Counter claim after defence has been filed?***Claim Struck Out****

[dpac123]

My wife runs a soft furnishings company and sub-contracts work out

- she gave a job to a particular curtain-maker who made a mess of a pair of blinds and curtains.

 

 

Because my wife had to fit both 48 hours later,

she had to fix the curtains,

order new fabric for the blinds and work through the night to to meet the deadline with her client.

 

My wife then sent an email to the curtain-maker telling her that the work was faulty

and that she had to fix the curtains,

buy new fabric and re-make the blinds.

 

 

My wife also said that once she had calculated what it had cost her,

she would deduct this from the bill and pay the curtain-maker the balance.

 

My wife got a missed call a few days later and nothing else - until she got a claim through the post.

 

My wife defended it but decided not to counter-claim,

even though it cost her twice as much to resolve the issue

- new fabric, travel, lost sales, working through the night, etc.

 

We have now completed the allocation questionnaire

and my wife has made an offer of 50% as full and final settlement.

 

The curtain-maker hasn't responded yet so we need to know:

 

1. Can we make a counter-claim, having already filed a defence? If so, how and how much?

2. Can this woman make a claim with no real attempt to resolve beforehand?

3. This woman has been slurring my wife's name and one of her other suppliers has told her he can't work with her because of a "conflict of interest".

 

Some help appreciated, thanks

 

D

[Andyorch]

1. Can we make a counter-claim, having already filed a defence? If so, how and how much?

2. Can this woman make a claim with no real attempt to resolve beforehand?

3. This woman has been slurring my wife's name and one of her other suppliers has told her he can't work with her because of a "conflict of interest"

 

It depends on if you have already submitted your DQ and received Notice of Allocation....if not then you may utilise Practice Direction 26

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26/pd_part26

 

2.2 (3b)

 

If the claim has already been allocated then you would require the courts permission by way of making an application (n244)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20#20.7

 

Of course everything would rely on what terms your wife agreed with any subcontractor and what agreement was in place.

 

Regards

 

Andy

[dpac123]

Allocation Q/A has been submitted and she has been offered a mediation appointment. Defence was submitted before but with no counter claim.

 

So we need to complete N244 to counter-claim?

 

No specific contract was signed between my wife and the other lady - curtain makers tend to do it by word of mouth i.e. my wife showed her what she wanted, the other lady ignored it and did what she thought was best!

[martin2006]

Contracts can be verbal or written and in this case, the contract is a double edged sword.

 

On the one hand, while there is no written contract, if the other lady is taking your wife to court, then she is relying on a verbal contract to enforce her claim.

 

On the other hand, if no contract exists, then theres no claim to answer for your wife.

 

Both parties will need to agree whether or not a contract exists, verbally or otherwise, if it does, then both parties should have the right to claim whats owed, with a claim and counterclaim.

 

The only stickler will be whether the court allows the counterclaim, which should have been a part 20 counterclaim in response to the N1, but as Andy points out, it can be done via utilisation of N244 Application.

[dpac123]

An update on this - we submitted a defence and were offered mediation. My wife wanted to settle this as soon as possible so turned down a mediation appointment several weeks ahead, so contacted the claimant direct with an offer of £150 - half the value of the claim - not bad considering she had to order new fabric and do the job again!

 

We have had no response to this offer and my wife contacted her again last week with the same offer - again no response.

 

However, in the meantime we have received notification of a trial date at the start of November and what can only be described as a vendetta from the claimant:

 

- envelopes through the post with recommendations written by people the claimant has worked with stating how efficient and trustworthy she is.

- a curtain fitter my wife worked with mysteriously telling her he can't work with her or anybody other than his main employer any more (even though he is still freelancing for the claimant's co-workers)

 

- the owner of another curtain supplier driving up our road and looking through the window (probably shouldn't have driven up in a van with the company name on it?!).

 

We were planning on letting this go but my wife is stressed, unable to concentrate on working or anything else at the moment. It has probably cost her £1,000's in lost revenue over the last few months, which puts more pressure on me financially as well.

 

We were planning not to counter-claim because of the time and energy involved, but I really don't know how to resolve this other than paying the claimant the full amount for very shoddy work.

 

The claimant appears to think she has a water tight case and is letting people know and seems to be determined to ruin my wife's reputation on her way to getting paid in full for work she didn't do properly.

