‘Without Prejudice’ means without any loss or waiver of rights or privileges. It is a reservation made on a statement or offer that it is not an admission or cannot otherwise be used against the issuing party in future dealings or litigation with any determinative legal effect. It is a statement set onto a written document such as a letter, which qualifies the signatory as exempt from the content to the extent that it may be interpreted as containing admissions or other interpretations which could later be used against him or her; or as otherwise affecting any legal rights of the principal of, or the person signing (Burrows, D., ‘Over-riding Privilege’, New Law Journal, London, England, January 22, 2010, pp. 89-90).
The term ‘without prejudice’ is also used in the course of negotiations to indicate that a particular conversation or letter is not to be tendered as evidence in court; it can be considered a form of privilege. This usage flows from the primary meaning: concessions and representations made for purpose of settlement are simply being mooted for that purpose, and are not meant to actually concede those points in litigation. Such correspondences must be made in the course of negotiations and must be a genuine attempt to settle a dispute between the parties. It may not be used as a facade to conceal facts or evidence from the court and as such a document marked “without prejudice” that does not actually contain any offer of settlement can be submitted should the matter proceed to court. Courts may also decide to exclude from evidence communications not marked ‘without prejudice’ that do contain offers of settlement.
The term ‘without prejudice save as to costs’ is a modification to the above and refers to a communication that cannot be exhibited in court until the end of the trial when the court awards costs to the successful party. This is also referred to as the Calderbank formula, from Calderbank v Calderbank (2 All E.R. 333, 1976), and exists because English courts have held that ‘without prejudice’ includes for the purposes of costs, as in Court of Appeal, in Walker v Wilshire (23 QBD 335, 1889):
“Letters or conversations written or declared to be without prejudice cannot be taken into consideration in determining whether there is a good cause for depriving a successful litigant of costs”.
When a lawsuit is dismissed, the court may enter a judgment against the plaintiff with or without prejudice. When a lawsuit is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are considered to be lost or waived. The same holds true when an admission is made or when a motion is denied without prejudice.
The inclusion of the term without prejudice in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been started. Therefore, a dismissal without prejudice makes it unnecessary for the court in which the subsequent action is brought to determine whether that action is based on the same cause as the original action, or whether the identical parties are involved in the two actions.
The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of res judicata in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, “a thing decided“) is based on the importance of finality in law. If a court decides a case, the subject of that case is firmly and finally decided between the persons involved in the suit, so no new lawsuit on the same subject may be brought by the persons involved. Therefore, the word without prejudice protects the plaintiff from a defendant’s res judicata defense.
A court may also enter judgment with prejudice. This signifies that the court has made adjudication on the merits of the case and a final disposition, barring the plaintiff from bringing a new lawsuit based on the same subject. If a new lawsuit is brought, a defendant can properly invoke res judicata as a defense, because a court will not re-litigate a matter that has been fully heard before. Often a court will enter a judgment with prejudice if the plaintiff has shown bad faith, misled the court, or persisted in filing frivolous lawsuits.
References
Always Associates (n.d.). Privileged, without prejudice, and without prejudice save as to costs documents.
Black, Henry Campbell (1910). Black’s Law Dictionary. West Publishing Co. p. 931. http://books.google.com/
daleydemont.ns.ca. (n.d.). http://www.daleydemont.ns.ca/legalbriefs/188.WithoutPrejudice.html
Law Encyclopaedia Prejudice on Answers.com. West’s Encyclopaedia of American Law Copyright © 1998 by the Gale Group, Inc. Published by The Gale Group, Inc.
Legal Dictionary (n.d.). Without prejudice. http://www.duhaime.org/LegalDictionary/W/Withoutprejudice.aspx
Prejudice. (n.d.). West’s Encyclopaedia of American Law. Retrieved February 12, 2017, from Answers.com Web site: http://www.answers.com/topic/prejudice-law
Prejudice. (n.d.). Wikipedia. Retrieved February 12, 2017, from Answers.com Web site: http://www.answers.com/topic/prejudice-law
Wikipedia Prejudice on Answers.com. Wikipedia Copyright © 2010 by Wikipedia. Published by Wikipedia.
