Counterclaim default Judgement

[Blinkin73]

Hi,

Ive just had the hideous experience of a cowboy builder initiating a MCOL claim against me when I refused to pay the outstanding balance due to the job being so awful. I got a builder to view the work before refusing payment and reported the incident to the police and trading standards before changing my locks and informing the "builder" I wouldnt pay the rest. He attended my home 11pm that evening with two others to deliver a letter containing threats and insults and demanding I respond by 9am the next morning which I didnt. The next day he he initiated a claim online, sent the particulars of claim nearly a month later in completely the wrong format, Ie its just a letter addressed to me containing numerous threats and insults and inaccuracies, no numbered paragraphs, or statement of truth etc.

I acknowledged service, and then submitted a defence and counterclaim in the appropriate format and within timescales. A few days after he should have submitted a defence I received an email from him advising that he had submitted a defence but when i phoned the Court two days later they advised that he had not done so.

So, as I understand it i should now send a certificate of service to the Court and a form N225 to obtain the default judgement. Do I have to serve them on the Claimant also?

[ostell]

Re: Counterclaim default Judgement

Check the court again as there could be delays in the paperwork. So the original claim (his) has not gone any further? You might find it is stayed.

[Blinkin73]

Re: Counterclaim default Judgement

Thank you for your reply ostell


What do you mean by stayed?

Its ok, I just looked up the meaning.

Is this ever going to end? Why am I working really hard to do the right thing when the original claimant appears to be able to ignore all guidance, protocol and procedere. I dont understand.

I refused payment on 29th March. He initiated MCOL 31 March. I acknowledged service within 14 days. I received his alleged particulars of claim 11th May, I serve defence and counterclaim 9th June. I am still waiting for his defence which he said he sent to Court 26th June but the said they didnt have a copy on 28th June and I still havent received it. apparently the case went before the judge on 28th June too. As I understood it, the claimant had 14 days to respond to my Counterclaim or face a default judgement. Am I wrong?

[ostell]

Re: Counterclaim default Judgement

Why "Apparently" it went before a judge?

[Blinkin73]

Re: Counterclaim default Judgement

The lady at the court told me it was going before the Judge that day when I phoned on Wednesday. Just a turn of phrase I used. I am not a stupid person and I have done a lot of reading about small claims but I havent read anything about cases being stayed. I feel as though the claimant isnt taking the process seriously and just using it to harrass me because I wouldnt pay for his really poor workmanship. If I failed to serve a defence, I would have recieved a default judgement.

[Blinkin73]

Re: Counterclaim default Judgement

I want to be very clear here, I am a single woman who lives alone. I employed a builder who took the P*** out of me completely. He used whatever materials he had laying around resulting in him using old torn felting for my shed roof, a soft wood threshold for an exterior door which he painted in white gloss despite the external entrance being stained in mahogany, used cream and green tiles in my blue and white bathroom (he tried to make a chequered pattern but didnt have enough green tiles to do so), used untreated soft wood to edge a bathroom vanity unit, failed to cut in when painting walls white, failed to paint the ceilings as agreed, just used a roller in a couple of places on the ceiling, painted windows shut, left the rubbish in my outhouse, broke my toilet flush and left his dried poop around the toilet bowl, used the wrong coloured paint to touch up the kitchen, varnished my wooden floor (which I didnt ask for) varnishing over paint splashes, left paint drips on blinds etc etc, submitted is invoice even though he had not completed the works and I had difficulty getting my keys back from him. Then visited my house at 11pm with two other men on the day I communicated that I would not be paying the remainder of the balance, then attempted to break in to my property, initiated small claims proceedings a day later, submitted his particulars of claim late and in an incorrect format, insulted and threatened d me on numerous ocassions including the Court papers he submitted (called me a liar several times underlining the word, referred to my house as "a turd that cant be polished" and refered to my "sticky kitchen" , threatened me with libel and to report me to federation of small business (I am not a business so dont know why he thought to threaten that), report me to the local authority, and now has failed to respond to my counterclaim within timescales. His recent email apart from stating that he had filed a defence, was another rant at me about the fact that I had declined mediation and trying to bully me into allowing him to redo the work. He appears to be abusing the process.

