Flaws in Defence counterclaim Help

[AndyOrch]

Yes TBC to be confirmed for the expert witness.

[AndyOrch]

Quote

Seta Side application granted, no cost awarded, but  to re-plead the defence and counterclaim, properly particularised, whether is negligence, breach of contract by the 24January

 

You dont require an expert statement at this stage...simply start again from the beginning and replead in a particularised form your defence and part 20 counter claim and submit by the date stated. Expert reports come at allocation stage when you will both have to submit a further DQ unless the judge dispenses with allocation....and lets the original DQs stand.

 

Andy

[AndyOrch]

You will have to add a little more detail/breakdown to the counter claim to quantify loss...don't forget to request interest also section 69 @ 8% 

 

[AndyOrch]

13 minutes ago, simeon1964 said:

I  suggested to my previous solicitor to ask the court for security against my counterclaim or put charge on his house if he was to to go for set aside, he kind of dismissed it. What are your opinion on this?

 

Yes its fine but it does not guarantee you your money you may have to wait years.(if a restriction K) and still not be paid or..assuming his house is mortgaged and in his name only and should you wish to force sale

[AndyOrch]

I don't follow...again please in simple full paragraph

[AndyOrch]

That's with regards to security of costs ?...not being unable to pay your judgment.

 

Further information

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part25

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37/pd_part37

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37

 

Andy

 

[AndyOrch]

Yes its possible to request an extension but it will cost an application and fee...and in reality of this matter and the length of time its being going on it shouldn't really be required...if your not ready by now you should never have counterclaimed in the first place.

 

As to the order it is now clear...we are only dealing with your counter claim (Part 20 Claimant)..the claimants claim was struck out...that's gone.

 

 

 

.

[AndyOrch]

If you refer to the order...nowhere is there any reference to original claim. A claim was submitted and a defence was submitted along with a part 20 counter claim. Simeon1964 will have to refresh us what was the outcome at that stage and was the original claim stayed... struck out or withdrawn or discontinued whatever......there is no reference to original claim in this or the original topic. Only that a counter a claim was submitted and the claimant failed to respond to the counter claim hence the Judgment.

 

The order refers at point 1.

The claimant is given relief from sanctions of the order of DJ Moss of 19th July 2021 (what the sanctions were I surmise the judgment of the Part 20 counter claim and failing to submit a defence) because the judgment of that same date is then set a side at point 2.

 

 

.

[AndyOrch]

So what happened to their claim ...as per my last post?

[AndyOrch]

Are my posts invisible ?  

[AndyOrch]

May be worthwhile given that Solicitors were dealing with the initial claim /defence...although I'm sure it must be one of the above reasons I have referred to already as the counter claim couldn't proceed on its own alone.

[AndyOrch]

On 13/01/2022 at 12:53, Andyorch said:

You will have to add a little more detail/breakdown to the counter claim to quantify loss...don't forget to request interest also section 69 @ 8% 

 

 

As above....the court now require a full particularised counter claim (in a statement form) along with evidence (exhibits) and the claimant part 20 Defendant will have to respond with a fully particularised defence....by the dates stated in the order.

[AndyOrch]

A breakdown should be given within the particularised claim to quantify the losses claimed along with whether in negligence of breach of contract......breach of duty causation and loss as the Defendant Part 20 Claimant must be in a position to be able to plead with fact given that counterclaim has already been submitted earlier albeit with no great detail or support but now the court wish to test the counter claim.

 

Its no use now rushing around to try and get expert testimonial and what it will cost to correct....that should have all been finalised at the time the counter claim was initially filed....after all the OP was prepared to plead this last year at the time of the claimants claim and all though we are not aware of what happened to the claimants claim....if it had proceeded to a hearing he would have had to plead the counter claim with supporting evidence.

 

The fact is that the OP got judgment on a technicality ...the claimant did not file a defence so the counter claim was never challenged..

 

Point 5 of the court Order confirms that Directions Questionnaires must be submitted by 4.00pm 28th Feb and he can request permission for expert testimony report at this stage so the claim will then move to allocation  which will then allow further directions with regards to submitting witness statement and evidence at a date to be confirmed.

 

Hope that clarifies

 

Andy

[AndyOrch]

Thanks FMT...glad someone knows what happened to the initial claim.....given the OP has no idea   

 

 

.

[AndyOrch]

Well he has already stated a ball park figure so has some idea...as said this statement does not need to include expert proof...estimates will suffice...but more importantly the legal basis of the counterclaim clarified.

[AndyOrch]

[AndyOrch]

Quote

I am aware that Andyorch and BankFodder often stress the importance of keeping POCs to the bare minimum so as not to give away your case too much. 

 

Not in this instance...as the courts directed a particularised statement.

 

 

.

[AndyOrch]

Quote

 From the court order I think that the correct term for the builder in this is Claimant and for Simeon is Defendant/Counterclaimant. 

 

Defendant /Part 20 Counter Claimant

[AndyOrch]

16 minutes ago, simeon1964 said:

The court order didnt say I should but says they should respond to counterclaim by 24Feb

 

Yes it does ..." The Court and the Claimant "

[AndyOrch]

14 minutes ago, simeon1964 said:

Can i just put I am claiming 16k being cost to repairs of damaged and unfinished work to mu property 

Time for you re read the order see point 3 again...in particular the words " a fully pleaded counterclaim "

[AndyOrch]

Fast Track (claim exceeds 10K) 

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

 

[AndyOrch]

Problem with our link but im sure your aware of what Fast Track entails 

 

Fixed hover your mouse over the word.

 

 

 

.

[AndyOrch]

I personally wouldn't send it....regarded as tit for tat once litigation is in process...nor are you legally required to converse with the opposing party during the process unless it vis a mediation or the court has directed it.

 

Save anything  further for statement's or skeletons if directed by the court.

 

Andy.

 

 

.

[AndyOrch]

Off topic posts removed...as were the previous ones you referred to.

[AndyOrch]

Claimants response to the Part 20 counterclaim.