Prejudice (legal term)

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

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

Prejudiceis a legal term with different meanings, which depend on whether it is used incriminal,civil,orcommon law.In legal context,prejudicediffers from the more common use of the word and so the term has specific technical meanings.

Two of the most common applications of the word are as part of the termswith prejudiceandwithout prejudice.In general, an action takenwith prejudiceis final. For example,dismissal with prejudiceforbids a party to refile the case and might occur because of misconduct on the part of the party that filed the claim or criminal complaint or also as the result of an out-of-court agreement orsettlement.Dismissalwithout prejudice(Latin:salvis iuribus,lit. 'to preserved rights') allows the party the option to refile and is often a response to procedural or technical problems with the filing that the party may correct by filing again.

Etymology

The origin of the word in its legal sense isLatin:prejūdicium,'a preceding judgement or decision'.

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.

Legal communications (documents and discussions) should only be labelled “without prejudice”, when such communication is putting forward terms to try to settle the commercial dispute or shows a willingness to negotiate.

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 of 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 amistrial,or the case is overturned on appeal, generally this is without prejudice and (in the case of a 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, such as a sentencing hearing, are retried. If the case is dismissed because ofprosecutorial misconduct,it will typically be dismissed with prejudice, which means that the defendant cannot be retried.

TheDouble Jeopardy Clauseof 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 atrial 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 abench 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

Withinlegal 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, dismissalwithout prejudiceis 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 sameclaim.The inverse phrase is dismissalwith prejudice,in which the plaintiff isbarredfrom filing another case on the same claim. Dismissal with prejudice is afinal judgmentand the case becomesres judicataon the claims that were or could have been brought in it; dismissal without prejudice is not.

Common law

In manycommon lawjurisdictions, such as the United States, the United Kingdom, Ireland, Canada, Australia, New Zealand, Hong Kong and Singapore, the phrase has several usages.

Dismissal

A civil matter which is "dismissed with prejudice" is over forever, because the claim cannot be refiled.This is a final judgment, not subject to further action, other thanappealto ahigher court.Absent a successful appeal, the plaintiff is prohibited 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 themeritsafter 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.

Settlement negotiations

The term "without prejudice" is used in the course of negotiations tosettlea lawsuit. It indicates that a particular conversation or letter cannot be tendered as evidence in court. It can be considered a form ofprivilege.This usage flows from the primary meaning: concessions and representations made for the 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 negotiation, and represent 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.

TheHouse of Lords' 2019 ruling in the case ofOfulue v BossertUKHL 16 confirmed that thepublic policyintention behind the without prejudice rule, which serves to encourage the parties in dispute to speak freely in order to settle the issues between them, should enjoy "wide protection", and therefore only in exceptional cases could statements issued "without prejudice" be used in evidence.

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 awardslegal coststo the successful party unless some other order is made because an offer was unreasonably rejected.This is also called the Calderbank formula, fromCalderbank 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, inWalker 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.

Statutory provision

UKfreedom of information lawrenders certain information exempt from disclosure obligations where its publication "would, or would be likely to", prejudice any of the interests protected by statutory provision.Freedom of information jurisprudence on the test for "prejudice" was developed in thetribunalcase ofHogan v Oxford City Council(2005) where the applicable interests to be protected need to be identified, the nature of the prejudice being contemplated, and the likelihood of the prejudice occurring.

Prejudicial actions

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

A court may sometimes explicitly reassure a litigant that an action will not prejudice them. For example, if a defendant left an important document at home that was needed for the court hearing, the court may assure them that continuing the proceedings to a future date will not prejudice them in any way—that is, that it will not affect the court's judgment in a way that disfavors them. 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 their 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 they're specifically agreeing to temporarily waive.

In English criminal law, from the moment a suspect is charged until judgment is given, it is not permitted to report on matters that may be given in evidence – or that might otherwise influence the jury – before this evidence is presented. Unless the courtdirects otherwise,media may report the evidence given in court but may not speculate on its significance. These restrictions are normally removed after judgment is given, unless to do so might prejudice another prosecution in progress.

See also

• Nulla poena sine lege
• Termination with prejudice
  • "Terminate with extreme prejudice"
• Nemo iudex in causa sua– unbiasedness of judges or judgement