Prejudice to the Other Party
Every opponent resisting an application says that they have been prejudiced by the delay. Most of them mean the case is continuing when they had rather hoped that it would not, which is an entirely different thing and is treated as one.
The rule in short
Prejudice means something the other side has actually lost through the delay: evidence that has degraded, a witness who is unavailable, expenditure incurred in reliance, or an opportunity that has closed. It does not mean the inconvenience of a matter proceeding, or the loss of a windfall that a missed deadline would have produced. Separating the two is what decides most contested applications.
Prejudice is the concept most frequently invoked and least frequently established in applications about missed deadlines, and the gap between those two things is where most of these disputes live.
What counts as prejudice
Evidence that has degraded. Documents destroyed under a retention policy, recordings overwritten, or physical material that has deteriorated during the delay.
Witnesses who have become unavailable. Death, illness, relocation or simply the fading of recollection about events that are now further away.
Expenditure incurred in reliance. Money spent on the assumption that a matter had concluded, which is wasted if it resumes.
Opportunities that have closed. Commercial decisions taken, assets disposed of or arrangements made on the footing that the position was settled.
A lost procedural advantage that was earned. Not a windfall, but something the party achieved through their own compliance.
Third-party positions. Where somebody outside the matter has acted on the basis that it was over.
Prejudice to the ability to defend. Where the delay has genuinely impaired the party's capacity to meet the case.
Cumulative delay. Where a series of extensions has collectively caused an identifiable loss.
Anything evidenced. The common feature of all of these is that they can be demonstrated rather than merely asserted.
Preservation failures during the delay. Where material was destroyed under a routine policy because nobody thought the matter was live, per evidence that decays while waiting.
What does not count
Losing the benefit of the missed deadline. A party who would have won by default has lost a windfall rather than suffered a prejudice.
The case continuing. Having to defend a claim on its merits is the ordinary position rather than a detriment.
Legal costs of the application. Which are addressed by a costs order rather than by refusing relief.
General inconvenience. Rearranged diaries and additional correspondence are not losses in the relevant sense.
Anxiety about the outcome. Genuine and not a factor that displaces the weighing exercise.
Time already spent. Work done on the matter would have been done anyway had the deadline been met.
A stale assertion. Prejudice claimed without particulars carries very little weight.
Prejudice the party caused. Where the opponent's own conduct contributed to the delay, per a pattern of missed dates.
Prejudice that is curable. Where a direction or a costs order fixes it, it is usually fixed rather than treated as decisive.
| Asserted | Genuine prejudice | Why |
|---|---|---|
| Witness has died | Yes | Evidence lost |
| Documents destroyed | Yes | If during the delay |
| Money spent in reliance | Sometimes | If wasted |
| Case now continues | No | Ordinary position |
| Default judgment lost | No | A windfall |
Establishing prejudice
Identify what was lost, specifically. Named documents, named witnesses, dated decisions, rather than a general assertion about the passage of time.
Show the causal link to the delay. That the loss occurred during and because of the period in question rather than before it.
Evidence it properly. A witness statement from somebody who can speak to the loss, exhibiting whatever records support it.
Quantify where possible. Sums spent, opportunities forgone and dates on which decisions were taken.
Explain why it cannot be cured. The strongest prejudice arguments are about things that cannot be put right by a direction.
Address the party's own conduct. Where they contributed to the delay, dealing with it is better than leaving it to be raised.
Avoid overstatement. An exaggerated account of prejudice discredits the parts that were genuine.
Be proportionate. A substantial evidential exercise about a two-day delay invites its own questions.
Distinguish it from the merits. Prejudice concerns the delay itself, not whether the underlying claim happens to be a good one.
Raise it early. An objection produced at a hearing that was not foreshadowed in the written response is given considerably less weight than one set out in evidence.
The test is not whether the opponent would prefer the application refused. It is whether the period of delay removed something from them that cannot now be restored, and most objections do not survive that question.
Answering a prejudice argument
Ask what was actually lost. Most assertions do not survive the question, because most describe inconvenience.
Point to the windfall. Where the objection amounts to losing a default, saying so directly is usually effective.
Offer to cure it. Costs, directions and additional disclosure address a substantial proportion of genuine prejudice.
Show the loss predated the delay. Evidence that degraded before the period in question is not caused by it.
Show the other side contributed. Where their conduct extended the delay, that materially weakens the objection.
