Home > Small Claims > What if the Other Party Makes a Counterclaim?

What if the Other Party Makes a Counterclaim?

By: Louise Smith, barrister - Updated: 9 May 2017 | comments*Discuss
 
Counterclaim defendant  case claim

There are several different ways that a defendant can respond when a claim is issued against him:

  • Do nothing at all – the claimant is then entitled to request a judgment in default;
  • Admit the claim – the claimant is entitled to request judgment. The defendant may pay the debt or make an offer to pay it by instalments;
  • Defend the claim – the case will then have to be allocated to the appropriate track so that it can proceed to trial; or,
  • Defend the claim and make a counterclaim.
If the defendant wishes to make a counterclaim against the claimant he should do so at the same time as he lodges his defence form. The defendant will have to pay a fee to make the counterclaim.

The Civil Procedure Rules

Part 20 of the Civil Procedure Rules (CPR) contains the rules governing counterclaims. The defendant will usually be able to start the counterclaim when he defends the claim. In most types of cases the defendant does not need the court’s permission to do this. A defendant might decide to bring a counterclaim against the claimant in a case where he says that, whether or not what the claimant says is correct, it should be set off against something that the claimant has done.

Counterclaim Against the Claimant

For example, a builder has started a claim against a householder who has refused to pay for a fitted kitchen. The householder says that the services provided by the builder were so poor that he had to pay somebody else to finish the work and to repair structural damage caused by the builder’s employees. The householder says that the builder should reimburse him for the additional money he was forced to spend.

If the defendant decides to bring a counterclaim against the claimant after he has filed his defence he will need the court’s permission to do so.

Reply and Defence to Counterclaim

If a defendant puts in a counterclaim with their defence, the claimant will have the opportunity to respond to this in a Reply and / or Defence to the Counterclaim. This will usually have to be returned to the court within about 14 days of receipt of the counterclaim.

Part 20 Claim Against a Third Party

Part 20 of the CPR also deals with the situation where a defendant says that, if the claimant’s case is correct, the defendant should be able to seek payment or some other remedy from a third party to set off his liability to the claimant. In other words the defendant is saying that, if the claimant is correct, it is a third party’s fault and they are the ones who should pay. Alternatively the defendant may say that he has a separate claim against a third party that would most appropriately be dealt with at the same time as the original claim.

The defendant will have to ask for the court’s permission to have the third party added as a party to the proceedings.

Management of Counterclaims

If the defendant responds to the claim by making a counterclaim the claimant will, technically, become the “Part 20 Defendant” and the defendant will become the “Part 20 Claimant”. Therefore any court documents should give the parties both of these titles. If the defendant has issued a Part 20 claim against a third party, the third party will be the part 20 Defendant.

Where a counterclaim is made, or where the court’s permission is sought to issue a counterclaim, the court will take into account a number of factors when deciding how to manage the case. The court can refuse permission, strike out the counterclaim or order that it be dealt with as a separate claim.

Allocation of Counterclaims

Some defendants will have a genuine counterclaim against the claimant which should, in the interests of justice, be dealt with at the same time. However, there are occasions where a defendant will seek to introduce a counterclaim in an effort to avoid liability or to complicate the court process.

A counterclaim could have a bearing on the allocation of the trial. If the financial value of the counterclaim is higher than the value of the original claim this could result in the whole claim being allocated to a different track. Therefore a claimant who thinks he has issued a small claims case could suddenly find that the case has been allocated to a costlier and more complicated track because of the counterclaim.

