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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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When is Reply to Defence to counterclaim considered to be

Customer Question

When is Reply to Defence to counterclaim considered to be served. If It is posted it to the Defendants within 2 weeks of their defence is it considered to be served or does certificate of service needs to be completed
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

What track is the claim being heard in please - is it small claims, fast or multi track?
Customer: replied 1 year ago.

multitrack

Customer: replied 1 year ago.

Iam the Claimant. Defendants legal representative has applied for a judgement on their counterclaim claiming they did not receive reply to their defence and counterclaim. The judge issued a judgement without a hearing. The reply to defence and defence to counterclaim was posted to them but they state this was not served properly and that they have not recieved it. It was also sent to Northampton CCBC before the case then got transferred to the local court.

Expert:  Joshua replied 1 year ago.
Did you retain proof of posting please? When was the judgement handed down? Does the court acknowledge that your reply has been received?
Customer: replied 1 year ago.

no proof of posting but witnessed by my wife as we both went and posted it, defendants claim court has no evidence(local court is norwich), claim has been transferred from Northampton CCBC to Norwich recently. reply was sent to Northampton ccbc. I have asked northamptonCCBC to confirm they have received it

Expert:  Joshua replied 1 year ago.
Thank you. There is no requirement that you serve a counterclaim by other than first class post however it is wise to retai proof of posting in case service is disputed. From what you say the judge here has issued a summary judgement on the counterclaim without a hearing. Is this correct? If so when was the judgement handed down? Has judgement been made for your claim?
Customer: replied 1 year ago.

no judgement on claim yet , directions questionnaire has been filed.

Judgement on counterclaim dated 21/04/2015 signed by judge on 14/04/15 (for a large sum of money).

order has been emailed to me today by defendants legal representative who did not notify me of their application which was made a month ago!

yes a summary judgement doesn't indicate there was a hearing

Expert:  Joshua replied 1 year ago.
Thank you. Finally is this a small claims or fast track etc claim?
Customer: replied 1 year ago.

multitrack, not a small claim value of claim and counterclaim are both above 10k

Expert:  Joshua replied 1 year ago.
Thanks. One final point could you confirm that the judgement that has been made is summary judgement and not a judgement in default (due to lack of response from you). That should be my final question
Customer: replied 1 year ago.

looks like a summary judgement it states….. before district judge -- at --CC upon having considered the defendants application dated 19 March 2015 and having read ___ witness statement(defendants legal representative) legal exec dated 19 March 15 and upon claimant having failed to file a defence to the counterclaim dated 26 Feb 15 it is hereby adjudged that judgement shall be entered against the claimant for the second defendant (builders company)on its counterclaim with interest etc payable in 14 days Date of order 21/4/15 signed by judge 14/4/15. His legal rep says he is willing to consider consenting to my application for judgement to be set aside provided I pay him £380 for his fees towards his expenses which he would usually charge his client as he states there is a procedural problem at my end, I posted the reply but failed to inform him that I had issued a reply to counterclaim and that he didn't receive it anyway, so I have emailed copies to him and the court today. Many thanks for your advice sorry if it isn't very straight forward, what are my options? there counterclaim for building work on my house was retaliatory and without substance

Expert:  Joshua replied 1 year ago.
Thanks - you are right it is. On that basis you will need to consider appealing the judgement on the grounds that you did file a defence and reply to their counterclaim and the court is (if it is) in receipt of the same and you did serve a copy on the defendant and that the judge erred in issuing summary judgement on the basis that there are substantial grounds of dispute in respect of the counterclaim and the counterclaim is not suitable for summary judgement.Because you did not have a chance to ask the judge for permission to appeal you will need to issue an appeals notice.http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=388 For important documents such as the above whilst first class post is satisfactory it is worth keeping proof of posting or using a tracked method or failing which confirming after sending that it has been received by email for example. The court may require a statement of service to be made by the person that posted the documents as part of considering the appeal. The appeal should be lodged within 21 days of the date of the judgement. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.

excellent thank you for your help

Customer: replied 1 year ago.

could you please advice the fee to accompany this notice/appeal

Expert:  Joshua replied 1 year ago.
I believe it is £240 but it would be worth confirming with the court just to be sure.
Customer: replied 1 year ago.

Sorry for getting back to this one again, I have checked the documents in detail the second defendant(building firm) applied for judgement under 12.3 (2) b so it was a judgement by default. apologies I did not notice this bit earlier. Does this change the type of application I should be making or is it still the same

Expert:  Joshua replied 1 year ago.
No that makes things much better. If it is a default judgement then it is a N244 application to set judgement aside on the basis that you have a reasonable prospect of success and that a fully reply to the claim was served on the court and the other party.
Customer: replied 1 year ago.
Thank you
Expert:  Joshua replied 1 year ago.
A pleasure.

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