ANN WILKINSON v.IN LESLIE WILKINSON

IN THE COURT OF APPEAL

1994, No. 59
(Civil)

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J U D G M E N T

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Nazareth, J.A.:

1. The parties to this appeal were married in 1980. Because of differences between them they have lived separate lives since 31 December 1992. The petitioner wife applied for ancillary relief and in that context both parties filed affidavits. Among those filed by the husband respondent was one by Mr Peter Whyte, a consultant psychologist who had been consulted by both parties between about October 1992 to mid-March 1993, separately and together in an attempt to save the marriage. The wife took out a summons on 24 January 1994 inter alia to strike out Mr Whyte's affidavit. It came before Deputy Judge Eccleton on 7 and 9 February 1994 and on 16 March 1994 he ordered that the wife's application for leave to strike out Mr Whyte's affidavit be dismissed. The wife now appeals against that order listing in her notice of appeal no less than 13 grounds. Primarily, it is submitted by Mr Gilbert Rodway Q.C., who with Mr Russell Coleman, appears for the wife, that Mr Whyte's affidavit is inadmissible on the grounds that its contents are privileged, hearsay, irrelevant and scandalous or otherwise oppressive.

Privilege

2. It is convenient to first address the ground of privilege, which we treated as a preliminary matter as it seemed to us to be possibly capable of disposing of the entire appeal. Mr Whyte had acted as mediator and conciliator. It is not in dispute, and in any case clear on the authorities, that upon that basis privilege does exist (see McTaggart v McTaggart [1949] P 94; [1949] 2 AER 754; Mole v Mole [1951] P 21). The question that arises upon the submissions is whether such privilege was waived by the wife.

3. The judge dealt with that matter at p.4 of his judgment:

"There is no doubt that as both parties were patients of Mr Whyte that privilege does exist. That privilege is a privilege of a party and unless waived by both of them then any evidence by Mr Whyte relating to the mediator/patient relationship should not be before the court. The respondent quite clearly does waive that privilege. I am also satisfied that the petitioner by her conduct has also waived that privilege. In affidavits already filed by the petitioner she has referred to the statements, opinions and advice of Mr Whyte and also the agreements made in his presence and proposed or approved by him. Those affidavits are evidence already put before the court.

This in my view is similar to the situation in the case of McTaggart v McTaggart [1949] 94. I see no difference between evidence given orally and evidence put before the court by way of affidavit."

Although the question of waiver by an antecedent agreement claimed by Mr Whyte to have been made between the wife, the husband and himself waiving privilege, before he commenced his role as mediator or conciliator, was mentioned it is plain that the judge relied primarily upon the references in the wife's affidavit to the statements, opinion and advice of Mr Whyte and that the agreements were proposed or approved by him. What then is the legal test by which it is to be determined whether such references could constitute a waiver?

4. In Pais v Pais [1971] P 119 at 123H Baker J said this:

"In my judgment there can be no waiver of the privilege in marriage guidance cases until the spouse, or counsel or solicitor on behalf of the spouse, says in unmistakable and unequivocal terms: 'I want the evidence to be given to the court of all that happened before the marriage guidance counsellor and therefore I am waiving the privilege.'"

5. In McTaggart v McTaggart Cohen LJ said this at p.755B-C:

"The wife and husband gave conflicting evidence on this point ... the privilege if any was the privilege of the parties, and they, having given evidence on the point, could not assert the privilege.... I think that, if objection had been taken by the wife to the husband giving evidence on this issue, the objection would have been valid."

Denning LJ (as he then was) agreed.

6. Reverting to the facts in this case, what happened was that in his affidavit of 6 August 1993 at p.5, the husband referred to an ultimatum given to him by the wife, that unless he transferred his share of a house they had in the New Territories she would take, certain steps. He said that he felt he had no alternative but to agree to giving the wife total control of all their finances adding that "even the psychologist felt that [he, the husband] had no choice".

