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  • FIRST POST
    • Loader12255
    • By Loader12255 10th Apr 18, 6:09 PM
    • 14Posts
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    Loader12255
    Small Claims Court Counterclaim filed, will this be defended?
    • #1
    • 10th Apr 18, 6:09 PM
    Small Claims Court Counterclaim filed, will this be defended? 10th Apr 18 at 6:09 PM
    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?
Page 1
    • Castle
    • By Castle 10th Apr 18, 6:25 PM
    • 1,874 Posts
    • 2,540 Thanks
    Castle
    • #2
    • 10th Apr 18, 6:25 PM
    • #2
    • 10th Apr 18, 6:25 PM
    Some background reading:-
    https://civillitigationbrief.wordpress.com/2016/07/19/replies-and-defence-to-counterclaim-a-primer/
    • Loader12255
    • By Loader12255 10th Apr 18, 6:39 PM
    • 14 Posts
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    Loader12255
    • #3
    • 10th Apr 18, 6:39 PM
    thanks but stil confused
    • #3
    • 10th Apr 18, 6:39 PM
    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
    • By waamo 10th Apr 18, 6:47 PM
    • 3,921 Posts
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    waamo
    • #4
    • 10th Apr 18, 6:47 PM
    • #4
    • 10th Apr 18, 6:47 PM
    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.
    This space for hire.
    • Loader12255
    • By Loader12255 10th Apr 18, 6:58 PM
    • 14 Posts
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    Loader12255
    • #5
    • 10th Apr 18, 6:58 PM
    • #5
    • 10th Apr 18, 6:58 PM
    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
    • By waamo 10th Apr 18, 7:00 PM
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    waamo
    • #6
    • 10th Apr 18, 7:00 PM
    • #6
    • 10th Apr 18, 7:00 PM
    Point this out to the court. Write to them and inform them no defence has been entered.
    This space for hire.
    • Loader12255
    • By Loader12255 10th Apr 18, 7:03 PM
    • 14 Posts
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    Loader12255
    • #7
    • 10th Apr 18, 7:03 PM
    • #7
    • 10th Apr 18, 7:03 PM
    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
    • By waamo 10th Apr 18, 7:13 PM
    • 3,921 Posts
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    waamo
    • #8
    • 10th Apr 18, 7:13 PM
    • #8
    • 10th Apr 18, 7:13 PM
    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.
    This space for hire.
    • Loader12255
    • By Loader12255 10th Apr 18, 7:23 PM
    • 14 Posts
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    Loader12255
    • #9
    • 10th Apr 18, 7:23 PM
    • #9
    • 10th Apr 18, 7:23 PM
    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
    • By steampowered 10th Apr 18, 8:24 PM
    • 2,764 Posts
    • 2,696 Thanks
    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 ...
    Last edited by steampowered; 10-04-2018 at 8:27 PM.
    • steampowered
    • By steampowered 10th Apr 18, 8:34 PM
    • 2,764 Posts
    • 2,696 Thanks
    steampowered
    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
    Originally posted by Loader12255
    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.

    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?
    Originally posted by Loader12255
    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.
    • Loader12255
    • By Loader12255 11th Apr 18, 5:57 PM
    • 14 Posts
    • 0 Thanks
    Loader12255
    steam punk we did pay appropriate counterclaim fee.

    The reason it bothers me that they lied on claim form is that he is a teacher. i feel he shouldnt be able to hold this position of power if he can lie on a legal document. what worries me is that he will encounter my children in their next final schooling through gcse stage and above, i dont know where he teaches but i think he exam assesses. what if he comes accross my sons surnames and holds that against them. The attack on our business has been brutal.

    They have lied repeatedly but i wont accuse them of that its not the thing to do but there are instances where there are proof e.g they refer to something being in a letter which clearly isnt there. If claimant says that in our letter we declined mediation and we didnt in that letter and they have provided copy of letter so it is clear we didnt say that and its a lie on a legal form will the judge follow up on this or do we need to file a claim elsewhere as law states a fine can be impossed by this and im thinking like the fine for taking children on holiday in term time it should carry some affect onto his profession and his ability to teach. Im not trying to be vindictive but I will under no circumstances see my childrens lives affected through this and any future unfair treatment of this teacher if they are in contact with my children or their work/exams etc.
    Last edited by Loader12255; 11-04-2018 at 6:04 PM.
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