Discontinuance in court by claimant and affect on my Counter Claim

[sansukie]

Hi All

Ill keep as brief as possible

 

rented property really bad experience ,

heating and hot water hardly ever worked and eventually invaded by rats,

landlord served section 28,

 

 

1 month later whilst moving out landlord changed locks leaving a certain amount of goods in the house,

reported to police had breakdown and left losing my stuff and deposit.

 

18 mnths later landlord serves notice for back rent of 1 month £450,

i panicked at the word court,

hired a solicitor who filed counterclaim 1 letter £1k i thought i was getting help for the case not 1 letter.

 

The solicitor counterclaimed for non protection of deposit, stolen items, illegal eviction etc totaling £3k

 

we both agreed to arbitration

but it went straight to court after a year of filing paperworkonly to be cancelled day before.

 

Yesterday i received a notice of discontinuence,

what can i do about my counterclaim,

is there anything i can do?

or has all the past 12 mnths labour and costs been in vain, stress etc?

 

Im fighting this on principal

this man has done this before and hopefully i can stop him doing it again

 

any help at all would be appreciated as i cant afford another £1k for 1 letter

 

thanks in advance

[BankFodder]

Shame that you instructed the solicitor. A complete waste of money – as you have found out. We could have helped you here.

 

CPR 38 refers to the rules on discontinuance - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part38#38.2

 

38.4 explains that you have a right to set aside a discontinuance. In the circumstances I would suggest that you do that. Unfortunately you can be looking at more money because it is probably about £250 to make the application but I expect that you will be successful and also that you will be able to recover this cost. Also, on the basis of what you say I would be making an exceptional application for all your costs which have been recently incurred so far to be paid by the claimant. This will be exceptional because the small claims, costs are not normally awarded. However on the basis of what you say it seems that the landlord has behaved so unreasonably and also so recklessly in his litigation by putting you in a position to incur costs and then trying to withdraw from the claim, that I think you have a very high chance that the judge will award you the costs – as well as awarding you a judgement on the counterclaim.

 

I think it would be helpful if you post up the claim form in PDF format and also your defence and counterclaim in PDF format. Remove the identifiers.

 

Unless you are really fed up and just want to let it go and move on with your life (very understandable) I would expect that it will be worth the investment of the fee for the application notice to challenge the discontinuance.

 

If you want to do this, then you will have to download a copy of form n244 and then come here and we will help you fill it in.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406095-LEGAL-N244-Application-Notice-**Correct-as-at-Sept-2015**

Edited December 21, 2016 by Andyorch
Link added

[sansukie]

THANK YOU so much for replying ill figure out how to upload docs and will post asap thank you

[AndyOrch]

Did the claimant respond (submit a defence) to your counterclaim (Part 20) ?

 

Andy

[honeybee13]

THANK YOU so much for replying ill figure out how to upload docs and will post asap thank you

 

If you haven't already, click on the word upload in your post and you'll go to a screen with instructions.

 

HB

[sansukie]

Hi

Yes he counterclaimed my counterclaim obviously now starting to add on things he was claiming for i.e rent arrears (of which there was none) accused me of messing with boiler, cleaning bill etc

[sansukie]

Hi

here are documents as requested his wifes name was added in case he said all assets were in her name

defendant and counterclaim.pdf

[sansukie]

Hi

How long does approval take im scared im on a clock especially now its holiday period

[AndyOrch]

If you could obscure the claim number and upload again.

 

Regards

 

Andy

[sansukie]

Here they are again thanks

[sansukie]

Hi

Have i uploaded the correct details?

 

thanks

[AndyOrch]

Yes thats fine sansukie ...let me look in again later and I will offer my thoughts.

 

Andy

[sansukie]

Any thoughts anyone?

[AndyOrch]

Did the claimant respond (submit a defence) to your counterclaim (Part 20) ?

 

 

You cant counterclaim a counter claim.... his initial claim stands as is from issuance.Did he submit a defence to your counterclaim?

 

Have you paid the fee for your part 20 claim ?

 

You state in your initial post ......

 

" we both agreed to arbitration but it went straight to court after a year of filing paperwork only to be cancelled day before. "

 

It was adjourned ? who adjourned the case ?

 

The part 20 claimant (You) may enter judgment in default of acknowledgement of service or defence on request (rule 20.3(3)).