7. The wife responded to that single sentence, in her affidavit of 13 November 1993. She made reference to what Mr Whyte led her to believe, to her husband's admissions in the presence of Mr Whyte of association with prostitutes, to Mr Whyte's identification of the husband's suicidal tendencies, to the very special significance for her of Mr Whyte's opinion, to discussion of the family's financial situation with Mr Whyte, to the husband's devastation of their finances being apparent to Mr Whyte, to Mr Whyte agreeing with her that she could not be expected to put up with such circumstances and allow her future security to be jeopardised by the husband's continuing irrational behaviour, to Mr Whyte explaining to the husband that in view of his previous behaviour there was a need to protect the husband and the wife from any future erosion of finances (in conjunction with a reference to the husband agreeing to sign over to her their main property asset worth some $15m), to Mr Whyte explaining to the husband that the wife could not reasonably be expected to lead a life of total isolation and it was not reasonable for him to expect to continue his double life if he wanted the marriage to continue; and to Mr Whyte saying that he had never before encountered a more extreme case of obsessive, possessive, jealousy nor a more irresponsible and ignorant approach to sexual hygiene.

8. These numerous references to Mr Whyte have to be viewed in the context of the applicant's application for ancillary relief, specifically that an agreement allocating to her virtually all the couple's property and in addition 50% of the husband's earnings be upheld, and in which application she specifically invited the Court to have regard to the husband's conduct. Viewed in that light it is plain that the wife was seeking to boost and derive support for her application by her many references to Mr Whyte's statements, opinions and advice. That evidence is, in my view, the same in principle as that which was referred to in McTaggart, by Cohen LJ when he said "they [the parties], having given evidence on what was said at the interview, could not assert the privilege". In my judgment, it sufficiently meets the test propounded by Baker J in Pais to which I have already referred. Accordingly, in my view, the wife has waived her privilege.

9. It remains to say that I reject Mr Rodway's submission that the wife's affidavit, having been made in response to the husband's one sentence reference to Mr Whyte, it could not amount to a waiver.

10. Having indicated to counsel that we were satisfied that the wife had waived her privilege, Mr Rodway rapidly identified those parts of Mr Whyte's affidavit to which he objected and the nature of the remaining grounds of objection relied upon.

11. I turn first to the ground of hearsay.

Hearsay

12. A substantial portion of Mr Whyte's affidavit consists of what he was told by the husband. This, understandably, is attacked by Mr Rodway as being inadmissible hearsay. However, Mr Pilbrow, for the husband, contends that Mr Whyte, a consultant psychologist, is an expert. I pause there to say that the judge below accepted Mr Whyte "as being an expert in the field of psychology and qualified to give expert opinion". Mr Pilbrow submitted that Mr Whyte was entitled to give opinion evidence of the husband's state of mind specifically on the central question of the agreement allocating to the wife the very considerable family property and in addition half the husband's income in the future. And in giving his expert opinion on that matter, Mr Pilbrow submits, Mr Whyte is not only entitled to set out the facts, but also statements made to him by the husband upon which he based his opinion. They are provided not as evidence of the truth of their contents, but as the hypothesis, as it were, upon which his opinion is founded. In my judgment the case of R v Bradshaw (1986) 82 Crim.App 79, cited by Mr Pilbrow, is good authority for that proposition. And again I say no more than that; nor do I express any view as to the admissibility of the opinion evidence, not least because I am not clear as to the exact nature of the related issues, nor could they be as clear to me as they will be to the judge who hears the wife's application. Before him, the entire matter will unfold in detail.

Irrelevancy and Opinion Evidence

13. I proceed to the grounds of irrelevancy and opinion evidence upon which Mr Rodway also relies. He submitted that parts of that affidavit were irrelevant. These comprised mainly expression by Mr Whyte of his opinion about the husband's nature being submissive, compliant and passive; the wife's character being very strong and manipulative, and of the parties' state of mind or what prompted some of their actions. Also comprised was reference to some of Mr Whyte's encounters with the wife.

