All you need to know about legal notice: Part 1

Let’s start with a simple question – What is a notice? The Oxford dictionary states that a ‘notice is giving intimation or warning of something, especially to allow preparations to be made’. E.g. Mr. A gave the hotel staff notice of his early arrival.

So, what is a legal notice? A legal notice is giving a formal intimation or warning of your intention and grounds to take legal action, especially to allow preparations to be made by the receiving party to correct their wrong. Through a legal notice, you inform the receiving party of your rights which they have violated knowingly or unknowingly; the grounds on which you can proceed to take legal action against them; and list of actions they can take to remedy the wrong. E.g. As a continuation of our previous example, let’s assume that the hotel agreed to accommodate Mr. A early, but when he arrived, they failed to give him a room.Mr. A can now send a legal notice to the hotel, informing them of how he was denied a room, hence denying him his rights as a customer and claiming a refund along with compensation.

Legal notices are precursors to suits where the dispute is between two individuals such as defamation, contract violations, etc. All civil suits and few criminal suits warrant the use of legal notices. However, in criminal disputes such as theft, murder, rape, etc. where the State institutes a suit against an entity, legal notices are not used.

Why are legal notices sent?

A legal notice is sent for two reasons –

Legal obligation

There are few scenarios where it is a mandate to send a legal notice such as (non-exhaustive list) –

Suits against the government – According to Section 80 of the Civil Procedure Code, 1908, no suit can be instituted against the government or a government official unless a legal notice is served on them. An exception can be made to this rule only in cases of urgency.
Cheque bounce – It is mandatory under Section 138(b) of the Negotiable Instruments Act, 1881 for the payee/recipient of the cheque to inform the issuer of the cheque about the cheque bounce, within 30 days via legal notice.
Attempt at amicable dispute resolution

The sender of the legal notice asks the receiver to comply with certain conditions so that both parties can resolve the issue without getting into a lawsuit. The receiver may choose to reply to the notice or ignore it, but, it will establish that the sender exhausted his options to resolve the matter before approaching the Court.

How is a legal notice structured?

Broadly, a legal notice of a sender can be broken into 3 parts –

Facts

This is often the lengthiest element of the notice where all the facts are meticulously and often chronologically stated. It is here the relation between the sender and the receiver is laid out. As a legal notice is a precursor to a lawsuit, it is important for the facts laid out in this part to be accurate and complete. These facts are simply paraphrased to draft a plaint.

Violation of the sender’s rights leads to cause of action. It is important to establish the cause(s) of action accurately. E.g. Mr. A and Mr. B own neighbouring plots. Mr. B encroached 5 feet of Mr. A’s plot which gave Mr. A cause to take action against the former.The legal notice Mr. A sends Mr. B should capture the hows and whens of this cause of action.

Relief sought by the sender

This part can either feature in the middle or at the very end of the legal notice. The sender lists out the ways in which the receiver can compensate for the legal harm caused to him. The reliefs vary from compensation to punitive. A time period, usually between 10 to 30 days is allowed to the receiver to fulfill the sender’s demands.

If the matter goes into litigation, the relief sought in the plaint by the Plaintiff (sender of the legal notice) cannot contradict the reliefs sought in the legal notice.

Grounds on which the relief can be sought

This is the ‘legal’ part of the legal notice where the grounds on which you can and are seeking relief are mentioned. It is vital that this part is accurate and error-free. Same as the relief sought, the grounds on which legal notice is sent cannot contradict the plaint, if and when the matter goes into litigation.

However, there is a practice where the sender does not divulge a lot of details on the specific rights infringed and simply states “In the absence of your compliance to this notice our client will be forced to exhaust appropriate remedies available in law”. This approach is adopted for multiple reasons – to not disclose the strategy, in cases of emergency when the sender does not have a lot of time to draft, where there is no legal grounds and the sender is trying to scare the receiver to comply, etc.

