Is the right of set-off excluded by the SpA?
53.I can deal with this issue very briefly. Lord Grabiner QC faintly contended that clause 3.2 of the SpA, by which Albion “irrevocably undertakes to pay each instalment … in cash by way of electronic transfer of immediately available funds” was sufficient to exclude the right of equitable set-off. However, it is well-established that this right can only be excluded by clear language. Even a promise to pay an amount “without any deduction” has been held insufficiently clear to effect this exclusion (
- Mr Justice Foxton :
- The background
- The relevant arbitration and jurisdiction agreements
- The proper approach on a s.9 application
- Buildmaster Construction Services) v Islamic Press
- The approach to overlapping dispute resolution clauses
- BNP Paribas v Trattamento Rifiuti Metropolitani SpA
- Risk Group
- Sebastian Holdings
- Group
- Nordbank
- Savona
- Trattamento
- Services Ltd v Upaid
- UBS AG v HSH Nordbank AG
- UBS AG
- Kaltim Prima Coal
- Exploration Corp
- Analysis and conclusion
- The test for summary judgment
- Easyair Limited v Opal Telecom Limited
- Swain v Hillman
- ED & F Man Liquid Products v Patel
- Hillman
- ED & F Man
- Liquid Products v Patel
- Royal Brompton Hospital NHS Trust v Hammond (No 5)
- Pharmaceutical Co 100 Ltd
- ICI Chemicals & Polymers Ltd v TTE Training Ltd
- EIGL’s factual complaints in more detail
- Introduction
- The parties’ arguments in summary
- Arbuthnott v Fagan
- Is the right of set-off excluded by the SpA?
- Restaurants Ltd v. Indoor Leisure Ltd
- Investments Ltd
- In re Nortel GmbH
- EIGL’s case in summary
- Relief for unfair prejudice
- The Disputed Payments involved mismanagement of Heritage “on behalf of Albion” and Albion’s “failure to disclose what had occurred”
- F & C Alternative Investments (Holdings) Ltd v Barthelemy and another
- (No 2)
- The mismanagement gave rise to unfair prejudice so far as EIGL is concerned, because EIGL has suffered prejudice which cannot be remedied notwithstanding EIGL’s majority control of Heritage
- Re Legal Costs Negotiators Ltd
- Re Bird Precision Bellows Ltd
- Cool Seas (Seafoods) Limited v. Interfish Limited
- Sikorski v Sikorski and another
- Cool Seas
- Re Blackwood Hodge plc
- Re a Company
- Legal Costs Negotiators Ltd
- Re Baltic Estate Ltd (No 2)
- Re Ringtower Holdings
- The range of relief available in response to a petition for unfair prejudice is very broad, and includes a power to order Albion to compensate EIGL for its losses
- Call
- Re Chime Corp Ltd; Kung v Kou
- Foss v Harbottle
- Re Chime Corp Ltd
- Re Charnley Davies Ltd (No 2
- Is there a serious issue to be tried that the amount of such compensation in this case equals or exceeds the amount of Albion’s claim?
- The unfair prejudice claim is sufficiently closely connected with Albion’s claim to meet the test of equitable set-off
- Metaalconstructive NV v Simon Carves Ltd
- Aectra Refining & Marketing Inc v Exmar NV
- Stay