This is the first in a series of blogs on the Small Claims Court in England & Wales, in which Redwood Legal provide free insights and practical tips and information on how to bring your own small claim, without the need for a lawyer. If you need our advice or assistance or input at any time – then we can provide it for a reduced fee. That is how our business model works for this project. We are also hoping of course to generate a client base for other other legal needs.
Today we deal with how to respond to a Defence & Counterclaim. You are the Claimant and you are faced with an opponent who seems determined to cause you problems. They are not just avoiding paying. As for all our vlogs, we usual actual cases that we are currently running to make sure it is the “real deal”. We have found this is better than theoretical knowledge.
So in this case you have a Claimant who is chasing unpaid invoices for curtains she has made for an interior designer who has an end client that she has tried to please too hard and is now making our client pay for her, “oversell”. (See the video for the brief facts.) The claim value is no more than £750 but the trouble now is that the interior designer has replied to the claim with a defence AND a counterclaim, saying that the invoices were not paid because not only was the one done improperly, but she had to spend more money on repairing the damage. Our client was about to send a long document (in effect a witness statement) in reply to the Defendants long letter reply to the claim, attached to her defence.
The issue here is clarity. Sending this long document would have been a mistake. This is where you have to, unfortunately, apply some legal knowledge. Now, it’s a strange anomaly that there is this small claims system that excludes lawyers but you are nevertheless expected to know the law! Ignorance of the law is no defence! What on earth do you do? You do not know the law of contract or negligence. Well, you make sure you have separated the issues and been crystal clear about what your response is and you have NOT written a long, emotional response providing evidence. Evidence is for later – the court will direct you nearer the trial on exchange of evidence. For now you just want to focus on clearly defining your case and rejecting your opponent’s.
So what should you do? Well, in this case, separate out the issues. 1. The Defence – the curtains WERE correct as they were what was ordered. The specification was met. The Defendant asked for a thin hem (not interlined) and this was precisely what was delivered. So the Claimant denies the defence. 2. The counterclaim is stoutly denied as any damage only came about as the result of the wrong specification that the Defendant had contracted for. However, even if there was any fault with the Claimant, the Defendant failed to give an opportunity to the Claimant to remedy the error. This is called duty to mitigate. Further, great expense was incurred by the Defendant, necessarily so. That is then all you need.
The court will then receive your CLEAR response. Judges like clarity. If you bombard the court with all manner of random evidence in your outrage at your Defendant’s conduct, you play into their hands. And give them ammunition. The correct place for this is your witness statement and exchange down the track. So, for example, the fact that in this case the Defendant was still using the Claimant’s work in their showroom gives the lie to their case- is a matter for nearer trial once the court has sent you directions for trial and exchange of witness statement and disclosure of documentary evidence.
Do not be indignant – just be clear. Crystal Clear. And finally, your response to their defence is the REPLY – and your response to their counterclaim is your DEFENCE to the counterclaim, for a claim that they are now bringing against you. Be sure to think clearly and separate these two elements out when your draft your response and sent it into the court. And title it “REPLY AND DEFENCE TO COUNTERCLAIM” if you like.
11 May 2016