案例名称 CANO

30. I have no reason to doubt that the Plaintiffs' legal advisers intend to save costs by way of a split trial. I also do not accept that they intend to gain an unfair advantage over the Defendant by way of such application. Although after taking into account the Defendant's argument, in particular the way as to how the Defendant approaches the case, the court does not see fit to order a split trial in the present case. In such circumstances, the Plaintiffs should not be penalized on the issue of costs. As this is an interlocutory application, I am of the view that a costs-in-the-cause order would be more appropriate. In any event, the trial judge would have to revisit s. 73B(3) of the District Court Ordinance in deciding the costs of the whole action after the trial. I therefore so order.

31. According to the correspondence between the parties, the Plaintiffs agreed to answer the request for further and better particulars of the Statement of Claim after the Defendant supplied the documents relating to the income of its cabin attendants. However, after the Defendant had supplied those documents, the Plaintiffs applied to the court for an order of split trial and sought to defer the supply of some of the answers until after the trial on liability. In such case, Mr. Wong says, the Plaintiffs was relying on the split trial application to defer the supply of the particulars. However, the Plaintiffs' legal advisers have all along agreed to supply the particulars, and the issue is only one of timing. They genuinely believe, which I have no reason to doubt, that an order of split trial can save costs, and so I am not satisfied that there was an ulterior motive behind the application for split trial.

(iii) Costs of the application for further and better particulars

32. Although I do not doubt the genuineness of the application for split trial, I am of the view that the costs of the application for further and better particulars deserve separation consideration. As I have mentioned above, the Plaintiffs' legal advisers agreed to provide the particulars after the supply of certain requested documents by the Defendant. However, after the Defendant had done so, the Plaintiffs did not honour their promise. Although the intention to defer the supply of the particulars may be a genuine one, I do not find that such kind of conduct is reasonable. In such circumstances, the Plaintiffs have to pay for the costs of such application.

(iv) Costs of amending the defence

33. In my judgment, even in sex discrimination cases, costs should normally be awarded against the party who is amending the pleading. If not, parties to the litigations would have no incentive to formulate their cases properly at the early stage of the proceedings. As I see it, an order of costs is the main if not the sole weapon for the court to regulate the progress of the proceedings, and awarding costs in such kind of interlocutory application would not defeat the object of the Ordinance.

34. In the present case, Mr. Wong fairly concedes that the proposed amendments do not arise out of some new evidence or documents disclosed in the proceedings, and in such circumstances, I see no reason not to make an order of costs against the Defendant. I therefore so order.

35. These are the reasons for the ruling I have made in the hearing on 23 September 2002. For the reserved decisions, I make an order nisi in the following terms:

(i) the costs of the Plaintiffs' application for split trial be costs in the cause;

(ii) the Defendant's application for the answers to request numbers 8 and 9 of the request for better particulars of the Statement of Claim referred to in exhibit \Michael J. Downey be paid by Plaintiffs to the Defendant;

(iii) costs of the Defendant's summons dated 20 September 2002 and the costs of and occasioned by the amendments be paid by the Defendant to the Plaintiffs;

(iv) leave to the 1st Plaintiff to withdraw the claim herein on the condition that the 1st Plaintiff is barred from bringing a subsequent action based on the same subject matter against the Defendant; and

(v) the 1st Plaintiff do pay to the Defendant the costs of the action, including the costs of the summons dated 5 July 2002.

I make a nisi order so that the parties can still address me on the final wording of the order if that is required. The order is to be made absolute 14 days after the date of the handing down of this ruling.

36. Finally, I must express my gratitude to both counsel for their able submission and the assistance that they have provided to this court.

(David Lok) District Judge

Representation:

Mrs. Glenys Newall, instructed by the Equal Opportunities Commission, for the Plaintiffs

Mr. Wong Yan Lung, S.C., instructed by of Messrs. BryanCave, for the Defendant

CANO-SHEARER, ANNE AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD.

DCEO000001A/2001

DCEO 1/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 1 OF 2001

____________________

BETWEEN

CANO-SHEARER, ANNE (WITHDRAWN)

GUTIERREZ, JULIELU T. ALMARIEGO, LILIBETH D. MUASSAB, EYELYN C. GOH, SOCK FUNG HALILI, GINA S.

AND

CATHAY PACIFIC AIRWAYS LIMITED

1st Plaintiff 2nd Plaintiff 3rd Plaintiff 4th Plaintiff 5th Plaintiff 6th Plaintiff

Defendant

___________________

Coram : HH Judge Lok in Chambers and in Court

Date of hearing : 6 January 2003 (in Chambers)

Date of handing down of Reasons for Decision: 24 January 2003 (in Court)

_______________________

REASONS FOR DECISION

_______________________

1. This is an application for security for costs by the Defendant with the estimated costs of the whole action amounting to $3,445,951.