Fearns (t/a "Autopaint International") v Anglo-Dutch Paint & Chemical Company Ltd & Ors

Fearns (t/a "Autopaint International") v Anglo-Dutch Paint & Chemical Company Ltd & Ors

Cross-liabilities in different currencies should be converted and set off at the date when both liabilities are established by judgment, not at the date when the claim arose or was pleaded. Equitable set-off does not extinguish liabilities but suspends enforcement until judgment. The court has discretion to set off costs against damages where justice requires, especially to prevent manifest injustice due to insolvency arrangements.

Parties
Claimant: Gary Fearns (trading as Autopaint International); First Defendant: Anglo-Dutch Paint & Chemical Company Limited; Second Defendant: De Beer Lakfabrieken BV; Third Defendant: Christopher Welch; Fourth Defendant: Richard Jongsma; Fifth Defendant: Marco van der Woude; Sixth Defendant: Theo Wemmers
Jurisdiction
England and Wales
Judgment Date
23 September 2010
Procedural Posture
Intellectual Property/commercial / Post Trial Judgment on Set Off and Consequential Matters
Outcome
Judgment for the claimant for the net sum after set-off; costs order against claimant; set-off of costs against damages ordered.
Legal Topics
Set Off, Damages, Currency Conversion, Costs, Trade Mark Infringement, Passing Off
Intellectual Property Commercial Law Civil Procedure Set Off Damages Currency Conversion Costs Trade Mark Infringement +1 more

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Parties

Gary Fearns (trading as Autopaint International)

Claimant

Anglo-Dutch Paint & Chemical Company Limited

First Defendant

De Beer Lakfabrieken BV

Second Defendant

Christopher Welch

Third Defendant

Richard Jongsma

Fourth Defendant

Marco van der Woude

Fifth Defendant

Theo Wemmers

Sixth Defendant

Procedural Posture

Intellectual Property/commercial / Post Trial Judgment on Set Off and Consequential Matters

Legal Issues

  1. 1 At what date should cross-liabilities in different currencies be converted and set off against each other?
  2. 2 Does equitable set-off extinguish or merely suspend liabilities?
  3. 3 Should costs be set off against damages in the circumstances of the case?

Ratio Decidendi

Cross-liabilities in different currencies should be converted and set off at the date when both liabilities are established by judgment, not at the date when the claim arose or was pleaded. Equitable set-off does not extinguish liabilities but suspends enforcement until judgment. The court has discretion to set off costs against damages where justice requires, especially to prevent manifest injustice due to insolvency arrangements.

Court Disposition

Judgment for the claimant for the net sum after set-off; costs order against claimant; set-off of costs against damages ordered.

Orders

  • Damages and debt set off at exchange rate of £1:€1.2 as at 28 July 2010, after adding interest.
  • Interest on claim at 5% above Bank of England base rate; on counterclaim at 1.5% above ECB rate.