Without prejudice - has it been inadvertently waived?

[BantyCustards]

My ex partner has made an application to court for residency of our child.

Prior to this his solicitor communicated that the application would not be made so long as I agreed to a specific demand. The communication had without prejudice written in it. I did not agree to the demand so he made the application.

Now my ex partner has submitted a position statement and alludes to this correspondence citing me as being difficult and unreasonable and casting himself as the reasonable litigant attempting to settle out of court.

Am I right in thinking that because he has mentioned the communication that he has waived his WP privilege?

No such thing as a without prejudice offer within children act proceedings, but if there was, he may well have waived it.

Ever? According to Marilyn Stow blog it's not considered appropriate...

In any case WP privelage is a two-way-street if I understand it correctly so he revealed my response, I would think.

Blackmail is one of the limited reasons for disallowing WP too, and I'm thinking it could be seen that he was attempting to blackmail me?

Could you point me in the direction of the document which says this? My solicitor took advice and told me we couldn't use the communication.

Thank you for your help

I'm not at all sure there is such a rule, although most family lawyers seem to assume there is.

You are however quite right that, if that exchange was privileged, then he can't unilaterally waive that privilege, you would have to agree. Whether you should agree is impossible to say, of course, without knowing the full facts. In the mean time, your lawyer should object to their position statement for breaching privilege. They're the ones who slapped the WP label on, after all.

Ultimately, it is for the Court to rule on the question, and if a trial judge decided the letters were privileged, then s/he would have to re-list in front of another judge.

If anyone can prove me wrong on this I'd love to know, because it's not the first time I've tried to crack this one.

The last WP documents I saw specifically referred to the contents of them being admissible if the matter was taken to court, so I believe they can be used.

Thank you

Those comments are very helpful