claim discontinued but what about counterclaim?

[sapnker]

Scenario.
Claimant issues claim against 2nd defendant for money over central heating installation.
2nd Defendant counterclaims against claimant.
Claimant some time later discontinues claim against 2nd defendant.
Does the 2nd defendants counterclaim still stand or did it die because the claim against the 2nd defendant was discontinued?

Cheers guys.

Paul.

[charitynjw]

Re: claim discontinued but what about counterclaim?

Hi Paul
What do you you mean by '2nd defendant'?
Usually, the counterclaim still stands as a separate (albeit related) claim & the court process & timetable should be adhered to.

[sapnker]

Re: claim discontinued but what about counterclaim?

Sorry I got it wrong.
My mother is the 2nd defendant and I was named as the 1st defendant.
My mother had problems with the installation and counterclaimed for bad work.
I counterclaimed/claimed for malicious prosecution as I never signed for the installation.
I informed them twice that I considered it to be malicious for helping my mother.
The claimants replied that they intended to carry on prosecuting me.
So I counterclaimed/claimed for malicious prosecution and when I served the summons they discontinued the claim against me.
Now they are saying it was all a big mistake and that I can not counterclaim/claim against them because when they discontinued the claim against me that stops my counterclaim/claim against them.
The big day for permission from the judge for permission to carry on is the 30th of this month.
They have already done a costs for that day 0f £1039.
They think bullying me will get me to drop it all.
Not a chance.
I carry on.

Cheers for the reply.

Paul.

[Diana M]

Re: claim discontinued but what about counterclaim?

If the Claimant has done a Costs Schedule for the hearing I'm guessing this claim must be in the Fast Track.

And when you say the day for the judge to give permission to carry on is the 30th I'm guessing this is for a CMC (case management conference) not the final trial.

From what you say (or haven't said) a claim still exists against the 1st Defendant who is your mother and she has counterclaimed in her own right.

So on the day the DJ has to decide what the next steps should be in the legal process. If the Claimant has prepared a Cost Schedule that suggests they have instructed solicitors although a LIP can claim their costs too, so you (and your mother) should also prepare a schedule.

It's not possible to predict what the DJ will decide without knowing the full background of the case. In relation to your Counterclaim he will probably be asked by the other side to consider whether it has any merit so be prepared to argue and reason "malicious prosecution".

If it is a CMC one of the objectives could be to narrow down the issues and perhaps give Directions such as the appointment of an independent expert to asses the quality of the installation which appears to be the basis of your mother's Counterclaim and presumably also part of her Defence.

Since you imply the claim against you was Discontinued after you had filed your Defence (is that right?) then you may be able to claim your costs up to that point (the Discontinuance) since this is in the FT (if it is).

As I say, I'm only guessing at what may lie ahead in broad terms based on minimal information. The decision on what really will happen lies with the DJ at the hearing.

Di