Prejudice (legal term)

"Without Prejudice" redirects here. For the 2003 game show, see Without Prejudice?

This article is about the legal term used in criminal, civil and common law. For the type of decision within European Union law, see Prejudicial question.

Prejudice is a legal term with different meanings when used in criminal, civil or common law. Often the use of prejudice in legal context differs from the more common use of the word and thus has specific technical meanings implied by its use.

Two of the more common applications of the word are as part of the terms "with prejudice" and "without prejudice". In general, an action taken with prejudice is essentially final; in particular, "dismissal with prejudice" would forbid a party from refiling the case, and might occur either because of misconduct on the part of the party who filed the claim or criminal complaint or could be the result of an out of court agreement or settlement. Dismissal without prejudice (in Latin, "salvis iuribus") would leave the party an option to refile, and is often a response to procedural or technical problems with the filing that the party could correct when filing again.

With prejudice and without prejudice

Criminal law

Depending on the country, a criminal proceeding which ends prematurely due to error, mistake, or misconduct may end as being dismissed with prejudice or without prejudice. If the case ends without prejudice, the accused in the case (the defendant) may be retried. If the case ends with prejudice, the effect on the defendant (for the purpose of punishment) is the equivalent to a finding of not guilty and they cannot be retried.

Some countries, however, allow the prosecution to appeal any acquittal.

United States

In the United States, if there is a mistrial, or the case is overturned on appeal, generally this is without prejudice and (in the case of decision overturned on appeal) either all of the case is retried, or, if not all of the case is overturned, the parts that were overturned (like a sentencing hearing) are retried. If the case is dismissed because of prosecutorial misconduct, it will typically be dismissed with prejudice, which means that the defendant cannot be retried.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits that "any person be subject for the same offence to be twice put in jeopardy of life or limb". Outside of mistrial or appeal, the rule for whether or not a case is dismissed with or without prejudice thus depends on what condition the case is in and whether "jeopardy" has attached to the case. If jeopardy is attached to a case, a dismissal or a resolution is "with prejudice" and the case can never be litigated again. In the case of a trial by jury, jeopardy attaches when the jury is empaneled and a dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.

If a criminal case is brought to trial and the defendant is acquitted, jeopardy is attached to the case and it can never be retried. If the defendant was convicted and his conviction is overturned, jeopardy is not attached because the defendant is considered to simply be in the same state they were before the case was tried.

If a person is brought to trial where they are charged with a particular crime and is convicted of a lesser offense, the conviction for a lesser offense is an acquittal of any higher-level offense (for example, a conviction for second-degree murder is an acquittal of first-degree murder). If the conviction is later overturned, the maximum the defendant can be retried for is the crime to which they were convicted; any higher charge is acquitted and thus is with prejudice.

Civil law

Within legal civil procedure, prejudice is a loss or injury, and refers specifically to a formal determination against a claimed legal right or cause of action. Thus, in a civil case, dismissal without prejudice is a dismissal that allows for re-filing of the case in the future. The present action is dismissed but the possibility remains open that the plaintiff may file another suit on the same claim. The inverse phrase is dismissal with prejudice, in which the plaintiff is barred from filing another case on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it; dismissal without prejudice is not.

Common law

In many common law jurisdictions, such as the United States, the United Kingdom, Ireland, Canada, Australia, New Zealand and Singapore, the phrase has several usages.

Dismissal

A civil matter which is "dismissed with prejudice" is over forever. This is a final judgement, not subject to further action, which bars the plaintiff from bringing any other lawsuit based on the claim.

If it is an involuntary dismissal, the judge has determined that the plaintiff has brought the case in bad faith, has failed to bring the case in a reasonable time, has failed to comply with court procedures, or on the merits after hearing the arguments in court. The dismissal itself may be appealed.

If it is a "voluntary dismissal with prejudice", it is the result of an out of court agreement or settlement between parties that they agree is final.

If the case is dismissed "without prejudice" the lawsuit can be filed again by the plaintiff. Typically before a defendant has answered the suit, or made a motion in the case, a plaintiff may file for "dismissal without prejudice" more easily and may do so for tactical reasons such as filing in a different jurisdiction. As well it is common for plaintiffs to be limited, after filing a voluntary motion to dismiss, to only one additional filing of the suit, after which they may be barred from filing again.

Settlement negotiations

The term "without prejudice" is used in the course of negotiations to settle a lawsuit. It indicates that a particular conversation or letter cannot 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 both be made in the course of negotiations and a genuine attempt to settle a dispute between the parties. A prohibition exists on documents marked "without prejudice" being used as a façade to conceal facts or evidence from the court. As a result, documents marked "without prejudice" that do not actually contain any offer of settlement may be used as evidence, 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 change to the above and refers to a communication that cannot be exhibited in court until the end of the trial, when the court awards legal costs to the successful party unless some other order is made because an offer was unreasonably rejected. This is also called 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.

Prejudicial actions

An action (such as an error made by the court) is prejudicial if it substantially affects a litigant's legal rights. Thus, a harmless error would not be prejudicial, while plain error is sometimes defined as a highly prejudicial error. An error that is determined to not have been prejudicial will typically not be considered a reversible error.

A court may sometimes explicitly reassure a litigant that an action will not prejudice him. For example, if a defendant left an important document at home that he needed for the court hearing, the court may assure him that continuing the proceedings to a future date will not prejudice him in any way — that is, that it will not affect the court's judgment in a way that disfavors him. Or a court may assure a litigant that agreeing to a temporary arrangement, e.g. concerning custody of an asset whose ownership is disputed, will not prejudice his rights with regard to the eventual judgment of the court in the case. In other words, the litigant will not be waiving any rights other than those he's specifically agreeing to temporarily waive.

See also

• Nullum crimen, nulla poena sine praevia lege poenali
• Termination with prejudice
  • "Terminate with extreme prejudice"