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

HCAL 19/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 19 OF 2005

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Before : Hon Hartmann J in Chambers

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RULING  AS  TO  COSTS

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Introduction

1. On 2 February 2005, judicial review proceedings were instituted by the applicant.  I granted leave.  On or about 24 February 2005, Cathay Pacific joined the proceedings as an interested party.  It did so on the basis that the outcome of the application for judicial review would have a significant impact on its operations.  When the matter came before me for hearing on 28 July 2005, the respondent, the Director-General, and Cathay Pacific, the interested party, were each represented by their own counsel.

2. On 25 August 2005, I handed down judgment.  I dismissed the application.  In respect of costs, I said the following :

“As for costs, I see no reason why costs should not follow the event and the applicant ordered to pay the costs of both the respondent and the interested party.  However, as I have not had the benefit of submissions in this respect, my order will be an order nisi only to be made final 30 days after the handing down of this judgment unless an application is earlier made for a different result.”

3. The applicant has sought to vary my order nisi on terms more favourable to it.  Before looking to the basis upon which it has sought to do so, something must be said of my core reasoning for dismissing the application for judicial review. 

Background

4. In my judgment of 25 August 2005(paras.5-12), I set out what I considered to be the essential nature of the applicant’s challenge :

“5. On 7 December 2004, the Director-General approved a scheme proposed by Cathay Pacific to regulate the rest periods of aircraft crew.  It is known as the Cathay Pacific Airways Flight Time Limitations Scheme.  The scheme – in part – regulated the in-flight rest periods due to cabin crew on ultra long haul operations.  The scheme having been approved, it was incorporated into the operation manuals of Cathay Pacific and became effective from 1 January 2005.

6. It is the decision of the Director-General to approve the scheme which is the subject of this application for judicial review.

7. In his letter of approval dated 7 December 2004, the Director-General said that the scheme was approved ‘in accordance with’ the Air Navigation (Hong Kong) Order 1995, an instrument to which I shall refer later, and a document described in the letter simply as ‘CAD371’.

8. The letters ‘CAD’ stand for the Civil Aviation Department.  CAD371 is entitled : ‘The avoidance of fatigue in aircrews’.  By way of a sub-heading, the following is stated on the cover of the document :

‘This document contains standard provisions on which Hong Kong operators’ Approved Flight Time Limitation Schemes are to be based from 1 March 1999.’  [my emphasis]

9. For reasons to which I shall refer later, I am satisfied that CAD371 is properly described as a policy document.  It advises operators of what – as a matter of policy – the Director-General considers will, in the great majority of cases, be both the essential and the desirable elements of any scheme to be approved.

10. The body applying for review of the Director-General’s decision is the Cathay Pacific Airways Flight Attendants Union which is constituted to represent the rights and interests of flight attendants; that is, cabin crew, employed by Cathay Pacific.

11. It is the applicant’s case that the Director-General, although he purported to approve the scheme ‘in accordance with’ CAD371, either failed to adhere to the provisions contained in that document or wrongly applied them.  Expressed another way – more accurately, I believe – the Director-General either ignored his own policy contained in CAD371 or failed properly to understand it, a failure as profound as ignoring it.

12. The applicant contends that the failure of the Director-General either to adhere to his own policy or to correctly interpret it has resulted in cabin crew assigned to ultra long haul operations being denied a significant amount of in-flight rest, a denial that not only offends CAD371, diminishing the rights of flight attendants in their workplace, but may, it is said, impair their operational efficiency.”

5. As to the issues, I said that they may be reduced to two questions (para.16) :

“(i) What was the policy of the Director-General at the time his decision was made?

(ii) In reaching his decision, did he ignore, misinterpret or in any way wrongly apply that policy?”  [my emphasis]

6. As to the first question, I concluded that, while the policy of the Director-General may originally have been found in the document described as CAD371, he had changed that policy and had done so in clear terms, a fact that appeared not to have been recognised by the applicant.  In this regard, I said (para.67) :

“There was no formal amendment to CAD371 as published.  But, as I have said, CAD371 is not legislation nor a body of legally binding rules flowing from legislation.  CAD371 is a convenient method of stating policy and, in the view of the Director-General, was conveniently changed in the manner he adopted.  The critical questions in my view must be these?  First, was the decision to change the policy conveyed to the affected parties at that time?  The answer to that is yes.  Second, was the change in policy clearly stated?  Again, the answer must be yes.”

7. On the basis of that finding; namely, that the Director-General had already changed his policy at the time he made his decision under challenge, it followed that the interpretation of those portions of CAD371 (in so far as it was in issue) was not a matter of central relevance, indeed it became a matter of peripheral relevance only.

8. As to the second question, I said (para.68) :

“It is clear that the Director-General’s December 2004 approval of the Cathay Pacific scheme accorded with the changed terms.  That being the case, it follows, in my view, that the Director-General, in giving his approval, did not ignore, misinterpret or wrongly apply his policy.”

The basis of the applicant’s submissions

9. The applicant has sought to vary my order nisi on two bases which may be summarised as follows :

(i) That most of the two-day hearing was taken up with submissions as to the true meaning of CAD371.  This was clearly considered to be an issue of importance by all the parties at the time.  As to the true meaning of CAD371, I ruled that, while it was an ambiguous and often circuitous document, its plain and ordinary meaning, insofar as it could be ascertained, had to be the meaning given to it by the applicant and not the meaning proposed by the Director-General and Cathay Pacific.  That being the case, it would be wrong in principle for the applicant to have to pay all of the costs of the Director-General.  The applicant should be ordered to pay only one third of the Director-General’s costs or such other reduced portion as I considered appropriate.

