CSFK v. HWH

FCMC 15072/2013

[2022] HKFC 267

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 15072 OF 2013

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BETWEEN

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DECISION

( Admissibility of Memorandum )

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1.  Originally, this was the hearing for the summons issued by the respondent (“H”) on 16 September 2021 (“H’s Rule 6 Summons”), seeking the following orders:

(i) to have the Memorandum[1] “be made a court order” under rule 6 of the Matrimonial Causes Rules (Cap. 179A) (“MCR”) to dispose of the ancillary relief claim of the petitioner (“W”) fully and finally without having a trial; or

(ii) the terms of the Memorandum be considered by the Court pursuant to section 7 of the Matrimonial Proceedings and Property Ordinance Cap. 192 (“MPPO”) at the trial of the ancillary relief of W.

2.  By a letter dated 26 July 2022, only 8 days before this hearing, H changed his stance and withdrew §(i) of the H’s Rule 6 Summons and seeks to adjourn §(ii) thereof to the trial of ancillary relief. In short, H now only seeks a determination as to the admissibility of the Memorandum.

3.  The parties agree that the admissibility issue must be adjudicated before the trial of ancillary relief. Otherwise, the trial judge will not be in the position to adjudicate in the middle of the trial if he/she finds the Memorandum privileged or inadmissible.

BACKGROUND

4.  The parties have a long marriage of over 25 years. They are both aged 56. W is a housewife. Early in the marriage, she gave up her employment to care for their two children. H is a real-estate investor.

5.  They have two daughters, respectively born in 1995 and 2002 (“Children”). Both are now over 18 years old but W claims that the younger daughter suffers from, inter alia, major depression.

6.  On 23 October 2013, W petitioned for divorce. In September 2014, W was granted sole custody, care and control of the younger child when she was about 12 years old at that time.

7.  On 13 January 2014, H was ordered to pay $36,000 per month as MPS of W and the Children, and he undertook to pay $5,000 per month to the elder daughter and various expenses. On 24 February 2015, a divorce decree nisi was granted.

8.  The 1^st FDR hearing came before HHJ Bruno Chan on 15 March 2017 (“1^st FDR hearing”), in which W was legally represented with Counsel but H was unrepresented. In the course of the 1^st FDR hearing, a document purportedly for settlement was produced but not yet signed. At about 4:32pm on that day, the learned judge urged the parties to continue negotiation in the Court building so as to come up with a signed document within the day and adjourned the 1^st FDR hearing “pending the parties to file a Consent Summons”. Pursuant to HHJ Bruno Chan’s directions, the parties continued negotiations outside the courtroom but in the Court building and they eventually signed the Memorandum in Chinese (“Memorandum”) on the same day.

9.  On 20 March 2017, W did not find the terms in the Memorandum acceptable and withdrew from it by a letter from her solicitors. At the hearing of the H’s summons supported by his affirmation seeking to vacate the Form A pursuant to the Memorandum on 21 June 2017, HHJ Bruno Chan refused to give H’s relief sought.

10.  The 2^nd FDR hearing was fixed on 15 August 2017 which came before a different judge (“FDR Judge”) given HHJ’s Bruno Chan’s retirement. W sought to back out of the Memorandum whilst H insisted that the parties already reached a settlement. At the 2^nd FDR hearing, despite of W’s protest and refusal to consent, the FDR Judge ordered, inter alia, that “the Memorandum as the parties’ settlement on ancillary relief claim” (“FDR Order”).

11.  The matter went on to appeal by W. On 6 April 2020, the Court of Appeal in CACV 318/2019[2] set out the detail background of this case from §§28 to 47 of the Judgment and set aside the FDR Order as it went against the nature of a FDR hearing. Further, the Court of Appeal observed in the Judgment that:

“74. Before us, Ms Yip readily accepted on behalf of H that the FDR Order is not within the scope of consent order. Counsel however submitted that the FDR Order should be regarded as a direction which guide the future course of proceedings in the ancillary relief application. Thus the memorandum shall be considered by the court as a part-Edgar agreement and its effect shall be assessed by the judge presiding at the trial of the ancillary relief application. Counsel said the order comes within category (c) of the types of order that could be made on FDR as discussed in Rose v Rose, supra and consent was not a prerequisite.

