Small Claims Counterclaim

Discussion in 'Legal' started by bigmouth241, Dec 29, 2012.

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  1. bigmouth241

    bigmouth241 UKBF Newcomer Free Member

    166 26
    Hi All,

    Quick legal query for you. We're taking a non paying client to court (small claims) for a sum of money owed, which they admit they owe but wont pay. They have filed a dispute & a counterclaim.

    Their counterclaim relies on the fact that we installed some 3rd party free software for them, which they have "messed around" with & broken, meaning it no longer worked as it was installed. They claim that it is "not fit for purpose". The counterclaim is the first time they have mentioned that there was a problem with the installation & of course, had they mentioned it was acting strange, even if it wasn't, we would have looked into it for them.

    My query is this - are they allowed to counterclaim for money they spent "fixing" it, when we were not informed of any problem, nor given the opportunity to rectify it if indeed on existed? I can't see how they would be...
    Posted: Dec 29, 2012 By: bigmouth241 Member since: Oct 15, 2008
  2. greengecko

    greengecko UKBF Newcomer Free Member

    254 38
    My understanding is they can try and counterclaim whatever they like, anything excessive or unreasonable would quickly be reduced/thrown out by the judge.

    I believe they should have given you an opportunity to resolve the issues first, and are probably just trying to get more time to wiggle out of paying. Sure someone with more defined legal advice will be along shortly.
    Posted: Dec 29, 2012 By: greengecko Member since: Feb 3, 2010
  3. kulture

    kulture UKBF Legend Staff Member

    8,088 2,229
    Your problem is that you have to convince the judge that it is a baseless counter claim. The judge could be completely computer illiterate. So he/she would b more likely to understand the point that the point that they did not give you a chance to fix the "problem" and only raised it when you take it to court.
    Posted: Dec 29, 2012 By: kulture Member since: Aug 11, 2007
  4. The Resolver

    The Resolver UKBF Big Shot Full Member

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    Firstly, you must file in time a Defence to the Counterclaim to deny any liability for any damage resulting from the third party software, ie that it was OK and any damage was as a result of their conduct, else the judge will find in their favour by default.

    You should also serve a Request for Further and Better Particulars of their Counterclaim tying them down to giving as much information as possible before the final hearing, eg how does the software malfunction, what steps did they take etc. In this way you help better prepare yourself for the evidence you give.

    You should request an opportunity to examine their IT so as to assess the merit of their claim. If they refuse you should apply to the court for an Order to that effect on the basis your defending is prejudiced if you cannot access the evidence.

    You could adopt the strategy of trying to escalate the case by requesting that it ought to be referred to the Technology and Construction Court where the judges are more computer savvy. That puts them at risk of being ultimately ordered to pay any legal costs you incur, and vice versa if you lose, (costs are not ordered usually in the Small Claims Court) so its high risk but could push them into settlement.

    Your terms and conditions should have covered this eg by avoiding liability for third party software, requiring them not to try to fix and limiting any liability that may remain etc etc If so you need to quote them in your Defence.

    If you did not cover liability in t&cs then they can claim for their time in trying to fix but only to the extent to which their actions were reasonable and no more than necessary to mitigate their loss. You have to show that it would have been better mitigation to just call you up.
    Posted: Dec 30, 2012 By: The Resolver Member since: Mar 31, 2006
  5. bigmouth241

    bigmouth241 UKBF Newcomer Free Member

    166 26
    Hi all,

    Thanks for the words.

    @Resolver - the thing is we are in Northern Ireland, where the legal system is a best, screwed up! Might be moving back to England soon but anyway.... I am told you dont have to file a defence to a counterclaim here & that it just goes straight to a hearing once any dispute and/or counterclaim are brought in.

    Its a country \ region of the UK where if people dont have the money or just dont want to pay for something, they will call in a firm of solicitors who will bombard you with excessive paperwork & threats, even if their case is indefensible. The last firm to try it ended up with a £4000 legal bill to pay as well as what they owed us - I'm not sure why they just dont pay up now!!

    Interesting point you raise about examining the system - they won't let this happen. Presumably because they know they will be found out.

    I believe they're just filing this as a stalling tactic - we have emails from them saying they've got troubles with cashflow!
    Posted: Dec 30, 2012 By: bigmouth241 Member since: Oct 15, 2008
  6. MartCactus

    MartCactus UKBF Enthusiast Full Member

    984 215
    Such a counter claim is quite typical in such cases of non payment.

    In the past we've asked those who make such a claim to provide copies of previous correspondence they've sent re the claimed defect.

    A civil case is decided on the balance of probabilities. If the first time a customer mentions a defect is after they've not paid their bills then I think most judges would take that into account when deciding who is telling the truth.
    Posted: Jan 1, 2013 By: MartCactus Member since: Sep 24, 2007
  7. Steve Sellers

    Steve Sellers UKBF Big Shot Full Member - Verified Business

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    Some excellent tactical advice offered by The Resolver OP. :)

    However the only thing I would ask, before that, is what your terms and conditions say on this? Do they cover notification of substandard service? What do your terms say about limitation of liability? Are there any other relevant contractual clauses?

    Given the counter claim is a breach of contract claim, the contract itself must be the focus of your attention.
    Posted: Jan 2, 2013 By: Steve Sellers Member since: Aug 7, 2011
  8. The Resolver

    The Resolver UKBF Big Shot Full Member

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    If they refuse, you then make the request to the court so they will order them to give you access. You present it on the basis it is impossible for you to assess whether anything is wrong and , if so, who is at fault without seeing it. The procedure may differ but they will have similar rules requiring co-operation between parties to ensure they both have the same access to relevant evidence.

    Good luck and please call back to let us all know the outcome.
    Posted: Jan 2, 2013 By: The Resolver Member since: Mar 31, 2006
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