News archive

Where to start?  Tax and morality seems as good a place as any.

Cardinal Keith O’Brien has accused David Cameron of acting immorally by favouring the rich ahead of ordinary citizens affected by the recession.  The cardinal also denounced David Cameron’s opposition to a “Robin Hood tax” on financial institutions.  Those arguing for a European financial transaction tax have gone a bit quiet recently.  The cardinal’s interview has though brought this proposal back into the news.  Whether a tax such as this is introduced is though only part of the debate.  As with most taxation debates the secondary debate involves how the revenue should be spent.  The cardinal would like it spent helping the poor and vulnerable at home and abroad.  Others want an emergency fund for the next banking crisis.  An article from the BBC new website on this can be found here.

Now to the London mayoral debate. Included in Boris Johnson’s manifesto for a second term is a proposal to set up a commission that would explore the possibility of a “Barnett” style formula for London.  Johnson wants to keep more of the tax raised in London to be spent in London.  An article on this from the Guardian can be found here.  This is further evidence of how quickly the fiscal powers debate is moving.

The Scotland Bill has received its Royal Assent.  An article on this from the BBC news website can be found here.  A missed opportunity?  I think so.  That said, even under the Scotland Act (2012) we are going to have a Scottish tax system.  I am of course looking forward to the Scottish Government’s consultations on the tax powers being devolved but why stop there?  It is surely now obvious that we need to start thinking about the type of tax system we want.  That must include a review of all government tax, law and registration services and the creation of a Scottish Exchequer.

Good to see an article in the Herald on something I have written about recently.  Businesses in new Scottish enterprise zones will be able to claim up to 100% business rates relief as part of new incentives to stimulate investment in the economy.  Other measures announced by the Scottish Government include more efficient planning procedures, improved broadband, targeted capital allowances and international marketing.  The article in the Herald can be found here.

Another article from the Herald, this time on an “unprecedented” number of business rates appeals.  The article reports that court cases have been launched by retailers in Edinburgh, Glasgow, Dundee and Kirkcaldy and elsewhere as firms contest the size of their rate bills.  The article from the Herald can be found here.  The main argument being used is that the current rates were calculated in 2008, before the extent of the downturn became apparent.

For those of you interested in tax statistics, the relevant HMRC page can be found here.  For those of you interested in tax consultations, current HMRC consultations can be found here and current HM Treasury consultations here.  There will be many more consultations added over the next few months as the UK Chancellor in his Budget made reference to approximately 45 consultations.

Approximately 12,000 people who had been told that they no longer needed to fill in self-assessment tax forms have been sent penalty notices in error.  To put this in context, 130,000 people were taken out of the self-assessment process for this tax year.  Some 850,000 people were sent penalty notices for failing to submit their tax returns on time this year.  This is 550,000 fewer than a year ago.  An article on this from the BBC news website can be found here.  As mentioned in this article it is likely that “HMRC’s resources” played a part in this latest error.

Nearly 60,000 more Scottish pensioners than first thought will be hit by the UK Government’s decision to freeze age related personal allowances according to new figures published by HM Treasury.  The figures show the so called “granny tax” will impact 423,000 pensioners in Scotland by 2015-2016.   The article from the Herald can be found here.

David Cameron has backed proposals for an “airline levy” to ease waiting times at London Heathrow Airport border control.  Airlines using London Heathrow would pay higher landing fees to pay for additional UK Border Force staff to help remedy the long queues currently occurring.  You would be forgiven for thinking there was an election in London this week.  The UK Government is not making many friends in the airline industry just now.  The spat over increases in Air Passenger Duty continues.  More information on this can be found in an article on the BBC news website found here.

Now to Europe and the “debt crisis” debate.  Financial Times journalist, Gideon Rachman continues to argue against European countries trying to spend their way out of their debt crisis.  This is a quote from his article:  “There is, of course, scope for argument about the pace of deficit reduction.  But in a highly-taxed, highly-regulated, highly-indebted continent like Europe, more state-funded public works would simply build another road to nowhere”.  The full article can be found in the Financial Times on 1 May.

