small claims counterclaim???

[mjb6964]

hi...

I have recently had a claim form submitted against me for damages in respect of some alleged defective building work I carried out. The claim is based on the report of a so called expert. I have already been able to prove his evidence is inaccurate and incorrect and I do not see this case moving forward and hopefully being dropped forthwith.

My question is this :

I have spent 4 days to date gathering and preparing all my documentary evidence and I have instructed a professional to assist in writing a detailed defence.
I have lost 4 x days earnings as a self employed builder and potentially incurred costs of approx £1000.00 in professional fees. This does not include significant amounts of stress and initial worry that it has caused me.

Do I have any scope to reclaim costs in the form of a counterclaim?
This would be based on me being incorrectly pursued for costs as a result of incorrect reports claimed against me.

I know i can't claim for solicitors fees but it was the experts fees and my loss of earnings I was concerned with.

thanks in advance

 

[Blaby Loyal]

I am not aware that you can make a sustainable counterclaim just for the costs of the proceedings.

 

[White Collar Legal]

If this is a small claim (a claim less than £10,000) then the Small Claims rules allow for recovery of expert's fees up to £750 and for loss of earnings up to £90, if you are successful in defending the claim.

If the claim is more than £10,000 you can claim your costs back and loss of earnings but this is subject to assessment.

The professional drafting your defence ought to know the rules on recovery of costs under both regimes.

 

[mjb6964]

I am not aware that you can make a sustainable counterclaim just for the costs of the proceedings.

yes i intended to submit counterclaim for costs but not sure if it could be based on claiming for costs alone?

 

[mjb6964]

If this is a small claim (a claim less than £10,000) then the Small Claims rules allow for recovery of expert's fees up to £750 and for loss of earnings up to £90, if you are successful in defending the claim.

If the claim is more than £10,000 you can claim your costs back and loss of earnings but this is subject to assessment.

The professional drafting your defence ought to know the rules on recovery of costs under both regimes.

When I say professional , I mean he is very skilled in writing legal documents but is not a practising solicitor / lawyer.
Could I claim back these said costs as a defendant in this case once proved innocent or would I need to instigate some sort of counterclaim now for the professional costs and my loss of earnings?
If he is analysing all my documents and producing a defence would his costs be recoverable at all or would they be classed as legal costings....?
thanks

 

[Blaby Loyal]

If you are of the opinion that the Claim has no merit then will you be making an Application for either Summary Judgment or for the relevant part of the Claim to be struck out which would effectively bring the proceedings to an end?

 

[White Collar Legal]

When I say professional , I mean he is very skilled in writing legal documents but is not a practising solicitor / lawyer.
Could I claim back these said costs as a defendant in this case once proved innocent or would I need to instigate some sort of counterclaim now for the professional costs and my loss of earnings?
If he is analysing all my documents and producing a defence would his costs be recoverable at all or would they be classed as legal costings....?
thanks

That depends on the value of the claim and whether you are a company or an individual.

 

[The Byre]

Why (if the case is really without merit or substance) is the case being brought? The essence of a counteraction would have to hinge on the answer to that question.

If it is genuinely without merit or substance, this could be a case of frivolous litigation, or even funkier, have the necessary ingredients for a claim of malicious prosecution of civil proceedings. (See Willers v Joyce & Anor, 2016.)

Assuming that the original claim is determined in your favour and is deemed to be without merit, in that it was brought without reasonable cause, that it was actuated by malice and that you suffered damage, a countersuit could be successful.

 

[mjb6964]

That depends on the value of the claim and whether you are a company or an individual.

claim would be approx £2500.00 and I am a sole trader so individual..

 

[mjb6964]

Why (if the case is really without merit or substance) is the case being brought? The essence of a counteraction would have to hinge on the answer to that question.

If it is genuinely without merit or substance, this could be a case of frivolous litigation, or even funkier, have the necessary ingredients for a claim of malicious prosecution of civil proceedings. (See Willers v Joyce & Anor, 2016.)

Assuming that the original claim is determined in your favour and is deemed to be without merit, in that it was brought without reasonable cause, that it was actuated by malice and that you suffered damage, a countersuit could be successful.

in summary an item had been fitted in a property and subsequently claimant had 3 other builders view this item once fitted 3 months later and 4 years later. All mistakenly told her it had been fitted incorrectly. As a result and without clarifying with us, she sought the advice of a solicitor who helped her push this to small claims to recover costs of install.
We are without doubt able to prove with manufacturers instructions and manufacturers statement that it is fitted correctly and the 3 x other builders totally mis-interested the installation. The claimant does not yet know this.

 

[The Byre]

What three other builders said or didn't say is irrelevant! The question at hand is whether the installation was defective.

My guess is that these builders were unfamiliar with the type of installation - the UK building trades, once extremely experimental, esp. after the War - have become extremely hide-bound and conservative. They see something unfamiliar and say "Well, that's all wrong for a start!"

All the court will be interested in, is the question - Was it defective and did she make you aware of the defect and give you the opportunity to remedy any defects?

 

[Michael Loveridge]

Do I have any scope to reclaim costs in the form of a counterclaim?

No. The claim will be classified as a small claim, so you can only recover legal costs if you can satisfy the court that your opponent has behaved so unreasonably that they should pay costs. Such decisions are extremely rare.

But even if the court did make such a decision you couldn't recover costs anyway as you haven't incurred any that might be recoverable. Although in principle you can recover some or all of the fees of solicitors and barristers you can't recover the charges of someone who isn't a practising lawyer.

Neither can you claim for loss of earnings during the time you spend preparing the defence and generally dealing with the claim.

You may be able to recover the costs of an expert witness that you hire to argue against the existing expert evidence filed by the claimant but you should wait for the court to give directions before instructing any experts. The general practice of the court with low value claims like this is to order the instruction of a joint expert, i.e. one that you and the claimant both instruct and who will prepare an independent report for the benefit of the court.

 

[Darren_Ssc]

Might be wrong but, IIRR, making a counter claim will incur an additional fee and there's a danger you will lose and have more costs to pay?

Sometimes such things are simply the cost of doing business.