Without prejudice is a term of art used in both domestic litigation and international legal practice to signal that a communication, concession, or procedural step is made without surrendering any legal rights or positions the party may later wish to assert. It comes from the Latin idea of preserving one's case — anything said "without prejudice" cannot generally be used against the speaker as an admission.
The phrase operates in two main settings:
- Settlement negotiations. Letters or proposals marked "without prejudice" are typically inadmissible as evidence of liability if talks collapse and the matter proceeds to court or arbitration. This rule, well established in English common law and adopted in many Commonwealth jurisdictions, is designed to encourage frank settlement discussions. A common variant, without prejudice save as to costs (the "Calderbank" formulation), allows the communication to be revealed only when a court considers costs.
- Procedural rulings and pleadings. A dismissal "without prejudice" allows the claimant to refile the same claim later, in contrast to a dismissal "with prejudice," which bars re-litigation. Reservations of rights in diplomatic correspondence often use similar language.
In international practice, states routinely append "without prejudice to the position of [State X] regarding [issue]" to votes, statements, or agreements. For instance, parties to negotiations over disputed territory or maritime boundaries frequently accept provisional arrangements without prejudice to their underlying sovereignty claims — a formulation explicitly contemplated in Articles 74(3) and 83(3) of the UN Convention on the Law of the Sea (UNCLOS, 1982) regarding provisional EEZ and continental shelf arrangements.
For MUN delegates and researchers, the phrase is a useful drafting tool: it lets a state cooperate on a narrow issue (humanitarian access, ceasefire logistics, technical standards) while preserving its broader legal or political position. Misusing the label, however, does not automatically confer protection — courts and tribunals look at substance, not just the heading.
Example
In 2018, Greece and North Macedonia signed the Prespa Agreement resolving their name dispute, but during the preceding decades both sides had engaged in UN-mediated talks where proposals were exchanged without prejudice to each country's stated position on the name.
Frequently asked questions
'With prejudice' means the action is final and bars future claims or use of the position; 'without prejudice' preserves the party's right to reassert the claim or argument later.
Keep learning