Why would the Court stay proceedings when noone has requested them to do so?

[Blinkin73]

Re: Counterclaim default Judgement

I want to be very clear here, I am a single woman who lives alone. I employed a builder who took the P*** out of me completely. He used whatever materials he had laying around resulting in him using old torn felting for my shed roof, a soft wood threshold for an exterior door which he painted in white gloss despite the external entrance being stained in mahogany, used cream and green tiles in my blue and white bathroom (he tried to make a chequered pattern but didnt have enough green tiles to do so), used untreated soft wood to edge a bathroom vanity unit, failed to cut in when painting walls white, failed to paint the ceilings as agreed, just used a roller in a couple of places on the ceiling, painted windows shut, left the rubbish in my outhouse, broke my toilet flush and left his dried poop around the toilet bowl, used the wrong coloured paint to touch up the kitchen, varnished my wooden floor (which I didnt ask for) varnishing over paint splashes, left paint drips on blinds etc etc, submitted is invoice even though he had not completed the works and I had difficulty getting my keys back from him. Then visited my house at 11pm with two other men on the day I communicated that I would not be paying the remainder of the balance, then attempted to break in to my property, initiated small claims proceedings a day later, submitted his particulars of claim late and in an incorrect format, insulted and threatened d me on numerous ocassions including the Court papers he submitted (called me a liar several times underlining the word, referred to my house as "a turd that cant be polished" and refered to my "sticky kitchen" , threatened me with libel and to report me to federation of small business (I am not a business so dont know why he thought to threaten that), report me to the local authority, and now has failed to respond to my counterclaim within timescales. His recent email apart from stating that he had filed a defence, was another rant at me about the fact that I had declined mediation and trying to bully me into allowing him to redo the work. He appears to be abusing the process.

Why would the Court stay proceedings when noone has requested them to do so?

Please can someone explain why I cant request a default judgement for my counter claim now that the original complainant has failed to submit a defence. Thank you

[Blinkin73]

Re: Counterclaim default Judgement

Please can someone explain why I cant request a default judgement for my counter claim now that the original complainant has failed to submit a defence. Thank you

I am at my wits end here. I really would appreciate some guidance

[ostell]

Re: Counterclaim default Judgement

Calm down, I think everybody understands about bad workman, I've had some myself.

The counterclaim would be heard at the same time as the original claim. Did you have a court date set yet? The court can stay a claim on their volition. Perhaps they have stayed his claim for not following the correct procedures and rubbish PoC? That could be the reason for the judge being involved the other day. They may have forgotten about your counterclaim. It happens.

Courts and speedy and timely response don't go together. Patience. Just keep phoning and checking. The paperwork could very well be winging it's way to you.

[Amethyst]

Re: Counterclaim default Judgement

Afternoon.

The Claimant had 28 days from service of your counterclaim to submit his defence. If he did not then yes you can apply for Default Judgment on the counterclaim. This will not effect the original claim, which may well be stayed if it has gone beyond 28 days from when you defended and submitted your counterclaim. You do not need to serve the N225 on the other side.

Sometimes the court has a backlog on papers so we usually would say not to leap on to a Default judgment, as the other side may well apply for a set aside which could just end up in additional costs. Maybe give the court another call on Wednesday and if they still have no defence then put your application in. The Default Judgment on the counterclaim wouldn't be affected by the original claim being stayed.

I agree it sounds completely like the builder is trying to use the court process to intimidate you, and seems to have bitten off more than he can chew

What sort of numbers are involved?

[Amethyst]

Re: Counterclaim default Judgement

CPR wise you want to be referring to Part 20 and Part 12.

