You have heard that you should send a "pre-action demand", but you do not know exactly what it is and whether you need one. The name sounds formal. It is a simple tool. In a future dispute it can save you money with an e-shop, an energy supplier, a landlord or anyone else.
What exactly a pre-action demand is
A pre-action demand is a written notice by which the creditor (the person who is claiming something) informs the debtor that if they do not perform their duty voluntarily, the matter will go to court. The institute comes from Section 142a of the Code of Civil Procedure (občanský soudní řád), which has been in force since 2013.
The purpose of the demand is twofold. The first, less formal, is to give the other side a last chance to settle the matter out of court, without unnecessary costs and time on both sides. The second, purely procedural, is to preserve the right to recover the costs of court proceedings. If you won the dispute in court but did not send a pre-action demand beforehand, the court may refuse to award you the costs of the proceedings (for example a lawyer’s fee), even if you succeeded on the merits.
A pre-action demand differs from an ordinary complaint or a first complaint in that it expressly contemplates that if the matter is not resolved, court will follow. An ordinary complaint usually does not contain this element.
When you need a pre-action demand
A pre-action demand makes sense whenever there is a real possibility that the dispute will end up in court, and you want to keep the right to recover the costs of the proceedings if you succeed. It applies to all disputes about performance of a duty, not only money. In practice it is almost always about money: money an e-shop failed to refund, a security deposit the landlord did not return, an energy overpayment or any other claim.
There is a situation where a pre-action demand does not make sense. When an authority imposed a fine on you, you are not a creditor enforcing something, but the person from whom performance is sought, and the matter is not dealt with by a court claim. You must defend yourself by an objection against the order or by an appeal in administrative proceedings, where the time limits are counted in days. How that looks with a parking fine is covered in a separate article.
The law provides that the demand must be sent to the debtor at least 7 days before the claim is filed, and to the address for service, or to the last known address. Sending a pre-action demand does not bind you to anything further. If the debtor pays after the demand, you do not have to file a claim. If you filed a claim without a prior demand, you risk bearing the costs of the proceedings yourself even if you succeed in court.
What a pre-action demand must contain
The law does not set out an exact list of required elements. Courts have gradually inferred them from the logic of the matter and from the purpose of the provision. In practice the demand should contain:
- identification of the creditor and the debtor (who is sending the demand and to whom),
- a clear account of what exactly you are claiming and why (on what legal ground and in what amount),
- a warning that if the debt is not paid within the set time limit, you will go to court. The law does not require this sentence directly, but it is what makes the letter a pre-action demand in the eyes of the other side as well.
Court practice has rejected excessive formalism. The demand does not need to quote a section of the statute word for word or use precise legal phrases. It is enough if its content makes clear that if the debt is not paid, court proceedings will follow. What matters is that the demand makes clear what you want from the other side, in what amount, and by when. The heading "pre-action demand" itself, or a mention of a lawyer, will not replace that – without a specific claim it is just a letter.
Although the law does not require strictly formal service as with court documents, it pays to send the demand in a way that can later be proved: by registered post, to a data box (datová schránka) or by e-mail with confirmation of delivery. For recovery of costs in court, what decides is that you sent the demand to the correct address. Whether the debtor read it is not your concern. Only for the due date of the debt does it matter that the letter reached them.
What happens if you do not send the demand
If you do not send a pre-action demand and the dispute ends up in court, you risk that the court will not award you the costs of the proceedings, even if you succeeded on the merits. An exception applies where there are so-called reasons worthy of special consideration, that is circumstances from which it is clear that sending the demand would have been a mere formality (for example when the debtor had demonstrably known about the debt for a long time and repeatedly failed to pay it). These exceptions are assessed by the court individually. Relying on them in advance is risky.
Practical steps, one by one
- Clarify the exact amount or claim you are demanding from the other side, and on what basis.
- Write a written demand identifying both parties and describing the claim and its amount.
- Include in the demand a clear warning that if it is not performed, you will go to court.
- Send the demand to the address for service, or to the debtor’s last known address, ideally in a way that can be proved (registered post, data box, e-mail with confirmation of delivery).
- Wait at least 7 days from sending the demand before you file a claim, if you do.
- Keep the proof of sending in case you later claim the costs of the proceedings in court.
What to do next
You draft and send the pre-action demand yourself, following the steps above. Legamik does not prepare this document. This step often does not have to come at all. The other side will already respond to an earlier formal letter.
Legamik is not a law firm and does not provide legal advice. In complex disputes we recommend consulting an attorney.