Demand letters sent to consumer despite legal representation?

The Federal Court of Justice (BGH) in Karlsruhe had to decide whether sending demand letters to private individuals should be permitted when they have already notified the sender of a formal demand (abmahnung) of their legal representation in the relevant matter.

In the concrete case, a consumer took legal action against a telecommunications company to compel it to refrain from sending further demand letters. The starting point was a legal dispute concerning the conclusion of a telecommunications contract.

The consumer disputed the conclusion of the contract and engaged a lawyer to defend against the invoices asserted by the telecommunications company. Despite the notice of representation from the lawyers and their request to correspond exclusively with them, the telecommunications company continued to eagerly send demand letters to the consumer. Against this conduct, the consumer took action against the company to compel it to refrain from sending further demand letters and made a formal demand (abmahnung) of this conduct against the company.

Court's decision
By Urteil vom 08.02.2011- Az. VI ZR 311/09 the Federal Court of Justice (BGH) rejected the consumer's claim for an injunction.

There was no necessity to protect the consumer's personality rights by requiring the telecommunications company to correspond only with the lawyer engaged by the consumer. The consumer could at any time forward any letter received to his lawyer, so that the latter could respond to the demand letter. As long as no court proceedings were pending, the telecommunications company was also permitted to serve any potential order for payment (Mahnbescheid) directly on the consumer.

Conclusion

Until court proceedings commence, it is at the discretion of the claimant, notwithstanding positive knowledge of the legal representation of the respondent, to conduct his correspondence with the latter personally. Whether this is practical is a different matter. Such conduct does not give rise to a claim for an injunction according to the present highest court case law.