 

Format and case management of part 20 claims

 

A part 20 claim is treated as a claim for the purposes of the CPR (rule 20.3); it must be clearly set out in accordance with part 16 and must be supported by a statement of truth.

Any defence must comply with part 15.

Part 26 (case management - preliminary stages) does not apply to part 20 claims.

 

The part 20 claim will be managed and heard with the primary claim if convenient, but can otherwise be dealt with quite separately.

 

Rule 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 (rule 20.3(1)).

 

If the main claim is settled, the part 20 claim does not stand struck out.

However, there is no automatic stay of execution on a judgment in the main claim pending determination of the counterclaim, so an application should be made to stay any enforcement action.

 

Check with your court and ask about the Notice of Discontinuance and do you need to stay/set a side/object and ask if your counter claim is proceeding separately ?

 

Regards

 

Andy

[sansukie]

hi

Thanks for replying.

I counterclaimed the original claim from the other party and paid appropriate fees,

 

He then became part 20 Defendant also solicitor advised his wife be named so she also became part20 defendant

 

It was due at court on7/12 but received a letter from the court saying the case was vacated

 

I then received on 17/12 discontinuence a copy of a notice of with other parties signature on it stating he discontinues all of this (claim) against ..................form N279

[AndyOrch]

hi

Thanks for replying.

I counterclaimed the original claim from the other party and paid appropriate fees,

 

He then became part 20 Defendant also solicitor advised his wife be named so she also became part20 defendant

 

It was due at court on7/12 but received a letter from the court saying the case was vacated

 

I then received on 17/12 discontinuence a copy of a notice of with other parties signature on it stating he discontinues all of this (claim) against ..................form N279

 

So make a call tomorrow and find out what your position is as advised above.......

 

But you did pay your Part 20 CC fee ?

[sansukie]

Hi

 

Will do and let you know outcome

yes i did pay part 20 to cc

[AndyOrch]

Hi

 

Will do and let you know outcome

yes i did pay part 20 to cc

 

[sansukie]

Hi

Phoned the courts and they want me to just put in a letter i wish to go ahead with my counterclaim so im doing that now

[ericsbrother]

good, when you pay a fee for the conterclaim it effectively makes it a stand alone claim so the court should ahve asked you about whether you wanted to carry on as soon as the original plaintiff discontinued.

[sansukie]

Hi

I phoned and asked what to do so all i have done is asked for my counterclaim to go ahead, im waiting to see what they say happens next, parting with more money first, i presume, but i defended this case on principal of the lies told and 12 months after the fact, im just so glad i kept all letters and texts to prove my innocense in this as i walked away losing my deposit and living in a house with no heating, hot water and rats but as stated earlier, the barrister i took on said that was the least of his worries as the landlord broke so many laws not protecting deposit, illegal eviction and stealing the property i had in the house, this guy cannot be allowed to get away with it, to me, or anyone else so im willing to take the financial hit taking this further so it doesnt happen to anyone else.

[sansukie]

Hi

Ok i got notice original date of 10/02 is still going ahead after paying fees to continue, with the court date was a letter from the other party asking for it to be transferred to his local court, as im free to move about easier than him, also he wants to get a court order to see the details the police have on file for the items i reported him for witholding when he locked me out of the property, he also is if needed not attending but conference calling. Is this a no win situation for me?

[sansukie]

Hi

Went to court on the day, just to be told it will now be transferred to defendants court as this is the norm, is it usual practice for the claimant to keep trying to withdraw or am i right in assuming the possibility he is questioning the strength of his case?

Also as a barrister wrote my defense can i count on that to be a good standing for me ?

 

thanks for all help to date

[andydd]

Unless the party is a company then the defendant can ask it be transferred to his court this would usually be done before you waste time going to court on the day !

[sansukie]

Hi

Well its another year, paid the court £170 for fees in December, now going ahead in Welsh court, now i have to pay another £80 trial fee. The court has asked for copies of all documents to be sent in AGAIN, this is the 6th time, i DONT have any copies of the photos left, to put it all together again, would the court not just have all the papers forwarded or do i have to somehow resubmit everything again by the due date? ( i honestly thought the last hearing date would be the last so sent originals). Please advise as i cant afford another solicitor

Thank you in advance