A letter of intent to sue is used to notify a potential defendant that a lawsuit may be filed against them in court. The letter will summarize the alleged unlawful act and indicate a period in which the defendant may settle the matter to avoid legal proceedings. Delivery of this notice is often required by law and may need to be sent via certified mail before initiating the filing process. Regardless of any legal necessity for delivery, the form should still be issued to the defendant to help achieve a mutual agreement between each party and prevent a costly lawsuit.
Failure to serve a notice of intention to sue may disentitle an advocate to costs and its importance cannot be over emphasized. That means that, the costs of suit for failure to serve an intention to sue lies upon the advocate.
As observed under Rule 39 of the Advocates (Remuneration and Taxation of Costs) Rules SI 267-4). Which is to the effect that: “If the plaintiff in any action has not given the defendant notice of his or her intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on an order of the judge or magistrate.”
The service of notice of intention to sue must be covered in the plaint by including a paragraph to the effect that it was duly communicated. When commencing proceedings, decisions have to be made about which appropriate court and type of procedure to use.
It is worth noting that serving a statutory Notice of Intention to sue is important except under few exceptional statutory circumstances. And the failure to comply with that mandatory legal requirement renders the suit void abinitio as seen in the case of WIG vs. Kaferu (1974) EA 477 at 480 where court observed that, ‘Notice under section 1 of Act 20/69 was mandatory and that any failure to give it would be fatal to any proceedings.’
And if a party brings it as a defense, (of having served the other party with a notice of intention to sue) the burden of proof lies upon them. As seen in the case of K.C.C. vs. NULIYATI (1974) EA 400 where SPRY V-P said at page 402 that, ‘once the question of Notice under section 1 of Act 20/69 was put as a defence. The onus was on the plaintiff to prove due delivery thereof.’
Thus the following should be put into consideration;
1 .Whether there is a triable issue i.e. whether the wrong for which the plaintiff intends to sue is one for which substantive law provides a remedy.
2. Which court has jurisdiction in the matter, including where the cause of action arose.
3. The prospective plaintiff must also ensure that he has locus standi and that the intended defendant is a proper defendant to the action.
4. The litigant has also to decide who should be named in the proceedings and precisely what claims should be made against each of them.
5. the prospective plaintiff must ensure that the action is brought in time and that it is not premature.
This is because the Limitation Act prescribes the period within which certain actions must be taken to a court of law. Section 19 of the Civil Procedure Act, Cap. 71 provides that: “Every suit shall be instituted in such manner as may be prescribed by rules.
The case in point is Mbabali v Uganda Commercial Bank (Civil Suit-93/261) [1993] UGHC 27 wherein It sought an order for a temporary injunction to restrain the defendant/Respondent from selling the Plaintiff/Applicant' s property. It also asked for cost of the application .
The grounds of the application were that the defendant had agreed with the plaintiff that the sale of suit property would be deferred under a new terms of payment under the second loan. That the sale of the Plaintiff's property was premature and unlawful as the statutory Notice was not issued. Justice G.M. Okello held that, ‘…since the head suit was filed without first serving on the defendant/Respondent the necessary statutory Notice of intention to sue as require under section 1 (1) (c) of the Civil procedure and Limitation (Misc. Prov.) Act 20/69. This section is mandatory as was rightly pointed out by counsel for the Respondent. Failure to comply with it is fatal to the proceedings as was stated in Nic. Vs. Kaferu above. The effect of failure is that it rendered the head suit void abimitio…’ Hence dismissing the suit with costs to the respondent.
How to write a notice of intention to sue
https://bizfluent.com/how-4760760-write-notice-intent-sue-letter.html
A sample of a Letter of intention to sue.
NOTICE OF INTENTION TO SUE
Date «enter date»
Our ref; ……………………………………………..
……………………………………………..
To:
« Full Name of person you intend to sue
Physical Address
Postal Address, Telephone Number»
Dear Sir/Madam,
RE: NOTICE OF INTENTION TO SUE
I intend to file a legal suit against you for
« Briefly outline why you intend to sue»
I am aggrieved by the fact that
« Indicate your major problem or what the other party has done/has failed to do in order to settle the matter»
Which act/s amount/s to
« State the financial or legal implications following the actions of the other party»
And contravene
« Briefly outline the agreements, contracts or laws breached.»
TAKE NOTICE I have given you a period of 14 days from today to act upon the claims and upon such failure; I shall proceed to file the matter in the Courts of Law, without further notice.
Yours sincerely,
_____________________________
By Waboga David
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