75. With respect, we cannot accept these submissions. Firstly, directions for future conduct should only be given when it is clear to the FDR judge that no consent order would be made in the FDR. The Judge obviously did not take such a view as she directed for consent summons to be lodged. She was not giving directions for future conduct of the ancillary relief application.

76. Secondly, the kind of directions for future conduct which a FDR judge can legitimately give should be confined to procedural directions. It should not encompass a determination of substantive issues. Otherwise, it would infringe the principle of confidentiality of the FDR process and the FDR judge would trespass onto the process of substantive determination of the dispute. As explained above, whether the memorandum should be converted into a court order is a substantive issue which the trial judge presiding over the ancillary relief trial will have to grapple with. It is not for the Judge sitting as the FDR judge to make any order to pre-empt the same.

77. Thirdly, we do not agree with Ms Yip that the FDR Order operated only as if it were a direction for an affidavit to be filed exhibiting the memorandum. It purports to hold that the memorandum was the agreement between the parties apparently precluding whatever disputes W may wish to raise on the effect of her signature on the document. The fact that W had agreed before the Judge in the course of the FDR that the memorandum was her agreement is not germane. The point is that a FDR judge should not make an order which might have an effect on the adjudicative process in the ancillary relief trial.” (emphasis added)

DISCUSSION

12.  The parties had adduced before me the transcripts of the hearings on 15 March 2017, 21 June 2017, 15 August 2017 and 27 April 2018, some of which are FDR hearings. Although the parties’ Counsel refer me to certain part of these transcripts in their respective submissions, I consider that I shall refrain from quoting any of them in this Decision as some may be privileged or confidential and should not be revealed by the trial judge presiding over the ancillary relief. Parties have already agreed to file a Consent Summons to expunge those materials and documents which were filed with the court but privileged or confidential by 23 December 2022.

13.  In gist, Ms Wong for W submitted that the Memorandum is inadmissible as it is part and parcel of the FDR process, both substantively and procedurally. She argued that:

i. there were three FDR hearings in total and the entire FDR process only concluded at the end of the 3^rd FDR hearing;

ii. the 1^st FDR hearing on 15 March 2017 was only adjourned for the parties to continue their negotiation as directed by HHJ Bruno Chan. The FDR process was kept alive then;

iii. the 2^nd FDR hearing was held on 15 August 2017 before the FDR Judge, during which the Memorandum was handed by H to the FDR Judge for review and the FDR Order was made; and

iv. the 3^rd FDR hearing was held on 13 February 2018 before the FDR Judge who declared the FDR failed and the matrimonial proceedings entered into the post-FDR phrase.

14.  Ms Wong relied on the recent case of V v W (Disclosure) [2021] 2 FLR 605 in particular §34, and contended that after reviewing the underlying policy protecting the privileged nature of FDR, the UK Court refused the husband’s application for disclosure of certain documents used in the FDR hearing and stressed that “it operates as an absolute bar to any attempt by [the husband] to make use of anything said or done at the FDR”.

15.  §§8 and 11 of PD 15.11 state as follows:

“8. The FDR hearing

a. …;

b. The judge conducting the FDR hearing shall have no further involvement with the Application, other than to conduct any further FDR hearing;

c. Evidence of anything said or of any admission made in the course of the hearing shall not be admissible in evidence in a court, save upon the trial of a person for an offence committed at the hearing;

d. No offer or proposal made by a party, whether orally or in writing, nor any response to any such offer or proposal, may be excluded from consideration at the FDR hearing by virtue of a claim of privilege;”

e. …;

………

11. Statement of Open Proposals

a. Unless otherwise directed by the Court, not less than 21 days before the date fixed for the final hearing of an Application for ancillary relief, the Applicant shall file with the Court and serve on the other party to the Application a concise statement setting out the nature and amount of the orders which he or she proposes to invite the Court to make.

b. Not more than 7 days after service of a statement under Paragraph 11(a) above the Respondent to the Application shall file with the Court and serve on the applicant a concise statement in answer setting out the nature and amount of the orders which he or she proposes to invite the Court to make.

c. No privilege shall attach or be capable of attaching to either of the statements referred to in Paragraph 11(a) or (b) above.” (emphasis added)

16.  In my view, as the Memorandum only came into being after the conclusion of the 1^st FDR hearing, the Memorandum is not evidence of anything said or of any admission made in the course of the FDR hearings as protected by §8 of PD 15.11. I accept the submission Mr Chan for H that its wordings do not cover the time between the hearings, as they are not course of the FDR hearing. The case of V v W (Disclosure) can be distinguished.

