Meaning of "without prejudice"

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19 April 2012

What is the exact meaning of term "without prejudice" in the field of judiciary. Many a times it is seen that lawyers use this term (e.g. without prejudice to the above statement . . ..). What does it mean? and when is it used? please reply.

Devajyoti Barman (Expert)
Click to Talk
19 April 2012

It means receiving copy of the document would not hamper his rights reserved till that time.

raj kumar makkad (Expert)
19 April 2012

Means, the act/statement/document as mentioned herein, do not bind me from my defence.

C. P. CHUGH (Expert)
19 April 2012

'''Prejudice''' is a legal term with different meanings when used in criminal, civil or common law.

==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.

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.

In general, the rule for whether or not a case is dismissed with or without prejudice depends on what condition the case is in and whether "[[double jeopardy|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.

Some other countries, however, allow the prosecution to appeal an acquittal.

==Civil law==
Within [[Civil procedure|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.{{cite book |last= Black |first= Henry Campbell |authorlink= Henry Campbell Black |title= [[Black's Law Dictionary]] |publisher= West Publishing Co. |year= 1910 |pages= 931 |url=,M1 }} 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 (legal)|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 [[finality (law)|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 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 (evidence)|privilege]].[ Privileged, Without Prejudice, and Without Prejudice Save As to Costs documents], from Always Associates 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 fa├žade 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.{{Citation needed|date=November 2011}}

RAJU O.F., (Expert)
20 April 2012

It means "without compromising all your legal rights" so that you can ignore what is stated in the said statement and pursue your legal right in any court of law.

Dr V. Nageswara Rao (Expert)
20 April 2012

1. One meaning is what is pointed out by Mr Makkad.A party may accept a document, statement of the other party while reserving its position as to its rights.
2. S. 23 of the Evidence Act deals with "statements without prejudice" and provides: In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. Where the parties are negotiating an out of Court settlement, the law wants them to negotiate and make concessions to each other without prejudice to their respective positions in case the talks fail. The same is true in the case of concessions made by sccused and prosecution during plea bargaining under CrPC.

Shonee Kapoor (Expert)
20 April 2012

Without foregoing my legal rights.


Shonee Kapoor

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