Without Prejudice (What It Means And How It Works: Overview)

What does Without Prejudice mean?

When do you need to use the words “without prejudice”?

How does it work?

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Let me explain to you what without prejudice means and why it’s so important!

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What Does Without Prejudice Mean

“Without Prejudice” is a phrase that is used in formal legal correspondence or communication to indicate that the content of the document is confidential and cannot be used by the other party in court or in any other way.

In other words, the party writing a letter bearing a “without prejudice” statement on it is indicating to the other party that he or she is confidentially trying to resolve a dispute or settle a matter but is not admitting any wrongdoing, waiving any rights, or conceding to any arguments.

For example, should two contracting parties get into a contractual dispute for whatever reason, they may attempt to settle their dispute before a lawsuit is filed.

Some use phrases like non prejudice or no prejudice but the better statement to use is “without prejudice”.

In the context of their communications, they’ll use the legal term without prejudice to indicate that they are making a good faith attempt at resolving their differences, they want to content of their negotiations to be kept confidential, and they do not want any of their statements to be used against them in court.

Prejudice Meaning In Law

The legal term “prejudice” may have a different meaning depending on the legal context.

The meaning of prejudice may be different in the context of criminal law, civil law, or common law.

The most common use of the words prejudice in law is “without prejudice” or “with prejudice”.

For example, in court, when a decision has been made with prejudice, it means that it’s final.

Let’s say the court dismisses a motion with prejudice, it means that the party is legally forbidden from filing the same motion in the future.

On the other hand, if a court decision is without prejudice, it means that a party may cure a particular element and present the same issue or motion before the court for adjudication.

As a result, a dismissal without prejudice does not preclude a party from refiling a motion in court.

Without Prejudice Definition

How do you legally define without prejudice?

According to the Thomson Reuters Practical Law, the without prejudice legal term is defined as follows:

As you can see, the without prejudice rule is:

• Used when making a statement 
• In writing or orally 
• Further to a genuine attempt 
• To settle a dispute 
• While preventing the other party 
• To use the statement as admission in court 

Why Use The Without Prejudice In Business

The main reason why the without prejudice rule exists is to allow parties to communicate with one another and resolve their dispute without having to go to court and without fear that statements made or concessions made during that process be used against them in the court of law.

I essence, if the parties know that the content of their negotiations is legally protected, kept confidential, and will not be used against them in court, they’ll be more inclined to try to resolve their dispute prior to filing a lawsuit.

The idea is to help the parties speak freely and genuinely attempt to settle their dispute without having to resort to the courts or arbitration.

It’s important to keep in mind that putting the words without prejudice does not guarantee that the content of the communication will be kept confidential or not used in court.

Similarly, in some cases, if you forget to use the words without prejudice in a letter or document but the behavior of the parties clearly demonstrated that its content was intended to be protected, then the without prejudice rule may still apply.

To avoid making a mistake leading to unwanted legal ramifications, you should consult a litigation attorney or business attorney for advice if you are dealing with a sensitive topic or attempting to resolve a dispute.

Where To Put The Words Without Prejudice

Where should you put the statement without prejudice?

Although there’s no set rule about where to put the statement without prejudice, without prejudice to, or no prejudice, you’ll often see it appear on top of a document.

The reason why it appears on top of a document is to ensure that it is clearly visible and very prominent.

The objective is to ensure that anyone looking at the document can immediately see and notice the without prejudice statement sending the clear message that the content of the document should be kept confidential.

You may also find the without prejudice statement on the subject line of a letter on the first page giving it enough prominence so it’s clearly visible.

If the communication is sent by e-mail, you’ll generally see the words without prejudice on the email subject line or on top of the email in bold font, capitalized, and underlined.

Without Prejudice Exceptions

Are there any exceptions to when a court may not agree with the parties’ intention to protect the legal communication further to the without prejudice rule?

The courts in every jurisdiction will have their rules on how to deal with communications that the parties intended to protect.

Generally speaking, in many jurisdictions, there are some communications that the courts may consider as evidence even though the parties intended to keep it confidential, such as:

• The parties have a dispute as to the scope, nature, or reasonableness of their settlement 
• In the event there were acts of fraud or misrepresentation 
• When a statement in a without prejudice document can give rise to an estoppel 
• If a party attempts to justify why there was a delay 

Without Prejudice Judgment

What does without prejudice mean in court?

In the context of a legal civil procedure, the court may dismiss the matter  “with” or “without” prejudice.

If the lawsuit is dismissed without prejudice, it means that the rights of the parties are not affected or lost.

As a result, the losing party may cure any particular gaps or defects in the motion and refile the same motion or lawsuit before the court.

A without prejudice dismissal is essentially a case that is dismissed without any decisions made on the merits of the case.

On the other hand, a with prejudice judgment is one where the court makes a decision on the merits of the case.

In essence, upon issuance of a with prejudice judgment, the lawsuit is adjudicated by the court, or the motion is disposed of.

Following a with prejudice dismissal, the parties may no longer present a motion or lawsuit on the same issue unless they have the ability to appeal the decision to a higher court.

Without Prejudice Meaning Takeaways 

So there you have it folks!

What is the meaning of without prejudice?

In the context of business negotiations or out-of-court dispute settlement discussions, the phrase without prejudice is commonly used allowing the parties to freely communicate with one another without having to fear making an unwanted admission or adversely affecting their legal position.

The objective is for the parties to be encouraged in settling their dispute in a genuine manner acting in good faith knowing that their words will not be used against them in the future.

In addition to the use of without prejudice to resolve a business or personal dispute, it can also be relevant in the context of court proceedings.

When a litigant files a motion or lawsuit, the court may render a judgment on a without prejudice basis.

This means that the judge renders a decision without affecting the rights, privileges, and legal position of the parties.

On the other hand, if the judgment is rendered with prejudice, then the judgment is on the merits of the case and the parties will be precluded from relitigating the same issue.

I hope that I was able to clarify the without prejudice or without prejudice to meaning so you know all there is to know about it.

Good luck in your settlement negotiations or in court!

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Now, let’s look at a summary of our findings.

Summary of What Is Without Prejudice 

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