S v. T

CACV 209/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2009

(ON APPEAL FROM FCMC NO. 11230 OF 2008)

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D E C I S I O N

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1.  This application comes before me this morning primarily because I will not be a member of the court that will hear the appeal.  It is an application to admit further evidence.  That evidence I am not going to set out primarily because of the reason that it comes before me and not before the court that will be hearing the appeal.

2.  It suffices for me to say that I consider that the primary document which is sought to be put in is a without prejudice document to the extent that it was a document designed to achieve some sort of a settlement or resolution of the matter.  But other documents which are sought to be put in relate to what was said or not said in the course of mediation and I regard this as fundamentally important.

3.  Mediation has now become part of the process which the court approves of to the extent that parties may even be penalised in costs if they are not prepared to embark upon a mediation process.  Fundamental to mediation is confidentiality.  Every mediation starts with an agreement between the parties and the mediator that what is said in mediation must be kept confidential and even the process of mediation and the fact that it is embarked upon should be kept, in my view, confidential.  It is wholly wrong for any party, of their own motion, to refer to what was said or not said or arose out of mediation, unless and until, a concluded agreement has been reached in the mediation which encompasses what may be disclosed and not disclosed.

4.  It is not a simple question of one party waiving privilege because it is a matter for both parties.  I regard this as extremely important because it goes to the root of the mediation process which, as I have said, is now part of the court’s process.  Unless this is adhered to the whole mediation system will come to naught and people will use mediation as a tactical advantage and then seek to introduce evidence which has come from an unsuccessful mediation and somehow bring that into court proceedings.  That is quite contrary to anything which was envisaged in the process of mediation.  This applies just as much to matrimonial and custody proceedings as it does to any other proceedings.

5.  For those reasons I am not prepared to make an order admitting the evidence.  I have given this decision very promptly because I have no doubt in my mind as to the correctness of it but, by doing so, it should give the parties an opportunity to appeal it, if they disagree with it, and appeal it before the appeal proper comes on.

6.  As regards the other aspect of this application that will be dealt with separately.