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THE LAW REFORM COMMISSION OF HONG KONG - page 62 / 360

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Appeal in W v W210 stated that:

“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”.

2.157He referred to the situations where the court would examine the state of mind of the parties when they reached the agreement:

“[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 reaching agreement, are all relevant to the question of justice between the parties”.211

Privilege

2.158“Privilege” is the right of a party to prevent statements or documents being adduced in evidence.  The Law Commission of England and Wales recommended a statutory privilege should be conferred on statements made during conciliation.  The term “mediation” is now preferred to conciliation, which is still used in the industrial relations field.  Statements made which indicate a risk of harm to a child would be privileged but not confidential.212

2.159The Court of Appeal in England recognised that conciliation, though not forming part of the legal process, was as a matter of practice “becoming an important and valuable tool in the procedures of many Family Courts”.  Thus, there was great importance in the “preservation of a cloak over all attempts at settlement of disputes over children”.213

2.160Conciliation would not work unless the parties approached the process in an open manner, prepared to give and take, and make admissions and gestures to reach an accord.  If instead the “parties remain in their entrenched positions no armistice will be reached in no man’s land”.214  Conciliation cannot be successful unless the parties can conduct the meeting off the record.  They must be “confident that their concessions and admissions cannot be used as weapons against them if conciliation fails and full-blooded litigation follows”.215

210 [1994] 1 HKC 430, 437, CA.

211 Lord Justice Ormrod in Edgar v Edgar [1980] 1 WLR 1410 at 1417.

212 Family Law; Ground of Divorce;  (Law Com No 192: 1990) at paragraph 5.29 to 5.48.

213 In re D (Minors), [1993] 2 WLR 721, at 728.

214 Sir Thomas Bingham, ibid at  724.

215 Idem.

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