Also check with the court as occasionally they can make an order that the reply to the defence and defence to counterclaim should be filed on the same date ( likely around 28 days after you filed defence )

[Blinkin73]

Re: Counterclaim default Judgement

Hi Amethyst

Thank you so much for your reply. I have read various parts of cPR. Unless I am mistaken as the Part 20 defendant he had 14 days with which to submit a defence. Thats what it said on the paperwork too.

Having already paid half the money, I refused to pay the rest approx 1250 pounds. My defence was that he failed to exercise reasonable care and skill (Negligence) and that he didnt complete the job within the timescale given (breach of contract).

My Counter claim was that his negligence means I have to have the literally all work redone as well as paying to have all my floors sanded down and varnished, my flush fitted and my windows unstuck approx 4000 pounds

It will be interesting to see the outcome of his claim given that he will have e default judgement against him which effectively states that he was negligent and breached contract!!

Yeah, I think he realises now that he has bitten off more than he can chew. Im not quite the victim he was suspecting . I fight back

My hope is that he thinks twice before he tries a stunt like this on anyone again. He advertised himself on a website run by Phil from Location location location. He had lots of really positive feedback especially from single women. Having looked at the reviews in more depth, they're fake. His latest review has pictures of a garden he supposedly made over in May 17. Except that he has the very same pictures on his website for a garden he did in 2012. The reviewer has exclaimed that the builder is "a fascinating individual". Which is a weird thing to write in a review about your builder. Anyway, id be surprised if I was the first person he has tried this on with and I doubt that I will be the last sadly.

I dont expect to get any money. When I first paid him, he tried to insist on cash but later gave me his son's bank account to pay the money into. I just want him to rethink abusing the legal system again as a way to intimidate people in to paying up money for his crap work.

Ive already completed an allocation questionaire and as I understand it he now has to pay the hearing fee. I will be surprised if he does.

Meanwhile I am hoping to get the default judgement (Iread you need to submit a certificate of service (re the counterclaim) with the request for default judgement. Then if he doenst pay, which he wont, I intend to request an order for his to attend Court for questioning re his financial position before looking at my options further.

Anyway, thanks Amythest for your support and advice. Its scary dealing with someone so aggressive and clearly bonkers!!!

[Blinkin73]

Re: Counterclaim default Judgement

Oh I should mention I went to see a solicitor for advice. Im used to writing Court reports but needed assistance on the best format to use and wanted to make sure my defence and counterclaim were correct. You have to file your defence and counterclaim as one document at the same time if you are the defendant. So far my journey looks like this

Builder/Claimant initiates claim via MCOL. its deemed served 5 days after

Builder/Claimant served his particulars of claim 36 days after service of Claim but not in any way compliant with CPR. The law states he has to Serve compliant perticular of claims within 14 days of service of claim

I/Defendent had 14 days to submit defence after receiving particulars of claim. But I acknowledged service within 14 days , which gave me 28 days to submit a defence. As I wanted to submit a counterclaim I had to do it at same time as defence in one document otherwise I would have had to make a request to Court to submit one.

Builder/Claimant had 14 days from service of my defence and counterclaim to serve a letter and or a defence (Letter allows builder to respond to my/defendants defence. Defence allows builder to respond to defendants counterclaim. Builder/defendant is not required to acknowledge service of defence or counterclaim.


Builder/Claimant becomes a part 20 defendant after the counterclaim, and I/defendant becomes a part 20 Claimant. The Claimant/ part 20 defendant is requested so serve his claims/defence both to the Court and to me. as I am to him.

Builder/claimant/part 20 defendant failed to serve a defence which entitles me/ defendant/ Part 20 claimant to request a default judgement. Even if a defence is later submitted. Builder can ask for this judgement to be set aside but he would have to have a very good reason for not submitting a defence within the timescales.

When I received his particulars of claim he sent them recorded delivery, as I did my defence and counter claim. So it seems strange that I have received nothing but an email and nor has the Court. But I will phone again this week to make sure.

