Confused by Judgement Order

[momma]

This relates to a case against my daughter by a builder. She put in a defence and counterclaim.

 

The builders claim against her was not valid and he did not abide by the Civli Procedure rules when initiating the claim.

 

He did not respond to her counterclaim. The judge ordered a allocations hearing. My daughter was unable to attend and the reasons were accepted by the judge.

 

She has received a General Form of Judgement Order and it states: The Particulars of Claim are struck out for non compliance.

The judge further ordered that the Claimant must by a certain date file a new claim correctly other wise the claim will remain struck out.

 

He further ordered that the defence and counter claim are stuck out unless the claimant submits a new claim and then she must submit a defence, and if advised my daughter should submit a new counter claim .

 

The claimant has not submitted a new claim. Upon ringing the court, I was told that the claimant has not submitted a new claim and therefore the claim is definitely struck out, however I was told that she can and should submit a new counterclaim as she paid for the counterclaim and although it was submitted at the same time as the defence, it is in effect a separate claim against the claimant.

 

She is not sure if this is correct? She is out of pocket considerably because of this builders negligence. It cost her a lot more to put right the work.

 

If this is correct and she submits a new counterclaim, does this mean that the claimant can answer the counterclaim and start once again claiming against her? Not sure what to do, as time is running out.

 

Thanks if anyone can clarify and help.

[BankFodder]

The counterclaim is certainly a new claim and the builder would need to file a defence to it. I'm a bit surprised that she has to file a new counterclaim but anyway if that's what they said then she should go ahead and do it.

 

It is unlikely that he could start claim against her without leave of the court. I suppose that because of the prime objective which is that the judge is required to do what ever is considered necessary to achieve a just outcome, it is very possible that a judge would agree to allow the builder to continue. However, if there was an application then you could certainly respond and ask for conditions to be met and I would suggest that it would be very reasonable to ask a court to order the builder to pay the disputed sum into court.

 

If you'd like to tell us more then maybe we can help but you should certainly put in a counterclaim which recovers all of her losses including waste expenses on the builder's negligence and the costs incurred putting the work right.

 

One warning here though is that even if she succeeds, she will then have to enforce the judgement. Do you know where the builder is? Does the builder have any assets? In other words are you able to reach the builder and enforce the judgement? Probably by means of High Court enforcement officers?

 

However, as the action has already started, you may as well go ahead and at least try to get judgement because it seems to me that you have nothing to lose.

[Andyorch]

If no response was made to the counter claim the consequence of not filing a defence within 14 days is judgment in default (CPR 20.3(3))....pity she didn't request judgment before the hearing.

 

The part 20 claim will be managed and heard with the primary claim if convenient, but can otherwise be dealt with quite separately. CPR 20.9 sets out common sense factors which the court will take into account on the question of whether a part 20 claim should be managed separately from the main claim.

 

The part 20 claim is distinct from the main claim (CPR 20.3(1)).

[momma]

Bankfodder: Thank you for your response. Yes, she does know where the builder lives.

 

On the advice of a solicitor, she has tried several times to get the builder to give her details of his Public Liability Insurance which I believe he does have..it may well be he lied about this at the time, although he still declares that he has it on his webpage. She requested this as he caused substantial damage to rooms he was not working in and her own home insurance will not pay.

 

Andyorch: Thanks for your reply and advice. She did try to enforce judgement but when she phoned the court regarding this matter, she was told it was not clear if he had or had not put in a defence to her counterclaim and that it was with the judge who was dealing with it and to wait..that is what waiting got her. Too late as the judge threw the case out.

 

I think the best advice is to continue with her counterclaim as now she is more informed about what the work has cost.

 

At this point, is it necessary to actually give financial figures or can she just list what the counter claim consists of and state she does not know what she is likely to recover, but within the amount of the counterclaim. We are short of time and I have to collate the issues and not sure of the final cost. Some of the cost will come down to the judge to determine the amount in any case.

[BankFodder]

She will definitely have to state the value of the counterclaim. This should really all of be prepared anyway when the counterclaim was first prepared.

 

If there are costs be determined by the judge then you should at least limit yourself to a maximum so you would say for instance "plus damages not exceeding £XXX and the discretion of the court". However this would be extremely unusual when you are claiming for actual expenses. If you are claiming for trouble and inconvenience et cetera then that is probably the approach to take for unspecified or "general" damages

[momma]

It was impossible at the time to put a value on the counterclaim as the builder sent her an invoice for the 'work' he had supposedly done at the property and the same day put in a claim against her so she had no idea what the cost of the counter claim would come to.

 

The solicitor she saw said she did not need at that point to be specific, just state I expect to recover no more than X amount. There are still a couple of jobs that need to be finished or rectified and need to get another couple of quotes for the damage that he should be claiming for on his insurance.

 

She has not been given much time by the judge and xmas and new year period have impacted on getting the work finished and quotes for the damage as people/companies are not working over this period.