(ii) That, as a starting point, it was wrong in principle that the applicant should have to pay more than one set of costs.  It was therefore wrong in principle that it should have to pay the costs of Cathay Pacific, the interested party, unless Cathay Pacific could show that there was a separate issue on which it was entitled to be heard; indeed, should be heard, or that it had a special interest which in the circumstances, to be adequately protected, demanded separate representation.  Neither instance was applicable in the present case.  Accordingly, there should be no order as to costs in favour of Cathay Pacific.

Applicable principles

10. As Lord Lloyd said in Bolton Metropolitan District Council & Ors v. Secretary of State for the Environment [1995] 1 WLR 1176 (at 1178), ‘as in all questions to do with costs, the fundamental rule is that there are no rules.  Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule’.

11. That being said, the fundamental guidelines (in respect of civil proceedings) have been stated in In re Elgindata Ltd (No.2) [1992] 1 WLR 1207.  They may, insofar as they are relevant here, be summarised as follows :

(i) While costs are always in the discretion of the court, they should follow the event except when it appears to the court that in the circumstances of the case some other order should be made.

(ii) The guideline that costs follow the event does not cease to apply simply because the successful party makes allegations or argues points in respect of which he fails.  However, where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a portion of his costs.

(iii) Where the successful party makes allegations or argues points improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs.

12. In respect of the often more difficult question of the costs of an interested party, in Bolton Metropolitan District Council & Ors v. Secretary of State for the Environment (cited in para.10 above), Lord Lloyd said that an interested party would not normally be entitled to his costs unless he could demonstrate that there was likely to be a separate issue on which he was entitled to be heard or unless he had an interest which required separate representation.  Lord Lloyd pointed out that this principle was likely to be more rigorously applied on appeal when the issues were more crystallised than at first instance.

13. In the recent judgment of the Court of Appeal in Shiu Wing Steel Limited v. Director of Environmental Protection and Airport Authority of Hong Kong, CACV 350/2003, the court laid down the following guidelines :

“(1) The mere fact that a person has the necessary locus standi to appear does not by itself entitle that person to an order for costs should the outcome be successful : - see R v. Registrar of Companies, Ex parte Central Bank of India [1986] QB 1114, at 1162F.

(2) Where several parties appear having the same interest in proceedings, the starting point is that the unsuccessful party should not have to pay more than one set of costs : - R v. Industrial Disputes Tribunal, Ex parte American Express Co. Inc. [1954] 1 WLR 1118; Ex parte Central Bank of India at 1162F-G.  The rationale here is simply that an unsuccessful party should not have to pay for costs which are unnecessarily incurred.  Either the different parties with the same interest engage the same solicitors and counsel or they adopt the position of one of the other parties.

(3) Where, however, the party can show that there is a separate issue on which he was entitled to be heard, being an issue not covered by the other party or parties in the proceedings, he would be entitled to his costs …”

The Director-General’s costs

14. The true construction of CAD371 was central to the applicant’s case.  The applicant therefore chose the topography of CAD371 upon which to fight its case.  It follows that, to a greater or lesser degree, the Director-General was forced to occupy the same topography, certainly if, even if only out of caution, it was going to attempt to directly answer the applicant’s submissions on the issue of the interpretation of CAD371.

15. I concluded, however, that the true interpretation of the contested portions of CAD371 was not of central relevance to the determination of the case itself.  I came to this view because I was satisfied that the Director-General’s policy contained in CAD371 was changed before the decision under challenge was made.  That being the case, the central issue, in my view, was whether the decision under challenge was made in accordance with the changed policy, not the policy as earlier stated in CAD371.  While therefore, having chosen to ague the true interpretation of CAD371, the applicant was successful in that respect, it meant only that it was successful in an issue which I considered to be of peripheral relevance.

16. More important to the question of costs, in my view, was the fact that the Director-General had at all times contended that the policy contained in CAD371, insofar as it was in issue, had been changed before the decision under challenge had been made and that the decision under challenge had been made in accordance with the changed policy.  That was a crucial part of the Director-General’s case and was the essential basis upon which I found for him.  In respect of that issue, of course, it follows that I found against the applicant. 

17. In the circumstances, while I agree that a considerable amount of time was spent considering the true interpretation of CAD371, in my judgment it would be wrong to penalize the Director-General because his interpretation of CAD371 was not, in my opinion, the correct interpretation.  As I have said earlier, a party is not to be denied costs by the fact alone that he has argued certain issues unsuccessfully.

18. It is always, of course, a question of degree, matters being considered in context. 

19. In my judgment, looking at matters in the round, it would be wrong to deny the Director-General all of his party and party costs when he has been successful in the action, having identified and relied upon issues which I considered to be determinative.  It would be wrong, I believe, to deny him his costs simply because he was not successful in respect of a single issue which, although it took up a great deal of time, was an issue advanced by the applicant as a central issue although I found it not to be so. 

The costs of the interested party

20. There can be no doubt that the outcome of the application for judicial review would have had a far-reaching impact on the operations of the interested party, Cathay Pacific.  It was submitted to me that, had the applicant been successful, it would have been impossible for Cathay Pacific – at least for a period of time – to continue operating many of its European and North-American routes.  It was further submitted that enormous costs would have been incurred in refurbishing aircraft and in employing more cabin crew.  It was even suggested that, in practical terms, Cathay Pacific was the real ‘respondent’.  It is understandable, therefore, and entirely legitimate, that Cathay Pacific wished to ensure that submissions were advocated which best represented its own interests. 