14. It seems to me arguable that such opinion evidence is admissible but, as I have indicated, the judge at the trial of the wife's application for ancillary relief will be better placed to determine such questions. He may find himself assisted by some of that evidence if ruled admissible. As to matters which occurred after the beginning of January 1993 when the husband agreed to the property and income settlement, now sought to be set aside or in effect varied by the husband, I did not understand counsel to suggest that it would not be necessary for regard to be had in the determination of the wife's application to all the conduct of the parties, as opposed to merely that pertaining to the agreement.

15. As to the way in which the evidence bearing upon those two questions, i.e. of whether the transfer or agreement should be upheld, and of the conduct of the parties to be taken into consideration is approached, and whether they should be dealt with in two stages, those are matters for the judge at the hearing of the application.

Whether Offensive, Scandalous or Oppressive

16. I turn then to the remaining grounds, i.e. parts of the affidavit containing matters that are offensive, scandalous or oppressive. I would say only shortly that I am not persuaded that such is the case, though those are matters that may be pursued before the judge who hears the application.

Conclusion

17. Large portions of the affidavit were not objected to by Mr Rodway. Some of these reflect unfavourably upon the husband in a way not dissimilar to that in which some of the passages objected to reflect unfavourably upon the wife. Then there are passages which, while they may turn out to be admissible, cannot be said to be clearly so at this stage. Also the objections made do not necessarily relate to separate parts of the affidavit that can be neatly compartmentalised. I, therefore, do not think any solution that involves editing the affidavit can be commended. I have given serious consideration to the possibility of striking out the entire affidavit and leaving the evidence to be adduced at the trial of the wife's application. That course in the end did not commend itself to me, for in some degree the judge has exercised his discretion, perhaps not altogether in the way I might have done, but I cannot say in a way that is wrong. Moreover, that course, i.e. of striking out the entire affidavit, would leave intact on record the wife's affidavit drafted with legal advice, with its calculated reliance upon selected portions of Mr Whyte's claimed opinions, advice and actions. While those parts of the wife's affidavit remain on record, it seems to me that Mr Whyte's affidavit showing at least his dissent in factual terms from the way in which those claimed statements, opinions and advice are presented and sought to be used, should also remain on record (notwithstanding that in part it accords with the wife's account, as Mr Rodway pointed out). I have also considered the possibility of striking out in addition to Mr Whyte's affidavit the related parts of the husband's and wife's affidavits. But we have not been asked to do so and in any case it seems to me that, given the situation now reached, all the evidence, including the affidavits (which contain the factual evidence upon which our decision on waiver of privilege is founded, and of the divergence between the accounts of the deponents), should be available to the trial judge for him to make such use of them as he sees fit.

18. I would therefore not strike out Mr Whyte's affidavit nor attempt to edit it, although I would delete paragraph 16 (which the judge clearly rejected although he did not proceed to delete it) and I would delete the last sentence in paragraph 14 (which, along with paragraph 16, Mr Pilbrow conceded should be deleted).

19. I would accordingly allow the appeal to that very limited extent, and in doing so, I would make it clear while the decision of this Court that the wife has waived her privilege would be binding upon the court below, the decision of the Court not to strike out the remainder of the affidavit is not to be taken as deciding or embodying any views upon the admissibility of Mr Whyte's affidavit, or any of its parts. To secure that result, needless to say, I have found it desirable to be circumspect and reticent in expressing my views and reasons.

Godfrey, J.A.:

20. I regret that I take a different view of this matter from that which has commended itself to my Lord, Mr. Justice Nazareth.

21. As my Lord has explained, this appeal raises a point as to the evidence to be received by the judge who is to hear, on 12 May 1994 (next Tuesday), a wife's application in matrimonial proceedings for ancillary relief.

22. What evidence ought to be received at the hearing of such proceedings, indeed any proceedings, depends of course on the issue which the tribunal has to decide. It is therefore essential to be clear what the issue is in the present case. The terms of the wife's application for ancillary relief do not appear anywhere in the papers included in the bundle supplied to us for the purposes of the hearing of this appeal, but I shall assume that the wife's application is simply a common form application for ancillary relief.

