Have you recently received a cease and desist letter or are considering issuing one? This Legal Kitz blog is going to detail what a cease and desist letter is, who can issue one and what to include in your letter.
What is a cease and desist letter?
A cease and desist letter is a legal document that you can use to inform someone of your legal request for them to stop engaging in the behaviour or taking action that violates your fundamental liberties. Cease and desist letters may also be known as a notice to stop letter, or a demand letter. Generally included in this letter is a threat that lets the involved party know that you intend to take lawful action if they do not cease and desist in whatever they are participating in.
A cease and desist letter order puts a prohibition on the suspected activity of a party or individual. A cease and desist order may be issued as a temporary court order until a trial to decide the outcome can be held, or it may be issued as a permanent court order once the issue has been resolved.
What does this mean?
Regardless of whether the order is temporary or permanent, a cease and desist order is legally binding. Since the order has been issued by either a government agency or court, when it has been satisfied there is no reason to suspect that unlawful or harmful activities are occurring that require the offender to be relocated. Depending on the circumstances, additional steps such as a trial may be required, or the order may be permanent.
So what’s the difference?
There is one significant difference between a cease and desist letter and a cease and desist order, which is the legal power each has. A cease and desist letter, it’s just a formal warning that the recipient to immediately stop their advised activity. It may have been an order or junction issued by a court, government agency or attorney. Included in the letter is usually a deadline (usually 10-15 days), for the offender to respond.
A cease and desist order or junction has legal power. Whilst a cease and desist letter is not legally binding, it is a formal requirement before opening a lawsuit if the recipient ignores the request and persists.
When do you need a cease and desist letter?
Cease and desist letters can be used for a range of different purposes. Both businesses and individuals can use cease and desist letters, for civil cases these can include
- Copyright or trademark violation;
- General personal harassment;
- Defamation;
- Occurrences where your rights are violated; or
- Individuals breathing a limitation of trade commitment.
What do I include in a cease and desist letter in Australia?
A basic cease and desist letter outlines some procedures and uses a variety of recognisable characters to summarise the identifying traits of the parties concerned. Elements that are commonly found in the letter are as follow:
- The sender’s circumstances (this will either be the individual or the business sending the letter requesting for the behaviour to stop).
- The recipient doings (the person or business being asked to stop their behaviour).
- A detailed description of the situation and the behaviour occurring.
- A threat that legal action may be taken if the behaviour does not stop.
- A deadline that the behaviour must cease by.
It is important to include all of the elements listed above in your letter. If you fail to do so and the matter goes to court, the judge may find the letter invalid. Additionally, be sure to send your cease and desist letters to the person or company’s registered mail address. If the matter does end up in court, it will be possible to prove that the other party was notified. The registered mail receipt will detail the precise time it was delivered.
Will my cease and desist letter work?
A well-written letter that has been developed and signed by a lawyer is a substantial document that the receiver is likely to take seriously. A cease and desist letter is frequently sufficient to prevent individuals or businesses from pursuing further action as most people are aware of the potential repercussions that legal action may have.
Can anyone write a cease and desist letter?
Although you don’t legally need a lawyer to draft a cease and desist letter, speaking with one can be very helpful as they can assist you to comprehend the genuineness of your situation. Without legal counsel, you run the risk of overlooking a legal provision that is being broken and you cannot guarantee the legality of your letters. False testimony in a letter can also have serious negative effects, so that’s something to be cautious of.
Legal advice
If you would like to learn more about cease and desist letters, check out this Business Kitz blog that gives another explanation. If you require assistance in taking out a cease and desist letter order, or responding to a cease and desist letter, you should seek legal advice. Legal Kitz can assist with ensuring that your matter in court is as timely and cost-efficient as possible. Click here to book a FREE consultation with one of our highly experienced solicitors today, or contact them at [email protected] or by calling 1300 988 954.