21. But while the practical immediacy of the outcome of judicial review proceedings to an interested party must, in my opinion, be a relevant factor to take into account when considering the question of costs, it cannot be the decisive factor.  As Lord Lloyd said in Bolton Metropolitan District Council & Ors v. Secretary of State for the Environment (cited in para.10), the real issue is whether an interested party has an interest which requires separate representation. 

22. While I accept that the submissions of Mr John Bleach, SC, counsel for Cathay Pacific, were of considerable assistance, it must be accepted, I think, that those submissions were in large part complementary to the submissions of Mr Nicholas Cooney, counsel for the Director-General, or, to turn the coin, the submissions of Mr Cooney were complementary to those of Mr Bleach.  The degree to which their respective submissions were clearly distinct from each other was limited.  This is not surprising.  The interests of the Director-General and of Cathay Pacific ran together in this case and their submissions therefore were to a large degree either essentially the same or complementary. 

23. The fundamental guideline, as I have said, is that an unsuccessful party should not have to pay more than one set of costs.  On this basis, approaching the matter simplistically, it would follow that Cathay Pacific, as the interested party, should be denied its costs even though it has been successful. 

24. But that raises the difficult and practical question of what is to be done if an interested party will be materially affected by the outcome of an application for judicial review and, to protect its own legitimate interests, wishes to be heard.  The interested party cannot be denied that right, indeed is entitled to that right.  But if the interested party is entitled to that right and wishes to secure legal representation of its choice, thereby acting independently of the respondent (or respondents) and if the interested party is successful, it may be argued that an unsuccessful applicant must then be responsible for more than one set of costs even though distinct defences were not advanced.  In Shiu Wing Steel Limited v. Director of Environmental Protection and Airport Authority of Hong Kong (cited in para.13), the Court of Appeal indicated that in many cases, in order to avoid this difficulty, it may be necessary for an interested party, looking to preservation of its own costs, to ally its litigation to that of the respondent (or respondents) by engaging the same solicitors and/or counsel.

25. On the basis of that guideline, it seems to me in the present case that it would have been open to Cathay Pacific to avoid a duplication of costs by joining its interests with those of the Director-General, seeking, if possible, to reduce costs by utilising one firm of solicitors for the hearing and one counsel or one set of counsel. 

26. In the circumstances, in my discretion, I am of the view that it would be wrong to make a final order in terms of which the applicant in this case is forced to meet all of the costs of both the Director-General and Cathay Pacific.  

27. However, I note that the Court of Appeal judgment in Shiu Wing Steel was handed down on 18 March 2005, approximately a month after Cathay Pacific had joined these proceedings as an interested party. 

28. In addition, having regard to the circumstances of this particular case, it seems to me that Cathay Pacific was so vitally interested in the outcome of the proceedings – a fact of which the applicant must have been aware – that it would be wrong in principle to say that at the outset at least they were not entitled to consult with their own solicitors and for those solicitors to attempt, if possible, to agree to a form of ‘joined’ litigation with the Director-General.  That would have involved reasonably substantial costs being incurred by Cathay Pacific itself.  I am therefore of the view that it would be wrong to deny Cathay Pacific all of its costs.  I do not think it is possible now, absent a most complicated accounting review, to say exactly how much could have been saved by Cathay Pacific if it had joined its litigation with that of the Director-General.  However, doing the best I can, and viewing matters in the round, I am of the view that Cathay Pacific should be entitled to 30% only of its costs.  I will make a final order to that effect.

Conclusion

29. My final order in respect of costs is therefore as follows :

(1) That the respondent, the Director-General, is entitled to all of his costs (including those costs incurred in respect of the costs issue);

(2) That the interested party, Cathay Pacific, is entitled only to 30% of its costs excluding any costs incurred in respect of the costs issue, it having no entitlement to costs in respect of this latter issue.

Mr John Scott, SC, leading Mr Richard Zimmern, instructed by Messrs Robertsons, for the Applicant

Mr Nicholas Cooney, instructed by Department of Justice, for the Respondent

Mr John Bleach, SC, instructed by Messrs Johnson, Stokes & Master, for Cathay Pacific Airways Limited (Interested Party)

HCAL 19/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 19 OF 2005

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J U D G M E N T

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Introduction

1. Passenger aircraft today are capable of attaining great distances, crossing multiple time zones in their flight.  But, while aviation technology advances, human physiology does not.  It is recognised, especially in respect of long haul routes, that aircraft crews face the constant challenge of fatigue.  This is more than mere tiredness.  As it relates to aircraft crews, 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.

2. To avoid fatigue in the crew of Hong Kong registered passenger aircraft, the Director-General of Civil Aviation is obliged by law to ensure that the operators of passenger aircraft establish and enforce schemes to ensure that adequate periods of rest are given to aircraft crews.  These periods of rest are both between flights and, when necessary, during flights.

3. Regulated periods of rest during flights only apply in practice to what are called ‘ultra long range operations’.  These have been defined by the Director-General (in part) as flights —

“… involving a time difference of 6 hours or more between the places where the duty period began and ended.”

4. At this time, Cathay Pacific Airways, the interested party, is the only operator of Hong Kong registered passenger aircraft which flies ultra long range operations : flights, for example, to and from New York and the West Coast of the United States as well as flights to and from Western Europe.  Other operators of Hong Kong registered passenger aircraft fly only what are called regional flights.

