help with counter claim vodafone

[AndyOrch]

I think you need to explain a little further thinker

 

" i had a court case settled " You are the claimant ? what do you mean by settled?

 

" as vodafoneicon have filed in an application to counter claim. " What can they claim from you? Do you mean set a side?

 

Regards

 

Andy

[AndyOrch]

You need a copy of the counter claim and also a copy of their application.If you scan a copy of the court letter telling you to attend in October (less any identifiable data)

 

Was you aware that they had made a CC when you withdrew the claim ?

 

Regards

 

Andy

[AndyOrch]

Ask the courts for copies then...you cant be expected to attend an hearing with no knowledge of why you are there...they (Defendant & Court) should have served a copy of the CC and the application to you anyway.

[AndyOrch]

Well if you have not had a copy of their application or CC then you still need copies.Question..... did they have permission to submit a CC on the 12/6/13 as the period to respond would have expired they should have submitted their CC with their defence.

[AndyOrch]

Wll you have until October to prepare your defence of their CC I would suggest you start following/actioning some of the advice I have advised above.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20

 

Defendant’s counterclaim against the claimant

20.4

(1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2) A defendant may make a counterclaim against a claimant –

(a) without the court’s permission if he files it with his defence; or

(b) at any other time with the court’s permission.

(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).

(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

 

 

With regards to the application made by the defendant :-

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part23

 

Regards

 

Andy

[AndyOrch]

Have they included a copy of the counter claim ?

[AndyOrch]

Ok well looking at that response its with regards to wasted costs because you discontinued the claim.

 

Procedure for discontinuing

 

CPR38.3

 

(1) To discontinue a claim or part of a claim, a claimant must –

(a) file a notice of discontinuance; and

(b) serve a copy of it on every other party to the proceedings.

(2) The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.

(3) Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

(4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

 

Liability for costs

 

CPR38.6

 

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)

 

So they can not claim wasted costs as the claim was Small Claims Track...that is all you need to state at the forth coming hearing.

 

Regards

 

Andy

[AndyOrch]

I think it would be civil to just inform them (the Solicitor) of the above and ask them to withdraw their CC and vacate the hearing.State that their impending hearing for wasted costs is not applicable as the matter was of the Small Claims Track and refer them to CPR 38.6.(PD3)

 

Regards

 

Andy

[AndyOrch]

And also that they have failed to enclose a copy of their Defence and Counter claim within that letter.

[AndyOrch]

No requirement...wasted costs do not apply to small claim costs CPR 38.6.(PD3) .....end of.

[AndyOrch]

[AndyOrch]

The solicitor is only acting for the claimant and is at no time liable for its(their) actions...if you are thinking of resurrecting this claim then you would have to approach it from a different angle and word it considerably different.

You would require the permission of the court to then re present the claim as the defendant submitted a defence to your previous claim.

 

Regards

 

Andy

[AndyOrch]

They would only get costs in SCT if the DJ thinks you have been vexatious.

[AndyOrch]

I personally would just concentrate on fighting their costs claim for now thinker.

[AndyOrch]

Discontinuing a claim is not regarded as being vexatious or unreasonable It is normally where a party has not acted in accordance with directions, a case of dishonesty, or a claim is exaggerated.

 

You have none of these.

 

Small claims is meant for quick and informal disposal of claims.

 

CPR27.14

 

(1) This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.

(Rules 46.11 and 46.13 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(a) the fixed costs attributable to issuing the claim which –

(i) are payable under Part 45; or

(ii) would be payable under Part 45 if that Part applied to the claim;

(b) in proceedings which included a claim for an injunction or an order for specific performance a sum not exceeding the amount specified in Practice Direction 27 for legal advice and assistance relating to that claim;

© any court fees paid by that other party;

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

(e) a sum not exceeding the amount specified in Practice Direction 27 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

(f) a sum not exceeding the amount specified in Practice Direction 27 for an expert’s fees;

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; and

(h) the Stage 1 and, where relevant, the Stage 2 fixed costs in rule 45.18 where –

(i) the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’) or the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (‘the EL/PL Protocol’);

(ii) the claimant reasonably believed that the claim was valued at more than the small claims track limit in accordance with paragraph 4.1(4) of the relevant Protocol; and

(iii) the defendant admitted liability under the process set out in the relevant Protocol; but

(iv) the defendant did not pay those Stage 1 and, where relevant, Stage 2 fixed costs; and

(i) in an appeal, the cost of any approved transcript reasonably incurred.

(3) A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.

(4) The limits on costs imposed by this rule also apply to any fee or reward for acting on behalf of a party to the proceedings charged by a person exercising a right of audience by virtue of an order under section 11 of the Courts and Legal Services Act 19901 (a lay representative).

 

Omitted/ 5 Where – a the financial value of a claim exceeds the limit for the small claims track; but b the claim has been allocated to the small claims track in accordance with rule 26.7(3), the small claims track costs provisions will apply unless the parties agree that the fast track costs provisions are to apply.

 

Regards

 

Andy

[AndyOrch]

I would just submit a Witness Statement...a response to their CC (you have now received a copy?) Serve this on the Court and Pt20 Claimant not less than 7 days before the hearing stating the above...refer to the pursuant CPR above (not word for word) as to why they should be denied any relief with regards to Wasted Costs in the SCT>......

 

If you feel that its not going your way and the DJ appears to be siding with them then expand on your reasons for Discontinuance and that you have not behaved vexatiously...verbally.

[AndyOrch]

Better get cracking then thinker only 4 days remaining.

 

Regards

 

Andy

[AndyOrch]

Means nothing to me that thinker...I dont know what your claim was... what their defence was.... why you discontinued .....why they have counter claimed and why its continuing..... considering you have discontinued the claim.

 

 

Regards

 

Andy