17.  Mr Chan for H further submitted that a settlement agreement (such as the Memorandum) is not part of the “negotiations genuinely aimed at settlement” and that the “without prejudice” rule is therefore not applicable. He relied on the general principle as stated in Passmore on Privilege (4^th ed., 2020) at §10-074:-

“Settlement agreements The settlement agreement that results from without prejudice negotiations is not itself a without prejudice document and so is potentially disclosable in related proceedings in which it is relevant. In Gnitrow Ltd v Cape Plc, Phil LJ commented that while he could see that, as against parties to litigation who are parties to a settlement, the mischief identified in Rush & Tompkins might arise if the terms of settlement are disclosed, that did not justify extending the principle which prevents a party from revealing what another party has said in the course of negotiations to cover the resulting agreement. As it was put in the Australian decision, Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) (No 6) (in the context of s.131 of Evidence Act 1995 (Cth)):

‘The settlement deed is not a communication made between persons in dispute or in connection with an attempt to negotiate a settlement of the dispute within the meaning of s 131(1)(a). Nor is it a document prepared in connection with an attempt to negotiate a settlement of the dispute. A settlement deed or agreement signed by the parties to it, or recording the terms of their agreement is a document or a communication made by parties who are no longer in dispute, but who have, in fact, arrived at an agreement.’” (emphasis underlined)

18.  I accept Mr Chan’s submission and conclude that the Memorandum is not covered by without prejudice privilege as it was made by the parties outside the courtroom, though inside the Court Building, after the conclusion of the 1^st FDR hearing.

19.  In CMJF v MGF [2019] HKFC 171, the husband was seeking recusal from HH J G. Own who refused his application and said:

“25. The Heads of Agreement eventually signed by the parties containing terms discussed or negotiated, although falling short of a global settlement on all aspects of W’s ancillary reliefs, should be taken as the parties’ respective positions somewhat akin to open proposals before the Court. The notion of open proposals has been clearly set out under Paragraph 11 of PD 15.11. There is no issue of this Court being possessed of information which are privileged or confidential to warrant recusal from hearing the trial of W’s ancillary reliefs.

26. H by seeking the trial of W’s ancillary reliefs to be set down before a different Judge, he in essence is seeking my recusal in these proceedings save and except to hold one further FDR as prayed for in his Summons.

27. I have considered those well settled grounds justifying recusal, such as presumed and apparent bias and perception of lack of impartiality, I find none of those grounds exists in this case which call for recusal. In any event, Mr. Side in his submissions at this hearing and his Note had not been able to identify any of those grounds for seeking recusal save and except purely on the procedural aspect of there was an “Extended FDR” before this Court which contention had, for those reasons aforesaid, failed completely.” (emphasis added)

20.  In my view, the Memorandum is at least “somewhat akin to open proposals before the Court” under §11 of PD 15.11, if not a settlement agreement, to which “no privilege shall attach or be capable of attaching”.

21.  Ms Wong for W also submitted that W has not waived her privilege or confidentiality and relied on the observation by the Court of Appeal in CSFK v HWH (CACV 318/2019) at §78:

“78. Fourthly, we reject Ms Yip’s submission that since the parties had alluded to the memorandum at contested hearing (including the hearings in June 2017 before Judge Bruno Chan and the April and August 2018 hearings before Judge CK Chan) that no more privilege attached to the FDR hearings. Notwithstanding the open references to the memorandum, the FDR hearings should remain confidential and whatever said by the parties at those hearings should not be revealed to the judge presiding over subsequent contested ancillary relief hearing.” (emphasis added)