5. On 7 December 2004, the Director-General approved a scheme proposed by Cathay Pacific to regulate the rest periods of aircraft crew.  It is known as the Cathay Pacific Airways Flight Time Limitations Scheme.  The scheme – in part – regulated the in-flight rest periods due to cabin crew on ultra long haul operations.  The scheme having been approved, it was incorporated into the operation manuals of Cathay Pacific and became effective from 1 January 2005.

6. It is the decision of the Director-General to approve the scheme which is the subject of this application for judicial review.

7. In his letter of approval dated 7 December 2004, the Director-General said that the scheme was approved ‘in accordance with’ the Air Navigation (Hong Kong) Order 1995, an instrument to which I shall refer later, and a document described in the letter simply as ‘CAD371’.

8. The letters ‘CAD’ stand for the Civil Aviation Department.  CAD371 is entitled : ‘The avoidance of fatigue in aircrews’.  By way of a sub-heading, the following is stated on the cover of the document :

“This document contains standard provisions on which Hong Kong operators’ Approved Flight Time Limitation Schemes are to be based from 1 March 1999.”  [my emphasis]

9. For reasons to which I shall refer later, I am satisfied that CAD371 is properly described as a policy document.  It advises operators of what – as a matter of policy – the Director-General considers will, in the great majority of cases, be both the essential and the desirable elements of any scheme to be approved.

10. The body applying for review of the Director-General’s decision is the Cathay Pacific Airways Flight Attendants Union which is constituted to represent the rights and interests of flight attendants; that is, cabin crew, employed by Cathay Pacific.

11. It is the applicant’s case that the Director-General, although he purported to approve the scheme ‘in accordance with’ CAD371, either failed to adhere to the provisions contained in that document or wrongly applied them.  Expressed another way – more accurately, I believe – the Director-General either ignored his own policy contained in CAD371 or failed properly to understand it, a failure as profound as ignoring it.

12. The applicant contends that the failure of the Director-General either to adhere to his own policy or to correctly interpret it has resulted in cabin crew assigned to ultra long haul operations being denied a significant amount of in-flight rest, a denial that not only offends CAD371, diminishing the rights of flight attendants in their workplace, but may, it is said, impair their operational efficiency.

13. The law that supports the applicant’s challenge is now well settled.  In E.C. Gransden and Co. Ltd v. The Secretary of State for the Environment [1986] JPL 519, Woolf J (as he then was) said that the policy of a department concerning the obligations of a planning inspector was a matter to which the decision-maker had to have regard and that :

“… In order to give effect to that approach it [is] essential that the policy [is] properly understood by the determining body.  If the body making the decision [fails] properly to understand the policy then the decision would be as defective as it would be if no regard had been paid to the policy.”

14. In R. v. Ministry of Defence, ex p Walker [1999] 1 WLR 1209, at 1216, Auld LJ echoed this when he said :

“Misinterpretation by the ministry of its own policy may render its decision defective in the same way as would ignoring it.”

15. The legal basis for this, while it may have one source in the principle of legitimate expectation, flows as much from what Sedley J (as he then was) described – in R. v. Secretary of State for the Home Department, ex parte Urmaza (11 July 1996, unreported) – as a coherent line of authority :

“… to the broad effect that a policy means what it says, and that its meaning can ordinarily be established by the court and the decision-maker be held to it.”

As he later observed :

“… the meaning of the policy cannot be a matter for the Secretary of State to decide subject only to the broad limits of rationality.  If, as is nowadays almost always the case, it is couched in ordinary English, it is not open to the Secretary of State to give it other than its plain and ordinary meaning ...”

16. In light of this, in my judgment, the essential issues for determination in this matter may be reduced to two questions :

(i)	What was the policy of the Director-General at the time his decision was made?
(ii)	In reaching his decision, did he ignore, misinterpret or in any way wrongly apply that policy?

17. On the basis that these two questions are answered in its favour, the applicant seeks the following relief :

(i)	a declaration that the decision of the Director-General was wrong in law;
(ii)	an order of certiorari to quash it, remitting it to the Director-General for reconsideration, and
(iii)	an order of mandamus directing the Director-General to ‘enforce the requirements of CAD371’ in approving any new scheme.

A comparison of in-flight periods of rest

18. So that the applicant’s challenge may be understood in context, it is necessary to compare and contrast the fundamental features of the Cathay Pacific scheme approved by the Director-General with what the applicant contends is the scheme contained within CAD371.

19. It is to be noted that, to enable flight crews and cabin crews to take in-flight rest, Cathay Pacific has provided bunks.  This judgment is concerned only with in-flight bunk rest not with any less satisfactory form.

20. It is further to be noted that I have based my comparisons on the assumption that in all instances the flight attendants are ‘acclimatised’, a term of art which, as I read it, is to the effect that they are departing from ‘home base’, having received their full allocation of between-flight rest.

21. As to the two schemes, they both take as a base measure of calculation what is called a ‘flight duty period’.  This has been defined by the Director-General but, in outline, is that period of duty which commences when a flight attendant reports for duty, normally an hour or so before take-off, and ends when the engines are stopped at the airport of destination.

22. The approved Cathay Pacific scheme, in so far it relates to in-flight bunk rest for flight attendants, is relatively straightforward.  It may be summarised as follows :

(i)	If a flight duty period does not exceed 14 hours, no specific period of in-flight rest is mandated.  Any rest taken will be at the discretion of the In-Flight Services Manager.
(ii)	If, however, a flight duty period does exceed 14 hours then in-flight rest must be taken in accordance with the following table :

“	More than 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	4.5 hrs”

(iii)	Whatever the circumstances, the absolute maximum flight duty period for a flight attendant is 19 hours.  There may be no extension of duty beyond this limit.
(iv)	In-flight rest, however, need not be continuous.  It can be broken up into different periods of rest.

