The Supreme Court handed down judgment yesterday in Cobalt v HMRC, which is likely to become the leading authority on the law relating to contractual variations at common law.
The case concerned the availability of capital allowances under section 298 of the Capital Allowances Act 2001 which provides, in summary, that such allowances are available for expenditure on the construction of a building on a site in an enterprise zone in (a) the first 10 years after the site was first included in the zone or (b) ‘if the expenditure is incurred under a contract entered into within those 10 years, 20 years after the site was first included in the zone’ (emphasis added).
The taxpayers had entered into a ‘Golden Contract’ which contained in clause 12 a variation clause permitting the developer unilaterally to vary it in certain respects. The Golden Contract was entered into during the first 10-year period but the parties agreed during the second 10-year period to make certain variations pursuant to which expenditure was incurred; and the issue before the Supreme Court was whether that expenditure was incurred ‘under a contract’ entered into during the first 10-year period.
The Upper Tribunal rejected the taxpayers’ contention that the changes had been validly made under clause 12 itself, but agreed that the changes constituted a variation of the Golden Contract at common law, not a rescission of it, applying the well-known test in Morris v Baron [1918] AC 1. That meant that capital allowances were available under section 298. But the Court of Appeal allowed HMRC’s appeal, concluding that the changes gave rise to a new contract, not to a variation. The Court of Appeal’s decision gave rise to an important question of law: is it open to the parties at common law not only to agree what changes to make to a contract but also the mechanism by which that change is to take effect, i.e. a variation as distinct from a new contract?
The Supreme Court largely accepted the taxpayers’ contention that the Court of Appeal’s analysis was inconsistent with party autonomy, which is fundamental to the English law of contract, and founded upon a misunderstanding of the authorities, notably Morris v Baron: see paras 143-144. But the Supreme Court did not in the event decide whether the changes constituted a variation or a replacement because it held that, on either basis, the expenditure would not have been incurred ‘under a contract’ entered into during the first 10-year period on a purposive construction of section 298 of the 2001 Act. The taxpayers’ appeal was therefore dismissed for reasons different to those given by the Court of Appeal.
Laurence Rabinowitz KC and Niranjan Venkatesan acted for the appellants. They were instructed by Macfarlanes LLP.
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