Set-off - a brief tour through the case law and some historical references: Newcastle Building Society v Mill & Ors [2009] EWHC 740 (Ch)

13 JUN 2009


Sir Andrew Morritt, the Chancellor of the High Court, has handed down his judgment in Newcastle Building Society v Mill & Ors [2009] EWHC 740 (Ch). The case is of particular interest as it includes a succinct tour of the authorities on set-off as well as some historical references on the genesis of set-off. The Chancellor notes:

"10. Legal set-off originated in the Insolvent Debtors Relief Acts 1729 and 1735. S.13 of the former provided that, for the ensuing five years, where there were mutual debts between plaintiff and defendant "one debt may be set against the other". That provision was made permanent by s.4 of the latter Act. S.5 extended the availability of such set off and expressly provided that

"..judgment shall be entered for no more than shall appear to be truly and justly due to the plaintiff after one debt being set against the other as aforesaid."

It is common ground that the rights originally conferred by those provisions have been continued in subsequent statutes and are now enshrined in s.49(2) Supreme Court Act 1981 and CPR Rule 16.6."

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