<P> 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 . </P> <P> 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 unless some other order is made because an offer was unreasonably rejected . 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)): </P> <P> 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 . </P> <P> An action (such as an error made by the court) is prejudicial if it substantially affects a litigant's legal rights . Thus, a harmless error would not be prejudicial, while plain error is sometimes defined as a highly prejudicial error . An error that is determined to not have been prejudicial will typically not be considered a reversible error . </P>

When can a case be dismissed with prejudice