23. The scheme contained in CAD371, as it is interpreted by the applicant, is not so straightforward.  I emphasise that there has been a fundamental dispute between the parties as to the true interpretation.  But, for present purposes, the interpretation of the applicant, may, I believe, be summarised as follows :

(i)

The maximum flight duty period that may be worked by a flight attendant without mandated in-flight rest varies according to the time of departure.  To calculate this period, reference is made to a table – ‘Table A’ – which is set out in s.11.1 of CAD371.  This table concerns flight crew but is made applicable to cabin crew by adding one hour.  On a ‘one sector’ flight – a ‘sector’ being the time between an aircraft leaving its parking position at one airport and stopping in its parking position at the next – the table is to the following effect :

“Local time of start	Flight duty period
0700-0759	13
0800-1259	14
1300-1759	13
1800-2159	12
2200-0659	11 ”

(ii)	It will be seen from Table A that on a one sector flight the maximum flight duty period that may be worked by flight attendants – without mandated rest – is 15 hours.  This applies to a flight that takes off between 0800-1259 hours, one hour, as I have said, being added to the 14 stated to make the table applicable to flight attendants.
(iii)	Flight attendants on ultra long haul flights are permitted to extend their flight duty period.  If that happens, however, then for every one hour of extension above the maximum permitted by Table A, two hours of in-flight rest is mandated.  Thus :
	(a)	Assuming a flight departs at 2200 hours, the maximum flight duty period that may be worked without rest by flight attendants would be 12 hours.
	(b)	If, however, because of the length of the flight, the flight duty period must be extended by 4 hours to 16 hours then provision must be made for the flight attendants to each have 8 hours in-flight rest.
(iv)	As with the Cathay Pacific scheme, the absolute maximum flight duty period for a flight attendant is 19 hours.  There may be no extension of duty beyond this limit.
(v)	Again, as with the Cathay Pacific scheme, in-flight rest need not be continuous.

24. It will be seen that the scheme contained in CAD371 – as, of course, that document is interpreted by the applicant – allows materially more generous periods of in-flight rest on ultra long haul flights than the approved Cathay Pacific scheme.  Taking the example I have just given in para.23(iii)(a) and (b), when the required flight duty period is 16 hours, the CAD371 scheme, it is said, mandates 8 hours in-flight rest while the Cathay Pacific scheme mandates only 3 hours, a difference of 5 hours.

CAD371

25. As I have said earlier, I am satisfied that CAD371 is correctly described as a policy document.  I have come to that conclusion by the following route.

26. The Hong Kong Government, and specifically the Director-General, is under a constitutional obligation to maintain Hong Kong’s status as a centre of civil aviation.  In this regard, section 4 of the Basic Law directs that the Government of Hong Kong shall ‘provide conditions and take measures for the maintenance of the status of Hong Kong as a centre of international and regional aviation’ : see art.128.  The section further directs that Hong Kong shall continue ‘the previous system of civil aviation management in Hong Kong’ and shall maintain its own aircraft register : see art.129.

27. Domestic legislation governing Hong Kong’s civil aviation industry is to be found in the Civil Aviation Ordinance, Cap.448.  In terms of s.2A of the Ordinance, the Chief Executive in Council may by order make provisions for the regulation of the industry.

28. Prior to the change of sovereignty, the Air Navigation (Hong Kong) Order 1995 (‘the Air Navigation Order’) governed matters going to the registration of aircraft in Hong Kong, the licensing of aerodromes and air crew and the maintenance generally of an efficient and safe aviation industry.

29. When the change of sovereignty took place, in terms of s.15 of the Civil Aviation Ordinance, specific provision was made for the continuation in force of the Air Navigation Order, it being deemed for all purposes to have been made by the Chief Executive in Council in terms of the Ordinance.  In short, the Air Navigation Order is to be read as an Order in Council.

30. As to the nature of Orders in Council, the Chief Executive is given the power under the Basic Law, as the supreme executive officer of the Special Administrative Region, to issue orders which concern powers and authorities vested in him : see art.48(4).  Orders in Council are executive orders made by him with the assistance of the Executive Council : see art.54.  Orders in Council are therefore a constitutionally recognised means by which the Chief Executive may discharge his executive powers.

31. In terms of art.98 of the Air Navigation Order, any reference in the Order to the Chief Executive shall include any person authorised by him to exercise his functions.  The delegation of executive functions in this manner is a time-honoured mechanism to better ensure good administration.  It is accepted that at all material times the respondent, the Director-General of Civil Aviation, was an ‘authorised person’ in terms of the Air Navigation Order, lawfully empowered, therefore, to exercise the functions of the Chief Executive under the Order, those functions being executive in nature.

32. Part VI of the Air Navigation Order looks to the prevention of fatigue in the crew members of Hong Kong registered aircraft.  Crew members are stated to include both flight crew and cabin crew.  In this regard, art.98(4) of the Order states that —

“Every person employed or engaged in an aircraft in flight on the business of the aircraft shall be deemed to be a member of the crew thereof.”

