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Prejudice (legal procedure): Wikis

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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. [1] 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.

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 is not to be tendered as evidence in court; it can be considered a form of privilege.[2] 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 be made in the course of negotiations and must be a genuine attempt to settle a dispute between the parties. It may not be used as a fa├žade to conceal facts or evidence from the court and as such a document marked "without prejudice" that does not actually contain any offer of settlement can be submitted 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.[3][4]

The term "without prejudice save as to costs" is a modification to the above and refers to a communication that cannot be exhibited in court until the end of the trial when the court awards costs to the successful party. This is also referred to as the Calderbank formula, from Calderbank v Calderbank (2 All E.R. 333 (1976)),[2] 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 defendent(s) by accepting the settlement.

See also

References

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