Discontinued vs Counterclaim

[sapnker]

Hi, I have posted on here before with regards to this current case, so you would need to see my other postings to understand the whole county court case in question.
So here is a question that I need an answer to please.
At the first hearing on 07/11/2016, the claimants solicitor presented a draft order to the court that I, one of the two defendants, have the claim against me "be discontinued", and it was agreed that each side would bear their own costs.
I did not object to this, as the claim had already been allocated to the small claims track some weeks earlier, and I am aware that costs are not normally awarded for small claims cases, unless there has been bad behaviour by either the claimant or defendant.
I am also aware that if the claimant had discontinued against me before the case track allocation they would have been liable for my costs.
However, the reason the claimant drafted this order was because I issued an application for the claim against me to be struck, or an order of summary judgement.
I also issued a separate counterclaim against the claimant for malicious prosecution.
These two separate applications were accepted by the court and are listed for 29th November 2016.
The other defendant and claimant are headed for mediation.
So, my belief, is that insofar as my application for the claim against me to be struck, or an order of summary judgement. that application is now useless and is concluded.
So, what do I do about it? Let it run or do I have do something about it like, "DISCONTINUE IT", bearing in mind that I would have to wait till it has been allocated a case track or risk having to pay their costs! Hmmmm..
In regard to my second application for malicious prosecution, I presume that I still have that to go forward with and that just because I have accepted that they have discontinued their claim against me and that I have accepted that there would be no order for costs on that day 07/11/2016 that I still have my claim against the claimant for malicious prosecution going ahead?
What do you think and advise.

Regards.

Paul

[Kati]

Re: Discontinued vs Counterclaim

other threads for ref:
1, http://legalbeagles.info/forums/show...-Court-Summons
2, http://legalbeagles.info/forums/show...us-prosecution

[R0b]

Re: Discontinued vs Counterclaim

A discontinuation would not normally discontinue the counterclaim, that would still proceed but it depends on the wording of the consent order.

Have you already signed and accepted the consent order to discontinue? If the wording says something along the lines of all claims in relation to the matter be discontinued then that may be construed as your counterclaim having been discontinued too.

It would be helpful to provide a copy of the consent order before being able to confirm anything. It would also be helpful to know if they have filed a defence for the malicious prosecution and again, any copy of that would be helpful.

[R0b]

Re: Discontinued vs Counterclaim

I would just like to ask having looked again at your previous threads, your N244 application was for strike/summary judgment or counterclaim for malicious prosecution. Are you saying the court has accepted both applications which are to be heard at the same time on 29 November?

[sapnker]

Re: Discontinued vs Counterclaim

I would just like to ask having looked again at your previous threads, your N244 application was for strike/summary judgment or counterclaim for malicious prosecution. Are you saying the court has accepted both applications which are to be heard at the same time on 29 November?

Hi, I may have jumped the gun a bit. I just realised the hearing date is just that, a hearing date to decide if I can go ahead. I think?
Not sure. Lol.
I have attached the edited draft

- - - Updated - - -

Hi, I may have jumped the gun a bit. I just realised the hearing date is just that, a hearing date to decide if I can go ahead. I think?
Not sure. Lol.
I have attached the edited draft

I will after my tea post the court hearing picture.

[sapnker]

Re: Discontinued vs Counterclaim

As promised documents. I have 2 x application receipt notices but they are both the same.
So, do you think that the hearing is just for the judge to decide what happens next?
if it is then the defendant will not have to enter a defence plea just yet.
not really sure what the hearing is about.

[sapnker]

Re: Discontinued vs Counterclaim

The other 2 x pics

[R0b]

Re: Discontinued vs Counterclaim

Looking at the draft order, it seems as if they have agreed to discontinue the claim against you and also that both parties agree to attempt to settle the matter through mediation. If mediation fails then you have ti file a defence by 20 december for your counterclaim.

That all seems fairly reasonable to me but the problem is that a mediation appointment may take some weeks which if that fails then leaves you with possible days to file a counterclaim. Ideally it should say, in the event of failed mediation then the Claimant shall file and serve a counterclaim within 14 days with a Defence to be filed no later than 14 days thereafter. That way you will always get the 14 day period.

Because you have suggested filing a counterclaim, they are willing to settle the matter the question is how much are you willing to agree. Malicious prosecution could attract exemplary damages which is damages beyond what you have incurred as a loss. The fact that you have attempted several times for them to discontinue and force you into filing a defence and then still insisted on taking you to court has cause further and unnecessary costs incurred by you. Only when you decided to strike out / counterclaim did they suddenly decide to discontinue.

