PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU

The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00.  It highlights the need to have  at trial someone who can give first hand evidence of matters.

THE CASE

After a three  day trial the claimant succeeded in a claim for conversion. It established that the defendants had installed a dry riser using materials that belonged to the claimant.  The claimant obtained judgment for  £3,690.72.

THE COUNTERCLAIM

The claimant, however, had no useful evidence at all in relation to its defence to the defendant’s counterclaim.

    1. As I have mentioned at paragraph 6 above, the second defendant (JMFPM) brings a counterclaim against UKDR alleging that UKDR has not paid invoices for the first three weeks of 2018 (see invoice no 0018 at bundle 3/868) for work done for UKDR by Mr Maher, operating through the second defendant. The sum counterclaimed is £14,508 plus VAT but the defendants conceded at trial that there should be deductions of £880 from that sum so that the counterclaim is for £13,628 plus VAT.
      1. The claimant’s defence to the counterclaim was that, although the work was undertaken by Mr Maher, money was being withheld for various reasons such as that the amount of time spent was overstated or that no test had been carried out or that the job was incomplete. Although not set out in any pleadings, the deductions made by UKDR were each briefly summarised in a single line explained in a table set out as exhibit 11 to the second witness statement of Mr Charlton. However, it became clear in his cross-examination that Mr Charlton did not himself know whether those deductions were justified and was entirely relying for them on the word of his colleague, Michael Heydon, who has given no evidence on these matters. In contrast, Mr Maher directly disputed those deductions in his evidence (subject to deductions of £880 as I have mentioned in paragraphs 6 and 18 above). Without proper evidence to contradict Mr Maher, I accept his evidence that those deductions (except as to £880) should not have been made.
    2. However, even if those specific deductions were unjustified, Mr Charlton’s evidence was that UKDR had a defence to all the sums counterclaimed, including the balance (after making the specific deductions) of £5765 plus VAT (ie £6918), because:
‘TDK are currently snagging every job which UKDR have completed on their behalf (which includes those undertaken by Mr Maher)…’
But no snagging list has ever been shown to Mr Maher despite requests for it and despite the fact that the work was undertaken by Mr Maher many months ago. Although the terms on which the defendants worked for UKDR were not in evidence before me, I think it likely that one could imply a term to the effect that payment could be delayed pending ‘snagging’ for a short period of time. But any such justification passed many months ago.
  1. I therefore decide that UKDR has provided no defence to the counterclaim and the counterclaim therefore succeeds for the sum of £13,628 plus VAT (plus interest).”

(The judgment does not record what decision the judge made as to costs).