33. As to the responsibility of the operator of a Hong Kong registered aircraft to prevent fatigue, art.54(1) of the Order directs that —

“The operator of an aircraft … shall not cause or permit that aircraft to make a flight unless:
(a)	he has established a scheme for the regulation of flight times for every person flying in that aircraft as a member of its crew; and
(b)	the scheme is approved by the Chief Executive subject to such conditions as he thinks fit.”  [my emphasis]

34. The operator of an aircraft is obliged, therefore, to establish a scheme which governs the flight times of all crew members, including cabin crew, and to submit that scheme to the Director-General (acting under delegated authority) for approval.  Importantly, the Director-General, in considering whether to grant approval, may impose such conditions as he thinks fit.  It is therefore for the Director-General, as a matter of executive policy, to determine what conditions should or should not be imposed to best ensure that the purpose of art.54 – the prevention of air crew fatigue – is achieved.  To put it plainly, it is his responsibility, albeit under delegated authority, to devise an appropriate policy, to administer that policy and, if he thinks it is necessary, to change that policy.

35. The executive power given to the Director-General is a discretionary power.  It must be exercised flexibly.  How else, in an industry marked by technological advances and evolving commercial imperatives, is the Director-General to meet the constitutional obligations imposed on him (through the Chief Executive) to maintain Hong Kong’s status as a centre of civil aviation?

36. While it can sometimes be difficult to ascertain where delegated legislation begins and ends, I am satisfied that CAD371 is not, nor can it be deemed to be, legislation of any kind.  It may be said that CAD371 contains administrative rules but, if so, they are not rules of law.  The fact that actions of the Director-General in respect of CAD371 may, for the reasons given earlier in this judgment, be subject to judicial review goes no way to elevating CAD371 into a document of legal effect.  CAD371 may be ignored entirely by an operator without subjecting the operator to any legal liability.  All it means is that the operator is almost bound to be unsuccessful in seeking the Director-General’s approval for any scheme proposed by him pursuant to art.54(1) of the Air Navigation Order.

37. Nor, in my view, although the matter was never specifically raised in argument, can it be said that the Director-General, having devised his policy and stated it in a public document, is thereby in some way estopped from changing it.  If in good faith the Director-General is of the view that his policy must be changed then he is duty beyond to make that change.  As Lawton LJ said in Laker Airways Ltd v. Department of Trade [1977] 1 QB643, at 728F : “Estoppel cannot be allowed to hinder the formation of government policy”.

38. As to the manner in which the Director-General may change his policy, it seems to me that he may do so in any rational manner that he wishes.  He devised the policy.  It is his policy.  If in good faith, for purposes of good governance, he is of the view that it must be changed then he may change it.  While obviously the change must be made known to those who may be affected by it, I do not see that he is constrained by any particular formality in affecting change.  Nor do I see that he is obliged to obtain any form of consensus on the part of those who may be affected.  Consensus may simply not be possible.  In the present case, the Director-General formed a working group to advise him on the problem of in-flight rest on ultra long haul flights.  The working group first met in January1997.  By February 2001, however, in respect of cabin crew rest, no consensus had been reached.

39. The Director-General may, of course, be bound to adhere to particular formalities, or to an attempt to obtain consensus, if he has given an undertaking to do so and has no good cause to avoid that undertaking.  In respect of limited matters of that kind, the authorities indicate that the principle of estoppel may apply.  In the present case, however, nothing has been shown to me to indicate the giving of any such undertaking by the Director-General.

What was the Director-General’s policy when CAD371 was first published?

40. CAD371, as published, came into full effect on 1 March 1999.  From the beginning, however, in respect of in-flight rest on long haul flights for cabin crew (when bunks were available for the least 50% of the crew) there were conflicting interpretations of the document.

41. In a letter to the Civil Aviation Department dated 3 March 1999, the Hong Kong Aircrew Officers Association spoke of the provisions being unclear and leading to different interpretations.

42. On 24 March 1999, in a letter to the applicant, the Chief of Flight Standards in the Civil Aviation Department, writing on behalf of the Director-General, said that the applicant may have been labouring under a ‘misunderstanding’ as to the true meaning and intent of the relevant provisions in CAD371.  He then spelt out what the Director-General intended in CAD371.  “The intent”, he said, “is now as follows” —

“On ultra long haul operations where bunks are provided for 50% of crewmembers, the allowable flight duty period will be 19 hours for cabin attendants.  Duty and rest are to be kept in reasonable balance, ie at the end of the flight duty period, the allocated time on duty, and for rest, should be approximately the same, cabin attendant v cabin attendant, operational conditions permitting.  This gives the responsibility for cabin crew management ‘on-the-day’ to the Chief Purser, as should be the case.”

The letter continued :

“To assist the Chief Purser, the operator intends to provide a table showing the minimum rest to be allocated to cabin attendants, depending on the length of flight duty period, which we will vet.  This will cater for possible shortfalls arising in such cases as passenger sickness, crew injury, unserviceable bunks, etc.  I would also like to stress that, in the light of our revised philosophy towards the rostering of ultra long haul flights, Chief Pursers should not use Table A as a basis for calculating minimum inflight rest – this no longer applies.”

The letter concluded :

“We will tighten the wording of CAD 371 to remove any remaining ambiguity as to cabin attendant rest in due course.”

43. As I read the letter of 24 March 1999, it was not intended to change the Director-General’s policy.  It was intended rather to explain how, in the Director-General’s view, CAD371 should be read.  It was intended to clarify how the Director-General believed the policy contained within the document should be understood.

