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How to Defend a Claim or Counterclaim

By: Lorna Elliott LLB (hons), Barrister - Updated: 12 Sep 2018 |
 
How To Defend A Claim Or Counterclaim

If you are being sued in the small claims court you should remember that it is for the claimant to prove their case, not for you to disprove it. If the claimant cannot prove that the case against you is ‘more probable than not’ to have occurred they will not succeed. Remember, though, that it is for the judge at the final hearing to decide this and so it is very important that you ensure that you are well prepared to defend yourself.

Similarly if you are the claimant who is defending a counterclaim, the defendant will need to prove the required elements of their counterclaim. So how do you defend yourself in the small claims court? It depends on the nature of the case against you. Please note that the following is not intended to be an exhaustive list of applicable defences but provides guidance on the types of allegations defendants often face in the small claims court:

Owing the Claimant Money

  • If the claimant is alleging that you owe them money and you are refuting it, it may be because you have either:paid them in full, or
  • not paid them because it was a gift, or there was no agreement for payment to be required
  • or that the goods that the claimant supplied under the contract were not fit for purpose, as described or of satisfactory quality or a service the claimant provided was not carried out with reasonable care & skill, or within a reasonable period of time or for a reasonable fee (unless these requirements have expressly been waived) and that this justifies the full amount of your non-payment.

Injuries Caused to the Claimant

In terms of personal injury cases in the small claims court, to defend a claim you need to demonstrate to the court that you did not:
  • play any role in the occurrence of the claimant’s injury, whether directly, vicariously (your employee’s negligence) or by failing to do something, e.g. by not observing health and safety laws, or
  • that the claimant was to blame for his or her own injuries, or
  • that the claimant’s injuries were not reasonably foreseeable (e.g. if the claimant is playing tennis on your property, and a horse which is being ridden by a member of the public comes into the court and knocks them over, this would not be reasonably foreseeable)

Supply of Good or Services to a Consumer

If you are a seller or supplier who has contracted with the claimant in the course of your business, and the claimant is alleging that the goods you sold or services you supplied are unsatisfactory, you should be confident that you have:
  • Done everything that you can to resolve the situation (i.e. acted ‘reasonably’)
  • Provided goods or services that meet the required statutory standard of the Sale of Goods Act or the Supply of Services Act. If you have not done this to the required standard, you should have offered a consumer a repair or replacement (if a repair is too costly, you can replace the item at your discretion.)
  • It is important to note the various timescales in terms of the Sale of Goods: it is normally the claimant’s job to prove that the goods were faulty and should have lasted longer than they had. However, if the claimant asked for the goods to be repaired or replaced within 6 months of purchase, it is for you as the seller to prove that the goods were not faulty at the time of purchase. After the first six months, and until the goods are six years old (the limit) the claimant must prove the inherent fault at the time of purchase.

Breach of Contract

If you are defending an alleged breach of contract typical defences are:
  • That there was no contract, or
  • That you were not a party to the contract with the claimant, or
  • That if there was a contract you did not breach it, or that if you breached it, it was not within your reasonable control to prevent the breach, or
  • That if there was a breach and the claimant is claiming damages for their loss, that loss could not have been reasonably foreseeable by you.

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[Add a Comment]
Is it possible to submit a counterclaim for the recovery of costs related to the defence of a small claim?The costs being more than the initial claim and more than the limit for small claims.
Wayfarer - 12-Sep-18 @ 4:34 PM
Can I attach evidence to.my first defence of a county court claim? Or is evidence only presentable at a later stage?
Dave - 8-May-18 @ 6:50 AM
Suz - Your Question:
Is it reasonable to defend a claim to pay independent school fees total a full term around 3k when not even starting at the school.The contract wording was very clear re the £500 no refundable deposit but ambiguous re notice if not joining the school. It is apparently industry standard to provide a terms notice for withdrawering a child from fee paying school but apparently the same applies if they haven't even joined, in fact it's around 5 months notice given there's 2 months summer holidays and a term before they start too.The wording relating to this in the contract is poorly worded and Aida and others subsequently shown the wording didn't understand it meant 5 months notice.Given there was new legislation published and specifically directed towards the independent schools contacts in (contract and consumer rights act 2015) stating their contacts need to be very open and to remove "grey" areas, making their contracts transparent and easy to understand, something I have seen subsequently in other school contracts, can I defend a claim that has been brought upon me for a terms fees?