I will finish on a matter I have blogged on before.  More than 2,000 public sector workers could be avoiding the full rate of income tax through special contracts, UK Government research has found.  An article on this from the BBC news website can be found here and my earlier blog here. This is an incredible figure as it does not include those in the NHS or local government.  Danny Alexander is seemingly “shocked”.  It seems that “shock” is becoming the default reaction for UK Government Ministers.  You may remember George Osborne’s was also recently “shocked” at the extent of tax avoidance.  Tax and morality it was ever thus.

Have a good weekend.  “Tax land” will be back in three weeks time.

Hanson v HMRC [2012] UKFTT 95 (TC)

Given the amount that has been written on this decision over the last few weeks I thought I would put up my earlier blog on this again.  My earlier blog can be found here.

We still do not know if HMRC are to appeal this decision.

The First-tier Tax Tribunal held that agricultural property relief can be obtained on a farmhouse even when ownership of the farmhouse and the farm land were held separately.

The report from the First-tier Tax Tribunal can be found here.  There is also an excellent report on this case in the latest edition of the Solicitors Journal.

Given it is local election time I think the level of funding for council tax benefit is an appropriate place to start.  The Scottish Government and the Convention of Scottish Local Authorities have decided to provide £40m to make up a shortfall of council tax benefit funding.  An article on this from the Scotsman can be found here.  The figure that stands out is the 558,000 people in Scotland who receive this benefit.

The Confederation of British Industry has denied that big companies are benefiting from “sweetheart deals” with the taxman.  HMRC has faced criticism over alleged secret deals with the likes of Vodafone and Goldman Sachs over unpaid tax.  The CBI briefing note is well worth reading and can be found here.

The campaign trying to make the UK Chancellor think again over the latest increase in air passenger duty continues.  The latest claim from this group of aviation and business organizations can be found here in an article on the Herald.  Part of this claim is that overseas tourists have been put off coming to the UK during the Olympics because of punitive air taxes.   The group says bookings from Australia and New Zealand are down by 25% compared to the same period in 2011.

The furore surrounding the UK Chancellor’s tax relief cap and how it might impact on charities continues.  I liked this opinion piece found on the website of the Scottish Council of Voluntary Organisations.  The piece can be found here.  Although I see the need for tax caps and/or investment limits in certain circumstances, for example under the Enterprise Investment Scheme or Venture Capital Trust relief, I would be surprised if this policy in its present form survives the summer.

It seems that mortgage lending rose sharply in March as buyers rushed to complete sales.  The stamp duty land tax exemption for first-time buyers who bought homes valued at between £125,000 and £250,000 came to an end after two years on 24 March.  The UK Government do not think that this relief has been effective in increasing first-time buyer numbers.  A report on this from the BBC news website can be found here.  I continue to be surprised that our politicians fail to campaign for a change to the 1% and 3% stamp duty land tax rates and bands.

A study by the Taxpayers’ Alliance has revealed that 3,000 council employees across the UK were paid six-figure sums in 2010-11, a rise of 13 per cent on the previous year.  The highest paid was in Glasgow where Ian Drummond, formerly executive director of special projects who has since left the post, received a £450,628 package.  Reports like this confirm the view held by some in the private sector that our local authorities completely lost the plot over senior salaries.  An article on this from the Scotsman can be found here.

Scotland appears to be moving towards charging shoppers around 5p every time they use a plastic bag.  This if often referred to as a “plastic bag tax”.  Scottish ministers have again indicated that it will consult on the matter in the near future.  Wales, Northern Ireland and the Republic of Ireland already have such a charge.  It does seem that the Scottish Government is dragging its feet on this.  A plastic bag tax was thrown out by MSPs during the last parliament when Liberal Democrat Mike Pringle tried to push through a 10p levy.  An article on this from the Daily Express can be found here.

A tax fraudster, who fled the UK four years ago after telling a judge in a note that he was unprepared to go to jail and found the idea frightening and upsetting, has been extradited from France and is beginning a six year prison term.  Mark McGovern had pled guilty to laundering £278,340.87 of criminal proceeds in April 2008, following a wider HMRC investigation into VAT fraud.  More on this can be found here.  I would have thought that most people would find the thought of being locked up frightening and/or upsetting.  Not surprisingly that is not a good enough reason to avoid being sent to prison.

