Source: All England Reporter
Publisher Citation: [2008] All ER (D) 33 (Jun)
Neutral Citation: [2008] EWHC 992 (TCC)
Court: Queen's Bench Division, Technology and Construction Court
Judge:

Ramsey J
Representation John McCaughran QC and Laurence Emmett (instructed by McGrigors LLP) for the claimant.
  David Streatfeild-James QC and Patrick Clarke (instructed by Campbell Hooper) for the defendants.
Judgment Dates: 7 May 2008

Catchwords

Contract - Construction - Exception clause - Availability of set-off defence to claim for unliquidated damages - Claimant agreeing to provide paper handling facilities and services to defendants - Agreement giving claimant right to receive 'minimum tonnage payment' where minimum tonnage of paper not delivered in first contract year - Defendants failing to deliver minimum tonnage - Claimant seeking payment - Defendants withholding payment relying on claimant's failure to provide required services - Claimant's subsequent application for summary judgment granted - Defendant appealing against master's order seeking to set-off liability relying on terms of agreement - Whether reasonable prospect of success on defence of set-off.

The Case

In the instant case, a master's decision to grant summary judgment to the claimant was successfully appealed by the defendants. On a proper interpretation of the agreement which both parties had entered into, it was the defendants' contention that it was entitled to withhold unliquidated damages as a 'disputed sum' from sums which would otherwise be payable, namely a 'minimum tonnage payment', which should have been held to be correct.

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