Small claims court - defendant is threatening to counter claim if I dont accept his offer

NutWorld

[quote=[Deleted User];discussion/6034154]Surely he can't do this? Seems a bit much - accept my offer or I'm going to threaten you. Surely the idea of the small claims court is you can enter valid claims without being threatened with legal action yourself.

He actually officially responded with this:-

"I will be taking the matter further, and will also be issuing a counter claim for my costs and time taken from business in dealing with this issue, and the stress and anxiety this has caused me"

If this conduct is unnacceptable, who can I complain to?[/QUOTE]

Anyone can issue a claim against another, or in the case of receiving a claim, issue a counterclaim.

Anyone issuing a claim/counterclaim should inform the defendant to that claim/counterclaim prior to doing so.

If you receive a claim/counterclaim you do not agree with, you need to file a defence - you will be invited to do so when the claim/counterclaim is served.

If you wish to further argue the point/complain, and the court agrees there are grounds to do so, you can do so in front of the judge at the hearing.

I'm not sure to what extent the person involved plans to counterclaim, but limited to what you have posted I would advise as follows:

Costs in a small claims action are very limited and do not need to be separately claimed. If you make a claim you pay the court up front, and those costs are automatically added to the claim.

If the defendant wishes to agree with the base claim, but wishes to argue against the court costs (e.g. because the claim was brought vexatiously), he can argue that in front of the judge at the hearing. There is no need for a counterclaim.

Similarly the court will invite the winning side to apply for any rreasonable travel costs and loss of earnings to attend court, or if not invited, can be asked for anyway.

Ultimately, it will be for the court to decide as to the award of costs & expenses against a losing side, but no counterclaim is required.

These, together with those of any witnesses the court may agree are essential to attend, are about the limits of the costs & expenses that can be claimed.

https://www.compactlaw.co.uk/free-legal-information/small-claims-court/claiming-costs.html

Any claim for stress & anxiety will at best need to be fully supported by expert medical evidence to have any chance of success, and as the cost of that (if he could find an expert medical witness prepared to state that this person was suffering this purely from receipt and responding to your claim) would usually far outweigh the benefit of any potential claim, it is hardly ever accepted in small claims. So best of luck to him if he wishes to pursue that part of a claim.

HTH.

NutWorld

[quote=[Deleted User];76126008]Any idea what the basis for a counterclaim can be? Is time/stress even allowable?

Surely whether the offer is reasonable or not is irrelevant - that's for me to decide. Surely it can't be allowed that veiled threats like this are made - "accept or we'll make it awkward for you".[/QUOTE]

No, you should be prepared to negotiate a resolution so as to avoid court.
This should have started before you even made the claim, and should continue right up until judgement is otherwise finally passed.
If you refuse to negotiate, that may be considered adversely against you when it comes to recovering your court costs (and any other allowable costs/expenses you may attempt to claim) should you win.

If you really cannot come to a mutually agreeable resolution, then the court will make the decision.

pinkshoes

[quote=[Deleted User];76126197]He invoices me for work he did inc £100 "collection fee". He wants another £100 to bring it back. I got AA to bring it back for £55. (this is why hes offering £45)
[/QUOTE]

If this goes to court then his counter claim is fair, as the court will agree with the £45 refund offered given that it would have cost you £55 to get there anyway, so you are no worse off with his offer.

At what point did he offer the £45 refund? Was this after your letter before action? Or did he wait until he received court papers?

Crazy_Jamie

waamo wrote: »

A small claim sounds disproportionate tbh. The fees alone will be bigger than the claim. You haven't factored in the cost of a hearing fee yet.

You run a significant risk of a judge dismissing the claim on that basis alone.

I would settle as there is a big risk if you getting nothing.

waamo wrote:

If this is dismissed as disproportionate, which I would say there is an extremely strong risk of happening, then you could potentially get no money and have it cost you the filing fee and hearing fee.

I would think very carefully if I were you.

This is nonsense. A Judge cannot dismiss a claim on the basis of it being disproportionate. Proportionality may factor into other issues, such as costs, but the claim cannot be dismissed on that basis. The only issue for the main claim is whether or not the OP is legally entitled to recover the money that they are seeking.

paulfoel wrote:

Bit of background. My wifes old car which was not driveable needed looking at. We had a conversation that he could look at in 6 weeks time. We discussed the car was not driveable and he said no problem he could collect it. At no point did he discuss how much collection would cost.

So long story but work doesnt get done - not his fault. He invoices me for work he did inc £100 "collection fee". He wants another £100 to bring it back. I got AA to bring it back for £55. (this is why hes offering £45)

My argument is that he had every opportunity to advise me that he could collect and the charge would be £100. He would have known that the AA would do it cheaper. But he deliberately kept quiet and made things vague. I dont understand why you wouldnt tell someone in advance especially since its the expensive option.

