Small Claims Court Counterclaim filed, will this be defended?

Loader12255

On Notice of Proposed Allocation to the small claims track it confirms that claim has been defended and defendant has filed counterclaim (Im defendant)
directions say small claims directions questionaire must be completed and filed but it does not mention defending the counterclaim.
Does the original claimant have to defend the counter claim, and if so should a copy be sent to defendant and what if defence is not submitted or copy sent to defendant. is it normal for a counterclaim not to be defended.
cheers for advice cant find answer anywhere?

Castle

Some background reading:-
https://civillitigationbrief.wordpress.com/2016/07/19/replies-and-defence-to-counterclaim-a-primer/

Loader12255

link says If the Defence contains a counterclaim, however, then a Defence to the Counterclaim is mandatory. A failure to file a Defence to the counterclaim gives the Defendant a right to apply for judgment in default. As we have seen recently there is no guarantee that a court will exercise its discretion to set the default judgment aside

this makes me think a defence to counterclaim is compulsury but it is not mentioned in the directions on the notice of proposed allocation to small claim track and it does not mention if a copy has to be given to the other party?

Any advice?

waamo

If a counterclaim is filed a defence to that claim must be submitted, it is after all a claim in its own right.

A copy of the defence will be given to the party issuing the counterclaim. No surprises are allowed in court.

Loader12255

hmm, we havent had a copy of defence to counterclaim. counterclaimed is signed by us on 14/12/17 recieved at courts 18/12/17 and copy sent back to us dated 4/1/18 (when i presum it was sent to claimant) with copy of notice of proposed allocation.

Copy of notice of proposed allocation to small claims track has details that small claims dirctions quetionaire must be filed by 22/1/18 and copy sent to all other parties. but does not mention defence to counterclaim or date to be filed by.

We filled in questionaire and sent copy questionnaire to claimant.
We recieved copy of questionaire from claimants.
But no defence to counterclaim??

case has been passed to local court now and we have recieved notice of allocation to small claims track hearing and date (June) we have to send to court and all other parties copy of any further documents and statements by 19 April.

But there is no mention of missing defence to counterclaim by other party?

waamo

Point this out to the court. Write to them and inform them no defence has been entered.

Loader12255

i thought maybe we should have had copy to defence and maybe i should notify court but didnt want to bother them. will look into this. cheers for advice.

when we go in june we get to ask questions. can it be any questions? should it be yes no answers required or should it only be questions they can answer sentences too or can it be any questions? cheers

waamo

The judge will run the show. They will tend to do the most asking of questions to both sides. You will be allowed to comment and make suggestions but generally a judge will try and avoid a cross examination type scenario. Neither of you are lawyers after all.

Loader12255

cool thats great. dont want to be asking questions. if claimants have lied on a legal form, (yet to see copy of statement which will be interesting but they have on claim form) will judge pick this up? im curious as on claim form they say we decline mediation in our letter reply but copy of letter has been submitted by them it is two sentances long and does not mention mediation at all. i just dont feel this is ok,

steampowered

Yes, a Defence to the counterclaim is compulsory. There are fixed deadlines for this as set out in the Civil Procedure Rules. No need for deadlines to be stated on the directions.

And yes, if the Claimant fails to file a defence to the counterclaim, you can request default judgment.

Contrary to the advice above, I suggest you do not write a letter to the court. The judge won't read it and the court staff won't do anything with it. If you want something to happen you need to follow the correct process.

If you want to ask the court to issue a default judgment on the counterclaim, you need to file the appropriate form. If your counterclaim was for a fixed sum of money, you must use form N225. If you didn't express your counterclaim as being for a fixed sum of money then it starts getting much more complicated.

If you want the court to do something else, you must complete form N244 to make an application and pay the £255 fee.

If you don't want to ask the court do either of the above, then don't waste the court's time by writing to them about it.

To be honest, I think asking for a default judgment is a waste of time. The judge will just set it aside when you get to the hearing on the main claim. The judge will want to deal with all of the issues in dispute at the hearing.

Did you pay the appropriate fee for your counterclaim? There is a fee ...

steampowered

Loader12255 wrote: »

i thought maybe we should have had copy to defence and maybe i should notify court but didnt want to bother them. will look into this. cheers for advice.

when we go in june we get to ask questions. can it be any questions? should it be yes no answers required or should it only be questions they can answer sentences too or can it be any questions? cheers

You can generally ask whatever you want. Please just stick to the actual facts which are being disputed. Court is not an opportunity to randomly fling mud at the other side - the judge just wants to know the facts he needs to make his decision and that's it.

For example if it is a breach of contract case, the judge just wants to know what the terms of the contract were, whether the contract has been breached and what loss was caused as a result. Nothing else really matters.

Loader12255 wrote: »

if claimants have lied on a legal form, (yet to see copy of statement which will be interesting but they have on claim form) will judge pick this up?

The answer to your question is that does it really matter?

The judge only has to decide the facts on which he/she bases the court's decision. The judge is not the moral police.

The only real situation where a judge needs to determine if someone was "lying" is where the basis of the claim is fraud.

Litigants in person often like to claim that everybody is 'lying' - often it is a pointless accusation, you can't prove it. Just because you disagree with someone doesn't mean they are lying. Claiming that people are laying mostly will just get the judge's back up.

im curious as on claim form they say we decline mediation in our letter reply but copy of letter has been submitted by them it is two sentances long and does not mention mediation at all. i just dont feel this is ok,

None of this stuff matters to be honest. Mediation is encouraged generally, but rarely will a judge be remotely interested in the whys and wherefores of why mediation didn't happen or didn't work out.