TAYLOR v SCOTTISH and UNIVERSAL Newspapers Ltd
| Jurisdiction | Scotland |
| Judgment Date | 25 August 1981 |
| Docket Number | No. 44. |
| Date | 25 August 1981 |
| Court | Court of Session (Outer House) |
SUMMARY TRIAL
Lord Ross.
Company—Receivership—Title to sue—Whether receiver entitled to take proceedings in his own name against a debtor of the company—Companies (Floating Charges and Receivers) (Scotland) Act 1972 (cap. 67), sec. 15 (1) (a) and (f).1
Compensation—Set-off—Debts between which compensation pleadable—Company in receivership—Creditors assigned debts due from company to debtors of company—Whether rule in bankruptcy of concursus debiti et crediti before date of bankruptcy applied in receivership—Whether equity or public policy an exception to rules of compensation applicable to receivership.
Two companies ("S" and "H") were indebted to a company in receivership ("T"). T was put into receivership in May 1980. In June 1980 a company assigned certain debts due to it by T to each of S and H. The receiver of T sought to recover the debts due to T from S and H. S and H refused, claiming they were entitled to set-off against the sums claimed by the receiver the sums due to them by T as a result of the assignation in their favour.
In a summary trial the questions to be decided were whether the receiver was entitled to seek to recover the debts owed by S and H to T under sec. 15 (1) (a) or (f) of the Companies (Floating Charges and Receivers) (Scotland) Act 1972, and if so whether S and H were entitled to claim set-off. It was contended that following the rule in bankruptcy that compensation could not be pled where there was not concourse of debit and credit antecedent to the bankruptcy or where the debt had not been assigned before the date of bankruptcy, S and H could not claim set-off; and that in any event compensation should not be allowed on the ground of equity or public policy where the debts were assigned by creditors of a company after the company had gone into receivership to a debtor of the company who pled compensation.
Held (1) that sec. 15 (1) (a) of the Companies (Floating Charges and Receivers) (Scotland) Act 1972 did not empower a receiver to take proceedings in his own name against a debtor of the company because the debt remained the property of the company, but merely entitled him to acquire the ius crediti from the company; the receiver was entitled to take proceedings in the name of T under sec. 15 (1) (f) of the 1972 Act.
M'Phail v. Lothian Regional CouncilSC 1981 S.C. 119 not followed.
(2) That receivership was not the same as bankruptcy or liquidation...
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