Fearns (t/a "Autopaint International") v Anglo-Dutch Paint & Chemical Company Ltd & Ors [2010] EWHC 2366 (Ch) (23 September 2010)

Fearns (t/a "Autopaint International") v Anglo-Dutch Paint & Chemical Company Ltd & Ors [2010] EWHC 2366 (Ch) (23 September 2010)

Equitable set-off does not operate to extinguish or reduce cross-liabilities until both are established by judgment or agreement; therefore, currency conversion for set-off must occur at the date of judgment, not at the date the claims arose. The court has discretion to set off costs against damages, and in the circumstances of this case, justice required such a set-off given the claimant's insolvency and the connection between the sums.

Citation
[2010] EWHC 2366 (Ch)
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 (trade Mark Infringement and Passing Off) / Post Trial Judgment on Set Off, Currency Conversion, and Costs
Outcome
Judgment for the claimant for a net sum after set-off, but with costs set off against damages resulting in a net payment due from the claimant to the defendants.
Legal Topics
Trade Mark Infringement, Passing Off, Equitable Set Off, Legal Set Off, Currency Conversion, Costs Orders
Intellectual Property Civil Procedure Contract Law Trade Mark Infringement Passing Off Equitable Set Off Legal Set Off Currency Conversion +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 (trade Mark Infringement and Passing Off) / Post Trial Judgment on Set Off, Currency Conversion, and Costs

Legal Issues

  1. 1 What is the correct date for currency conversion when setting off cross-liabilities in different currencies?
  2. 2 Does equitable set-off extinguish or reduce liabilities prior to judgment?
  3. 3 Should costs be set off against damages in the circumstances of insolvency and voluntary arrangement?

Ratio Decidendi

Equitable set-off does not operate to extinguish or reduce cross-liabilities until both are established by judgment or agreement; therefore, currency conversion for set-off must occur at the date of judgment, not at the date the claims arose. The court has discretion to set off costs against damages, and in the circumstances of this case, justice required such a set-off given the claimant's insolvency and the connection between the sums.

Court Disposition

Judgment for the claimant for a net sum after set-off, but with costs set off against damages resulting in a net payment due from the claimant to the defendants.

Orders

  • Damages and counterclaim set off at the 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; interest on counterclaim at 1.5% above ECB rate.