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GARY FEARNS (T/A AUTOPAINT INTERNATIONAL) v ANGLO-DUTCH PAINT & CHEMICAL CO LTD & 5 ORS

As there was little direct authority on the subject, the court examined in detail the meaning of "set-off" as used in English law, including the difference between legal set-off and equitable set-off and how equitable set-off could operate to extinguish liabilities. It also devised an approach to be used when ordering set-off between amounts payable in different currencies and considered whether there could be a set-off of costs against damages.

4 October 2010

Having given judgment on July 28, 2010 and determined the net sum due to the claimant (F) by way of damages for trademark infringement and passing off, the court gave reasons for invoking the principle of set-off. Damages payable to F had been assessed at almost £440,000, but F owed a debt of almost €600,000 to the first defendant (D). The parties agreed that the damages and the debt should be subject to equitable set-off and judgment given for a single net sum, but they could not agree on the date on which the sums should be converted into a common currency. The date was important because the exchange rate had significantly fluctuated over the relevant five-year period. F's basic case was that the damages should be converted into euros at the exchange rate prevailing when the claim arose, and that equitable set-off should operate to automatically reduce the damages payable to him to just over €41,000. D argued, relying on a line of admiralty cases, that the correct approach wa...

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