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A letter before action is ordinarily called the legal notice in India, which is a formal written correspondence to a person or entity, informing the party of your intention to undertake a legal proceeding against them.
In India, a legal notice is considered to be the first step involved in any legal proceeding. All legal actions are generally initiated in India only after the legal notice has been served upon the other side, which may be an entity or individual. The said practice, however, is not mandatory in all cases. Such requirement if provided in any particular Act or statute then it is mandatory, however, if there is no specific provision then sending the legal notice is not mandatory in such cases. Some of the instances where sending a pre-action letter/ legal notice is mandatory are as under:
In cases, where sending a pre-action letter/legal notice/notice is mandatory and is not served prior to initiation of legal action, such actions shall fail.
What types of disputes are considered suitable for sending a pre-action letter? Are there any circumstances in which parties in your jurisdiction are permitted to refrain from sending a pre-action letter? Are there different forms of pre-action procedures that apply in different cases such as construction or professional negligence?
In India, all disputes related to property, recovery of dues, dishonour of cheques, commercial contracts, Arbitration proceedings, family dispute, labour matters and any other dispute of civil nature are suitable for sending a pre-action letter. However, as stated above, sending such letter is not mandatory in every case.
There are no circumstances where parties are permitted to refrain from sending a pre-action letter.
A legal notice is generally issued in civil cases. However, in criminal cases, there is no such practice of issuance of a pre-action letter/ legal notice, as in case of a criminal offense the action is instituted by the state against the person committing the offence. Some of the disputes not suitable for pre-action letters are:
Who can send a pre-action letter?
In India, a pre-action letter/legal notice is ordinarily a notice sent by a lawyer on behalf of his/her client. However, it is not mandatory for a person to send a legal notice through a lawyer. A person himself can send a legal notice on his/her accord without the assistance of a lawyer communicating its intention of initiating a legal action. However, it is advisable to hire a lawyer for this purpose in order to avoid making any mistake, especially in the matters where issuance of pre-action letter is mandatory. A lawyer with good drafting skills can collect information from you and send a notice on your behalf.
What details/supporting documents should be included in a pre-action letter?
A pre-action letter/legal notice must be in writing and must include below mentioned details:
Is there a time-limit for sending a response to a pre-action letter?
In India, there is no such time limit prescribed under the law for sending a response to a legal notice. In general, the time limit to file a response to a legal notice varies from case to case basis, ranging from 15 days-45 days. However, in cases where a period is specifically provided in the statute for the said purpose, the same has to be followed mandatorily. Ordinarily, a party should try and reply to the notice as soon as possible and within the period mentioned in the notice/pre-action letter.
What details should be included in the reply to a pre-action letter? Are there any negative implications for the potential respondent(s)/recipient(s) if they choose not to respond to the pre-action letter? Are there standard forms of response in specific cases?
Details to be included
[Insert answer.] A reply to a legal notice should contain all the necessary facts and averments regarding the case. A reply must contain reply to all the facts as stated in the legal notice sent by the Claimant, which the respondent wish to state in its defence.
It is not mandatory to reply to the legal notice in every case, except in cases where a statutory notice is sent before initiating any legal action. Yet it is advisable to reply to legal notice within the time limit provided in the notice sent by the sender. The consequences of not replying to notice is not an offence under the law, however, one must bring on record the relevant facts/ averments in his defence. In case no response is sent, and a legal action is initiated by the sender, the Court may take adverse inference against the defaulting party.
There is no standard form for a good response but if a person chooses to reply to a legal notice, he/she should make sure that the following information is clearly mentioned:
Does the pre-action letter interrupt the running of the limitation period for initiating civil proceedings? If not, what steps can the potential Claimant take to protect its position on account of the imminent expiry of the limitation period? Can the potential claimant start legal proceedings and then get them temporarily suspended while they comply with the pre-action rules or obligations (if any)?
No. The pre-action letter does not stop running of the limitation period. In India, the limitation for initiating any civil action is ordinarily 3 years from the date when right to sue accrues. However, different period of limitation has been provided in some of the statutes. There is no provision for condonation of delay in case limitation period has expired for an action to be initiated under Code of Civil Procedure, 1908. However, in certain acts/ statutes there are specific provisions which entitles a party to seek condonation of delay in case limitation period has expired. Since, pre-action letter is required to be issued prior to initiating the court proceedings, therefore, once the court proceedings have been initiated the same cannot be suspended for the purpose of complying with the pre-action obligations. In cases, where issuance of pre-action letter/ legal notice is mandatory under the statute, the court proceedings shall fail, if the pre-action letter/ legal notice is not issued prior to initiating the court proceedings.