New figures from the Office for National Statistics have shown that the UK Government has met its borrowing target for the year, despite borrowing more than expected in March.  An article on this from the BBC news website can be found here.  Worryingly these figures also show that most of the cuts to public spending have yet to be made.

Now to the USA and the announcement of a dramatic increase in citizenship renunciations.  According to Internal Revenue Service figures, at least 1,800 Americans renounced their USA citizenship in 2011, an all-time record at eight times the 2008 number.  The main reasons given are the USA’s worldwide taxation system, the Foreign Bank and Financial Accounts rules and  the Foreign Accounts Tax Compliance Act regime.  An article on this from the Daily Mail online can be found here.  The USA is one of a handful of countries to tax its citizens on income earned while abroad.

Then there were two.  Francois Hollande defeated Nicolas Sarkozy in the first round of France’s presidential elections.  The tax and fiscal policies of the final two candidates, in particular Hollande’s, have received a great deal of international press coverage.  An example of this coverage, from Bloomberg’s Paris correspondent, can be found here. 

Now to a Budget statement from 1940.  “New British budget announced: higher income tax, increased duty on alcohol, tobacco & matches, to raise an unprecedented £2bn for war costs.”  Thanks to @RealTimeWWII.  Notwithstanding duty on matches interesting to see how little has changed.

Finally I was very sad to hear of the death of Stephen Maxwell.  I got to know Stephen very well over the last few years and he is a great loss to those arguing for greater fiscal powers and the wider independence movement.  A real gentleman at all times.

Have a great weekend.

Sheriff court case considering the decision of the City of Glasgow Licensing Board to refuse an application to vary a premises licence for an Indian Restaurant known as The Dhabba at Candleriggs in Glasgow.  The owners sought the varying order so as to include within the premises licence external seating for 24 people on the pavement outside the restaurant and to amend the operating plan to include the provision of outdoor drinking.

The Licensing Board refused the application as: (1) granting the licence would be inconsistent with the licensing objective of preventing a public nuisance in terms of the s30(5)(b) of the Licensing (Scotland) Act 2005; and (2) the area was unsuitable for use for the sale of alcohol (in terms of the s30(5)(c)). The Board’s refusal was founded upon its conclusion that the location of the tables on a busy street would cause congestion.

The sheriff allowed an appeal of the decision. In the first place, there was inadequate evidence of the congestion, the only factual evidence before the Board being a plan of the subjects and an assertion by Bapu’s solicitor to the effect that the pavement was three metres wide and the tables took up one metre of that:

“In my view, absent some other material consideration or information, it does not logically follow that the mere narrowing of a three metre footpath by one metre, leaving two metres clear and available for pedestrians, would cause any congestion to occur, still less congestion of such an intolerable volume, intensity, frequency and duration as to cause a public nuisance. Something more would be required to justify those conclusions. That might be based, for example, upon factual information regarding the current and anticipated density and frequency of pedestrian and vehicular traffic at that location, viewed against an informed assessment of the likely impact upon such traffic of a narrowing of the footpath in the manner proposed in the application. No such information was before the Board.”

In the second place, the public nuisance anticipated by the Board was not linked to the sale of alcohol. It arose from the expected congestion which, if it had existed at all, would have been attributable to the physical presence of the tables and chairs (which had already been sanctioned by a section 59 agreement and planning consent). Thirdly, this also rendered the Board’s decision irrational as the congestion and public nuisance would exist whether or not the variation application was granted.

The full decision is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

This is a Note by Sheriff A G McCulloch in the matter of a petition for the appointment as executor dative by Dennis Murray.

Mr Murray is one of four children of the deceased.  The widow of the deceased was made the subject of a guardianship order.  Mr Murray was appointed as her guardian.

