hi! Looking for some advice re small claims court situation

[mabeybaby]

HI, I'm hoping someone can offer some advice and maybe some reassurance please? I am the claimant in a small claims court action. The defendant is defending the case but also originally issued a counterclaim. However the counterclaim was struck out because it was paid for. This was 6 months ago. The claim was started online but has since been transferred to the local court. Somewhere in the system, the strike out of the claim has not been added to the court papers that the local court have so they have asked for proof (which i have provided) but have also given the defendant the option to submit another counterclaim in the meantime - is this legal and allowable 6 months after the event? Where do we stand with this?

[Pezza54]

Hi
Welcome to LB

Do you mean the counterclaim was struck out by the court because the defendant failed to pay the court fee? Do you also mean the strike out of the counterclaim has not been included with court documents transferred to the county court?

When the court strikes out a claim, defence or counterclaim, the party whose statement of case has been struck out has very limited time to make an application notice to try to reinstate it. They would need a very good reason. In your situation the defendant would have been warned that they needed to pay the court fee by a stipulated date

So the answer to your question is no, the defendant shouldn't be told by the court to just submit another counterclaim

[mabeybaby]

Thank you for replying so quickly. Yes you are absolutely correct. The defendant failed to pay the court fee so the court struck out the counterclaim for this reason. This was when the claim was being handled by the online money claims system. The case was then transferred to the local court and we have a directions hearing date. On the directions hearing order it states that the court do not have a record of the counterclaim being struck out and could we supply information/letters or documents confirming this (which i have done) but it then goes on to say that if the defendant wishes to enter a counterclaim then they have to do it no less than 14 days before the hearing date - which is essentially giving them another opportunity. I dont feel that this should be allowed and i'm hoping that the proof i have provided to the court which confirms the counterclaim strike out, then if the defendant did apply a second time and actually pay for it this time, then it should be disallowed anyway - would that be correct?

[atticus]

Does this latest order that you have received provide that you can apply to set it aside?

Courts regularly allow claims/counterclaims to be reinstated that have been struck out for non payment of fee.

[Pezza54]

Do the court directions mention a reply/defence to counterclaim?
You will need time to draft and file a defence

[mabeybaby]

There is no mention of a set aside option.
As the claimant we have replied to the defence already. When the counterclaim was struck out 6 months ago, we were told to just treat it as a standard defended case and have provided a reply to the defence accordingly.

[mabeybaby]

I hope you dont mind but i have another question regarding the same small claims case that i've been talking about. Its causing me a great deal of stress and anxiety so i'm grateful for information that could put my mind at rest!

Without going into too much specific details, i will outline the situation - This is a business to business case involving construction.

We were contracted to build something for the client. This was quoted and accepted. Part of the build process involved other trades which we do not get involved with. The defendant agreed to engage the other trades directly.

Long story short - the defendant failed to engage the other tradesmen for the entire time we were on site, despite being asked and chased several times, we were fobbed off. Therefore this resulted in us not being able to complete our work until the other tradesmen had come to do their work. Before we left site we spoke directly to the defendant and explained for the 100th time that he needed to get the other trades in, get them to do their work and then let us know once this had happened upon which we would return to complete our part.

Basically the defendant never contacted us. Ignored our calls and emails, and went ahead without further reference to ourselves and supposedly got other people to complete our work and is using this as his defence. His defence is the fact that we never went back to complete the works even though we were awaiting him letting us know the other trades had completed their works and it was ready for us to return.

However, there's more - he didnt advise us of any of this - essentially there was no response whatsoever until we decided we had no option but to issue court proceedings to reclaim the unpaid monies. In his original defence and counterclaim, he listed a long list of defects (that we had no idea about and had never heard of before) and then went on to say that he had had all of these so called defects repaired by other people. Again we only learned of all of this in the defence paperwork, so he has basically created a defect, fixed it, paying someone else to do so and we knew nothing about any of it until it was all done.

Therefore this now means that it would not be possible for any EXPERT witness to form a report because according to the defendant the original works are no longer in existence!

This has been causing me so much stress because there isn't anything i can do about things i knew nothing about. And now they've been changed also - theres no way forward.

This does not seem at all fair, and i cannot fathom how he would be able to get away with this?? Any advice would be greatly appreciated.

