Archer, Harold Dean v The Hong Kong Channel Ltd.

Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV8/1998
Judgment Date:21 Jan 1999
FACV000008A/1998 ARCHER, HAROLD DEAN v. THE HONG KONG CHANNEL LTD.

FACV000008A/1998

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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Between:
ARCHER, HAROLD DEAN Appellant
AND
THE HONG KONG CHANNEL LIMITED Respondent

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Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ And Sir Anthony Mason NPJ

Date of Hearing: 17 November 1998

Date of Judgment: 21 January 1999

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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 co...

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