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(I'm in New Zealand, but I'm also interested in answers/data points from other jurisdictions)

A friend whose Intellectual Property (design patent) is being infringed engaged a lawyer who intends to write a cease and desist letter to the other party, and to send a bill to this other party for his letter!

Although it is likely the other party is aware they are infringing, my friend has not reasonably communicated with this other party asking them to stop prior to getting his lawyer involved.

I can't quite put my finger on why, but it is my distinct impression/feeling that if the other party challenges the bill, they could not be forced to pay it. Are there any rules of law around this kind of thing?

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As a matter of contract law it would not be possible to enforce a requirement to pay legal fees without agreement. You could easily see how this would be problematic: one could just draft letters to hundreds or thousands of people and require them to pay the costs of composing the letter. My understanding is that this is common practice in the United States (see speculative invoicing).

However, people are generally free to pay whatever they want to anyone they want. The other side is free to pay the legal costs, they just probably won't.

In some common law jurisdictions, the concept of a Calderbank offer may be another reason to write a letter such as this; the settlement offer can be relied upon in later proceedings as an indication as to the costs that would be appropriate to award to the winning party, should the offeree unnecessarily prolong legal proceedings

  • In New Zealand, if A sued B and is successful, will B have to pay A's attorney costs? (If so, that can motivate a much cheaper settlement solution). – user6726 May 14 '16 at 15:31
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    Yes, to some extent. Costs awarded are typically a percentage of perscribed costs (66% is common) which is less, of-course then actual costs for a decent lawyer. – davidgo May 15 '16 at 0:57
  • +1 for the speculative invoicing analogy. – davidgo May 15 '16 at 0:58

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