Re Kaupthing Singer and Friedlander Ltd (in administration) [2011] UKSC 48, [2011] All ER (D) 158 (Oct)
Supreme Court, Lord Hope DP, Lord Walker, Lady Hale, Lord Clarke and Lord Collins SCJJ, 19 Oct 2011
The equitable rule in Cherry v Boultbee may fill the gap left by disapplication of set-off, but it does not work in opposition to it. It produced a similar netting-off effect except where some cogent principle of law requires one claim to be given strict priority to another. The rule against double proof is one such principle: it would be wrong to treat the rule against double proof as trumping set-off but not trumping the rule in Cherry.
Gabriel Moss QC and Richard Fisher (instructed by Allen & Overy LLP) for the trustee. Robin Dicker QC and Tom Smith (instructed by Freshfields Bruckhaus Deringer LLP) for KSF.
The first respondent bank (KSF) went into administration in October 2008. The second respondent company (Funding) was a wholly-owned subsidiary of KSF and went into administration shortly afterwards (double insolvency). Funding’s sole function was to raise