23. In such a case, the judge has to have regard of course to all the circumstances of the case and of the parties. In this context, a prior agreement between the parties, on which, as will appear, the wife intends here to rely, though not necessarily definitive (see Hyman v. Hyman [1929] AC 601), is an important matter which must be considered in the light of the conduct of the parties leading up to the agreement (and perhaps their subsequent conduct as well).

24. The court, will treat a formal agreement, properly and fairly arrived at with the benefit of competent legal advice, as one which should be given effect to unless good and substantial grounds are shown for concluding that injustice would be done by holding the parties to its terms. All the circumstances surrounding the making of the agreement are of course relevant. Some are instanced as follows by Lord Justice Ormrod in Edgar v. Edgar [1980] 1 WLR 1410 at p. 1417:-

"Under [? Undue] pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties."

25. In the present case, the wife, as I have said, does intend to rely on a prior agreement at the hearing of her application. She proposes to rely on an exchange of letters between the parties' solicitors, in which what seems (by ordinary standards) to have been a very generous offer was made by the husband and was accepted by the wife. The husband intends, in answer, to point to circumstances, including threats made against him by the wife, which, he will say, would make it unjust for the court to hold him to the terms of the agreement.

26. An important issue, then, in the wife's application for ancillary relief, will be this: what weight ought to be given to the agreement in determining the proper provision to be made for the wife?

Once this issue has been properly identified, it becomes possible to examine the question as to what evidence in relation to that issue is relevant and admissible.

27. The husband, in his affidavit of means, sought to give evidence as to the views of one Peter Montgomery Whyte, who, said the husband in his affidavit, felt that the husband "had no choice" but to give in to a particular demand made by the wife. Can this possibly be relevant evidence? What have the "feelings" of Mr. Whyte got to do with the case?

28. The husband submits that Mr. Whyte's "feelings" are relevant because Mr. Whyte, a consultant psychologist, was the conciliator originally employed by the parties to mediate between them. This, to my mind, is a shocking submission. Mr. Whyte stood in a confidential relationship with the parties in his capacity as conciliator. Without the clear and unequivocal agreement of both parties, evidence from a conciliator will not be received by the court; for the most recent case, see In re D (minors) [1993] 1 FLR, 932.

29. On the question of the alleged threats to which I have earlier referred in this judgment, it is noteworthy that Sir Thomas Bingham, the Master of the Rolls, said in that case (at p. 936) "that evidence should not be given of threats, even credible threats, made by parties in the course of attempted conciliation". As he pointed out "where deep human emotions are engaged ....., such threats are commonplace"; and he went on to point out that "to override the privilege [against evidence being given by a conciliator] in such an event would be to emasculate the privilege and so undermine the whole process of conciliation". Still less in my judgment will the court receive evidence from one of the parties about the conciliator's "feelings", such evidence is plainly inadmissible as hearsay evidence anyway.

30. The ill-advised attempt by the husband to adduce second-hand evidence of the conciliator's "feelings" has had disastrous consequences. It has prompted the wife into adducing evidence of her own about what the judge below referred to as "the statements, opinions and advice" of the conciliator. This was even more ill-advised; for it prompted the husband, in his turn, to adduce evidence by the conciliator himself as to what he said, thought and advised. The wife now protests about this; but she has brought it upon herself. Having herself chosen to adduce evidence about those matters, she cannot be heard to complain now that the husband seeks, through the conciliator, to answer the allegations concerning the conciliator which the wife herself has made. So the whole thing has got entirely out of hand.

31. What the wife should have done, of course, was to object to the initial reference made by the husband in his evidence to the "feelings" of the conciliator; not make matters worse, as she did, by making similar references herself. Is it now too late for her, or for this court, to put the matter right?

32. In my opinion, it is not; and in the interests of justice, this court should now be prepared to step in and correct the errors made by the parties and/or their legal advisers.

