Without Prejudice - Legal Term?

[xiix]

Hello Fellow Dopers.

I am seeking advice regarding the inclusion of this particular phrase in correspondence relating to a quasi-legal matter…I have volunteered to help mediate a dispute between some friends and their landlord as related to accidental damages in a rental unit. I plan to insert myself in between the tenants and the landlord because the tenants are rather young and inexperienced in dealing with disputes of this nature and I feel the landlord is trying to take advantage of them.

I digress. I was advised to consider including the phrase “without prejudice” in either the initial or all future correspondence with the landlord, so as to avoid invoking certain legal scenarios that might otherwise come into play. Does the concept of including “wireout prejudice” in correspeonce of this nature apply in Canada? If so, what exactly would using those words accomplish and where in the letter would one generally use it?

I did manage to google this article that has a bit of information on the subject but does not entirely clarify the term (and its proper usage) in my mind.

DISCLAIMER: For the purposes of this thread, and unless otherwise explicitly stated, I will assume that for any replies received, YANAL (You Are Not A Lawyer). Also, I have been in touch with legal council and am in the process of retaining an attorney to assist me in dealing with this matter but I could use some advice in the interim.

[IAmNotSpartacus]

With or without prejudice usually refers to the dismissal of a case that has already been filed.

A case dismissed without prejudice can be refiled.

A case dismissed with prejudice cannot.

Maybe there are other connotations in which I’m not aware so if they exist I’ll let others expand on them.

[Tabby_Cat]

**Sparticus **would be right, but only in the context of US law. Canada is a common law jurisdiction, and “without prejudice” is used differently.
Broadly speaking, “without prejudice” means that the document is inadmissible in court as evidence (although you may be able to get leave, etc).

Generally, “without prejudice” in the context of pre-action correspondence is used when you tell the other party something which may compromise your case, but you do so anyway because you’d like to settle the matter.

For example, in a simple case, if A hits B’s car, A might want to settle with B for $8000. But A wouldn’t want B to be able to tender that letter in court, because the letter might imply that A was liable and “in the wrong”, that A admitted that he was liable for $8000 in damages, all sorts of nasty things. So, A would write “without prejudice” on his letter so that it would be inadmissible in court.

On the other hand, simply writing “without prejudice” doesn’t mean that the letter is without prejudice. A without prejudice letter must be with regards to discussion with a view to settlement. If your without prejudice letter simply said “Okay, I owe you $8000, give me some time to pay up” that wouldn’t be protected even if it had the words “without prejudice” on it. If you say that “In any event all my rights are expressly reserved” then it may not be a without prejudice letter, because these aren’t negotiations with a view to settlement.

To recap, letters which are good for you (e.g. “I am writing you to inform you that the roof leaks, and that I have called you on this and this and this date to tell you so”) do not need to have “without prejudice” on them - in fact, it may be better to have them admissible as evidence.

Letters which are bad for you (e.g. “I am writing you to tell you that I may be willing to consider settling for $4000”) absolutely DO write them as without prejudice letters.
Look here, Prejudice (legal term) - Wikipedia but in the context of common law jurisdictions, of which Canada is one.

If the amount is at all substantial, please consult a lawyer.

[Muffin]

Tabby_Cat is bang on about the use of “without prejudice”.

You might wish to consider how you present yourself with respect to “mediaion” as opposed to “representation”.

You have stated: “I have volunteered to help mediate a dispute between some friends and their landlord . . . . I feel the landlord is trying to take advantage of them.” That suggests that you are not in a position to mediate, but instead will be representing your friends.

[xiix]

Tabby Cat: Thanks for all the info, that certainly clears things up, though I do believe the article you linked to is the same as the article linked to in the OP.

Muffin: Interesting point about presenting myself as a mediator. I think you’re correct, although I don’t particularly like putting myself in such an overtly adversarial position, I really can’t take sides while claiming to mediate.

It remains unclear to me as to how this term is actually incorporated into the letter? Where in a letter would one typically find the term used?

[aldiboronti]

@Tabby_Cat

**Sparticus **would be right, but only in the context of US law. Canada is a common law jurisdiction, and “without prejudice” is used differently.

I always thought the US did use common law? Wikipedia seems to concur.

The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, the Republic of Ireland,** federal law in the United States and the states’ laws (except Louisiana)**, federal law in Canada and the provinces’ laws (except Quebec civil law), Australia (both federal and individual states), New Zealand, South Africa,

[Hello_Again]

@aldiboronti

I always thought the US did use common law? Wikipedia seems to concur.

The US legal system is considered common law but it diverged significantly from the British system over the years. The term common law describes a legal system (the other one is called “civil law” and is in use throughout Europe and, as far as I know, South America) not a method of procedure.

The use of the term “without prejudice” as described above in the Canadian system is largely uneccessary to the US system because statements made in settlement negotiations are inadmissable as evidence to prove liability as a matter of statute, under Rule 408 of the Federal Rules of Evidence. The FRE applies to all federal cases, and many states have adopted it, in whole or in part. I actually don’t know of a state that hasn’t adopted 408, but one might be out there.

[Campion]

@Hello Again

The use of the term “without prejudice” as described above in the Canadian system is largely uneccessary to the US system because statements made in settlement negotiations are inadmissable as evidence to prove liability as a matter of statute, under Rule 408 of the Federal Rules of Evidence. The FRE applies to all federal cases, and many states have adopted it, in whole or in part. I actually don’t know of a state that hasn’t adopted 408, but one might be out there.

In California, it’s Evidence Code section 1152 which prohibits evidence of settlement negotiations from being generally admissible. California hasn’t adopted the federal rules, but 1152 is very similar to 408; I bet the legislative history would show that 1152 comes out of 408.

Tabby_Cat, very interesting and informative answer. Thanks.

[Otto]

@Hello Again

The US legal system is considered common law but it diverged significantly from the British system over the years.

Part of that divergence is in the form of statutes that specifically abolish and/or replace common law in favor of the statutory system.

And to veer slightly off-topic, Louisiana state law has its roots in the Napoleanic Code rather than British common law.

[Muffin]

@xiix

Muffin: Interesting point about presenting myself as a mediator. I think you’re correct, although I don’t particularly like putting myself in such an overtly adversarial position, I really can’t take sides while claiming to mediate.

If you are friends with one party, that would put you in a conflict of interest as a mediator.
[/QUOTE]

@xiix

It remains unclear to me as to how this term is actually incorporated into the letter? Where in a letter would one typically find the term used?

If you were just dealing with lawyers who are familiar with the term, all you would have to do is toss it in any old place at the top, perhaps below your letterhead. Since you are not dealing with lawyers, you should set out in the body of text just what exactly you mean when you say “without prejudice”.