The decision of Mr Justice Binchy in Declan McDonald -v- Thomas Michael Hill1 concerned the standard of proof required in relation to issuing letters of demand.
Following that decision, we recommend following the steps outlined below to ensure, as far as possible, that you have adequate proof of service of demand letters.
- Ensure the notice provisions in the Facility Letter or general Terms and Conditions governing the issuance of demand letters or other such notices are followed exactly (ie by ordinary post, fax, by hand etc to a specified number or address or last known address).
- Serving demand letters by post:-
- A certificate of posting should be obtained in respect of each individual demand letter sent by post. Alternatively, an affidavit of service should be sworn by the individual in your office who actually posted (meaning the author, secretary, postroom person) the demand letter(s). This affidavit of service should be prepared and sworn as soon as possible after the demand letters have issued.
- Serving demand letters by hand:-
- An affidavit of service should be sworn the individual who actually delivered the demand letter(s). This affidavit of service should be prepared and sworn as soon as possible after the demand letters have issued and should record the approximate time and address of each delivery, and whether the particular demand letter was posted through a letter box or left with an individual.
- Keep a copy/copies of the signed demand letter(s) as issued/served.
- Take a detailed note of all steps taken with respect to the service of demand letters in specific cases. This note should include:
- details of the method of service/delivery;
- confirmation that same is in accordance with the relevant notice provisions;
- a list of all demand letters as issued;
- details of who issued or delivered same; and
- the time, date and place of posting/delivery.