If you think that a person or an organisation is violating your business rights with unlawful conduct, you may be able to serve them with a cease a desist letter.
But how does a cease and desist work? Is it legally binding? And do you need to go to court?
In this article, Dispute Resolution Solicitor Anthony Eaton answers all these questions and more…
What is a cease and desist for business?
A cease and desist letter:
- demands that the person or organisation stops their unlawful activity, and
- threatens legal action if they don’t comply.
Most of the time, a cease and desist letter does enough to scare off its recipient. However, if they do continue to act unlawfully you may take legal action seeking for a cease and desist order to be put in place by the court, that can seek:
- Monetary compensation from the person or organisation
- An injunction to be made that prevents the person or organisation from doing the specified act(s)
Why use a cease and desist order?
You would use a cease and desist letter as an early measure to discourage the person or organisation from continuing to violate your rights, without you having to go to court. The letter also serves as a pre-cursor to court proceedings if they are ultimately required.
Whereas you would use a cease and desist order to legally and indefinitely prevent the unlawful activity by way of an injunction from the court.
Most of the time, a cease and desist order is used to stop intellectual property infringement, confidentiality leaks, harassment and breaches of business contracts.
Related: What is Intellectual Property and how do I protect it?
Related: Mitigating and tackling Shareholder Breaches
Can you send a cease and desist letter for defamation?
Defamation is a statement that causes harm to the character of the person or organisation it refers to.
There are two types of defamation, libel and slander. Libel refers to a defamatory statement that is written, whereas slander is a defamatory statement published in spoken or other temporary form.
You can use a cease and desist letter or order to prevent both types of defamation.
There are also some other options available for dealing with defamation, which you can read about in our dedicated article here.
What are the advantages of a cease and desist letter?
A cease and desist letter, if successful, can be a quick way to deter someone from continuing their unlawful conduct, without the need for court proceedings.
Because of this, it can be a cheaper and less time-consuming solution compared to starting litigation immediately.
Is a cease and desist letter enforceable?
The big disadvantage of cease and desist letters is that they are not legally enforceable. Only a cease and desist order from the Court will legally binding and enforceable.
However, serving a cease and desist letter can still be beneficial even if it doesn’t prevent court proceedings. Showing such a letter in court can strengthen your position and assist in negotiation, as you’ll be able to show that you’ve attempted to resolve the issue amicably.
This is certainly something that the court will consider, especially when it considers any award of costs.
Can I write my own cease and desist letter?
Yes, it is possible to write your own cease and desist letter. However, we wouldn’t recommend it as you may inadvertently jeopardise your legal position.
Even if you are confident that you have a strong case, this may not be reflected well in the letter. Plus, if you were to make a mistake, it could not only decrease your chances of winning any later legal claim but may even make taking legal action a struggle in the first place.
A solicitor can assist you in drafting a foolproof, legally sound cease and desist letter that best reflects your legal position.
It’s recommended to instruct a solicitor at this stage as, if court proceedings do arise, having a lawyer who already understands the ins and outs of your case on side can be extremely valuable.
How do you write a good cease and desist letter?
A good cease and desist letter should:
- Be exact, outlining the specifics of what the recipient cannot do
- Include the legal basis for your claim
- Detail the repercussions for not complying (i.e. court action)
- Specify a date by which all unlawful conduct needs to stop
- List your and/or your solicitor’s contact details
What is the next step after sending a cease and desist letter?
After sending a cease and desist letter, you’ll hope that the recipient essentially backs off!
However, if that’s not the case, there are a few steps you’ll need to take:
- Instruct a solicitor (if you haven’t already)
- Gather evidence of the recipient not complying with the cease and desist
- Court proceedings/ Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) can include methods like mediation and arbitration and can be a quicker less expensive way to settle a dispute. Read our dedicated article on ADR here.
Specialist Cease and Desist Solicitors
If, after reading this article, you have any more questions or would like to speak to a specialist; please don’t hesitate to contact our Dispute Resolution Team.
Our bright and experienced team can provide tailored advice, assist you in drafting a cease and desist letter, ensure that you have all the correct evidence in place and represent you to achieve the best outcome in Court.
You can call us on 01202 499255, or fill out the form at the top of this page, for a free 30-minute appointment.
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