A cease and desist letter can be the perfect tool to stop an unwanted and unlawful activity or behaviour in a personal or business context. Ideally sent by a legal professional, it’s not expensive to ask a solicitor to produce one, and it can nip a problematic situation in the bud without the need to go to court.
What is a cease and desist letter?
Just as the title suggests, a cease and desist letter is a letter requesting that someone stop a particular activity.
The letter usually has some form of authentic basis in law and, for this reason, is commonly issued by a lawyer and may well be a precursor to legal action.
Common examples include a neighbour causing a nuisance, harassment cases, or infringing a trademark.
Issuing a cease and desist letter
The letter should contain a description of the activity or behaviour which is causing a problem.
It might be necessary to define dates and times when this occurred. Keeping a written or image-based record of the activity or behaviour is essential.
If the activity has not been witnessed or filmed, then there should be some other form of evidence.
The letter should contain a demand that the activity or behaviour stop immediately. There must be a legal basis to support this, referencing a wrongful act such as nuisance or a statute, for instance, the Protection from Harassment Act 2014 (POHA).
Most importantly, there must be a statement about the consequences of failure to comply with the terms of the letter. Sometimes, a time is stated for compliance to take place, so the letter acts as a fair warning.
Finally, a statement must explicitly reserve the victim’s legal rights.
A cease and desist letter does not have to follow a template or particular order but should be issued on the lawyer’s official letterhead.
How to send a cease and desist letter
No legal requirements, like personal service, exist for a cease and desist letter. However, it’s essential the sender can demonstrate the recipient has received it.
This could be an essential element in subsequent court action if the person receiving the letter does not comply with its terms and claims that they never received it.
A cease and desist letter should be sent using a postal method that guarantees delivery to the recipient’s address. The letter can also be sent electronically attached to an email. The sender should ensure they set up delivery and read receipts on their system.
However, the safest way to send a cease and desist letter is by courier, as they will ask for the recipient’s signature. The recipient can, of course, refuse delivery if they are aware the letter is coming.
What happens if a cease and desist letter is ignored?
The best threats are ones that are real and not empty. Threatening litigation in a cease and desist letter and not following up will only worsen the matter and give the perpetrator the upper hand.
Before sending a cease and desist letter, it’s worth discussing the options for litigation, the strength of any case, and the possible costs involved, as there is always a bigger picture.
Suing your next-door neighbour, even if you are justified in doing so and have a legal basis for a claim, is the road of no return. A litigant will have to continue to live next door to that person in possibly a worse situation than before. It might be better to play the problem down and plan to move house!
In some situations, litigation is justified and the best option, but equally, the letter may well do its job. The prospect of litigation now or at some point in the future is often enough to end the unwanted behaviour or activity.
The letter writer should always ensure they are prepared to follow through and not just wield the prospect of litigation as an idle threat. If the recipient of the letter takes the matter to the wire, it can make your situation a whole lot worse by threatening court action and not ultimately taking it; this is unlikely to improve matters.
Responding to a cease and desist letter
Receiving a cease and desist letter is never pleasant, particularly if the recipient isn’t even aware their behaviour or activity is a problem or disputes the letter’s contents.
Responding to a cease and desist letter can be straightforward – just follow the demands and stop the activity or behaviour causing the problem. However, life isn’t always that simple.
The statements made in the letter are from the sender’s perspective and may not form the basis for a valid claim.
Contesting the contents of a cease and desist letter requires professional legal input, especially with the threat of court action looming. The sender’s legal representative will have evaluated their case and may be ready to proceed with proceedings if the claim in the letter is not complied with by the recipient.
The recipient of a cease and desist letter should take legal advice so the contents of the letter can be evaluated, and the alleged infringement analysed, then a reasoned response issued.
It may be necessary to gather evidence to repudiate the claim in the letter, and a solicitor can offer guidance on how to do this.
The sender may be infringing the recipient’s rights, and taking legal advice is often the best way to protect them and avoid costly court action. It could even be that the recipient issues their own cease and desist letter in response.
Is a cease and desist letter a requirement before commencing court action?
As part of pre-action protocols, sending a letter to the other party can be required before commencing legal action. Most lawyers advise this anyway, but sometimes, the court will insist upon it.
Final thoughts on receiving a cease and desist letter
Issuing a cease and desist letter is a matter for an experienced lawyer who can assess the potential merits of a case and advise on the best way forward (which may not be a cease and desist letter threatening legal action).
The letter’s content is vital as it should clearly identify the alleged perpetrator and provide a basis in law to ask them to desist from specific actions or behaviour.
A legal professional can look at the situation objectively. There is no point in issuing a cease and desist letter if there is no legal basis to make a claim. Any subsequent court action might make the situation worse or simply prove impractical.
Frequently asked questions
Can I write my own cease and desist letter?
There is usually little point in writing your cease and desist letter to a party with whom you have a dispute, as it won’t have the same weight and authority compared to a letter issued by a solicitor.
Typically, a cease and desist letter contains a threat of litigation if the identified activity or behaviour does not stop; this is always taken much more seriously if made by a lawyer.
The recipient is far more likely to take the letter and its contents seriously, and assertions made in law by a solicitor are likely to be credible rather than allegations or statements produced by someone without a legal background.
What is the difference between a cease and desist letter and a letter of demand?
There is very little difference, as a lawyer typically issues both letters, and they are often a precursor to legal action. However, a letter of demand most commonly asks for payment of money. In contrast, a cease and desist letter requests a third party to refrain from a particular action or activity.
Is a cease and desist letter an alternative to legal action?
A cease and desist letter can be an alternative to legal action if the letter produces the desired result. However, if nothing changes, the person responsible for the letter will probably need to start a civil case to achieve what they want.
A cease and desist letter must have an actual basis in law so, if necessary, the letter can be followed up with legal action. If the letter works, this is a much cheaper and quicker option than going to court.
Is there a benefit to a cease and desist letter?
It’s always worth asking a lawyer to send an official cease and desist letter because it might do the trick and be a much cheaper and quicker resolution than court action.
Another benefit of a cease and desist letter is that it can halt a rapidly escalating situation. Some disputes can become entrenched very quickly; disagreements amongst neighbours are a particular example.
The letter will set out the legalities of the position and the consequences of persisting in a particular course of action; the perpetrator may have no legal knowledge or advice and could be unaware of these. The letter can act as a short, sharp shock, and prevent a drama from becoming a crisis and spiralling out of control.
