Responding to a defence and counterclaim/directions questionnaire

[Alicemo]

Hi there - I hope (pretty pretty please) someone can help me with the following queries

1. We have issued a claim via MCOL for unpaid invoices and recently received the defendants defence and counterclaim. Within this they highlight some errors in our particulars of claim:
-using the trading name of our company versus the actual company name:
-referring to the Director of the company the claim is against rather than just referring to the company name;
-and finally referencing the wrong year 2012 should have been 2011

We have now responded to the defendants defence and counterclaim and the company's lawyers would have received this by now. Having done some research I understand I will need to apply to the court to make them aware of these errors. Could someone let me know how I go about doing this please?

2. We have received a directions questionnaire but I am unsure what the following means: section D4 'Disclosure of non-electronic documents... what directions are proposed for disclosure?' Are directions, evidence? If they state non-electronic does that mean we cannot use emails as evidence? Sorry for sounding stupid but I have never done this before so have no idea!

3. In the defence and counterclaim document we received the defendant admits to owing all invoices but states that the counterclaim extinguishes the amount owed as the defendant believes we owe in excess of what our original claim amount is for. I was told that since the defendant had admitted to owing the invoices we could request the payment be made to the court in the interim... if anyone has any advice on how we go about this that would be great...

4. In terms of next steps, the defendant will have received our response to their defence and counterclaim but what happens next? Do they respond again to that? Is there a time-frame for them to respond within? Next week we need to submit the directions questionnaire - do we submit this to the court or the court and the defendant? We would like to try and settle.

Thanks in advance for your advice and expertise! Hope someone can help.

Thanks!

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

What's the approximate value of the claim and counterclaim ?

Do you admit the counterclaim ? If so and they are both similar amounts mediation might be the best way to proceed.

Directions - are basically instructions of how the case will be managed - so for disclosure it would be something like ' Disclosure by List to be exchanged by 4pm 15 May 2014 '

[Alicemo]

Re: Responding to a defence and counterclaim/directions questionnaire

Hi Amethyst.

The claim is for £17,500 and the counterclaim (all of which is denied) is for £106,000.

We've been chasing for payment of the unpaid invoices for 8 months to no avail and even suggested meetings in which to discuss this with the defendant but again, no response hence why this has now ended up as a claim.

If you need any further info please let me know. Any advice on the points from my post would be hugely appreciated! Many thanks.

KR

Alice

[wales01man]

Re: Responding to a defence and counterclaim/directions questionnaire

Is there any chance in your mind that there Counterclaim is winnable do they have enough evidence to win there is a lot to lose here others may agree with me that mediation is the best way forward more chance for you to plead your side

[Alicemo]

Re: Responding to a defence and counterclaim/directions questionnaire

Hi Wales 01man

I do believe we're in a good place. All of the counterclaim is denied - one would hope that the truth would win but understand that's not always the case! Its the first time the issue has been raised by the defendant and there are a number of factors that work in our favour.

In the directions questionnaire I can see there is a box for 'settling' - even though we've tried this a number of times we would like to go down this route as we are not lawyers by any means (and I'm on maternity leave with a 6 week old baby) -not ideal! The defendant has a lawyer who he is good friends with so cant imagine he's incurring any cost (if so minimal).

Even if we tick the 'settlement' box we still need to complete the rest of the questionnaire (the deadline is next week) hence my queries. I presume we will still need to apply to amend the statement of case / inform the courts of such, even if we apply for a one month stay to try and settle?


@AMETHYST - re: disclosure of non-electronic documents... following on from your post, does this mean that we don't list out the supporting documentation in the questionnaire but rather set a date to exchange this with the defendants lawyers? Does this have to be by paper correspondence and/or in a face to face meeting? Do we also share this with the court by the set date and is there a template for provision of these? Also is there a guideline as to when we set this date or can we choose any date (perhaps within the first 2 weeks of the 1 month stay?)

Thanks in advance

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

Blimey that's a serious counterclaim. Your original claim for the unpaid invoices will be in fast track, but the counterclaim will push it into multitrack, which has quite serious cost implications.

Is the counterclaim pure fishing to try and scare you into dropping the claim for the unpaid invoices or is it actually of some basis ?

[wales01man]

Re: Responding to a defence and counterclaim/directions questionnaire

May I suggest that as this is Potentially about 100k plus that the OP gets a Solicitor the Other side has one I would seriously think that I may lose whether its all true or not truth does not always win through

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

Regarding the errors in the original claim. You can ask for the defendant (as they have pointed out the errors) for their consent for you to amend the Particulars of Claim.

17.1 (2) If his statement of case has been served, a party may amend it only –

(a) with the written consent of all the other parties; or

(b) with the permission of the court.

