SET OFF DEFENCE AVAILABLE TO CLAIM FOR UNLIQUIDATED DAMAGES

Port of Tilbury (London) Ltd v Stora Enso Transport & Distribution Ltd [2008] EWHC 992 (TCC), 7 May 2008

In Port of Tilbury (London) Ltd v Stora Enso Transport & Distribution Ltd [2008] EWHC 992 (TCC), 7 May 2008, Mr Justice Ramsey held that the defendant had a real prospect of success in its defence that it was entitled, under the terms of the contract, to set off its counterclaim for damages against the claimant’s claim for payment pursuant to a term of the contract. While the contract provided that payment was to be made without set-off, deduction or counterclaim, that term was stated to be subject to an express term to the contrary. The clause relied upon by the defendant in support of its claim to be entitled to set-off its counterclaim was an express term of the contract and so it overrode the term which made provision for payment without deduction.