44. That the relevant provisions of CAD371 were not entirely clear was acknowledged in the concluding remarks of the letter with the stated intention of tightening the wording of the document.  I confess, however, that, in my judgment, the Director-General’s interpretation of his policy, as it stood at that time and was stated in CAD371, was, to put it bluntly, an attempt to make ‘A’ mean ‘B’.

45. Leaving aside the obvious need to employ a good deal of technical language, CAD371, as published, is couched in ordinary English.   That is not to say that, in respect of in-flight rest for cabin crew on ultra long haul flights, it makes for easy comprehension.  It can be ambiguous and is often circuitous.  But, read step-by-step, I am satisfied that it can only logically lead to the meaning at all times given to it by the applicant.

46. There was no doubt, as the Director-General saw it, good reason to move on from Table A which he saw as essentially a ‘rule of thumb’ table of some antiquity now rendered obsolete by advances in aviation technology.  I shall return to this issue later in this judgment.  At that time, however, it seems to me that the Director-General, in the letter of 24 March 1999, attempted to squeeze a meaning into the language of CAD371which the document, as it was published, did not hold.  The advocated interpretation, in my view, involved a material degree of deconstruction of the relevant provisions and the re-building of them according to a different scheme of architecture.  That way, yes, I have been able to perceive the interpretation advocated.  But the English language is sufficiently complex that, when its weight and balance is shifted, it is capable of throwing up a range of meanings.  But if the ordinary meaning of the document can be ascertained without the need for an exercise of the kind I have described then that is the meaning the document must be given.

47. In R. v. Secretary of State for the Home Department, ex parte Lancashire Police Authority [1992] COD 161, Webster J, in holding that the Secretary of State should take into account a certain policy circular, said :

“… though in this case it was necessary to construe the circular, it was not necessary or proper to construe it in the way in which an Act of Parliament or a statutory instrument would be construed, by application of fine legal rules of construction: it was necessary to construe it simply in the way in which an educated person, acquainted with the factual context, would construe it, by giving to it common sense meaning and without resort to any such legal rules.”

48. In addition, to cite the words of Sedley J again (para.15) :

“… the meaning of the policy cannot be a matter for the Secretary of State to decide subject only to the broad limits of rationality.  If, as is nowadays almost always the case, it is couched in ordinary English, it is not open to the Secretary of State to give it other than its plain and ordinary meaning ...”

49. I am satisfied that CAD371, as published, had the meaning and effect that has been contended by the applicant.  That was its plain and ordinary meaning.  But that, however, does not end the matter.  I say that because the Director-General’s decision which is challenged – his decision of 7 December 2004 – approved a scheme which was different from the one contemplated in his letter of 24 March 1999.  Read in context, the decision of 7 December 2004 suggests that during the intervening five years there must have been a change in the Director-General’s policy.

50. The essential question, therefore, is the first question that I posed in para.16 of this judgment : ‘What was the policy of the Director-General at the time his decision was made?

Was there any change to the policy?

51. In January 1997, the ‘standard provisions’ regulating aircrew rest were contained in a document known as ‘Appendix B’, this being an appendix to a document known as the Air Operator’s Certificates Requirements.  Appendix B contained Table A which was carried over into CAD371.

52. The Director-General was concerned that the provisions in Appendix B may no longer be fully relevant, especially with the advent of extensive ultra long haul flights.  He therefore formed a working group for the purpose of re-assessing the viability of the Appendix B provisions.

53. The working group – known as the ‘Flight and Duty Time Limitations Working Group’ – had its first meeting on 9 January 1997.  The terms of reference of the working group were stated to be :

“To review the Standard Provisions set out in Appendix B to the Fourth Edition of the Air Operator’s Certificates Requirements Document and to make recommendations and offer advice to the Director-General regarding the revision and amendment of these Provisions.  A recommendation will be made to the Director-General when there is unanimity of opinion within the working group.  In other cases advice will be offered to the Director-General.”

The minutes record the chairman of the working group saying that “it would be entirely up to the Director-General whether to take the working group’s recommendations or advice”.

54. It appears that the applicant was not initially a member of the working group but was brought into it later.

55. The last meeting of the working group took place on 27 February 2001.  The issue of appropriate periods of in-flight rest for cabin crew on ultra long haul flights had always been contentious and remained contentious.  Different views continued to be expressed at the meeting.  The chairman reminded the members that it was the Director-General’s ‘responsibility’, and his ‘right’, to decide whether there should be any change to the policy.  He emphasised the importance of avoiding further delay in either advising him or making recommendations to him.  The working group, however, was still not able to reach consensus.

56. What then happened?  In my view, it is apparent that after this meeting the Director-General decided that, with no advice or recommendation forthcoming from the working group, he would have to make a decision on the issue himself.

57. In a letter dated 6 April 2001 the applicant was advised that the Director had made a decision.  The letter, written on the official letterhead of the Department of Civil Aviation and signed by an officer of the Department on behalf of the Director-General, said the following :

“The issue of ‘Cabin crew bunk rest’ has been discussed at length for more than six months, but there is still no consensus reached amongst the members of the Flight Time Limitation Working Group.”

The letter continued :

“In respect of in-flight rest for Cabin Crew on ultra-long haul flights, taking into account the views expressed by the Flight Time Limitation Working Group members and in accordance with the Terms of Reference of the working group, the Director-General has considered the case carefully and decided that the best practice in the airline industry/regulatory authority should be adopted.  The Chairman of the Flight Time Limitation Working Group will therefore issue the Director-General’s decision as a post meeting note to the minutes of the 19^th Flight Time Limitation Working Group Meeting held on 27 February 2001.”