If you can obtain the defendant’s written consent you should prepare amended particulars of claim endorsed "Amended particulars of claim under CPR17.1(2)(a) dated ……………"
strike through the incorrect details and add the correct details either alongside or above (the amendments should be in red) and sign the Statement of Truth
serve the amended particulars of claim on the defendant(s) yourself, either personally or by 1st class post and file a copy of the amended particulars of claim at court with a copy of the defendant’s written consent.

If you cannot obtain the defendant’s written consent complete and file form N244 with the court together with the proposed amended particulars of claim and the appropriate fee (which will be £45 as you don't need a hearing for that)

You'll have to write off the court fees for the N244 application

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

May I suggest that as this is Potentially about 100k plus that the OP gets a Solicitor the Other side has one I would seriously think that I may lose whether its all true or not truth does not always win through

Sadly I agree. I do think we need a bit more info on the counterclaim, as though it appears to be retaliatory action we have no idea on what basis the counterclaim is made. For a potential claim against you of over £100k you should definitely consider a solicitor.

The stress of dealing with this as well as caring for your 6 week old baby (congratulations btw ) must be immense.

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

Is the Directions form the N181 ? http://hmctsformfinder.justice.gov.u...s/n181-eng.pdf

[Alicemo]

Re: Responding to a defence and counterclaim/directions questionnaire

Blimey that's a serious counterclaim. Your original claim for the unpaid invoices will be in fast track, but the counterclaim will push it into multitrack, which has quite serious cost implications.

Is the counterclaim pure fishing to try and scare you into dropping the claim for the unpaid invoices or is it actually of some basis ?

I thought it would push it to the multi track - not good

Yes it does feel like its a scare tactic.

The defendant has said that our company (a construction company) has acted negligently on a job the defendants company (also a construction company) was the sole contractor for. The defendant refers to a meeting with our company in November 2012 in which an oral agreement was made with a variety of terms (which he says our company has failed to adhere to).
- Firstly, no such meeting took place
- Secondly our company was not incorporated until April 2013 (my partner used to work for the defendants company as a sole trader from August 2011 - April 2013 before setting up his own).
- Also the defendant was the sole contractor and made all payments to labourers, sub-contractors and paid all materials and therefore you would think ultimately responsible for his own company’s projects.
- Furthermore at no point in the pursuance of the claim (or prior) had any of these points re: negligence been raised (the project finished in the summer of 2013, we spent the most of Q4, 2013 chasing invoices and finally issued the claim in January 2014.

[Alicemo]

Re: Responding to a defence and counterclaim/directions questionnaire

Absolutely agree but I've been quoted extortionate figures for a solictor and what we pay would need to be in context of what we're claiming for (£240 plus VAT [the most recent figure Ive been quoted] would rack up in no time). We just dont have the funds to pay these figures

[Amethyst]

Re: Responding to a defence and counterclaim/directions questionnaire

I thought it would push it to the multi track - not good

Yes it does feel like its a scare tactic.

The defendant has said that our company (a construction company) has acted negligently on a job the defendants company (also a construction company) was the sole contractor for. The defendant refers to a meeting with our company in November 2012 in which an oral agreement was made with a variety of terms (which he says our company has failed to adhere to).
- Firstly, no such meeting took place
- Secondly our company was not incorporated until April 2013 (my partner used to work for the defendants company as a sole trader from August 2011 - April 2013 before setting up his own).
- Also the defendant was the sole contractor and made all payments to labourers, sub-contractors and paid all materials and therefore you would think ultimately responsible for his own company’s projects.
- Furthermore at no point in the pursuance of the claim (or prior) had any of these points re: negligence been raised (the project finished in the summer of 2013, we spent the most of Q4, 2013 chasing invoices and finally issued the claim in January 2014.

Ok the relationships are a little complicated.

Was there a meeting between your partner acting as a sole trader and the defendant company in November 2012 regarding the project?

If your partner started a project in which he was subcontracted to the defendant as a sole trader - and then carried the project over into the ltd company - that could still have affect.

Were the invoices you are chasing solely from the period after April 2013 when your partner was acting under the Ltd company?

If you mediate to drop your claim if they drop theirs do you think that's likely to happen or they would still want to continue for the near £100k balance they are claiming for?

What is the negligence they are claiming?



The £240+VAT sounds like standard price for solicitor to look at all your documents as it would be a commercial lawyer I'm guessing.

[wales01man]

Re: Responding to a defence and counterclaim/directions questionnaire

£240 or 100K plus not much to think about there

[Alicemo]

Re: Responding to a defence and counterclaim/directions questionnaire

Yes, that's the one we received in the post.