As the widow’s prior rights would exhaust the whole estate of the deceased, the normal procedure would have been for the widow or her guardian to be appointed as executor dative.   However, the guardianship order in this case unusually did not contain a power for the guardian to make an application for appointment as executor dative.

The Sheriff explained in his Note that the problem here was the current commissary practice.   The current practice is to treat the surviving spouse whose prior rights exhaust the whole intestate estate as the sole person with the right to be appointed executor.   The Sheriff noted that this appeared “to be a misunderstanding, or misreading, of the provisions of section 9(4) [of the Succession (Scotland) Act.]“

The Sheriff’s Note which can be found here outlines the relevant part of  section 9(4).

The Sheriff held that “… those other than the surviving spouse may seek in these circumstances to be decerned executor dative.”

Where to start?

The fall out surrounding the UK Chancellor’s Budget statement continues.  The House of Commons Treasury Select Committee has said that the Chancellor’s plans to scrap the 50p tax rate don’t add up.  In addition it criticized the numerous Budget leaks.  An article on this from the Daily Mail online can be found here.

I am surprised that more has not been made of the change to the 40p income tax band.  One of the arguments put forward for reducing the top rate of income tax was the effect it was having on entrepreneurship.  I cannot see how massively increasing the number of people liable to pay income tax at the 40p rate compliments that argument.

Then there is the charity furore and the apparent contradictions in the arguments put forward by the UK Government in support of this policy.  The fact that some UK Government Ministers fought extremely hard to reduce the top rate of income tax is well documented.  Now the UK Government is criticising the fact that rich people don’t pay a high enough rate of income tax.  In addition, the UK Government has made it clear they wish to increase charitable giving.  Only a year ago, in the 2011 Budget, the UK Chancellor announced proposals to support giving, such as a lower rate of inheritance tax for those leaving 10% of their estate to charity.  The UK Government started by saying that the policy is needed by alleging that high earners are using donations to dubious charities to reduce their income tax bill to almost zero.  Now it is talking about fairness.  Will this policy even survive the summer?  An article from the STEP online journal on this issue can be found here.

HM Treasury has released figures showing the extent of tax avoidance by the UK’s so called “super rich”.  Robert Peston has written an excellent article on this.  His comment on the contrasting approach taken by George Osborne and his Labour predecessors is particularly noteworthy.  If the report does tell us one thing, it is how complicated a picture this is.  One fact does though stand out.  73% of those earning over £250,000 were paying an average tax rate above 40% in 2010/11. Robert Peston’s article from the BBC news website can be found here.

Good to see the Church of Scotland entering the earnings and taxation debate.  A Kirk commission has issued a report on the “greed and inequality” of the bonus culture and tax avoidance.  An article from this from the Herald can be found here.

Now to what is expected of HMRC in the next year.  HMRC’s remit for 2012/13 is:

• improving tax collection
• delivering cost reductions
• improving services for individual and business customers
• Real Time Information
• tax policy and the policy partnership

The context to this is fewer staff and a smaller budget.  More on this can be found here.

The Scottish Parliament this week endorsed a legislative consent motion which effectively allows the UK Government to pass the Scotland Bill, also known as “Calman minus”, at Westminster next week.  Have I anything else to say on this?  No.  The term “Calman minus” says it all.  An article from the Scotsman on this can be found here.

The Guardian reported recently that Amazon’s tax affairs are being investigated in the US, China, Germany, France, Japan and Luxembourg.  HMRC have refused to confirm whether it is also investigating Amazon.  Amazon is the largest retailer in the UK.  The Guardian also reports that Amazon paid no UK corporation tax last year.  This is primarily because the US parent in 2006 transferred ownership of the main Amazon.co.uk business to a Luxembourg company.  It is not just the UK Government that is being asked questions about this company.  The Scottish Government is also being asked questions relating to a £10m grant.  Of course if the relevant tax powers were devolved to the Scottish Parliament, the left hand might have more of a chance of knowing what the right hand is up to.  Articles from the Scotsman and the Guardian on this matter can be found here and here.