58. The portion of that letter underlined by the author of the letter is plain in its meaning.  It says that the Director-General has himself made a decision on the issue and that his decision will be made known by way of a ‘post meeting note’ which will be added to the minutes of the last working group meeting.

59. The author of the letter saw fit to add some placatory sentiments – they are no more than that – by saying :

“I am sure you will agree that some form of guidelines for in-flight rest for the cabin crew will be beneficial to the safe operation of ultra long haul flights.  The time is now ripe for the Second Edition of the CAD371 to be published with such amendments.”

60. The letter concluded with the following statement :

“Finally, as a further step to enhance flight safety, the Civil Aviation Department has 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 … Depending on the outcome of the study and the experience gained by ultra long haul operators, the criteria in CAD371 Second Edition would be reviewed if necessary.”

61. The draft minutes, together with a ‘final draft of CAD371 (second edition)’, were circulated to members under cover of a letter dated 10 April 2001, the letter being signed on behalf of the Director-General.  The letter said :

“Members should note the Director-General’s decision regarding bunk rest for cabin crew and ultra long range flights, which is a Post Meeting action recorded at the conclusion of the enclosed Minutes.”  [my emphasis]

62. Those to whom the letter and the draft minutes were circulated included representatives of the applicant, the Hong Kong Airline Pilots Association and Cathay Pacific as well as a number of officers in the Civil Aviation Department itself.  The minutes themselves contained the following endorsement :

“Note : Post Meeting Decision by the Director-General.”  [my emphasis]

The body of the endorsement was to the following effect :

“As no consensus was reached amongst working group members on the subject of cabin crew rest on ultra long range flights, in accordance with the Terms of Reference for the working group, as stated in paragraph 1.2.1 of the first meeting held on 9 January 1997, a decision from the Director-General was sought.  Taking into account of the views expressed by working group members, the Director-General has decided that the best practice in the airline industry/regulatory authorities should be adopted.”  [my emphasis]

The effect of the Director-General’s decision was then stated :

“As a result, the maximum flight duty period shall be 19 hours provided all cabin crew boarded receive the following minimum bunk rest:-

“	Flight Duty Period	Minimum bunk Rest
	14 hours and up to 16 hours	3 hrs
	More than 16 hrs and up to 17 hrs	3 hrs
	More than 17 hrs and up to 18 hrs	4 hrs
	More than 18 hrs and up to 19 hrs	4.5 hrs”

[my emphasis]

The endorsement concluded by saying that, as evidence of the Department’s 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.”

63. The applicant appears not to have recognised or accepted that the post minute endorsement – read in context with other material – constituted a decision by the Director-General to change his policy.  In a letter dated 9 May 2001 addressed to the Department of Civil Aviation, the applicant said that it did not agree with —

“… some issues relating to cabin crew inflight rest requirements and the post meeting notes issued by the Director General Civil Aviation Department and we shall seek other avenues to raise these issues.”  [my emphasis]

64. But they were not, of course, simply notes.  They were the contents of a decision made by the Director-General, an executive decision which it was his power to make.  As to the nature of the decision, that was both clear and specific.  It was to change the policy of the Director-General, to change it in respect of how he would in future consider applications made to him in terms of art.54(1) of the Air Navigation Order.  As the changes related directly to in-flight bunk rest for cabin crew on ultra long haul flights it followed that they were changes to the policy expressed in CAD371 as published.  They were therefore changes to CAD371 itself.

65. The Director-General spoke of commissioning a special study on aircrew fatigue but that was no more than an indication that, depending on the result of the study, he may consider changing his policy again.

66. The decision of the Director-General was conveyed in what may be criticised as an informal manner.  But, in changing his policy, as I have indicated earlier, I do not see that he was constrained to any specified procedural steps.  The fact is that all affected parties at the time were represented on the working group.  By attaching the decision to the draft minutes (with a covering letter) the decision was therefore conveyed to them all.  Both the applicant and Cathay Pacific were informed.

67. There was no formal amendment to CAD371 as published.  But, as I have said, CAD371 is not legislation nor a body of legally binding rules flowing from legislation.  CAD371 is a convenient method of stating policy and, in the view of the Director-General, was conveniently changed in the manner he adopted.  The critical questions in my view must be these?  First, was the decision to change the policy conveyed to the affected parties at that time?  The answer to that is yes.  Second, was the change in policy clearly stated?  Again, the answer must be yes.

Did the decision of the Director-General ignore, misinterpret or wrongly apply his policy?

68. It is clear that the Director-General’s December 2004 approval of the Cathay Pacific scheme accorded with the changed terms.  That being the case, it follows, in my view, that the Director-General, in giving his approval, did not ignore, misinterpret or wrongly apply his policy.

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.

Conclusion

70. For the reasons given in the body of this judgment, the application for judicial review must be dismissed.

71. As for costs, I see no reason why costs should not follow the event and the applicant ordered to pay the costs of both the respondent and the interested party.  However, as I have not had the benefit of submissions in this respect, my order will be an order nisi only to be made final 30 days after the handing down of this judgment unless an application is earlier made for a different result.

Mr John Scott, SC, leading Mr Richard Zimmern, instructed by Messrs Robertsons, for the Applicant

Mr Nicholas Cooney, instructed by Department of Justice, for the Respondent

Mr John Bleach, SC, instructed by Messrs Johnson, Stokes & Master, for Cathay Pacific Airways Limited (Interested Party)

Appeal dismissed: see CACV324/2005 dated 23 March 2007