As a litigant in person, you are entitled to claim costs at £19 p/h so at the minimum as a result of the malicious claim you could be seeking costs for:

1. drafting and filing a defence
2. drafting and filing an application to strike out / counterclaim

Do try and be realistic on the amount of time you have spent doing both otherwise the judge is likely to strike down your costs as unreasonable time spent. You could also say to them that you will seek exemplary damage if the matter goes to court based on their conduct and behaviour so you need to have a figure in mind for that. Again, don't try to be greedy here and I think given the circumstances, perhaps up to £300-£400 at a maximum. even then that may be considered too much but exemplary damages are based on deterring the claimant from bringing claims like this again so it could also be higher depending on the judge's view of this.

Really the question is what you are willing to do, you need to have three figures in mind: Your best figure, your acceptable figure and then your bottom line figure.

By the way, who is the company and is this matter being dealt with by their in house legal team or an external firm of solicitors?

[sapnker]

Re: Discontinued vs Counterclaim

Hi everybody, As you can see from the images that I have attached, I need to draft a pleaded counterclaim.
What the judge wants is details of how we arrived at the figure that we have.
So, anybody have a template or can post how I set the draft out>
Cheers
Paul

[R0b]

Re: Discontinued vs Counterclaim

Hi Paul,

I can't see any order from the court in the images you have posted that says you must file a counterclaim? There is a draft order which you say is from the other side, but I am still unsure as to whether you have actually signed and agreed that draft order.

[sapnker]

Re: Discontinued vs Counterclaim

Hi R0B, in the first image is the draft order from the other side.

"4. The defendant shall file and serve a fully pleaded counterclaim setting out in detail the alleged losses by 4pm on December 2016".

This was the draft order as agreed by the court.
In other words, I had already filed a counter claim but the draft order wants a "fully pleaded counterclaim" .
Eg, detailing alleged losses and how we arrive at the counterclaim figure.
The counterclaim figure is £1600.
£600 of that is for the roof and boiler flue repairs. The rest is for breach of contract and compensation for all the agro upset my mother has been put through. The breach of contract being that they did, or could not finish the job my mother signed a contract for. (Contractual agreement).
I have not signed the above draft as the other side wanted a order to discontinue me from the proceedings and I do not have any say in that whatsoever.
Regards.
Paul.

[R0b]

Re: Discontinued vs Counterclaim

Sorry I am even more confused now.

You made an application yourself to strike out/summary judgment or counterclaim but you are now referring to a counterclaim by your mother, so I am not entirely sure which one we are dealing with here.

So who has to serve their counterclaim by 4 December, yours or your mothers?

[sapnker]

Re: Discontinued vs Counterclaim

Sorry I am even more confused now.

You made an application yourself to strike out/summary judgment or counterclaim but you are now referring to a counterclaim by your mother, so I am not entirely sure which one we are dealing with here.

So who has to serve their counterclaim by 4 December, yours or your mothers?

Hi, I made a application for strike out/summary judgment and a claim for malicious prosecution.
My mother made a counter claim in respect of £1600 for breach of contract/repairs/ repositioning of gas central heating flue.
My mother has to serve a pleaded counter claim detailing how she arrives at £1600 by 4 December.
My hearing for the applications for strike out/summary judgment and a claim for malicious prosecution are to be heard on the 29th November.
However, because of the other sides draft order to discontinue me from the proceedings, my application for strike out/summary judgment is finished.
But my claim for malicious prosecution still stands.

Hope this explains things a bit better.

Paul.

[sapnker]

Re: Discontinued vs Counterclaim

http://www.legalbeagles.info/forums/...147#post690147

A link to another legal question about court fees that is connected to my posts on here

[R0b]

Re: Discontinued vs Counterclaim

Hi, I made a application for strike out/summary judgment and a claim for malicious prosecution.
My mother made a counter claim in respect of £1600 for breach of contract/repairs/ repositioning of gas central heating flue.
My mother has to serve a pleaded counter claim detailing how she arrives at £1600 by 4 December.
My hearing for the applications for strike out/summary judgment and a claim for malicious prosecution are to be heard on the 29th November.
However, because of the other sides draft order to discontinue me from the proceedings, my application for strike out/summary judgment is finished.
But my claim for malicious prosecution still stands.

Hope this explains things a bit better.

Paul.

That makes more sense now, thank you. Are you able to provide us with what your mother originally sent to the court as a counterclaim? A pleaded counterclaim is the same process as drafting a particulars of claim. It should set out a brief factual background of the case, how the contract was entered into, how the breach of contract occurred and the result has caused loss and damage. You then breakdown the damages and losses usually in a table of information so if she is claiming £1600 then you have to specify how you came to that amount.

From what you have said earlier you mentioned £600 towards flue and roof repairs, do you have receipts or invoices relating to those that you can supply to them? You will then have to justify how she is entitled to the remaining £1000 for hassle and ongoing issues. The matter is going to court and it is a court of law so you have to find out what case law will enable her to claim such an amount.