Letters of Demand:

In commencing proceedings for harassment or discrimination, the first document that may be sent to the potential defendant is a letter of demand. There are no formal requirements concerning service of a letter of demand. It could be more accurately described as a “letter before action”. The underlying objective is clear, it is to communicate your circumstances, the liability or fault that is alleged to have occurred, and open the gateway for any remedy, redress or compensation. It should also be drafted in a way which allows you to rely upon it later in the subsequent proceedings.

A purpose of a letter of demand is to inform the recipient of the claim made by your client, and give the recipient the opportunity to resolve the claim or to persuade you that it is unfounded. A letter of demand will usually be followed by legal action if you do not receive the response you seek.

Another purpose of a letter of demand is to enable you to show later that you had no alternative but to commence the proceedings. This may influence the court in exercising its discretion as to awarding costs.

You must assume that a defendant just might pay when asked. If the initiating process is the first notice that a defendant receives of a claim, and the defendant pays the claim, then it is difficult to demonstrate that issuing proceedings was necessary and you are unlikely to obtain your costs of doing so.

It is not essential to send a letter of demand before proceedings are commenced, but it is a desirable and recommended course of action.  The benefit of a letter of demand is that it formalises your  position regarding the liability and the impending litigation; the defendant may respond because of the possibility of court action and the opportunity to minimise further costs; debtors who are willing but unable to pay their debts may be motivated to reach some sort of settlement over time, perhaps by payment in instalments; if full details of the cause of action and liability incurred is included in the demand including payments made, the response from the defendant may be more information of the actual factual matrix in which a potential liability was incurred. In addition some terms of contract require that a formal demand must be made before proceedings are commenced. In this case, the letter must comply with those terms, for example, under some deeds of guarantee.

If you need further legal advice on your litigation matter, you may book an appointment with us by telephone on (02) 9233 4048 or by email to info@navado.com.au.  

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