*** DISMISSED *** Small claims for stabling fees

[jaguarsuk]

do they have to send in their defence to my counterclaim at the same time as the directions questionnaire?

I believe they have 14 days from the date you file it, plus 2 days for service and so they should have sent it 16 days after you filed. If you filed on 10th April per post #114 then the Claimants deadline has long passed on the 26th April.

The judgment of Master Matthews in Muhammad -v- ARY Properties Limited[2016] EWHC 1698 (Ch) was that a Defence to Counterclaim is not a formality and a full and detailed Defence to the points made in the Counterclaim is required.

[Amethyst]

Normally yes unless the court has ordered different. The reply to the Defence and the defence to the counterclaim should be filed and served with the directions questionnaire. CPR 15, PD 15 and CPR 20. Acknowledgement doesn't apply to counterclaim so it is straight in with defence. If they haven't filed/served a defence might be worth calling the court and checking. ( it is 14 days not 28 as part 12 applies re default judgment and there's no acknowledgement req'd)

https://www.justice.gov.uk/courts/pr...es/part20#20.3
https://www.justice.gov.uk/courts/pr...l/rules/part15

https://www.justice.gov.uk/courts/pr...rt15/pd_part15

3.2 Where a claimant serves a reply and a defence to counterclaim, the reply and defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply.

3.2A Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will normally order that the defence to counterclaim must be filed by the same date as the reply. Where the court does not make such an order the reply and defence to counterclaim may form separate documents.

[Stopbox]

The date we had to reply with the Directions Questionnaire was 10th May, but I will give the courts a ring to find out if she has supplied a defence to the counterclaim.

[jaguarsuk]

The date we had to reply with the Directions Questionnaire was 10th May, but I will give the courts a ring to find out if she has supplied a defence to the counterclaim.

If she has then she is supposed to serve a copy on you in the same way she did with the DQ. Ask the court email you a copy or order her to serve you.

[Stopbox]

She was served with the Directions Questionnaire on the 14th April and she had 14 days to file a defence (I've just been told this by the courts), they have not received any defence against the counterclaim

[Amethyst]

You could then file for a Default Judgment on the Counterclaim and the claim would proceed only on her original claim.

( would be form N225 if the counterclaim was for a specified amount )

[jaguarsuk]

You could then file for a Default Judgment on the Counterclaim and the claim would proceed only on her original claim.

( would be form N225 if the counterclaim was for a specified amount )

You should be aware that there is a fee of £255 for filing the application and if she were to defend it sucessfully you could be liable for her costs of doing that. I don't see how she could defend it, the Civil Procedure Rules are sufficiently available to all even if she is Litigant in Person and so she should have been aware of her obligation.

In the amount you request on the form include the cost of the application.

The form if you want to go ahead with it is here: http://s3-eu-west-1.amazonaws.com/hm...r/n225-eng.pdf

[Stopbox]

I've just had a look at form N225 and I see that it relates to the Defendant, does this mean that she now becomes the defendant because she has not replied to my counterclaim?

[jaguarsuk]

I've just had a look at form N225 and I see that it relates to the Defendant, does this mean that she now becomes the defendant because she has not replied to my counterclaim?

Technically, she becomes the “Part 20 Defendant” and you become the “Part 20 Claimant” in a Counterclaim. Therefore any court documents should give the parties both of these titles. Once printed you can write in "Part 20" above each title on the form.

As well as the cost of the application don't forget to add the fee you sent to the court for the Counterclaim in part D too. Interest is 8% per day.

[Stopbox]

I presume that interest is from the date of the counterclaim. I'm going to print the form off, put in the amounts roughly and talk this through with my husband tonight.

[jaguarsuk]

I presume that interest is from the date of the counterclaim.

Yes.

I'm going to print the form off, put in the amounts roughly and talk this through with my husband tonight.

A sensible idea.

If you proceed and judgement is awarded against her on the Counterclaim then you will just defend her claim on the day in court. Defeat it and you're quids in.

[Stopbox]

What will happen if I don't put the form in?

[jaguarsuk]

What will happen if I don't put the form in?

You will then proceed to the hearing where you will argue against her claim and if successful it will be dismissed. And then you will have to ask the judge to enter judgement against the undefended counterclaim. They may hear her submissions on it though as she is already there.

[Stopbox]

If I put this claim in and win, will this make her claim/case look unstable? and do you think its worth doing? I've discussed it with my husband and we both think its a good idea to go forward with this.

[jaguarsuk]

If I put this claim in and win, will this make her claim/case look unstable? and do you think its worth doing? I've discussed it with my husband and we both think its a good idea to go forward with this.

It'll be very useful in the Witness Statement as you claim you overpaid her and if you hadn't why didn't she defend the Counterclaim? Equally if she didn't harass you or damage your property why didn't she defend the Counterclaim?

In small claims the judge decides on the "Balance of Probabilities," in other words what's most likely to have happened. It's reasonable that if someone issues a Claim or Counterclaim that if what's being claimed is wrong you'd expect it to be defended and if it isn't defended it's likely that it can't be defended against because the claim is true.

Also, if I remember correctly you could evidence the sums of money leaving your bank account all except one (was it the £1,200 in June?), this was to be one of the most tricky parts of your case as you had to prove sale of goods to the value of the payment. However if you have this Judgement, along side the selling goods you can now point out that if you hadn't have made that payment, then you wouldn't have overpaid and if you hadn't overpaid she would have defended the Counterclaim.

As well, if the judge doesn't accept that logic and agrees to dismiss part of the claim on the grounds they believe that the monies evidenced on bank accounts were paid, but not the £1,200 you have a Judgement for close to that amount and so you're only actually going to have to pay a much smaller amount than otherwise.

Additionally, getting the judgement will significantly lower the amount of time you'll be in court and all the nerves etc. that go with that.

Finally, you may get the judgement and don't be surprised once she gets served with it if she makes an application to set it aside. I doubt she would be successful in a set aside application as she has been notified of the Counterclaim by the Court, the deadline may have been on the order to respond and the Civil Procedure Rules are sufficiently available that even a litigant in person has access to them. There's more info on what a set aside is if you curious here: http://legalbeagles.info/forums/foru...tailed-version

It's my guess she isn't represented, the solicitor was just a scare tactic and she doesn't know she's supposed to file a Defence to Counterclaim. She probably just thinks that as she has said things about the money and harassment in the claim that will just be argued in court, so there's no need to respond.

If I'm correct, then when a CCJ lands on her door mat then she's in for a shock.