 

She hasn't followed pre-action protocols - no letter before action - just straight to a claim.

 

The options that I see are:

 

1. Submit an N244 and see if we can counter-claim

2. Apply for a strike out or set aside because she hasn't followed procedure

3. Pay her in full and rebuild my wife's reputation due to lies she is spreading.

 

Any advice greatly appreciated.

[Andyorch]

Its not a vendetta....if mediation fails all claims proceed to Notice of Allocation and Directions in preparation for trial.(the next stage)

 

You appear to have missed one option...let it proceed to trial were hopefully the court will dismiss the claim.

 

Andy

[dpac123]

The vendetta is the additional stuff to take down my wife's business. Not really an option to proceed to trial - that's what causing my wife the trauma and we've been there before - took her 3-6 months to recover from the trauma of having to defend in front of a judge.

 

So it looks like counter claim, apply for strike out or pay up?

[Ford]

what was the particulars of claim and defence.

why did you turn down formal mediation if you wanted to try and settle. its without prejudice, and mediation could have put forward your wifes expense in rectifying.

anyway, as andy says, lets see first if they proceed with DQ and pay the required fee for a claim of 300£. or accept your settlement offer.

[dpac123]

They already paid the fee and we have a trial date of 2nd Nov. The reason for turning down mediation ironically was to get it sorted quicker rather than wait 4 weeks for a mediation date

[Ford]

They already paid the fee and we have a trial date of 2nd Nov.

ah ok.

as andy then, consider defending if poss. their work seemingly not satisfactory as contracted.

what was the content of the claim and defence.

[dpac123]

Sorry for not responding - we issued a witness statement and N244 to apply for a counter claim (court said to submit it anyway). Directions state witness statement must be sent to court and other side 14 days before court date - 14 days is tomorrow and nothing from claimant - if claimant doesn't send witness statement, what happens next?

[martin2006]

Turn up for the hearing and inform the judge nothing in the form of a WS has been received or point out how late it was received if it turns up beforehand.

Watch they dont try handing you docs on the day aswell, refuse them if they do.

[Andyorch]

Sorry for not responding - we issued a witness statement and N244 to apply for a counter claim (court said to submit it anyway). Directions state witness statement must be sent to court and other side 14 days before court date - 14 days is tomorrow and nothing from claimant - if claimant doesn't send witness statement, what happens next?

 

Then they cant rely on any written evidence and any trial could only proceed under verbal testimony only...but also you can request sanctions be imposed for failing to comply with the courts directions...like strike out their particulars of claim and proceed on your part 20 claim only

[dpac123]

Thanks, no witness statement from claimant today and we paid £100 fee to submit N244 and see if the counter claim will be accepted. Would it cost us to request claimant's case be struck out? Will we need to submit another N244?

[Andyorch]

Ideally you want the court to strike out of its own initiative...you dont request it.

[dpac123]

Is the court likely to do so if there is no witness statement? Will they let us know before the court date?

[Andyorch]

Is the court likely to do so if there is no witness statement? Will they let us know before the court date?

 

Only if you inform the court and ask them to impose sanctions.

[dpac123]

Via N244 or just call them? Is there a few to do this?

[Andyorch]

Just ring the court and inform them...trying to save you further applications and fees.

[dpac123]

This got struck out last week in court! The claimant didn't provide a witness statement by the deadline but instead brought it to court on the day, so the judge told her he wouldn't hear the claim. Many thanks for all those who helped with this

[WarrenBuffet]

What about you counter claim?

 

PS: Congrats on your strike out.

[dpac123]

The counter claim was disallowed because although we sent it to the claimant, we didn't send it again after the order from the court, as this specified to do so, and we assumed we had already done this. My wife didn't really want to counter claim but it was the only way we could get the claimant to back off, so she is happy with the outcome!

[martin2006]

Excellent, great result dpac.

Dont forget a small donation keeps us going

[BazzaS]

The counter claim was disallowed because although we sent it to the claimant, we didn't send it again after the order from the court, as this specified to do so, and we assumed we had already done this. My wife didn't really want to counter claim but it was the only way we could get the claimant to back off, so she is happy with the outcome!

 

At least you got the result you desired, but a cautionary tale for any litigant : always read court orders / directions, and comply by the dates stated!

If in doubt : send it again, with a copy to the court....

[Andyorch]

Well done dpac

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy