The importance of demand letters in legal proceedings

What does summoning without prior notice mean?

Summoning without prior notice means that a party is directly summoned without a demand letter or prior warning being sent. This approach can be unexpected and detrimental, especially because the defendant has not been given the chance to resolve the situation out of court.

Although submitting an out-of-court payment request is generally not bound by formalities—recently confirmed by the Noord-Holland District Court in a ruling of May 29, 2024 (ECLI:NL:RBNHO:2024:5698)—it remains crucial for the plaintiff to prove that the demand letter actually reached the opposing party. It is not necessarily required to submit a claim via a web form, but the letter or email must be sent to a valid (and functioning email) address. The lack of a proof of receipt can lead to the compensation of the legal costs, which is not the most optimal outcome for the plaintiff. Recently, the Noord-Holland District Court reaffirmed this in a ruling of May 1, 2024 (ECLI:NL:RBNHO:2024:3757), where the legal costs were compensated because the plaintiff could not prove that the demand letter had been received by the defendant.

Consequences of summoning without prior notice

While summoning without prior notice does not result in the inadmissibility of the claim, it often affects the allocation of legal costs. In the Netherlands, in the case of civil proceedings, the losing party is generally required to pay the legal costs of both parties. These costs include the attorney's fees, court fees, and bailiff's fees. These are expenses that, if the plaintiff wins the case, are usually borne by the defendant. However, if a writ of summons is issued without prior notice, the judge may decide to allocate the legal costs to both parties, meaning each would bear their own costs. This is unfavorable for the plaintiff, who may have already incurred significant expenses to bring the case to court.

In some cases, summoning without prior notice can even lead to the plaintiff being ordered to pay the defendant's legal costs (see, for example, the Noord-Holland District Court ruling of January 5, 2022 (ECLI:NL:RBNHO:2022:901)). This is an undesirable outcome for the plaintiff, especially if the case has relatively low stakes and the plaintiff would have otherwise had a strong case with regards to the legal costs. The risk of such an outcome highlights the importance of sending a demand letter and conducting proper pre-procedural correspondence.

The importance of a demand letter

A demand letter is a formal written notice in which the claim is outlined, and the opposing party is given the opportunity to comply with the demand before legal proceedings are initiated. The purpose of this letter is to inform the opposing party and give them a final chance to resolve the dispute out of court. This not only prevents unnecessary legal procedures but also protects the plaintiff from potential negative legal costs allocations.

It is important for the claimant to (repeatedly) urge the opposing party to respond and provide a reasonable timeframe for doing so. This gives the defendant the opportunity to comply with the demand, possibly avoiding litigation. However, if the defendant does not respond or does not comply with the demand, the claimant can proceed with the writ of summons. At that point, it is crucial that the claimant can prove that the demand letter was indeed sent and received by the opposing party.

Burden of proof and legal basis

The legal basis for the importance of receiving the demand letter is found in Article 3:37 paragraph 3 of the Dutch Civil Code (BW). This article stipulates that a declaration, such as a demand letter, only takes effect when it reaches the opposing party. Therefore, it is not sufficient to show that the demand letter was sent; it must be proven that the letter was received by the defendant.

To meet the burden of proof that the opposing party received the demand, it is advisable to use registered mail and read and receipt confirmations for emails. This ensures that the claimant can demonstrate not only that the letter was sent, but also that the defendant actually received it. It is important to carefully preserve this correspondence, both physically and digitally, in case it is needed later in legal proceedings.

Conclusion

Sending a demand letter in advance is of great importance for increasing the plaintiff’s chances of the most optimal outcome in legal proceedings. It not only gives the opposing party the opportunity to resolve the dispute out of court but also protects the plaintiff from negative legal costs allocations. By properly handling pre-procedural steps, such as sending registered letters and preserving the proof of receipt, unnecessary risks can be avoided.

If you have any questions about this topic or about any commercial and transport law matters, please contact the Customs, Trade & Logistics team at Ploum. Jeroen Zandt (j.zandt@ploum.nl) and Demi van Hove-Dinkov (d.vanhove@ploum.nl) would be happy to assist you.