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WHEN DOES A RIGHT TO SET-OFF ARISE?

English Law. Civil Procedure. Injunctions. Telecommunications. Equitable Set Off. Nextcall applied for an interim injunction to restrain BT from suspending or terminating the ‘calls and access’ service when they refused to pay and claimed that they were entitled to compensation from BT for losses they had sustained.

Issues:
(1) Requirements for interim injunction.
(2) Equitable set off.

Held:
(1) Nextcall must show firstly, Nextcall was in breach of contract and, secondly, a sufficiently arguable case that damages would exceed amount Nextcall owed at trial date. Thirdly, there must be an entitlement to equitable set off. (Nextcall could not show the first two on the evidence).
(2) The past service history was sufficiently related to be considered as a whole despite being a series of individual transactions, but Nextcall had no obligation to contract with BT in the future (although there were no alternative suppliers). Claims that accrued in the past could therefore not be set off against future charges.
Application dismissed. Nextcall Telecom v BT plc Queen’s Bench. Lloyd J. 19/12/00.

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