Small claims counterclaim- who pays the hearing fee?? Help!!

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Hi All,

We’re stressed and confused and would really appreciate someone with experience of counterclaiming in the small claims court advising on this.

Our builder made a claim against us earlier in the year. We made a counterclaim against him (after he wrecked our house and didn’t finish the job). We paid a fee of £205 to the court to raise the counterclaim.

A court date was set and the letter, naming him as the claimant, said the claimant had to pay an additional hearing fee by a certain date. He didn’t pay it and his claim was struck out. However, they said our claim was also struck out because we didn’t pay the fee.

The letter didn’t say we had to pay, our solicitor said we didn’t need to pay and I called the courts at the time who said we didn’t need to pay.

I’ve since called the court who said I was advised wrong by them and should raise a complaint. However, my solicitor phoned the court and was told it was an error at the court, we didn’t need to pay and our counterclaim still stands. We’re being told different things by different people. We’re now waiting to hear back from the court.

Anyone with experience of counterclaiming in the small claims court- did you have to pay the hearing fee??

Looks from the Fees Order that the answer is 'it depends'.

AIUI the general principle is that the Hearing Fee is payable by the Claimant; in this case the builder who sued you. However, if the case is proceeding on a Counterclaim only then it's payable by the defendant - you.

IANAL but to me if the Claimant has not paid and his claim is struck out then the case could proceed as Counterclaim only and you have to pay the fee...

I suspect the situation here is sufficiently uncommon that court staff and perhaps your solicitor have been bamboozled...

Thank you! Yes, I would have expected that when he didn’t pay I would be notified and asked to pay the fee by a certain deadline (which I would have paid). Instead, they emailed us the day after the his deadline to say he hadn’t paid so they’d struck both out.
I wondered if anyone else had been the counter claimant in a similar situation and what had happened to them.

The Court is wrong. Only the main claim from the builder should be struck out and you are now the Claimant so any fees going forward you will need to pay. Only one Hearing fee was payable and that was by the current Claimant when it was due, not Part 20 Claimant like you are. Out of interest, once you’ve got your claim reinstated, did the builder file a Defence to your Part 20 Counterclaim? If not, you can request Judgment against them in default. Good luck!

Thank you for the reassurance! My solicitor (god knows why) wasn’t too sure so I’ve had to search for answers myself.
I found the EX50 document from HM Courts and Tribunals which says that it was only payable by him but should he fail to pay it I should have the opportunity to pay it and continue with my counterclaim. The court have been slow getting back to us so I’ll chase them tomorrow.
He made the claim against us and we counter claimed. He then responded to our defence and our counterclaim so we can’t get a default judgement unfortunately.
They informed both parties that our counterclaim had been struck out so I’m
not sure how they rectify this now as they’ve cancelled our hearing.

It will just be a mistake. The strike out order will have been automatic ie built into the previous order listing it for the SCT Hearing. Have a look at the previous Order and see what it says about the counterclaim, it should say the CC continues with you as claimant. Ring the Court as they should be able to rectify this by rescinding the previous order striking out both claims and drawing a new order only striking out the main claim. The matter should then be listed for a new hearing date with you then having to pay the listing fee. Follow with a detailed email and ask for the matter to be referred to a District Judge if the Court staff can’t do it on their own volition. Worse case you will need to issue an Application to reinstate based on the Court’s mistake. You’ll have to pay a fee but hopefully the Court will refund this to you.

Thank you! I called the court this morning who confirmed a District Judge had reviewed it on Friday and they have reinstated our counterclaim, thankfully. They said we should have the new hearing date soon and they’ll give us a new deadline to pay the hearing fee.

Relieved it’s getting sorted out.

I’m struggling to get clear answers from our solicitor though who keeps going AWOL. Do you know if submitting evidence via email is sufficient or do we also need to send printed versions in the post?

Ah, that’s fab news! I knew it would be an easy sort out, it’s just frustrating. Re the documents you will need to read the Court order with the new SCT date (and diarise the date to pay the listing fee!!). Both parties will have to serve their respective documents no later than 14 days prior to the hearing - so if posting send a few days earlier by tracked post, taking into account any bank holidays etc, especially when you serve on the builder. You should be able to E-file with the Court but again check the email address with the Order and take 2 spare bundles with you just in case the Court hasn’t received them.

Also, one tip is if you haven’t received D’s bundle at least 14 days earlier, you should tell the Court in writing so they can’t rely on their evidence at the final hearing. If you do receive it then read it carefully and cross reference with your documents for inconsistencies etc. the Court Order will tell you what documents you will need to serve. Best of luck!

You were so helpful with this I wondered if you could advise on the following.

