Counterclaims

Question 1

When is a counterclaim filed and when must a permission be sought to file one?

Answer 1

Filed at the same time as defence

Permission must be sought form the court if it is made after the defence has been filed

Question 2

What are the conditions of a counterclaim?

Answer 2

Counterclaim must show duty, breach, causation and loss

Parties must be suing and being sued in the same capacities as the main claim - if court does not think it should be heard with the main claim it can order the counterclaim to be struck out or heard separately

it must comply with rules of particulars of claim as it basically the same thing

must follow on from the defence within the same document and be titled the ‘defence and counterclaim’

a court fee is payable

Question 3

What type of defence may the counterclaim give rise to?

Answer 3

Defence of set off in the main claim

Question 4

What is the legal basis for defendant using a set off defence?

Answer 4

1. For mutual debts if d and c owe eachother money one debt can be set off against another debt
2. THIS DOES NOT APPLY TO DAMAGES
3. Under s52 of the sale of goods act - buyer can set off a claim for breach of implied terms for goods sold as to the quality and fitness for purpose
4. defendant can set off a claim for damages for poor services
5. equitable set off - where there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the counterclaim

Question 5

How is the defence of set off pleaded in the defence?

Answer 5

“Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant’s claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether.”

Question 6

What must the claimant do if he receives a counterclaim?

Answer 6

C can admit or defend the claim and needs to respond

he does not need to acknowledge service

Defence must be filed and served within 14 days after the service of the counterclaim

if c fails to do so in the time limit d can enter a judgement in default

C can also file a reply to dispute facts in the counterclaim. this should be filed with the directions questionaire after the claim is defended - 14 days notice is required. must include a statement of truth