Another week and another VAT issue.  The Church of England fears church renovation projects could be scrapped because of planned changes to VAT set out in the UK Budget.  From October this year HM Treasury will charge VAT at 20% on approved alterations to listed buildings.  Presently this is exempt from VAT.  The Church of England thinks the change will cost it £20m a year.  HM Treasury says funding will be available to ensure church renovations are not cancelled.  A report from the BBC news website on this can be found here.  The BBC report notes that a “source close to Chancellor George Osborne is reported as saying that this proposal was about ensuring a millionaire wanting to build a swimming pool in the garden of their listed mansion had to pay VAT on it.”

HMRC is improving and streamlining its processes for customers who need to deal with them following a bereavement.  HMRC is creating dedicated teams who will be responsible for dealing with PAYE and Self Assessment for bereaved customers.  The main form which customers use to finalise the tax affairs of the person who has died, R27, has been redesigned following feedback from customers and tax specialists to make it easier to complete.  More on this can be found here.

A “fat tax” is back on the agenda.  The Academy of Medical Royal Colleges has called for stronger measures to reduce obesity in the UK.  The first phase of the Academy’s campaign will try to find out what works.  It will review evidence for diets, exercise, taxation, minimum pricing and changing advertising and food labeling.  The Academy has also blamed the UK Government’s previous strategies and irresponsible marketing for aiding to obesity issues.  An article on this from the BBC news website can be found here.

There are suggestions that the German Government’s recent renegotiation of its withholding tax agreement with Switzerland may tempt the UK Government to try and do the same with its own Swiss agreement.  The UK Government has though already changed it once already.  An article on this from the Guardian can be found here.

Let’s finish with the “Buffett Rule” as it sounds like it might be about food and I am feeling peckish.  Sadly, the Buffett rule is not about food but instead a tax plan that would apply a minimum tax of 30% to individuals making more than a million dollars a year.  An editorial in the Wall Street Journal calculates that the Buffett Rule, which is supported by President Obama, would lose $80bn a year from USA federal tax revenues.  The US Senate has in fact this week voted to block the Buffett Rule.  The article from the Wall Street Journal can be found here and a BBC website news report on the Senate vote can be found here.

Have a good weekend and good luck to all the teams competing at Scottish Rugby’s Cup Final day at Murrayfield on Saturday.

Outer House case concerning a creditor’s right of sale over security subjects held under a standard security. The syndicate financed the purchase of a site at Eurocentral near Motherwell, on which a hotel and office complex (which remained unoccupied) were constructed, partly by means of a loan secured by a standard security.

The syndicate failed to make payments under the loan agreement and Hadrian (the holder of the security) demanded payment of the loan, served a calling up notice on the syndicate and began to market the subjects. Hadrian received an offer from the hotel operator for £5m and another offer from Calgacus Capital Limited (a wholly owned subsidiary of Hadrian) for £5.2m. The effect of the proposed deal with Calgacus would have been that (i) the syndicate’s members would have incurred a balancing payment of £2.3m in respect of capital allowances (which the syndicate argued would not have been triggered under the hotel operator’s bid) and (ii) that the syndicate would have been left owning the unoccupied office premises.

The syndicate sought interim interdict preventing the sale to Calgacus on the basis that the subjects had not been advertised properly. They also argued that (in engineering a bid from its own subsidiary which would result in a balancing payment) Hadrian had improperly used the procedure to apply commercial pressure to the syndicate to pay more towards their outstanding debt than the loan agreement provided for.  (The loan agreement prevented recourse to the personal assets of the members of the syndicate.)

Lord Hodge rejected the syndicate’s motion for interim interdict finding that the syndicate’s challenges in respect of both the advertising of the property and the improper use of powers were weak.  Also, if a more cogent case could be made successfully at a later stage, the syndicate would be entitled to an adequate remedy in damages.  In coming to this conclusion, Lord Hodge noted that the financial loss to the syndicate would have been greater than that of Hadrian if the interim interdict were not granted. However, Lord Hodge also took account of the fact that the syndicate’s members had decided they were not prepared to contribute further funds or buy a variation of the loan agreement when exposed to the tax clawback. In the absence of a clear legal wrong it was not appropriate to prevent Hadrian proceeding with the sale to Calgacus.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

HMRC has published the final version of its litigation and settlement strategy.  There has been very few changes to the draft guidance published last July.