22.  With respect, I disagree with Ms Wong’s submission. My understanding of the above statement is that the FDR hearings, but not the Memorandum itself, should remain confidential. Indeed, the Court of Appeal in CSFK v HWH (CACV 318/2019) stated that:

“65. The memorandum only has the status of an agreement between the parties. Whilst it is possible for a party to ask the court to approve an agreement and convert the same into a court order, in family proceedings the court is not bound to accept the terms of such agreement as the appropriate ancillary relief. In cases where there are children involved, the court has to examine if sufficient provision has been made for the children. ……

66. If a party contested the appropriateness of turning an agreement into a court order, it would not be consensual business. In other words, despite agreement previously reached, a party can still argue before a family judge that the agreement should not be converted into a court order resolving the ancillary relief.

67. In the context of FDR, a FDR judge should not make an order based on an agreement without the continual consent of a party…..

…….

76. Secondly, the kind of directions for future conduct which a FDR judge can legitimately give should be confined to procedural directions. It should not encompass a determination of substantive issues. Otherwise, it would infringe the principle of confidentiality of the FDR process and the FDR judge would trespass onto the process of substantive determination of the dispute. As explained above, whether the memorandum should be converted into a court order is a substantive issue which the trial judge presiding over the ancillary relief trial will have to grapple with. It is not for the Judge sitting as the FDR judge to make any order to pre-empt the same.” (emphasis added)

23.  In my view, the Court of Appeal in CSFK v HWH is fully aware of the confidential nature of the FDR process and never said that the Memorandum is privileged or confidential as argued by W. Instead, the Court of Appeal commented that “whether the memorandum should be converted into a court order is a substantive issue which the trial judge presiding over the ancillary relief trial will have to grapple with.” In other words, it must be admissible at the ancillary relief trial, otherwise the trial judge cannot make any determination.

24.  Furthermore, since the signing of the Memorandum in 2017, W had never raised FDR privilege at all the hearings in the family court, such as the 1^st Pre-Trial Review hearing on 14 May 2021 before HHJ CK Chan. The first time she raised FDR privilege is by her letter dated 9 September 2021, namely about 4 months after the hearing. As W has made open references to the Memorandum at many non-FDR hearings, I consider that even if it is privileged or confidential, W has waived it already.

25.  Ms Wong for W also contended that the Memorandum is materially vitiated by matters set out in W's 5 Affirmations, including (a) fraud and material non-disclosure by H, as discovered by W subsequent to the FDR hearing, and (b) the younger daughter being diagnosed with major depression. In my view, the trial judge presiding over the ancillary relief trial will have to deal with these issues of serious factual dispute, which cannot be resolved in this interlocutory application when the parties do not have the opportunity to cross examine each other.

CONCLUSION

26.  For the above reasons, I make a ruling that the Memorandum is admissible at the trial of the ancillary relief and order as follows:

i. leave be granted to H to withdraw para. 1 of H's Rule 6 Summons;

ii. the terms of the Memorandum be considered by the Court pursuant to section 7 of the Matrimonial Proceedings and Property Ordinance Cap. 192 at the trial of the ancillary relief of W.

27.  For the question of costs, I consider that H substantially changed his stance only 8 days before this hearing although he eventually succeeds in arguing the admissibility issue of the Memorandum. Thus, I exercise my discretion to make an order nisi that H do pay 50% of the H's Rule 6 Summons including all costs reserved, if any, with certificate for one counsel, which shall become absolute unless any of the parties apply for variation by summons within 14 days. It is further directed that:

i. Costs be summarily assessed by me on paper;

ii. W do lodge and serve her statement of costs within 14 days;

iii. H do lodge and serve his statement of opposition (not more than 3 pages with font size 14, double line spacing) within 7 days thereafter.

28.  Last but not least, as agreed by the parties, I need to recuse myself since I have read the transcripts of all the FDR hearings and shall have no further involvement with the ancillary relief trial pursuant to PD 15.11. I therefore direct the parties to jointly write to the Principle Family Judge for setting down the case for trial before another judge with the agreed directions, including the preparation of the trial bundles which should not contain any privileged or confidential documents, within 28 days.