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set off

set off

Postby preacherman » Sat Mar 03, 2018 11:05 pm

can someone explain set off to me please?

Defence of set-off
16.6 Where a defendant –

(a) contends he is entitled to money from the claimant; and

(b) relies on this as a defence to the whole or part of the claim

how does this contention actually work in law. Does this contention have to come from a prior judgment?

if I sue A for breaking my pushbike, can A contend I owed him a fiver for some chocolate and set it off!
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Re: set off

Postby atticus » Sat Mar 03, 2018 11:19 pm

Yes.
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Re: set off

Postby preacherman » Sun Mar 04, 2018 8:11 am

atticus wrote:Yes.



is that yes to a prior judgment?

or yes to my chocolate bar!
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Re: set off

Postby preacherman » Sun Mar 04, 2018 8:53 pm

I wish atticus would stop fiddling on his mandolin and help me out here!

http://credithirebarrister.com/uncatego ... mment-3754

after reading the above, my comment/question posted on it:

I have found this article very informative. I would like to ask, If C paints a bedroom for D, and also paints the front room for D. when C issues a claim for non payment regarding the bedroom, can D set off by way of defence the entire claim (or any of it) by saying she had to pay another to paint the front room correctly, when no counterclaim has been issued?. The Judge then looks at the third party bill for painting the front room and deducts the costs that had to be paid to the third party decorator from the claimed amount,like two trials within a trial! neutralizing the claim.

great way to get away without paying a counterclaim fee!
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Re: set off

Postby blig » Sun Mar 04, 2018 9:59 pm

That looks like a defence (and not a counterclaim) to me. Consider instead:

D contracts C to paint a bedroom and the front room for £xx. C paints the bedroom to the required standard and stops work (or paints the front room badly). D then asks another contractor to paint the front room to the required standard at a cost of £yy. It might seem reasonable to pay C the amount of (£xx - £yy) so that in total D has paid the amount she originally intended.

So what are the possible lines against this defence?

- C painted both rooms to the required standard. If D subsequently didn't like their choice of paint in one room and asked another contractor to paint the room a different colour, they are of course free to do that, but the original work was completed and C must be paid in full.

- D didn't tell C at any point that the painting of the front room was unsatisfactory and gave no opportunity to correct the defect. In this case the judge could find some amount between (£xx - £yy) and (£xx) is due to C which is fair to both parties.

- The cost of the works carried out by the new contractor are unreasonably high and C should be paid a fair amount for painting the bedroom (for example: half of the total, as these were two rooms of equal size)
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Re: set off

Postby preacherman » Mon Mar 05, 2018 7:31 am

Thanks blig thats kind of the line I took in my case (your first example of a defence).

what happened in my case was I sued D for an invoice, D said they had to pay another to go over my work in another area of the property and produced a witness statement (which in my view was highly fabricated and untrue) the witness was not there to be questioned. There was also an invoice from this witness for the alleged work and the Judge set out to prove and deduct what parts of that invoice could be set off against my claim.i.e. any parts of the invoice relating to work in the kitchen she was setting off to reduce my invoice.

there was no counterclaim or cross claim, I am trying to get my head around the concept of set off. I see in a land registry claim the concept being discussed:

Secondly, the Claimant argues that the Respondent’s claim was not capable of being set
off. He submits that a claim is only capable of being set off if it is either liquidated or
ascertainable with certainty and due and payable. He submits that if the employee disputes a
debt the employer cannot set it off.-
We reject this submission. “Ascertainable with certainty” does not mean undisputed. If
there is a dispute the court or Employment Tribunal may ascertain the amount of a debt. It has
long been the law that a debt may be raised by way of set-off if it is sufficiently closely
connected with the claim so that it would be unjust to require the defendant to pay the claim
without deduction. Here the claims were closely connected claims arising out of the Claimant’s
employment and outstanding at the time his dismissal took effect. In principle there could be a
set-off.

whereas I see a barrister discussing it here:

That Hanak v Green remains the law today was confirmed in the case of Geldof Metaalconstructie NV v Simon Carves Limited [2010] EWCA Civ 667: the majority of the authorities since Hanak v Green have dealt with issues of whether a particular type of cross claim possessed by a defendant, can be relied upon in the defence of equitable set off against a claimant’s claim. None of them have cast doubt on the fundamental position, that there must be a cross claim, “a claim”, whether advanced by separate action or more usually counterclaim, for such a question to arise.

Rule 16.6 CPR provides as follows:

16.6 Where a defendant –

(a) contends he is entitled to money from the claimant; and

(b) relies on this as a defence to the whole or part of the claim,

the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.

Properly construed, it allows either a defence of legal set off (an undisputed debt) to be raised in the defence or a Part 20 counterclaim (a disputed claim for unliquidated damages) to be raised in the defence. What it does not do, is remove the necessity for a cross claim for unliquidated damages, raising a defence of equitable set off to be made by way of counterclaim, once the nature of the set off has been ascertained.
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Re: set off

Postby Hairyloon » Mon Mar 05, 2018 5:28 pm

preacherman wrote:
atticus wrote:Yes.



is that yes to a prior judgment?

or yes to my chocolate bar!

The chocolate bar.
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Re: set off

Postby preacherman » Mon Mar 05, 2018 5:35 pm

well atticus has not replied yet! maybe hes in a bad mood with me! the question might be is the debt of the chocolate bar easily ascertainable.
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Re: set off

Postby atticus » Mon Mar 05, 2018 6:56 pm

There is no need for me to comment further, preacher, as you put it so clearly and articulately in the last paragraph of your post 3 above this. You hit the nail fairly and squarely on the head: there is nothing more to be said.
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Re: set off

Postby preacherman » Mon Mar 05, 2018 7:31 pm

atticus wrote:There is no need for me to comment further, preacher, as you put it so clearly and articulately in the last paragraph of your post 3 above this. You hit the nail fairly and squarely on the head: there is nothing more to be said.


I am confused about something though! the land registry adjudicator case seems to go against last paragraph of post 3 above and suggests a set off can be applied when there is no counterclaim. (my claim was more about the defence/set off claim of D! but no counterclaim was issued)

The Claim

Mr Ridge was dismissed by HM Land Registry. In addition to other claims, he brought a claim for breach of contract in relation to unpaid pension contributions during his notice period. The Land Registry brought a counterclaim against Mr Ridge for overpaid wages, which exceeded the amount of Mr Ridge’s unpaid pension contributions.

The Tribunal held that the pension contributions claim was valid but that the counterclaim for overpaid wages had been submitted out of time. The Tribunal still decided however that the employer could use the overpayment of wages argument as a set-off defence against Mr Ridge’s claim for pension contributions.

Mr Ridge appealed to the EAT and the EAT agreed that the defence of set-off is available in Tribunals as well as the civil courts. Accordingly, it agreed that HM Land Registry could set off its overpayment of wages claim against Mr Ridge’s loss of pension contributions claim, regardless of the fact that it hadn’t submitted a counterclaim in time.
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