In Botleigh Grange Hotel Ltd v Revenue & Customs Commissioners [2018] EWCA Civ 1032 (9 May 2018), a tax case, the Court of Appeal was required to consider the interpretation of the language used in consent orders. In so doing, the court prioritised the formal nature of such an order over a contract-based construction.
The issue arose in the context of a winding up petition brought by HMRC against the appellant company, on the basis of tax debts owed by the latter, and in respect of which the parties agreed a consent order which dismissed the petition. HMRC issued a subsequent demand to the appellant company for payment of further debts owed. In resisting the presentation of another winding up petition, the appellant argued that the consent order, despite having dismissed the first petition, preserved the dispute as to whether the first petition debt was due in its entirety. Relevantly, the appellant believed it had a cross-claim on that first petition debt which exceeded the second demand for payment issued by HMRC.
The Court of Appeal held that while a consent order embodied an agreement between the parties, at the same time it was a formal court document of public significance. Consequently, a consent order had to be interpreted not just as a contract (a bilateral arrangement), but also in the light of that public significance. The fact that a consent order was a court order, ‘the most formal of documents’, meant that on its face it contained no drafting errors or ambiguities. For that reason, the Court of Appeal warned against departing from the natural meaning of the words used, considering the language actually used as more important than inferences based on commercial common sense and/or surrounding circumstances. Accordingly, in the case before it, the Court of Appeal held that the consent order dismissed the first petition without any reservation or condition. If the order had been intended to preserve the dispute, the recitals would have indicated this, and they did not – as the Court of Appeal stated, they ‘make no reference of any kind to the preservation of the dispute as to whether the entirety of the petition debt was due’. The appeal was dismissed.
This case reinforces the care that should be taken in the drafting of an order, not only of a consent order but of any order, to ensure that its wording is both clear and precise in covering all that it is intended to cover and, equally, makes plain that any attempt to seek to look outside the wording of a formal court document is likely to make little, if any, headway.