[Amethyst]

Re: Counterclaim default Judgement

Okay I think that makes things a bit clearer. As you're under £10k it should be in small claims track so yes 14 days for the reply / defence to cc.

How long is it actually since filing your defence and counterclaim ? and when did you file your Allocations/Directions questionnaire?

Did you pay the fee for your counterclaim ? (just checking) ( normally the cc would be served by the court along with the defence if submitted via MCOL so certificate of service wouldn't be needed )

As you have already submitted your directions questionnaire it would seem he has notified the court of his intention to proceed with the claim, so it won't be stayed, it will be being transferred to your local court for listing, and then the hearing fee notification will go out to him. That is assuming you were sent the DQ to complete by the court of course ? Did you send a copy of your DQ to him? and has he filed his DQ ?

Courts are a little pants at times, particularly the call centre staff at MCOL, so don't place too much reliance on what they say, other than exact events that they are reading off the screen, I'd take anything else with a pinch of salt.

If you think it would make things clearer to enable peeps to help, and understand where you are up to, you can upload or email redacted docs ( admin@legalbeagles.info ) but you do sound like you are on top of things

[Blinkin73]

Re: Counterclaim default Judgement

Hi Amethyst,

I filed/served my Defence and Counterclaim on 9th July with a cheque for the counterclaim, I also included a completed directions questionaire. On that date the Court wrote to he and with a Notice of Proposed Allocation in the Small Claims Track and a Notice of Transfer of Proceedings to County Court. It told us the Claim was now a defended one and that I had filed a defence and counterclaim and that we were both to complete a Directions Questionairre to filed and served by 26th June. The Notice of Transfer of Proceedings the Claimant received also enclosed a response pack and highlighted that if he did not dispute the counterclaim I may be able to obtain a judgement against him

So I should have received his defence on 23rd June and his directions questionaire on 26th June. He sent me an email on 26th July saying he had submitted his defence, but I still dont have a copy or a copy of his DQ and he not only has to file it at Court but serve it on me too. I will phone the Courts to see if they have had anything yet. All I know is a judged looked at the papers on 28th July. This is the first time anyone will have actually looked at what the paperwork we have both submitted (or not) is and whether it complies with the law I guess.

From reading other posts it is possible that the Judge has asked him to re write his particulars of claim so that it is complaint and submit them within 14 days. His were in no way complaint with CPR. Even if it were, they were sent way out of timescale, and even if that is ignored, how can his case still stand when, by not filing/serving a defence to my counterclaim wtihin the prescribed period, I can request a default judgement that he was negligent and breached contract resulting in the works needing to be redone and works undertaken to rectify issues he caused due to his poor workmanship?! Im also aware from reading other posts that it is possible for a judge to write to a claimant barring his claim for abusing the legal process.

However you've raised a good point re the hearing fee. My spidey senses tell me that he doesnt fancy risking any more money than he has already spent. It was worth taking a punt and risking £70 to see if he could get £1250 from me. But another £120 on the hearing fee, now he knows I ready to put up a fight, Not so much. I dont think he understands he cant just stop the process by not engaging.

I really cant see how the case can progress any further at present. His Particulars of Claim are fatally flawed both in content and in time.

I read that I should ask for a default judgement, but elsewhere Ive read the Court will invite me to apply for default judgement. Ive also read I should send in a certificate of service with the request for a default judgement. Elsewhere I read I should have sent in a certificate of service within 7 days of service of my defence and counterclaim. I really dont know what I am doing. I am loathe to have to pay a chunk of money for legal advice given how much I've already spent, including his botched work, and have very little prospect of getting back.

Id scan documents up but Im really not very good at redacting on the PC. If I find time in the week I will try and scan some documents up after I have covered the sensitive bits of info with bits of post it note

Anyway Id appreciate any thoughts re the way forward. Do I request a default judgement or do I wait and see what comes through the letter box next?