2.161This privilege is similar to the rule that communications made “without prejudice” protect communication made in a bona fide attempt to negotiate a dispute.216 However, it is actually a privilege derived from the principle that “where a third party receives information in confidence with a view to conciliation, the courts will not compel him to disclose what was said without the parties’ agreement.”217 This is a new category based on the public interest in the stability of marriage. The court distinguished privilege from duties of confidence.
2.162The English Court of Appeal concluded that:
“evidence may not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely to cause serious harm to the well-being of a child .... [A trial judge] will admit it ... only if, in his judgment, the public interest in protecting the interests of the child outweighs the public interest in preserving the confidentiality of attempted conciliation.”218
2.163The Hong Kong Court of Appeal gave some support to mediation and conciliation when it held in W v W219 that the evidence given by a psychologist as a mediator and conciliator about the relationship between the spouses was privileged. However, the wife had waived her privilege by referring to opinion and advice contained in the conciliator’s affidavit. The court below should not have heard evidence from the conciliator without the clear and unequivocal agreement of both parties.220
2.164The Court of Appeal felt obliged to correct errors made by the parties and their legal advisers in relation to the conciliator’s affidavit. The evidence of alleged threats made in attempted conciliation should not have been given.221 The court confirmed that the privilege given to a conciliator in matrimonial cases was a privilege based on the public interest in the stability of marriage and needed to be protected.222 The court did not accept the submission that the conciliator was an expert and thus able to give evidence as to the husband’s state of mind when he entered into an agreement from which he now wished to resile. It ordered editing of the affidavit.
2.165The Law Reform Commission of Hong Kong has recommended that the rule against hearsay should be abolished in all civil proceedings to which the strict
216 Rush & Tompkins Ltd v Greater London Council  AC 1280, 1299G.
217 Sir Bingham in In re D , supra at 726, and relying on Mc Taggart v Mc Taggart  P.94, and D v NSPCC  AC 171.
218 In re D, ibid at 729.
219  1 HKC 430.
220 This was in reliance on In re D (minors)  1 FLR 932.
221 Ibid at 936.
222 The court relied on D v NSPCC  AC 171, 226 and 236.