Csfk v. Hwh

CACV 62/2025 · [2026] HKCA 1036 · Court of Appeal · 2026-07-06 · published 14 July 2026

Background

The petitioner wife ("W") and respondent husband ("H") married for over 25 years, had divorce proceedings commenced in 2013, and obtained decree nisi in 2015. At the first financial dispute resolution ("FDR") hearing on 15 March 2017 before Principal Family Judge Bruno Chan, the parties negotiated a memorandum of settlement ("Memorandum"). The 1st FDR Judge adjourned the hearing at 4:32 pm and urged the parties to settle "within this building" before leaving. The parties signed the Memorandum later that afternoon inside the court building (§4). Five days later, W repudiated it on the ground that it made insufficient provision for the children (§5).

A 2nd FDR Judge made an order ("FDR Order") holding the parties to the Memorandum, but the Court of Appeal set it aside in CSFK v HWH [2020] 2 HKLRD 586, holding that a FDR judge should not make an order based on an agreement without the continual consent of a party (§§8, 22). H then sought, by way of a rule 6 summons, an order that the terms of the Memorandum be considered at the ancillary relief trial. The judge granted that order, and W appealed.

Key findings

1. The Court of Appeal (Chu VP and Au-Yeung J) allowed the appeal, holding that the Memorandum was made "in the course of" the FDR and was therefore protected by the absolute bar on admissibility in §8(c) of Practice Direction 15.11 (§§37-43).

2. The court rejected a "mechanistic" approach of drawing a line at 4:32 pm when the FDR Judge left the building (§38). The 1st FDR Judge adjourned, rather than terminated, the FDR, and his order was intended to extend the protective environment of the FDR at least for that day (§37). Parties commonly continue negotiations during breaks or lunch without the FDR judge's physical presence (§39).

3. The court held that the FDR regime and the without prejudice ("WP") rule are distinct (§32). The FDR process imposes compulsory obligations of full disclosure, best endeavours to settle and personal attendance, and confidentiality is derived from the forum itself, not from any WP label (§32(1)-(3)).

4. Even under the WP rule, the absence of a "without prejudice" label is not decisive where the document was prepared in a bona fide attempt to settle (§27), and the second limb of Re Jinro is not engaged where the document arose within the FDR process (§46).

5. The court clarified that §76 of the earlier CA Judgment did not decide the admissibility question (§§52-53). It was directed at the substantive issue of whether sufficient provision had been made for the children, not at whether the Memorandum could be put in evidence at trial (§53).

6. The court held that W had not waived FDR privilege by referring to the Memorandum in other proceedings. She had expressly asserted FDR privilege at the PTR (§56), and it would be self-defeating if she could not refer to the Memorandum when seeking to set aside the FDR Order (§57).

7. The court allowed the appeal, set aside paragraphs 2 to 4 of the Judge's order, dismissed H's rule 6 summons, and directed that the Memorandum shall not be admissible at the trial (§60). Costs follow the event (§61).

8. In a postscript, the court urged the parties to resolve their dispute pragmatically, observing that more than a decade of satellite proceedings had stemmed from the Memorandum and the children had since entered adulthood (§63).

Why it matters

This judgment draws a clear line between the FDR regime under PD 15.11 and the common law WP rule. Practitioners advising on family settlements must understand that confidentiality in FDR is forum-based and absolute (§§17-18, 32), and does not depend on labelling communications "without prejudice". A party who continues negotiations after a FDR hearing is adjourned, even for a few hours and outside the judge's physical presence, remains within the protective environment of the FDR (§§37-40). Equally, where a party resiles from a draft agreement reached in FDR before it is converted into a consent order, the agreement cannot later be tendered at trial as evidence of the parties' positions (§49). The decision also serves as a cautionary tale on the costs of protracted satellite litigation in family proceedings.