S v S & Anor [2010] EWHC 1415 (Fam) (18 June 2010)

S v S & Anor [2010] EWHC 1415 (Fam) (18 June 2010)

The husband's right of set-off for costs orders, arising from the same proceedings and closely connected with the assigned debt, takes priority over the solicitor's claim under the Sears Tooth agreement, as the assignment is subject to existing equities at the time of notice.

Citation
[2010] EWHC 1415 (Fam)
Parties
Applicant: Fay S; 1st Respondent: Laurence Melvyn S; 2nd Respondent: Lloyd Platt & Co.
Jurisdiction
England and Wales
Judgment Date
18 June 2010
Procedural Posture
Family/ancillary Relief / Post Judgment Application Regarding Enforcement and Set Off of Costs
Outcome
Application dismissed
Legal Topics
Ancillary Relief, Costs Orders, Assignment of Proceeds, Set Off, Sears Tooth Agreement
Family Law Equity Ancillary Relief Costs Orders Assignment of Proceeds Set Off Sears Tooth Agreement

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Parties

Fay S

Applicant

Laurence Melvyn S

1st Respondent

Lloyd Platt & Co.

2nd Respondent

Procedural Posture

Family/ancillary Relief / Post Judgment Application Regarding Enforcement and Set Off of Costs

Legal Issues

  1. 1 Whether the husband's right of set-off for costs takes priority over the solicitor's claim under a Sears Tooth agreement
  2. 2 Whether the Deed of Assignment (Sears Tooth agreement) is valid and enforceable against the proceeds of sale
  3. 3 Whether the solicitor's claim can defeat the husband's equitable right of set-off

Ratio Decidendi

The husband's right of set-off for costs orders, arising from the same proceedings and closely connected with the assigned debt, takes priority over the solicitor's claim under the Sears Tooth agreement, as the assignment is subject to existing equities at the time of notice.

Court Disposition

Application dismissed

Orders

  • Lloyd Platt & Co.'s application for payment of the lump sum due to the wife is dismissed
  • The husband's right of set-off is given effect, extinguishing the capital payment otherwise due to the wife/solicitors