When and how to file a pre-litigation notice

Chapters of the article

• First call for repayment
• Purpose of the pre-action notice
• Requirements for a pre-action notice

First call for repayment

First of all, it should be made clear that not every demand is immediately a ‘pre-action demand’. Sometimes it is necessary to call on the other party first to perform the debt itself or to set a deadline for its repayment. This will be the case, for example, if you lend money to someone but do not agree on the exact date by which it is to be repaid. Then you must first ask the debtor to pay the debt within a set period of time. If he or she does not do so voluntarily within the time limit, you already have a claim against him or her which you can take to court. If the due date has already been clearly established, e.g. from an invoice, you do not have to ask the debtor to pay the debt separately.

The purpose of a pre-action summons

Once you have a debt that is due and you decide to pursue it in court, this is the right time to send a pre-action notice. Sometimes you may also see the term solicitor’s letter or solicitor’s letter used to refer to this summons, because creditors often have a solicitor represent them when drafting a pre-action summons and sending it to the other party. Let’s face it, most debtors are more impressed by a notice drafted and signed by an attorney as a serious threat than when the creditor itself repeatedly emails and calls them to pay the debt. It is obvious that the creditor is serious about collecting the debt. As noted above, the purpose of the notice is a last-ditch attempt to resolve the dispute amicably, but that is not the main reason for sending it.

We may also encounter the term notice pursuant to Section 142a of the Code of Civil Procedure or procedural notice, which refers to the fact that the grounds for sending it are regulated in the Code of Civil Procedure. The latter provides that a plaintiff who has been successful in proceedings for the performance of an obligation is entitled to compensation for the costs of the proceedings only if he has sent a summons to the defendant at least seven days before filing the application to initiate proceedings to the address for service or to the last known address. This provision was intended to eliminate, in particular, cases where debtors were sued for small sums which they sometimes forgot to pay, but where the subsequent costs of the proceedings were then disproportionately high in relation to the amount owed. Therefore, if the creditor reminds the debtor of the debt in this way, the debtor still has one last chance to pay only the debt itself without additional costs. However, the sending of a pre-action notice is generally appropriate for all disputes concerning the fulfilment of an obligation.

Particulars of a pre-action summons

The pre-action notice must be sent to the prospective defendant or, if there is more than one defendant, to each of them. The summons must then specify the performance requested, in particular the grounds on which it is sought (e.g. contract, unpaid invoice, compensation for damages, etc.). If the claim is for monetary compensation, the amount must be quantified precisely. Sometimes the debt is a continuously increasing debt, in which case it is advisable to draw attention to this fact in the notice (e.g. that the next instalment is due and that if it is not paid on time, the debt will be increased by this amount). The content of the pre-action notice should then also include a request to fulfil the obligation or to pay the debt. Furthermore, it should also include a warning that the summons is a summons pursuant to Section 142a of the Civil Procedure Code and that if the debtor fails to fulfil his debt, the creditor is ready to take his claim to court. You can also explicitly state in the notice that in the event of court proceedings, the amount due will be increased by the costs, which will also be borne by the debtor. The Code of Civil Procedure also provides that the summons must be sent to the address for service or to the last known address.

The law also specifies the time limit within which the summons must be sent, namely at least seven days before the application to initiate proceedings is lodged. Importantly, the law only requires that the summons be sent to the debtor and therefore does not require service. It is therefore necessary to have proof of the sending of the summons to the debtor, which can be subsequently produced to the court, for any court proceedings. If the summons is sent by registered post, the proof of delivery will be the delivery slip. Of course, the summons can also be sent via a data mailbox, which can also be easily documented in the event of litigation.

If you have an outstanding claim which the other party does not want to pay voluntarily, please contact us and we willprepare a pre-action summons for you, which you will send on your behalf or we will send on your behalf to the other party. Sometimes the mere sending of such a summons is enough to settle the dispute and the actual court proceedings do not take place at all.