review proceedings.  As mentioned above, ECASS 2 only came into existence after the relevant decision and this was in fact the very point made by Mr Harris’ predecessor in the court below.

(3) Thirdly, it was at no stage any part of the Applicant’s case that it was somehow improper for the Respondent to have made his decision in December 2004 when he was at that time expecting another report from ECASS.  In other words, it was not suggested (and this was confirmed by Mr Harris) that after Captain Davis spoke with the two ECASS representatives, the Respondent ought somehow to have waited for a more formal report from ECASS before making his decision.

42.  In any event, I am of the view that even if the Respondent had failed to meet any legitimate expectation on the Applicant’s part with regard to ECASS 1, it would not follow from this failure that the December decision would automatically be vitiated or quashed.  For the reasons already gone into, the decision was made following the clarification sought by the Respondent from ECASS in November and December 2004.  Further, the decision made by the Respondent mirrored the practice adopted by other international airlines.

43.  The reasons for rejecting the legitimate expectation submission apply equally to the duty to consult point (see paragraph 25(2) above).

44.  I now deal with the argument that the December decision was an irrational one since it ignored aspects of safety.  The precise way in which the Applicant put its case on safety has been set out in full (see paragraph 25(4) above).  In my judgment, the December decision simply cannot be impugned in this way : -

(1) No details, much less any evidence or expert evidence, were put forward by the Applicant to suggest even remotely that the December decision resulted in a situation that posed any sort of danger or potential danger to passengers, crew or indeed anyone else.  The particular point made by the Applicant was that “severe fatigue” suffered by the cabin crew was a safety issue in the event of the emergency evacuation from an aircraft.  No material was provided to support this assertion and as a matter of commonsense, it is difficult to see how a difference of 1.5 hours in-flight bunk rest time would or could pose any danger in the event of an emergency evacuation.  The Applicant’s case was not that perhaps the cabin crew might be careless in the discharge of their normal duties by reason of this 1.5 hour difference; the assertion was clearly put on the basis of danger during an emergency evacuation.  In its written submissions, the Interested Party took great exception to this allegation involving safety and for my part, I am in sympathy with this sentiment.  Quite simply, this allegation, expressly disavowed by leading counsel for the Applicant in the court below, should not have been raised.

(2) This is all the more so when one considers that the evidence as a whole before the court (already gone into above) demonstrated that the Respondent had been extremely conscientious and careful in arriving at his December decision.  Despite the tentative nature of the recommendations in ECASS 1, the Respondent had double-checked with ECASS before arriving at his decision.  I repeat the fact that the decision was made in accordance with norms followed to exist in airlines such as SIA and as promulgated by respected bodies such as the CAAS.  The evidence before the court showed that the decision made in April 2001 (on which the December 2004 decision was based) was safe, reasonable and in line with the best international practices.  Regular flight inspections have taken place and to date there has not been one instance of any crew complaint regarding fatigue or the inability of cabin crew to conduct their duties safely or properly.

The points should not be allowed to be raised on appeal

45.  In addressing the court, Mr Harris went through a number of authorities in which new points were raised on appeal, to suggest that they can be and are often permitted to be raised on appeal.  Without any disrespect to Mr Harris, I will not go through the authorities (they are among many on this topic) but am content to say the following : -

(1) Where new points are sought to be raised on appeal (not having been raised in the court below), it is for the Court of Appeal to decide in its discretion whether or not to allow this.

(2) Where pure points of law are involved, the Court of Appeal may be more inclined to allow these to be raised than if factual questions or mixed law/fact issues are involved.

(3) Where in particular any factual questions are sought to be raised, the Court of Appeal will be anxious to ensure that no prejudice to the other side will be caused.  This is equally applicable to pure points of law but is more acute when factual issues are involved.

(4) If the court does allow new factual points to be raised, the other side must be given sufficient opportunity to meet them.  It does not follow from this, however, that just because the other side may be given an opportunity to deal with new factual issues that leave will be given to raise them.  The time for going into the facts is before the trial court.  It is not for the appeal courts to try and determine disputed facts.

(5) The Court of Appeal will almost invariably expect an explanation to be given as to why new points raised on appeal (whether of fact or law) were not raised in the court below.  This is an important facet of the court’s discretion.

(6) It is also incumbent on the party seeking to raise new points on appeal to alert the court and the other party or parties that this is the case.  It will not be good practice merely to ‘slip in’ new points without there being some prior indication of this.

(7) Where appropriate, an application should be made to amend pleadings or in judicial review proceedings, the Form 86A application for leave to apply for judicial review.

46.  While it may in some cases be unnecessary to adhere strictly to formalities, it is often desirable to do so.  Underpinning the above procedural requirements is not a slavish regard to technicality, but quite simply fairness and being above board in litigation.

47.  In the present case, it is fair to point out that eventually, the Applicant accepted the need to apply for leave to amend its Form 86A.  However, leave was refused, apart from those reasons discussed in the previous two sections of this judgment, mainly on the ground that substantial questions of fact were raised only at the appellate stage without any real evidence to support them and without any explanation as to why they were not raised in the court below.  In particular, the question of safety was one that demanded such an explanation.  None was forthcoming nor was there any evidence advanced to support the arguments that were raised.  Mr Harris attempted to argue that perhaps judicial review proceedings could be treated with less formality and that the court could be more tolerant given that public law and the public interest are often involved.  This is perhaps sometimes the case in constitutional and administrative law situations but the court must always have regard to what is fair in the circumstances and also to the administration of justice.

48.  For the above reasons, the appeal was dismissed.  We also indicated when giving judgment that we would in the Reasons for Judgment deal with the question of costs.  I see no reason why costs should not follow the event and would accordingly make an order nisi that the Applicant should pay to the Respondent and the Interested Party the costs of the appeal, such costs to be taxed if not agreed.

Hon Lam J :

49.  I agree for the reasons given by my Lord the Chief Judge that the appeal should be dismissed.

Hon A Cheung J :

50.  I agree.

Hon Ma CJHC :

51.  In view of the above, there will be an order nisi that the Applicant should pay to the Respondent and the Interested Party the costs of the appeal, such costs to be taxed if not agreed.