A time loss claim can found a legal set-off claim against ship owners, provided that the loss claim can be made in the same court. The court referred to a ‘transaction set-off and independent set-off’. Cross-claims must both be due and payable, and either liquidated or capable of being quantified by reference to ascertainable facts that do not, in their nature, require estimation or valuation.
Hoffman LJ reaffirmed the procedural character of legal set-off, saying: ‘Independent set-off, as its name suggests, does not require any relationship between the transactions out of which the cross claims arise. In English law it is based on section 13 of the Insolvent Debtors Relief Act 1729 . . The procedural basis of independent set-off is reflected in the rule that the mere existence of liquidated cross-claims does not automatically extinguish the smaller debt . . It operates only by express or implied agreement or through the judicial process by which the account is taken. As Sir George Jessel MR said in Talbot v Frere (1878) 9 ChD, 568, 573 ‘there could not be a set-off until action brought and set-off pleaded.’ The Act of 1729 is expressed in procedural terms’
Judges:
Hoffman LJ, Hirst LJ
Citations:
Ind Summary 22-Aug-1994, Times 15-Aug-1994, [1995] 1 All ER 641, [1994] 1 WLR 1634
Jurisdiction:
England and Wales
Citing:
Cited – Talbot v Frere CA 1878
Sir George Jessel MR said: ‘there could not be a set-off until action brought and set-off pleaded.’ . .
Cited by:
Cited – Benford Ltd and Another v Lopecan Sl QBD 30-Jul-2004
The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the . .
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Transport
Updated: 26 October 2022; Ref: scu.77660