So, after been advised several times by the court that the Claimant's case was struck out for none-payment of fees I've been told today that he applied 7 days after the order to have his claim reinstated. His reason is the court didn't remind him to pay it but then, conversely, he says he thought he did pay it but the payment didn't go out of his account. He then goes on to lay it on very thick about his breakup 11 months before (misrepresenting this as if it was in August instead) and how this has affected him, and how my apparent none-payment of an invoice (I didn't owe him anything because he refused to do the work) ruined his business. He also claims someone died and this meant he got confused. It's all very contradictory.

The court has granted him a hearing on the 28th September to discuss reinstating his claim. I think I have to be there although the court was vague about that.

Is it likely they'll reinstate it? Shouldn't he have to provide evidence that the payment stalled in his account?

We submitted our witness statements prior to finding out about this and there we both mentioned his breakup last year as he used this an excuse for not doing the work at our home.

It all feels very unfair as we've met all the deadlines and he's missed 2/3 of them so far.

hi, yes he can apply to reinstate his claim and you should have had a copy of his application notice and supporting witness evidence (sounds like you did but not sure if it’s the Court telling you this). The strike out is automatic. The Court don’t remind you and have no obligation to do so. However, it sounds like he has promptly applied to reinstate his claim and may get the sympathy of the Court. The test to apply is under Denton:- was the breach minor/major, prejudice, promptness to rectify etc. Has he even paid the fee as if not he hasn’t rectified the breach but keep this to yourself until the hearing. You can ask for wasted costs if you have any but I suspect these will be minor.

he has to convince the Court to tej state but if he has everything in Order then he may be successful. Not what you wanted to hear but that is the reality. You can attend the hearing to object - if he doesn’t attend it will be dismissed and your counterclaim will continue. Best of luck and let me know how you get on.

Thanks for coming back to me.

So the court didn’t notify us at the time of his application to reinstate but sent a letter last week (our solicitor is useless so we only found out today by calling the court ourselves).

I’m not sure if he’s paid the fee yet so I’ll
phone the court again tomorrow but he hasn’t submitted any evidence. The deadline was the 24th August for that. I don’t know if they’ll allow him more time to do that now the hearing date has had to change?

The court advised we write a letter to the court outlining out objections and I think we’ll attend as well.

He used the application as an opportunity to make allegations about me that are untrue and unsupported so I’m tempted to also point this out.

In terms of costs we’ll have to take unpaid leave and pay for childcare.

Not good news but thanks for all your advice, it’s much appreciated.

Just as an update, the reinstatement hearing went ahead last week (I had Covid so our advocate went without us).
The long and short is that his claim is reinstated on the basis that we’re counterclaiming anyway so he may as well get the chance to have his claim heard. They said the breach was very serious and his reason for missing the payment was poor.

Despite him also missing the deadline to submit evidence the judge has given him until mid November to submit some. Our solicitor (despite earlier saying they would appeal this if it happened) now won’t appeal this on our behalf.

The judge pointed out that his claim was weak and not well written so has given him chance to rewrite it and serve it again next week. I’ll then have to respond again.

The Advocate’s notes said he started laying it on thick stating his case against me and saying why he needed money from me but the judge told him to stop and contain himself as it was inappropriate. This at least gives us an idea of how he’ll behave in court.

Not the best outcome but he was fined an extra £180 to pay to our advocate for expenses.

The judge says the hearing will have to be around 3 hours which surprised me. We do have a huge evidence document so I don’t know if that’s the cause.

Thanks for all your advice on this!

That’s so frustrating but I suspect it’s because he’s a litigant in person whilst you are represented. At least he got a wasted costs order against him which are rare in Small Claims Track matters. Keep looking out for further breaches/missed dates and deadlines etc. Best of luck!

Thank you, will do! He has until Thursday to reissue the claim and pay the fee so we’ll see what happens.

We’ve had confirmation that he did pay the fee and send a new claim but he didn’t serve us with the new claim (expressly set out in the directions from the judge that he had to by 4pm yesterday). We’re having to wait for the court to send it to us, cutting short our time to reply. Our solicitor said the Advocate will mention it in court as an issue with his claim, but should we leave it to the court date? Shouldn’t we notify them now that there’s been another breach?

Yes, I’d report each breach and check if there is an automatic strike out provision/stay in the Court order. It’s not fair is it!

Our solicitor’s being very passive about it all but I agree it’s unfair if he’s allowed to miss another deadline (this will be the third!). I’ll give the the court a call on Monday and see what they say. Thanks for the advice again!

Hi, I’m aware you’ve already advised me a lot and you’ve already been a huge help so feel free to ignore my latest question.

We received the Claimant’s updated counterclaim (it’s bizarre and sloppy- he goes on for two pages about what horrible person he thinks I am but fails to plead his case for money).

He added a statement of truth but no signature. His name is printed in Times New Roman but that’s it. I looked at CPR 22.2 and under 3.8 it says the person MUST print their full name below their signature, suggesting both are needed.

