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England and Wales decisions
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The High Court held that Mr Emmott may in principle set off costs orders against MWP’s judgment debt, but factual accounting issues remain unresolved.
The sums claimed by the claimants are due and payable under the contracts, the figures are agreed, and the defendants' asserted defences based on procedural requirements, set off, or cross claims do not provide a realistic prospect of successfully defending the claims. Set off is contractually excluded without written consent, which is absent. However, a stay of execution is appropriate in respect of cross claims with realistic prospects of success, limited to the amount of such cross claims.
Source excerpt
There was no agreement between the parties to set off the sums due under the default costs certificate, and Mr Emmott's conduct did not amount to a waiver of his right to challenge the certificate. The default costs certificate was not properly issued as the requirements of s.63(4) Arbitration Act 1996 were not met. MWP's arguments on waiver and set off are unarguable in law and fact.
Source excerpt
The lease's net lease clause (clause 5.12) clearly and unambiguously excludes all rights of set off for Saudia, both legal and equitable, in relation to rent. However, the $200,000 payment under the redelivery certificate is not subject to the no set-off clause, as that clause was not incorporated into the redelivery agreement. Saudia's set off defence fails as to rent but survives as to the $200,000 claim. No stay of execution is warranted as Sprite's financial position is not shown to be precarious.
Source excerpt
Wyllie & Ors v Liberty Mutual Insurance Europe SE [2023] EWHC 1970 (Comm) (28 July 2023)
Commercial Court struck out and dismissed a poorly pleaded claim for insurance-related losses, holding the amended particulars disclosed no viable contract, negligence, or misrepresentation case.
Michael Wilson & Partners Ltd v Emmott [2023] EWHC 1005 (Comm) (09 May 2023)
The High Court dismissed MWP’s appeal against setting aside a default costs certificate, holding there was no waiver and no agreed set-off discharging the debt.
Summary judgment on a road carriage contract was refused on the construction issue; the court held the claims were not freight in the narrow sense, so the no set-off rule did not apply.
Aramco Trading Fujairah FZE v Gulf Petrochem FZC [2021] EWHC 2650 (Comm) (13 August 2021)
The High Court granted an Unless Order after finding no proved financial impossibility, rejecting set-off as a reason not to enforce payment, and refusing permission to appeal.
Truewood Ltd, Re [2020] EWHC 2360 (Ch) (03 September 2020)
The High Court set aside a debarring judgment in insolvency misfeasance proceedings, finding invalid service and an arguable defence based on repayment or set-off.
The Commercial Court refused to set off Mr Ridley’s costs award against Dubai Islamic Bank’s outstanding judgment debt, finding no just and equitable basis to do so.
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