Definition of without prejudice
- (formal) Not affecting nor considering other possibly related issues.
- (formal) Without affecting a legal interest.
Usage in common law
In many common law jurisdictions, such as the United States, the United Kingdom, Ireland, Canada, Australia, New Zealand and Singapore, the term "without prejudice" is also used in the course of negotiations to indicate 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. 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.
In the credentialing of medical professionals, a lawsuit settled "without prejudice" means that the plaintiff releases the ability to further pursue monetary compensation from the defendant(s) by accepting the settlement.
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