Defendant filed a counter-claim, But no order was made by the court that I had to file a defence.

October868

I am the claimant in a Money Claim case.

1. In July the defendant filed her defence to my claim, and also added a few extra pages to that document making 'a counter claim'.

2. I recieved a copy of her defence/counter-claim statement from the court, but the only order associated with it was for me to serve the defendant/and court with a copy of my 'Form N180 directions questionnaire', which I subsequently did.

3. The next correspondence which I recieved from the court was approx 4 weeks later, and this was a letter notifying me that my claim & the defendant's counter-claim had both been accepted by the court, what the trial-date would be, and an Order from the judge ordering myself & the defendant to serve eachother with copies of our witness-statements & supporting evidence by the end of August.
(Again nowhere in this letter/order was any order stating that I was required to file a defence to the defendant's previous counter-claim, let alone setting a deadline by which I had to do this).

4. I today recieved a letter from the court stating that the defendant has filed for a 'Default Judgement' on her counter-claim because I did not file a defence.
The letter then states that-
A. There be judgement for the defendant on the counterclaim with damages and costs to be assessed at the hearing.
B. The trial remains listed for the date xxxx.


I ofcourse am extremely confused about this, as I never recieved any Order from the court ordering that I needed to file a defence to the counter-claim, let alone by any specific date, or in any specific format!

For every single other stage of the case Orders have been issued by the judge when any document has been required to be served, and the Order has clearly stated what needs to be served, and by what date; However no such order was ever issued in regards to me being under requirement to file a defence to the counter-claim.
So I telephoned the court today to enquire as to what date this apparent order was made to me, however the lady simply stated that ''the court doesn't issue orders in regards to the requirement to file a defence to a counter-claim, instead you are simply expected to be aware of this legal requirement and thus to do it within 14-days''.
*Which seems to be absurd logic, as surely if I have requirement 'set by the court' to serve documents to the court/other party by a certain date I need to (or atleast have the right to) be notified by the court of that requirement?

The letter which I have been sent today also is worded in a confusing way, which doesn't make it clear whether or not the defendant's request for a judgement in default on her counter-claim has actually been accepted, or if it's been rejected?

da_rule

You have been advised of the need to file the defence to counterclaim within 14 days. The Civil Procedure Rules, which all Court users are deemed to have knowledge of, set out that a defence to a statement of case (which includes a counterclaim) has to be served within 14 days of receipt (or 28 days if you file an acknowledgment of service). Rules 20.3 and 15.4.

Practice Direction 15.3 sets out that a reply to defence and defence to counterclaim should form one document and should be served with the allocation questionnaire. There is however an ‘unless’ which is where the deadline to file the allocation questionnaire falls outside the above defence deadlines, in which case the documents should be served separately in accordance with these deadlines unless the court orders otherwise.

The matter will be dealt with at the hearing (rather than judgment being entered now) as there will be questions to be addressed regarding the allocation of costs. Also, if you are successful (or partially successful) in your claim and are awarded damages, the court may then set-off your damages/costs against each other (i.e. you could both walk away with nothing).

October868

Hello and thankyou for your reply.

I was not 'advised' though about any such requirement/order to do so, as the court did not serve me with an order/direction ordering me that I needed to file a defence.
They serve directions/orders for everything else in the case, including ordering parties about the requirement to file a defence to an original claim... So I don't quite understand why they would for an unknown reason not do the same for counter-claim aspects too?

I have no legal qualifications nor experience and so it ofcourse would not be reasonable for me to be expected to have a knowledge regarding each of the CPRs,
and thus I simply had always just followed the orders which had been directed at me by the court/judge.


But so does that mean that the defendant's 'counter-claim' will be reviewed by the judge at the hearing, my defence to it (which I actually did provide in the 2nd section of my own witness statement) will be considered also, and then a judgement will be made as to whether she or I win on the counter claim?
Or does it mean that the judge is planning on awarding the counter-claim in her favour by default, but will simply decide on the exact sum of money to award her at the hearing??

da_rule

The court does not order people to file a defence. When a claim is filed and served the defendant receives a claim pack (for MCOL claims) that tells them what they can do but doesn’t order them to do anything. They can just ignore it if they wish and the claimant can then request default judgment. The only difference with a counterclaim is that you don’t receive the claim pack.

Unfortunately, not knowing the rules is not a defence. In the case of Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court stated that someone being a litigant in person “will not usually justify applying ... a lower standard of compliance with rules or orders of the court”. Unfortunately the rules are out there in the public domain. Also, as you are the claimant and have opted to use the courts as a sword it is reasonable to expect you to know what you are doing.

From the sounds of it the defendant has applied for default judgment, this is normally granted without consideration. In this case the court is simply waiting so that damages and costs for both claims can be dealt with in one go, rather than the defendant being awarded damages and costs now and you potentially being awarded damages and costs against them in a few weeks/months.

You could consider making an application to set aside the default judgment but the onus is then on you to evidence why it should be set aside. An argument of “I was expecting an order which the court is not actually required to make under the CPR” is unlikely to succeed.

Also, if you’ve served a defence out of time then, unless it was accompanied by an application to extend your deadline for filing and serving it and/or an application for relief from sanction then it is highly likely that the court will disregard it.

October868

Hello and thankyou for your reply.


Ultimately the judge previously set-aside the initial judgement (and the subsequent 3rd party debt-order) which had been awarded to me in default, purely because the defendant used the defence that ''she didn't respond to any of the court orders because she didn't believe they were genuine/didn't understand them"...


So hopefully I should have a solid reason for not filing a defense to her nonsensical counterclaim, in that the court never stated that I was required to do so.

October868

Can I also just check and confirm that 'damages and costs' in layman's language simply means 'the sum of money directly claimed by the other party'?


But additionally, as no judgement has yet been made regarding her counter-claim, would I have to wait until after the trial before requesting that the judgement is set aside?
Or can I request tomorrow for example for a 'setting-aside', even though the judgement on the counterclaim has not yet been made?

da_rule

You need to drop the “Court never told you that you have to” argument because it has. It told you via the CPR.

Damages are the compensation. Costs are the court/legal costs each party has incurred.

In relation to set aside, it depends on what the order actually says. If it has just been applied for and not yet granted then you may be able to just deal with at the hearing. If it has been granted but the costs/damages have not yet been awarded then you may need to make an application.

waamo

Original thread for background https://forums.moneysavingexpert.com/discussion/6030397

This whole case does seem a little odd.

October868

Hello the letter simply states 'word for word'-
A. There be judgement for the defendant on the counterclaim with damages and costs to be assessed at the hearing.
B. The trial remains listed for the date xxxx.


But so that doesn't make it clear if the judge has actually accepted/granted the defendant's request for a judgement in default, or not...??

da_rule

“There be judgment for the defendant” is quite clear. The defendant has won their counterclaim (by default) and quantum (costs and damages) is to be assessed at a later date (at the planned hearing).

October868

Thankyou for confirming that.


In that case I will ofcourse send a letter tomorrow requesting that this 'judgement' be set aside.


Ultimately the defendant's entire counterclaim is just jibberish and nonsense anyways (with no basis in legality or even reality).