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Can a party who has filled a counterclaim apply to amend his counterclaim, only in relation to the damages being sort, after the county court has received his counterclaim but before the counterclaim fees have been paid? Thanks
Joe - 9-May-17 @ 4:20 PM
if a claimant discontinues his case against you, and you already counterclaimed against the claimant, does the counterclaim still stand?
sapnker - 27-Jan-17 @ 12:08 AM
We have had a county court action filed against us. We have defended and We are making a counter claim which has cost £185. Whathappens if the claimant drops the case?
Jen - 12-Jan-17 @ 8:39 PM
Basically there is a possibility that a Solicitor acting for a client who may sue us for some money and costs.We would defend these accusations.Also, we would want to issue a large counterclaim for libel, extortion, damage to health and financial losses as a consequence. Basically, can we sue the client and the solicitor separately.The solicitor has broken the code of conduct, facilitated and possibly conducted libel and been party to extortion.I have examined the legal definition of these terms and I am happy that they have a case to answer.The solicitor specifically threatened to ruin in writing in a letter not marked private and confidential or without prejudice.It was based on some incorrect facts and lies provided by the client.This is proven. This letter was shared with a third party.I do not expect comments about the case, but about the principle of suing the claimants solicitor for his part in the affair.My view is he broke the code of conduct and made threats of ruin and used language designed to cause genuine distress.He achieved this as his actions led to some pretty dreadful consequences.
pete - 3-Dec-16 @ 5:57 PM
Hi I wanted to know if its possible to seek a counter claim against the claimebt after filing defence.
Miss G - 21-Nov-16 @ 7:33 PM
Hello my son has recently got a CCJ which he did not receive any paperwork for.It was for parking in a hotel car park he was staying at.Can he counterclaim?
Maria - 26-Aug-16 @ 6:37 PM
Nanky - Your Question:
Hello…I owe legal costs after a dispute with a neighbour, where I withdrew from the Trial when the audio link was not the right sort, and as a litigant in person I was unable to follow proceedings. (I understand this violated my right to a fair trial), but the Judge refused me the right to appeal… Going on from there and because I owed £25,000+, I placed my home on the market in order to pay the debt. A cash buyer made an acceptable offer, had a survey done and all was moving towards early exchange/completion, when the neighbour interfered with my sale by slandering my property and threatening the buyers, telling them that if they went ahead with the purchase, he would pursue them for damages done to his land by my septic tank- a complete lie, but it worked and the buyers withdrew. (It appears that he was waiting for enforcement of the debt by way of an Interim Charging Order).The ICO was granted after his actions took place and when he applied to make the ICO final, I defended/counterclaimed for the loss caused by his unlawful interference which I thought I could off set against the debt.However, the court mistakenly failed to issue my counterclaim, saying I had not paid a court fee… (I only found out about this a few days before the hearing and made them aware of their mistake in that I am exempt from fees and had supplied all the relevant information which they had mislaid, but the court went ahead and made the CO final.I complained to the court and after more than a year, they eventually apologised for their mistake, admitting that they had the documents in the file all along.I made an application to set aside the CO and a judge directed that my neighbour provide a skeleton argument.Despite having three months to do so, the skeleton was filed and served 2 days late, with the neighbour citing a 'change of solicitor'. (A complete lie which I pointed out to the court and which they decided wasn't important).When I got to Court for the set aside hearing, the judge said he was going to dismiss my application as I was never entitled to make a counterclaim against my neighbour, but could instead make a claim separately if I so wished, meanwhile the neighbour could apply for an Order for Sale for the outstanding debt.I am completely confused and think I need to obtain a copy of the Court transcript to try and understand what went wrong.I believe the court has made so many mistakes and this is yet another… I desperately need some advice as to my rights.Please help!