Do you know if this constitutes a failure to sign?

He also didn’t send us a copy on time despite the judge stating signed copies must be sent to the court and us by 4pm last Thursday. We’ve had chase it and only got it yesterday (5 days late).

We’ve notified the court of the failure to meet the deadline and they told me they’d send this to a judge for review.

I won’t ignore you. Don’t worry! Yes it is another breach. Is the signature section actually blank? It’s very annoying as Claimants get a lot of leeway on SCT matters.

Also if his clsim
is just about how awful you are, and not a monetary sum, is this not just a defence to your claim rather than a claim in his own right? What is his actual claim against you? Isn’t the builder the claimant and you bringing the counterclaim?

He doesn't sound like he has much of a case.

Are you suing him or his Ltd company?

@Cantwaitforsummertime Thank you for responding, you've been a godsend! (Our solicitor hasn't responded yet and I'm not holding my breath!)

He's copied the main (very ague) points from his original claim and then in red tells the court to add this to his original claim. In red underneath he lists why he dislikes me and makes some weird accusations . There's a paragraph of a statement of truth and underneath that (I won't use his real name) it says in Times New Roman: Alan Smith, underneath that is the date.

It doesn't say "Signature: Alan Smith". There's no signature just his typed name in a word document.

He is Claimant, I'm the counterclaimant. His claim is very unclear which is why the Judge ordered him to rewrite it. The original claim says work began, there was an "impasse", he issued an invoice which I didn't pay and now he wants £3800.

He failed/fails to plead contractual terms, fails to plead breach of contract (he makes a vague claim that we verbally agreed to pay him for completed walls (which we didn't agree to (we can prove that) and he didn't complete), he fails to legally justify why the supposed "impasse" entitled him to abandon the job without completing the works, fails to plead details of how the invoice was calculated, nor the contractual basis for the invoice and fails to plead any legal basis for his supposed entitlement for payment for incomplete works. He also fails to outline where the costs he lists for his claim have come from. He makes reference to having not been paid for "labour" but fails to say why he was entitled to a payment for "labour" when this wasn't included in the contract.

The latest order we received from the judge was that he should rewrite his claim and resubmit but he says in the claim the judge just asked him to elaborate on the "Impasse", so he's written two pages about how horrible he thinks I am. He claims at the end that we came to a stalemate when we asked him not to work for 3-4 months (??) but then contradicts himself and says he wanted to leave some of the work for 3 to 4 months and we couldn't come to an agreement and then didn't want to pay him outside the terms of the contract so he stopped the work.

It's absolutely bizarre!

I've had to respond to each accusation but because they didn't happen, how do I prove an non-event?

@MadeForThis No, his claim is very weak, and we know that, but its been such a stressful experience and some the accusations have been very personal (and absolutely false).

He's a sole trader (and we can prove he's still trading).

@Cantwaitforsummertime sorry to come back to you on this but I have an update and could do with an opinion.

The deadline for submitting evidence (second deadline as we submitted in August but the there’s been the additional claim since then) is the day after tomorrow. There were approx. 5 additional documents to add to the original bundle we submitted so we weren’t concerned and the solicitor said he would get it done in time. I’ve been told they submitted everything yesterday and so I requested a copy which I’ve read tonight and it’s terrible!

They’ve built the bundle again from scratch and the order is completely wrong (e.g. evidence to support my defence filed before the claim I’m defending against is filed. Evidence split in half and filed tens of pages apart at random, some documents duplicated, some documents missing). I’m gutted! I wrote the majority of these documents and gave up so many hours doing it for the solicitor to mess it up. There are even spelling mistakes in the index.

i’ve emailed them tonight, copying in their manager (who’s on leave until after the deadline) and their central company email address but I doubt we have time to resubmit now. It’s had to be such a big document due to the amount of evidence we have that I’m worried a judge will find it really difficult to make sense of now.

I don’t know what to do. I was thinking about trying to rearrange it myself tonight but it’s a pdf and when I convert it a lot of the pages disappear. I’m a bit lost now!

Do your own index based on the logical order you would have it with page numbers. So instead of going email 1 page 1, response email page 2 you might go email re xyz page 7 response email page 56, invoice abc page 234, statement showing invoice paid page 367

This way you can easily refer the judge to the correct page.

I hope that makes sense.

Hi, yes a neatly prepared bundle is very useful and appreciated by a District Judge. I always start with Claim Form, Particulars of Claim, Defence, Court Orders/Applications, Statements, evidence to support losses, relevant correspondence and replies, photographs etc. You’re a bit stuck if the bundle has already been filed/served but the amended index suggested above would help. Sometimes it’s easier just to do things yourself to make sure it’s right! Hopefully everything has been included. Do you have a Hearing date yet?

Thank you, so should I write the index and email it to the court myself? I could provide a covering letter apologising for my solicitor’s mistakes