When is a “without prejudice” order really without prejudice? In my experience, rarely. This opinion is predicated on my experience with temporary orders which have been entered sometimes with the Court’s assistance, sometimes as a result of agreements made between counsel and sometimes even after an evidentiary hearing. When an Order is entered “without prejudice,” it signifies that none of the rights or privileges of the individual involved are considered to be lost or waived. The inclusion of the phrase “without prejudice” ordinarily indicates the absence of a decision based on the merits and leaves the parties free to litigate the matter at a subsequent time, as though the terms of the entered order had not happened. The purpose and intended effect of the words “without prejudice” is to prohibit a party from using the doctrine of res judicata (from the Latin, “a thing decided”) in any later actions on the subject matter. Therefore, the words “without prejudice” are intended to protect a party from the other party’s res judicata defense.
Yet despite the intended purpose of the entry of an order “without prejudice,” it is often difficult to modify them as a result of legal strategies which may cause the intended or unintended delay in reaching a final result on the order’s subject matter. To minimize the possibility of a “without prejudice” order becoming with prejudice, one suggestion is to include explicit language that provides that either party may request and obtain an evidentiary hearing within a specific time period. Yet, even with this language, getting an evidentiary hearing scheduled may take an extensive amount of time as a result of the court’s very busy docket. Legally, temporary relief as permitted by statute and case law is intended to be “without prejudice” to the adjudication of the issue at final trial. While this is technically accurate, in reality, getting a “without prejudice” order modified can be challenging. Today, few cases are actually resolved in a fully contested trial so the opportunity to adjudicate a “without prejudice” matter with testimony, exhibits and other evidence does not generally occur. In fact, “without prejudice” orders frequently take on a life of their own and become the unofficial status quo. Therefore, the opportunity to revisit and/or modify the “without prejudice” order rarely, in practical terms, happens. Be mindful when entering into a “without prejudice” order as it may, in fact, end up being prejudicial.