But on the issue of the claim itself, you need to be very careful here. You say that he did not say what the cost of the collection would be, but accept that he didn't say it would be free. That means he can argue his position on a quantum meruit basis. In other words, he is entitled to charge a reasonable sum for the work done because whilst it was agreed that the service would be provided, the fee was not specified. The AA have charged £55 for the same service, so £55 would be a reasonable figure. In fact he might well be able to justify the £100, because he does not have the same business model as the AA and his costs may just logically be higher.

On that basis it sounds to me like the Judge may well side with him on the £100, in which case your claim will be dismissed. But the best case scenario seems to be that the Judge finds that £55 is reasonable, in which case he has already offered the £45 difference. Sounds to me like an offer that you need to seriously consider. If you fail to beat that offer (and it seems pretty unlikely that you will) he may well make an application for costs, and whilst there is no guarantee that that will succeed, it seems to me to be a risk that is not at all worth taking.

Crazy_Jamie

pinkshoes wrote: »

If this goes to court then his counter claim is fair, as the court will agree with the £45 refund offered given that it would have cost you £55 to get there anyway, so you are no worse off with his offer.

At what point did he offer the £45 refund? Was this after your letter before action? Or did he wait until he received court papers?

Whilst the thrust of all this advice is right (not just from you, but from most of contributions in this thread), we need to not refer to this as a counterclaim, because it isn't one. If the claim is dismissed or the OP fails to beat the offer (which seems likely) then he would be able to make an application for costs, which is very different to a counterclaim. That application would only succeed if the OP is found to have acted unreasonably (CPR r.27.14(2)(g)). That is a high bar, but the garage owner would seem certainly have some prospects of succeeding in that on these facts. It's far from guaranteed, but is a risk either way that the OP should be looking to avoid.

[Deleted User]

[quote=[Deleted User];76126664]I hear you all but come on, do we all really believe here the garage owner did not know exactly what he was doing?[/QUOTE]

The garage owner could say exactly the same thing regarding you though.

giraffe69

Hard to believe someone would go to court and take such a risk for a small amount. Another, possibly costly, case of "it's the principle....."

My advice, fwiw, is take the £45 and move on.

Jumblebumble

gettingtheresometime wrote: »

If a tradesperson had made the comment that they could collect the car, then I would have asked at that point whether there was a charge for this.....but that's just me.


Secondly why would he be expected to know what the AA charged?

And even if he did know what AA might charge why on earth do you think he should tell you?
He is in business to make a profit not to tell you that someone else can undercut him
I assume you know nothing about running businesses because if you did what you are complaining about you would go bust very quickly
I assume that you don't expect Tesco staff to tell you that baked beans are on special offer at Asda this week do you ?

elsien

OP had similar responses back in April but chose to go ahead anyway.
https://forums.moneysavingexpert.com/discussion/5988979/charge-for-car-collection-suddenly-appeared

Was also looking to sue an ice skating rink for his wife's broken arm. I don't usually look at posting history but there's a bit of a litigious theme going on here.

waamo

Crazy_Jamie wrote: »

This is nonsense. A Judge cannot dismiss a claim on the basis of it being disproportionate. Proportionality may factor into other issues, such as costs, but the claim cannot be dismissed on that basis. The only issue for the main claim is whether or not the OP is legally entitled to recover the money that they are seeking.

But on the issue of the claim itself, you need to be very careful here. You say that he did not say what the cost of the collection would be, but accept that he didn't say it would be free. That means he can argue his position on a quantum meruit basis. In other words, he is entitled to charge a reasonable sum for the work done because whilst it was agreed that the service would be provided, the fee was not specified. The AA have charged £55 for the same service, so £55 would be a reasonable figure. In fact he might well be able to justify the £100, because he does not have the same business model as the AA and his costs may just logically be higher.

On that basis it sounds to me like the Judge may well side with him on the £100, in which case your claim will be dismissed. But the best case scenario seems to be that the Judge finds that £55 is reasonable, in which case he has already offered the £45 difference. Sounds to me like an offer that you need to seriously consider. If you fail to beat that offer (and it seems pretty unlikely that you will) he may well make an application for costs, and whilst there is no guarantee that that will succeed, it seems to me to be a risk that is not at all worth taking.

The actual phrase is "ill founded". Practice Direction 3a allows dismissal of a case purely because it's ill founded. Spending £50 to recover £45 is both (arguably) ill founded and frivolous.

It's highly discretionary, some judges may let the case proceed, some may declare it ill founded and/or frivolous.