It is suggested that the 3 parts mentioned above be divided into small and concise paragraphs that are numbered. With numbered paragraphs, it becomes easier to make references to points mentioned earlier and avoid repetition. E.g. “For the reasons stated in paragraphs 11, 12 and 16, our client would like to terminate the contract with immediate effect.”

What should be the language, tone and tenor of a legal notice?

Care should be taken to ensure the language is formal and impersonal. Any and all personal details and facts unrelated to the matter should be avoided.

The tone and tenor may be the most delicate and nuanced element of the legal notice that would deeply impact the receiver’s reaction. E.g. A record company is sending a copyright infringement notice to a hotel, sentences such as “Our client’s copyright has been notoriously infringed by you for malicious purposes” sounds threatening as compared to“Our client believes that its copyright may have been infringed by you, knowingly or unknowingly.”

How is a legal notice sent?

A legal notice is sent via post, courier or email. Often, notices are sent in more ways than one way, to ensure that it has reached the receiver, without doubt. The most preferred method is via Registered Post Acknowledgement Due (RPAD) where the post office sends the sender a receipt acknowledging the delivery of the notice. This acknowledgment is admitted as proof that the notice has been sent if and when the matter proceeds to litigation. RPAD is preferred over private courier services because the entire country is serviceable and it is delivered by a government servant/agency.

So, what happens when a legal notice is never delivered? In most case, it doesn’t affect the sender’s right to file a suit in the court. However, in cases where it is mandatory to send a notice, an undelivered notice will hamper the sender’s right to approach the court.

What happens if the receiver refuses to take delivery of the legal notice? In law, refusal is deemed as service of notice. This means that the receiver was made aware of the existence of the legal notice but chose to not receive it. The acknowledgment slip will mention this refusal hence proving delivery.

Tips for drafting and sending a legal notice

Seek a professional’s services – As mentioned earlier, a legal notice is a precursor to a lawsuit and hence, should be drafted by legal professionals. The law behind the reliefs sought and the nuances of drafting are best left to lawyers so as to not jeopardise the legal proceedings that may ensue in the future. Further, the lawyer should be kept informed of any communication from the receiver or any developments after sending the legal notice. The best option would be to route all future communications through the lawyer.
Collect evidence – If the legal notice should conclude in a lawsuit, it is important to build evidence. Any documents, communication, etc., that may help file a plaint should be identified and saved. The sender should bear in mind that the receiver may try to wipe off any evidence of his wrongdoing as soon as he receives the legal notice. The sender should, in the absence of it, collect the evidence before sending the legal notice. E.g. Mr. A buys chocolate that has worms in it. He should retain the invoice showing purchase and photographs showing the worm as evidence before sending a legal notice to the company.
Sender’s details should be given – If the receiver chooses to reply to the legal notice, there should be means for him to contact the sender or the sender’s attorney, preferably through post and email.

Without prejudice – This term is generally used in oral or written negotiations and means that the statements cannot be used as evidence against the person making it. It also means that the sender is not estopped from using other means to solve the matter at hand. If the sender claims in the notice to file a suit against the receiver, it cannot be interpreted prejudicially to affect his right to other remedies like mediation or arbitration. The phrase ‘Without prejudice’ is generally added at the very beginning of a legal notice.
Check address – It is vital to ensure that the receiver’s address is identified and mentioned accurately in the notice. In cases of IP infringement, it may be difficult to identify the infringer, let alone his address. Unless the receiver is identified, sending a legal notice and bringing him to court at a later date will become impossible. Further, a legal notice is addressee specific – it is not just important to mention the correct address, it should mention the correct person to whom it should be delivered.
Wait – After the notice is sent out, it is important to wait out the entire period given to the receiver before taking any legal action. E.g. If the legal notice states that 30 days will be given to the tenant to vacate the premises, the sender should wait the entire period before taking any action, otherwise, the purpose of the notice is lost.

Find the Part 2 of this article which discusses other important steps such as the outcome of legal notices, reply notice and templates of both kinds of responses, here.

DISCLAIMER:The information provided in this article is for educational purpose only. The same cannot be construed as legal advice.