Address the length honestly. A short delay rarely supports a prejudice argument, and saying so plainly is legitimate.
Deal with the strongest point. Answering the best example rather than the weakest is more persuasive.
Propose a timetable. Showing how the matter proceeds without further loss frequently answers the objection.
Offer the costs. Which removes the financial element that frequently underlies the resistance.
How prejudice is weighed
Against the consequence of refusing. Losing a substantial claim over a short delay is disproportionate where the prejudice is modest.
Against the length of the delay. Short overruns rarely support prejudice, and long ones frequently do.
Against the conduct of both parties. A well-behaved opponent is heard more sympathetically than one who also delayed.
Against curability. Prejudice that a direction can fix is generally fixed rather than treated as decisive.
Against the stage of the matter. Prejudice late in a case, close to a hearing, weighs more heavily.
Against third-party interests. Where somebody outside the matter is affected, that carries independent weight.
With the evidence available. Assertions do little; documented losses do a great deal.
As one factor among several. It is central and it is not the whole test, per excusable neglect, explained.
Practically rather than technically. Decision-makers ask what the delay actually did to the other side's position.
Prejudice means something the other side actually lost through the delay: degraded evidence, unavailable witnesses, wasted expenditure or closed opportunities.
It does not mean losing the benefit of the missed deadline, which is a windfall, nor the inconvenience of a matter continuing on its merits.
Establishing it requires specifics — named documents, named witnesses, dated decisions — supported by evidence and linked causally to the period of delay.
Answering it usually begins with asking what was actually lost, offering to cure what can be cured, and pointing out where an objection amounts to the loss of a default.
It is weighed against the consequence of refusing relief, the length of the delay, the conduct of both parties and whether a direction or a costs order can put it right.
Points to carry away
- Losing a windfall is not prejudice.
- Degraded evidence and unavailable witnesses are.
- Expenditure in reliance can be, if it is wasted.
- Prejudice must be evidenced, not asserted.
- Curable prejudice is usually cured rather than fatal.
Questions readers ask
Is losing a default judgment a form of prejudice?
Generally not. A party who would have obtained a judgment because their opponent missed a deadline has lost a windfall rather than suffered a loss, and systems consistently distinguish the two. The prejudice inquiry asks what the delay took away, not what relief from the delay takes away. That is why objections framed around the case now having to be defended on its merits carry so little weight.
What kind of prejudice actually succeeds?
The kind that can be evidenced and cannot be cured. A witness who has died or become unavailable, documents destroyed under a retention policy during the delay, money spent in reliance on the matter having ended, or a commercial opportunity closed on the same footing. What those share is specificity: a named person, a dated decision, a quantified sum, linked causally to the period in question rather than to the passage of time generally.
How is a prejudice argument best answered?
By asking what was actually lost, and then by offering to cure whatever genuinely was. Costs orders, additional directions and further disclosure address a substantial proportion of real prejudice, and prejudice that can be cured is usually cured rather than treated as decisive. Where the loss predated the delay, or where the opponent's own conduct contributed to it, both points substantially weaken the objection and should be made directly.
Sources
- Legal Information Institute — Excusable Neglectlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 55(c), Setting Aside a Defaultlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 60(b), Relief from a Judgment or Orderlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 15(a)(2), When Justice So Requireslaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 37(e), Failure to Preserve Electronically Stored Informationlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 61, Harmless Errorlaw.cornell.edu
Urban Justice Docket is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Missing a Deadline
Filing Late and Asking to Be Heard
A document filed out of time is generally not considered unless permission is given. The application seeking that permission should accompany the document rather than follow it, should explain the delay factually, should demonstrate that nothing was lost by it, and should be made the day the problem is identified rather than the week afterwards.
The Reasons That Rarely Work
Certain explanations for missing a deadline fail with great consistency: pressure of work, not knowing about the period, an internal system failure, waiting for instructions, and reliance on somebody else. Recognizing that an application rests on one of them is useful, because it redirects the effort toward the factors that can still be influenced.
When the Adviser Missed It, Not the Party
A representative's failure is usually treated as the party's own, because the alternative would make timetables unenforceable against anybody who was represented. The principle has limits where the failure was extreme or where the party was effectively abandoned. Meanwhile the practical questions — relief, disclosure, the professional relationship and any claim against the adviser — all run in parallel.