[Pezza54]

After the counterclaim was struck out your Reply to Defence (not counterclaim) should have been filed with your Directions Questionnaire

Who told you to carry on and file a Defence to Counterclaim?

[mabeybaby]

Yes our reply to defence was filed with the directions questionaire. But since then, somewhere between the MCOL system and my local court, the strike out counterclaim information appears to have been lost so the directions hearing is saying that the defendant can file a counterclaim if he wants to

[Pezza54]

The strength of your claim is based on face to face conversations and phone calls with the defendant alongside emails to the defendant

Make sure you include full details of this communication in your witness statement, provide dates and times, and attach copies of emails, the contract, quotation etc

Stress you were not given the opportunity to return to complete the work

[Pezza54]

Yes our reply to defence was filed with the directions questionaire. But since then, somewhere between the MCOL system and my local court, the strike out counterclaim information appears to have been lost so the directions hearing is saying that the defendant can file a counterclaim if he wants to

The defendant does not need the court's permission to file a counterclaim if it was served with the defence

Had you filed a Defence to Counterclaim it should have been filed within 14 days of being served with the counterclaim


Be aware that if you drafted a defence to the original counterclaim (before it was struck out), the defendant may change the content of the document if he is just allowed to file another one with the court

[Pezza54]

What track has your claim been allocated to?

Now I am a bit confused

Part 15
A Reply to Defence and Defence to Counterclaim should normally form one document
So the claimant has 14 days from being served with the Defence and Counterclaim to respond to avoid court judgement in default
This seems unfair as the defendant may not have paid the court fee for the counterclaim. If the counterclaim is subsequently struck out, the claimant should claim legal costs for drafting the Defence to Counterclaim

[mabeybaby]

Its been allocated to the small claims track. Not fast track.

The reply to defence was filed with the N180 Directions questionaire and reply to defence so this was after the counterclaim was struck out.

Should the defendant be allowed to submit a second counterclaim if 6 months have elapsed?

Is it allowable that the defendant has potentially "created defects, and then fixed them" without any proof at all - no evidence was submitted in his defence it was just words with "documents to follow" which have never been seen by the courts or by us.

Would the court allow an expert witness if the original work can no longer be seen, checked or verified?

[Pezza54]

Sorry just edited post 12

If there were any defects in addition to uncompleted works the defendant should have taken photos and/or obtained an expert report before employing other tradesmen

The defendant should also have notified you of the reasons why he was not letting you return and was going to employ someone else. If he did this hopefully you warned him that you would seek payment for your loss and gave him the chance to pay up before starting the court claim

6 months is much too long a time for a counterclaim, even on the small claims track where court rules are not followed as closely as other tracks

However there is nothing to stop the defendant making a separate claim and the court adding this claim to proceedings so that both claims are dealt with at the same time

[mabeybaby]

Sorry just edited post 12

If there were any defects in addition to uncompleted works the defendant should have taken photos and/or obtained an expert report before employing other tradesmen

The defendant should also have notified you of the reasons why he was not letting you return and was going to employ someone else. If he did this hopefully you warned him that you would seek payment for your loss and gave him the chance to pay up before starting the court claim

6 months is much too long a time for a counterclaim, even on the small claims track where court rules are not followed as closely as other tracks

However there is nothing to stop the defendant making a separate claim and the court adding this claim to proceedings so that both claims are dealt with at the same time

Thanks for this. The defendant apparently did take photos but nobody has ever seen them and they have not been submitted in the defence. The defendant also DID NOT contact us at all, and furthermore avoided replying when we contacted him, wouldn't pick up the phone etc and so as a result we knew nothing about any of this.

We followed all the correct pre-action protocols before issuing proceedings but as he didnt respond to anything, we felt there was no option.

Essentially we feel he has fabricated all of this and created fake photos and bills from his friends in order to get out of paying. We cannot prove this but likewise, he cannot prove that he hasn't because if its all been changed then nobody can check or verify - is that correct?

My hope is that if he cannot prove anything and just has some historical photos and invoices from contractors, thats not enough proof to say the defects even existed? I would also hope that the judge would request evidence to be verified by someone impartial - which has not been done, and surely can't be done now if the original works no longer exist - am i correct?