A counterclaim is a legal action that is available to the defendant in already initiated litigation, and which is undertaken when the defendant has a claim against the plaintiff, i.e. when the defendant seeks to protect or realize a legal or other interest through a counterclaim. A counterclaim can be filed until the conclusion of the main hearing.
A counterclaim, just like an independent claim, must meet all legal requirements in terms of form and content. When it comes to the form of the counterclaim, the Law on Civil Procedure decisively stipulates that the counterclaim must be submitted exclusively in written form and to the court before which litigation has already been initiated based on the previously filed lawsuit. A counterclaim cannot be filed if a higher court or a court of another type has jurisdiction over the request from the counterclaim. When it comes to the composition of the court, if, for example, a single judge is competent for a request from a lawsuit, and a panel is competent for a request from a counterclaim, then the panel will decide on both requests.
In terms of content, the counterclaim must contain all the elements that must also be contained in an independent claim. Therefore, the counterclaim must contain:
– the name of the court;
– identification data on litigants;
– the value of the subject of the dispute (this is important to indicate because it is an element on the basis of which the actual jurisdiction of the court that should act on the counterclaim is determined);
– basis of counterclaim;
– counterclaim;
– factual allegations of the defendant-counter-plaintiff on the existence of his right;
– evidence supporting the factual allegations;
– signature.
Therefore, everything that must be contained in the lawsuit must also be contained in the counterclaim. As with the lawsuit, the most important element in the counterclaim is the request stated in the counterclaim petition. The claim that the defendant puts forward in the counterclaim must not be identical to the set claim. Depending on how the request from the counterclaim is formulated, the Civil Procedure Law recognizes three (3) types of counterclaim:
1. Connected counterclaim: this type of counterclaim exists when there is an economic or some other connection between the claim set forth in the claim and the claim set forth in the counterclaim. Most often, it will be when litigants claim something from each other that they consider to be theirs, and this claim stems from the same life event.
2. Compensatory counterclaim: this type of counterclaim exists when the claim from the counterclaim can be offset (compensated) with the claim from the lawsuit. In practice, this will most often happen when both claims are determined in money, and the amount of the claim from the counterclaim is greater than the amount of the claim from the lawsuit.
3. Prejudicial counterclaim: this type of counterclaim exists when the claim from the counterclaim is determinative, i.e. when the claim from the counterclaim requires the establishment of some right or legal relationship, the existence or non-existence of which depends in whole or in part on the decision on the claim from the claim. In this case, the court should first decide on the request from the counterclaim as a previous issue.
It is important to point out that the counterclaim has an independent character, which means that the court is obliged to decide on it even if the claim was rejected, withdrawn, etc.
There is no strictly defined rule by law as to whether the court will decide on the claim and counterclaim in the same (so-called single) procedure or whether it will separate the counterclaim from the claim and make separate decisions on the two claims. The court will make a decision on this, taking into account the circumstances of the specific case, guided by the principle of efficiency, economy and expediency.
Also, it is important to point out that the court can conduct a single procedure on both requests, and that when the conditions for deciding on one of those requests are met, because the court considers that the request has been sufficiently discussed, it will make a decision only on it (partial verdict). , and to continue the procedure in relation to another, at that moment still insufficiently discussed request.
A counterclaim is the defendant’s right, not his obligation. This further means that the defendant in the lawsuit, even if he has a claim against the plaintiff, does not have to file a counterclaim, i.e. he will not bear any consequences if he does not file it, i.e. if he decides that his claim will be decided in a separate civil proceeding that will initiate lawsuit. The counterclaim proves to be an adequate tool that as such contributes to the procedural economy because two claims are decided in one procedure, instead of two, which saves time and significantly reduces the costs of the procedure.