33. I take that view for this reason. The privilege which attaches to evidence from a conciliator in matrimonial cases is a privilege based on the public interest in the stability of marriage: see the speeches of Lord Hailsham of St. Marylebone and Lord Simon of Glaisdale in D. v. the. National Society for the Prevention of Cruelty to Children [1978] AC 171, pp 226 and 236 respectively. In my judgment, it is the duty of the court to protect this privilege, now that objection is taken to the reception of this evidence, notwithstanding the manifest errors made by both the wife and the husband and their respective legal advisers, and the wife's unintentional waiver of the privilege. Under Order 41 rule 6 of the Rules of the Supreme Court, the court can do this by ordering the excision of the reference to the conciliator's "feelings" from the husband's affidavit of means; by ordering the excision of all references to the conciliator in the wife's affidavit; and by directing that the conciliator's affidavit (which he should not have been asked to make and should anyway have refused to make) be taken off the file. If this is done, the judge will then be free to decide the wife's application for ancillary relief without being embarrassed by all this oppressive evidence, none of which should ever have been adduced in the first place. He should, in my judgment, be prepared to refuse to receive any further or other evidence, in any form, from the conciliator. I should add this; that the suggestion made on behalf of the husband that, because the conciliator was a consultant psychologist, he is an "expert", and so his evidence, otherwise inadmissible, somehow becomes admissible, cuts no ice at all with me.

34. As I said at the outset of this judgment, what is in issue is the conduct of the parties. Evidence about the parties' conduct may be admitted from anyone (except, for the reasons I have given, from the conciliator); but the conclusions to be drawn about the parties' states of mind at the relevant time are exclusively for the judge. That is a matter about which the judge is just as capable of forming a view as is any "expert".

35. My Lord Lord Justice Nazareth has mentioned R. v. Bradshaw [1985], 82 Cr. App. R., 79, which shows that an "expert", properly so-called, may refer in his evidence even to matters which are not within his own knowledge. But it is important to appreciate that it was pointed out in that case that the doctor's testimony was inadmissible to show what symptoms were actually being experienced by the patient. So, here, in my judgment, the husband's submission that the conciliator here is entitled as an "expert" to give evidence as to the husband's state of mind when he entered into the prior agreement from which he now wishes to resile is entirely misconceived.

36. For the reasons I have attempted to state (and I take this view of the case with diffidence, knowing that it does not find favour with my Lord, Mr. Justice Nazareth) I would allow this appeal and make the orders I have indicated accordingly.

Penlington, J.A.:

37. I also agree for the reasons given by Mr. Justice Nazareth and Mr. Justice Godfrey that the petitioner has waived her privilege in relation to Mr. Whyte's evidence.

38. Following on from that there are several alternatives open to this court. This is the one which Mr. Justice Godfrey now suggests and which he referred to in the course of argument. For the cogent and persuasive reasons he has given, that the references to Mr. Whyte both in the petitioner's and the respondent's affidavits be struck out and Mr. Whyte's affidavit be removed from the file, it being contrary to the public interest that a person who has been used as a conciliator in domestic disputes should also become a witness. I agree with that principle, as expressed in McTaggart and Pais but I consider here the matters have gone too far and the court should not, of its own volition, alter the course which the parties have chosen to take.

39. The second alternative is to edit Mr. Whyte's affidavit in the manner contended for by Mr. Rodway but I agree with Mr. Justice Nazareth that we should only do so to the extent he suggests, which was not opposed by Mr. Pilbrow. There are some sentences in the affidavit which may well be irrelevant but I do not consider them scandalous or oppressive, though it is difficult to decide that as we are not fully aware of exactly what the issues will be at the trial, not having seen all the papers relating to those proceedings.

40. There seems to be two main questions to be decided. Firstly, whether or not the exchange of solicitors' letters of 12 and 19 January 1993 constituted a binding contract between the parties and, depending on the answer to that, what is the proper provision for the petitioner's ancillary relief. The questions to the evidence irrelevant to one may not be so in relation to the other. There will in any event no doubt the oral evidence at the trial should play a much more important role and I consider that the affidavit of Mr. Whyte should remain but that the final sentence of paragraph 14 and the whole of paragraph 16 should be deleted.

41. The appeal is therefore allowed to that limited extent.

42. The respondent in this appeal has substantially succeeded in the matter in which the main question was that of privilege. The respondent is to have three quarters of his costs of this appeal.