Our Response:
You would have to seek legal advice regarding this. A legal professional would have to look over the terms of the contract fully in order to ascertain whether you have a case.
AboutSmallClaims - 28-Apr-17 @ 10:17 AM
Is it reasonable to defend a claim to pay independent school fees total a full term around 3k when not even starting at the school. The contract wording was very clear re the £500 no refundable deposit but ambiguous re notice if not joining the school. It is apparently industry standard to provide a terms notice for withdrawering a child from fee paying school but apparently the same applies if they haven't even joined, in fact it's around 5 months notice given there's 2 months summer holidays and a term before they start too. The wording relating to this in the contract is poorly worded and Aida and others subsequently shown the wording didn't understand it meant5 months notice. Given there was new legislation published and specifically directed towards the independent schools contacts in (contract and consumer rights act 2015) stating their contacts need to be very open and to remove "grey" areas, making their contracts transparent and easy to understand, something I have seen subsequently in other school contracts, can I defend a claim that has been brought upon me for a terms fees?
Suz - 27-Apr-17 @ 12:48 PM
polly55 - Your Question:
HiI own a children's nursery and we recently had an unfortunate incident with a parent. She conducted a campaign of harrassment and bullying against my manager over a complaint she had about the provision. This complaint has been dealt with by us, reported to our registering body and is no longer extant. Her manner of bringing the complaint was in public, in front of other staff, children and parents (strictly against our complaints procedure) and was rife with personal put-downs (you really need to learn to deal with people better, why are you looking at me like that, I don't trust people like that to look after my child etc, etc,) The harassment went on into the manager's private time after work on her personal mobile phone. My manager was so distressed and demotivated that I immediately withdrew the child's place and asked the parent not to return to the premises. They are now threatening me a breach of contract suit and my insurers will not cover me as they say we have no chance of winning as our t & c's state a month's notice must be given. A month's notice was not practicable in this case as staff were shocked and intimidated and I deemed unable to do their jobs (ie caring for children) properly with the threat of more input from this individual. My insurers assessed their material losses at around £2,000 and I have put this offer to them. However they are asking for three times this amount plus, having said they were seeking £500 for distress have now upped this to £1,000 since I made our offer.I intend to fight the case in court but would like input for my defence. Implied term of of mutual trust and confidence. I look forward to any advice.Many thanks

Our Response:
In this case, I can only advise you seek legal advice as this question is beyond our remit to comment. I'm afraid, we can only answer general rudimentary questions, not case-specific ones.
AboutSmallClaims - 19-Jul-16 @ 12:14 PM
Hi I own a children's nursery and we recently had an unfortunate incident with a parent.She conducted a campaign of harrassment and bullying against my manager over a complaint she had about the provision.This complaint has been dealt with by us, reported toour registering body and is no longer extant.Her manner of bringing the complaint was in public, in front of other staff, children and parents (strictly against our complaints procedure) and was rife with personal put-downs (you really need to learn to deal with people better, why are you looking at me like that, I don't trust people like that to look after my child etc, etc,)The harassment went on into the manager's private time after work on her personal mobile phone.My manager was so distressed and demotivated that I immediately withdrew the child's place and asked the parent not to return to the premises. They are now threatening me a breach of contract suit and my insurers will not cover me as they say we have no chance of winning as our t & c's state a month's notice must be given.A month's notice was not practicable in this case as staff were shocked and intimidated and I deemed unable to do their jobs (ie caring for children) properly with the threat of more input from this individual.My insurers assessed their material losses at around £2,000 and I have put this offer to them.However they are asking for three times this amount plus, having said they were seeking £500 for distress have now upped this to £1,000 since I made our offer. I intend to fight the case in court but would like input for my defence.Implied term of of mutual trust and confidence.I look forward to any advice. Many thanks
polly55 - 18-Jul-16 @ 5:16 PM
Hi I own a children's nursery and we recently had an unfortunate incident with a parent.She conducted a campaign of harrassment and bullying against my manager over a complaint she had about the provision.This complaint has been dealt with by us, reported toour registering body and is no longer extant.Her manner of bringing the complaint was in public, in front of other staff, children and parents (strictly against our complaints procedure) and was rife with personal put-downs (you really need to learn to deal with people better, why are you looking at me like that, I don't trust people like that to look after my child etc, etc,)The harassment went on into the manager's private time after work on her personal mobile phone.My manager was so distressed and demotivated that I immediately withdrew the child's place and asked the parent not to return to the premises. They are now threatening me a breach of contract suit and my insurers will not cover me as they say we have no chance of winning as our t & c's state a month's notice must be given.A month's notice was not practicable in this case as staff were shocked and intimidated and I deemed unable to do their jobs (ie caring for children) properly with the threat of more input from this individual.My insurers assessed their material losses at around £2,000 and I have put this offer to them.However they are asking for three times this amount plus, having said they were seeking £500 for distress have now upped this to £1,000 since I made our offer. I intend to fight the case in court but would like input for my defence.Implied term of of mutual trust and confidence.I look forward to any advice. Many thanks
polly55 - 18-Jul-16 @ 12:16 PM
In our defence we have submitted a defence and a counter claim. The Claimant has asked for an extension of 28 days to prepare a defence of our counter claim. We do not want to give that. What should we now do?
rover - 12-Aug-15 @ 1:11 PM
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