Prejudice (legal term)
Prejudice is a legal term with different meanings when used in criminal, civil or common law. Often the use of prejudice in legal context differs from the more common use of the word and thus has specific technical meanings implied by its use. Two of the more common applications of the word are as part of the terms "with prejudice" and "without prejudice". In general, an action taken with prejudice could indicate either misconduct on the part of the party who filed the claim or criminal complaint or could be the result an out of court agreement or settlement, both of which would forbid that party from refiling the case. Without prejudice often refers to procedural problems where the party may refile.
Legal context implied in use
Using the word prejudice in a legal context may imply technical meanings many non lawyers may not be familiar with that are significant to understanding the legal process and ramifications of decisions and orders.
With prejudice and without prejudice
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 "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.
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. 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.
In many common law jurisdictions, such as the United States, the United Kingdom, Ireland, Canada, Australia, New Zealand and Singapore, the phrase has several usages.
A civil matter which is "dismissed with prejudice" is over forever. This is a final judgement, not subject to further action, which bars the plaintiff 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 the merits after 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 defendent 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. As well it is common for plaintiffs to be limited, after filing a voluntary motion to dismiss, to only one additional filing of the suit, after which they may be barred from filing again. 
The term "without prejudice" is used in the course of negotiations to settle a lawsuit. It indicates 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.
- Black, Henry Campbell (1910). Black's Law Dictionary. West Publishing Co. p. 931.
- What Is a Dismissal With Prejudice?
- Dismissed With Prejudice Law & Legal Definition
- Illinois Legal Aid | What's the Difference Between Dismissed With Prejudice and Without Prejudice?
- Butt, Peter; Castle, Richard (2006). Modern Legal Drafting: A Guide to Using Clearer Language. New York: Cambridge University Press. p. 150. ISBN 0-521-67452-2.
- Cortés, Pablo. "An Analysis of Offers to Settle in Common Law Courts: Are They Relevant in the Civil Law Context?". Electronic Journal of Comparative Law 13 (3). Retrieved 25 July 2014.