Our Response:
Unfortunately, we cannot answer this as it is outide our remit. We can only answer generalised/non-specific questions. You would have to seek professional legal advice.
AboutSmallClaims - 1-Jul-16 @ 10:00 AM
Hello… I owe legal costs after a dispute with a neighbour, where I withdrew from the Trial when the audio link was not the right sort, and as a litigant in person I was unable to follow proceedings. (I understand this violated my right to a fair trial), but the Judge refused me the right to appeal… Going on from there and because I owed £25,000+, I placed my home on the market in order to pay the debt. A cash buyer made an acceptable offer, had a survey done and all was moving towards early exchange/completion, when the neighbour interfered with my sale by slandering my property and threatening the buyers, telling them that if they went ahead with the purchase, he would pursue them for damages done to his land by my septic tank- a complete lie, but it worked and the buyers withdrew. (It appears that he was waiting for enforcement of the debt by way of an Interim Charging Order). The ICO was granted after his actions took place and when he applied to make the ICO final, I defended/counterclaimed for the loss caused by his unlawful interference which I thought I could off set against the debt. However, the court mistakenly failed to issue my counterclaim, saying I had not paid a court fee… (I only found out about this a few days before the hearing and made them aware of their mistake in that I am exempt from fees and had supplied all the relevant information which they had mislaid, but the court went ahead and made the CO final. I complained to the court and after more than a year, they eventually apologised for their mistake, admitting that they had the documents in the file all along. I made an application to set aside the CO and a judge directed that my neighbour provide a skeleton argument. Despite having three months to do so, the skeleton was filed and served 2 days late, with the neighbour citing a 'change of solicitor'. (A complete lie which I pointed out to the court and which they decided wasn't important). When I got to Court for the set aside hearing, the judge said he was going to dismiss my application as I was never entitled to make a counterclaim against my neighbour, but could instead make a claim separately if I so wished, meanwhile the neighbour could apply for an Order for Sale for the outstanding debt. I am completely confused and think I need to obtain a copy of the Court transcript to try and understand what went wrong. I believe the court has made so many mistakes and this is yet another… I desperately need some advice as to my rights. Please help!
Nanky - 30-Jun-16 @ 7:46 AM
I'm a student in a student let, relations with my fellowtenants became tense following a disagreement over heating, they failing to understand that a credit in summer, becomes a debit in winter hopefully to become a zero balance at the end of the year, and they wished to use up the credit by keeping the heating on longer in the early autumn when they were in bed.This tension escalated into a campaign of harassment when I attempted to organise keeping the flat clean, as I was fed uphaving to clean up before and after I cooked, and in general appearing to be the only one who emptied bins etc.My fellow tenants then began to abuse me to my face and on social media and eventually to intimidate.I contacted various bodies, and also attended the Doctor due to the stress, and finally contacted the landlord for advice onhow to get out of the flat, and asked for this to be kept confidential. The landlord replied and copied in my house mates which resulted in even more abuse and harassment, and I moved out, I sought advice & was told I should have complained to the landlord and had I done so could have claimed back the thousands of pounds it has cost me to pay rent on 2 properties on the grounds they did not ensure I had the Quiet Enjoyment the contract required.The landlord was aware I was moving out due to the behaviour & his action in copying in my housemates when I sought a confidentialreply hastened my departure, is that sufficient to have a case against the landlord for not fulfilling the tenancy agreement that promised me Quiet enjoyment OR did I have to formally complain and ask for help to stop the abuse by me fellow tenants?Advice that I record the actions of my housemates means I have evidence that they deliberately set out to drive me out and tocause me financial loss by cranking up bills and refusing any replacement tenant I found.
Bill - 11-Apr-16 @ 11:58 AM
Hi, I am a expat landlord with property in the UK. I have had a number of problems with my tenant (mostly due to refusing inspections and refusing contractors to enter the property) which lead to me having to evict him. He refused to leave, and I had to take him to court in order to get a court order to make him leave. In response to my claim to have him evicted, he issued a counterclaim against me due to his problems with the property during his tenancy. The vast majority of his claims relate to the actions of the property agent (such as not fixing the problems in time, incorrectly advertising features of the property, etc). It is a very weak case, and he is refusing to settle for any reasonable amount out of court, but I am still nervous that a judge may find in his favour. He has not included the agent as a third party in his counterclaim. Is it possible for me to add the agent as a third party defendant to this counterclaim in order to share the liability should the court award in the tenant's favour?
Nellie - 7-Feb-16 @ 10:37 AM
I made a claim against a woman who owes me money. She defended and has counter claimed. Now, family matters are demanding my attention and I no longer want to go ahead with my claim. If I cancel the claim - does that automatically cancel the counter claim? or do I require permission from the other defendant/claimant to cancel her counter claim? Do I cancel Without Prejudice or With Prejudice? thank you
Amie - 16-Jul-15 @ 10:34 AM
hi there just need advice what will happen next if the person counter claim on me and don't pay the court fee I know that then court will remove the counter claim but what will happen next thanks
yasir - 18-May-15 @ 1:39 PM
@meena - I can't advice you directly on whether you have a case as your comments are slightly confusing. However, you need to get together all the evidence you can to support your claim against your landlord. I have included a link to the CAB checklist of what you need to have in order to make your case strong. Link here. I hope this helps.
AboutSmallClaims - 10-Feb-15 @ 10:41 AM
Hi i was renting a propety since 2012. when i was moving i few month early i ask landlord if he put my mony dps sheem. he reply no such a thing and bang the phone. the for tear and wear he diduct 95£ and ask me to agree and sign. i did not ageree. i beg him to retun. he put me in to much stress. i ask him to retun befor i go for hoidy. he ignore . after i come back from holiday i had a post of cheqe which he diduct £95.I put small court case and now he defended and lies lot and asking money from me. . i am waiting for cout letter. he lies has no evidance. but he abuse mefront of nabers i have all evedance. can you advice. thank you.
meena - 9-Feb-15 @ 2:08 PM
I'm confused: is it a defence or a counterclaim or both if I've withheld money from work left unfinished by an electrician because I'll have to pay another electrician around this amount if he doesn't return to finish the work?
confused - 6-Feb-15 @ 4:17 PM
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