Are pre-action letters considered effective in avoiding the need for legal proceedings?
In India, a pre-action letter/notice is considered effective in avoiding the need of legal proceedings as it provides for a platform and a chance to both the parties to reach a consensus without taking the route of the Court proceedings.
It is a well-known fact that the process of litigation consumes lots of money and take long to resolve a dispute. This procedure of sending pre-action letter/notice gives a midways to both the parties to settle the dispute amicably and save their time and money.
Are there any practical tips that should be kept in kept in mind while issuing or responding to a pre-action letter in your jurisdiction?
Practical tips that should be keep in mind while issuing a legal notice in India:
In India, if a person chooses to reply to a legal notice, he/she must keep in mind the following tips:
[ON HEADED NOTEPAPER OF POTENTIAL CLAIMANT OR POTENTIAL CLAIMANT’S SOLICITORS]
For the attention of [the Senior Manager OR Directors and Company Secretary OR [Named individual]]
[NAME OF POTENTIAL RESPONDENT OR POTENTIAL RESPONDENT’S BUSINESS OR POTENTIAL RESPONDENT’S LAWYERS/SOLICITORS]
[ADDRESS LINE 1]
[ADDRESS LINE 2]
Dear [NAME OF ADDRESSEE],
[RESPONDENT’S NAME]: [CLAIM DETAILS]
CIRCUMSTANCES RESULTING IN THE CLAIM
[SET OUT THE BASIS ON WHICH THE CLAIM IS MADE (THAT IS, WHY THE POTENTIAL RESPONDENT IS LIABLE), AND A CLEAR SUMMARY OF THE FACTS ON WHICH THE CLAIM IS BASED.]
RELEVANT DOCUMENTS [OPTIONAL]
This is not purported to be an exhaustive list of documents relevant to the Claim. Please also provide any other documents that you consider to be relevant and confirm that [you OR [NAME OF INDIVIDUAL OR COMPANY]] will take proper and appropriate steps to ensure no relevant documents, including electronic documents, that are in [your OR [NAME OF INDIVIDUAL OR COMPANY]’s] control, are altered, lost, destroyed or disposed.
[SET OUT THE DETAILS OF PAYMENT OF DEBT/OBLIGATION OR THE POTENTIAL CLAIMANT’S DEMANDS WITH REPECT TO THE REMEDIAL ACTION REQUIRED FROM THE POTENTIAL RESPONDENT. SET OUT THE METHOD OF PAYMENT AND THE ADDRESS TO WHICH IT CAN BE SENT OR THE DETAILS OF HOW CAN THE POTENITAL CLAIMANT CAN ADDRESS THE PONETIAL CLAIMANT’S CLAIM]. You may contact us on [PROVIDE CONTACT DETAILS] to discuss possible repayment and remedial options.]
[FUNDING ARRANGEMENTS] [OPTIONAL/ WHERE APPLICABLE]
[You should note that our client has obtained [INSERT REFERENCE TO ANY THIRD-PARTY FUNDING ARRANGEMENT, CONDITIONAL FEE ARRANGEMENT AND/OR AFTER THE EVENT INSURANCE POLICY AND WHETHER YOU INTEND TO SEEK TO RECOVER ANY RELATED ADDITIONAL LIABILITIES FROM THE RESOPONDENT]
[ALTERNATIVE DISPUTE RESOLUTION]
[SET OUT THE FORM OF ALTERNATIVE DISPUTE RESOLUTION (IF ANY) THAT THE POTENTIAL CLAIMANT/CLIENT CONSIDERS THE MOST SUITABLE AND INVITE THE PONTETIAL RESPONDENT TO AGREE TO THIS].
[INSTRUCTING AN EXPERT] [OPTIONAL- WHERE APPLICABLE]
[We propose that one of the following experts be jointly instructed as [a single joint expert OR an agreed expert] in the field of [SPECIFY FIELD], on the issue of [SPECIFY ISSUE]: [LIST PROPOSED EXPERTS].]
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Disclaimer: This document was prepared for Thomson Reuters-Practical Law Series. It has been reproduced here for our website readers
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