Countering a claim
Procedure rules relating to counterclaims come under the heading of ‘Additional claims’ and can be found primarily at CPR Part 20. As is prescribed, a defendant to a civil court claim can choose to bring a counterclaim against the party bringing the claim against it.
However, in order to do so without the Court’s permission, it must be done as part of its pleaded Defence (CPR Part 20.4(2)(a)). If said Defendant is unable to or just simply does not do so, then it can still attempt to bring such Counterclaim but would need to obtain the Court’s permission beforehand (CPR Part 20.4(2)(b)).
The Claimant is not always the appropriate party to counterclaim against, particularly when there is the involvement of third parties. The Defendant has the option to make an additional claim against another defendant or an individual who is not currently a party to the proceedings. The Defendant might be seeking a contribution from a third party for their involvement in the subject matter. In those cases, the Defendant would need to apply to the Court for an order to add another person to the proceedings as an additional party.
If a Counterclaim is brought at the same time as filing the Defence, it can be within the same document and in those circumstances it is compulsory for the Claimant to file and serve a Defence to Counterclaim within 14 days of service of that Counterclaim – CPR 20.4(3) confirms that there is no option of an acknowledgment of service for a Claimant that wishes to defend a Counterclaim.
A Defence to Counterclaim does not exist only for formality purposes. If the Claimant fails to file the same with the prescribed time period, the Defendant would have the right to apply for judgment in default. CPR 20.3(1) states that an additional claim shall be treated as if it were a claim, however, CPR Rule 20.3(3) states that Part 12 (rules relating to default judgment) applies to counterclaims but not to other additional claims. This means that the same rules do not apply if the Defendant is seeking an additional claim from a third party.
A Claimant’s Reply and Defence to Counterclaim should normally form one document with the Defence to Counterclaim following on from the Reply (CPR Practice Direction 20, Paragraph 6.2), however, confusingly, there are different time limits for the filing of a Reply and the Defence to Counterclaim. Usually an order would be made regarding the dates for filing these documents.
Should you require any assistance, please do not hesitate to contact our experts.