Philp & Anor v Cook [2017] EWHC 3023 (QB) (28 November 2017)

Philp & Anor v Cook [2017] EWHC 3023 (QB) (28 November 2017)

Clause 8.3 of the SPA, properly construed, extinguishes the underlying liability for breach of warranty if not notified within 2 years, thereby precluding any equitable set-off based on such breach; the Buyer's failure to notify in time bars both counterclaim and set-off.

Citation
[2017] EWHC 3023 (QB)
Parties
Appellant and Claimant: Elaine Philp; Appellant and Claimant: Robert Irving; Respondent and Defendant: Lesley Joan Cook
Jurisdiction
England and Wales
Judgment Date
28 November 2017
Procedural Posture
Civil Appeal / Appeal From Refusal of Summary Judgment
Outcome
Appeal allowed
Legal Topics
Share Purchase Agreement, Contractual Indemnity, Breach of Warranty, Equitable Set Off, Contractual Limitation Clauses
Contract Law Commercial Law Share Purchase Agreement Contractual Indemnity Breach of Warranty Equitable Set Off Contractual Limitation Clauses

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Parties

Elaine Philp

Appellant and Claimant

Robert Irving

Appellant and Claimant

Lesley Joan Cook

Respondent and Defendant

Procedural Posture

Civil Appeal / Appeal From Refusal of Summary Judgment

Legal Issues

  1. 1 Whether contractual limitation clause precludes equitable set-off for breach of warranty
  2. 2 Whether failure to notify claim within contractual period extinguishes underlying liability

Ratio Decidendi

Clause 8.3 of the SPA, properly construed, extinguishes the underlying liability for breach of warranty if not notified within 2 years, thereby precluding any equitable set-off based on such breach; the Buyer's failure to notify in time bars both counterclaim and set-off.

Court Disposition

Appeal allowed

Orders

  • Summary judgment granted in favour of the Sellers for the indemnity claim
  • Buyer's defence of set-off based on breach of warranty rejected