HMRC’s guidance can be found here.

The main story of the week has to be the fact that the UK Chancellor, yes the UK Chancellor, said:  “I was shocked to see that some of the very wealthiest people in the country have organised their tax affairs – and to be fair it’s within the tax laws – so that they were regularly paying virtually no income tax.  And I don’t think that’s right.”

Words almost fail me.  Then again maybe I should be glad that George Osborne has finally realised what was clearly obvious to everyone else.  HMRC provided the UK Chancellor with anonymised copies of the confidential tax returns submitted to them by some of the UK’s wealthiest people.  These returns showed that the 20 biggest tax avoiders had legally reduced their income tax bills by a total of £145m in a year.  According to the report, the very rich have managed to reduce their income tax rate to an average of 10%; less than half the amount paid by the average Briton.  A report on this from the BBC news website can be found here.  Helpfully the BBC news website has also outlined the most common tax avoidance schemes.  This can be found here.

I am not sure that the Prime Minister’s announcement that he will publish details of his taxes is going to help the UK Government out of the hole they are digging for themselves.  As the UK Chancellor noted, these people are acting within the law.  Take for example the proposed cap on income tax reliefs.  The cap will apply only to those reliefs that are currently unlimited, which will therefore exclude pension contributions and EIS investments, among others.  The proposals will cap tax relief to 25% of income or £50,000 whichever is greater.  It is expected the draft legislation will be published for consultation later this year.

HM Treasury has now published more information on this proposal.  The report, which confirms charitable gift relief will be included in the cap, can be found here.  The report notes that current unlimited relief policy allows individuals to pay no income tax at all, which is not permitted in, for example, the US tax system.

Is that the end of the matter?  Of course not.  The Scotsman reports that Sir Tom Hunter has criticised George Osborne’s plans to cap tax relief on charitable donations as “ill-thought-out and punitive”.  The Scotsman article can be found here.  It is quite clear that charities fear their funding is under threat.  This sums up nicely the problem facing George Osborne.  He wants to crack down on aggressive tax avoidance but that is easier said than done.  Almost any proposal to change the tax system results in a campaign to prevent or amend the proposal.

Now to another controversial issue, retrospective changes to tax law.  HM Treasury has published the process it will follow when making unexpected changes to tax law.  The statement gives an undertaking that retrospective measures will be “wholly exceptional”.  The statement from HM Treasury can be found here.  A recent of example of a retrospective change to tax legislation involved Barclays bank.  A BBC news website report on the Barclays bank matter can be found here.  If the UK Chancellor is serious about tackling aggressive anti-avoidance then I am sure we will see many more examples of retrospective changes to our tax law.

Finance Secretary, John Swinney, has announced incentives and actions to stimulate investment, in four enterprise sectors, for green energy, manufacturing and life science.  These incentives include business rate discounts worth up to £275,000 per business or enhanced capital allowances, new streamlined planning protocols across all sites, skills and training support and an international marketing campaign to promote the sites.  A press release from the Scottish Government on this can be found here.

Now to VAT and two issues I have blogged about before.  A great deal has been written about pasties and VAT since the UK Budget statement.  What though of another VAT anomaly.  Why is VAT levied on the renovation of old buildings but not on the sale of new houses?  Does this encourage energy saving?  Does this encourage the building of new homes?  Why not at least introduce a lower rate of VAT on residential renovations and repairs, as happens in the Isle of Man.  Sadly more questions than answers or signs of any change of policy.  A link to my earlier blog on this issue can be found here.

The Scottish Liberal Democrats have urged the Scottish Government to drop their plans for a single police force over concerns that the force will potentially face an annual £22m VAT bill. The eight existing forces are currently exempt from the tax due to their ties to local authorities.  A link to an earlier blog that covers this issue can be found here.  My earlier blog also includes my expectations as to how HM Treasury will view this matter.  Although I can understand the Scottish Liberal Democrats opposition to the single force policy, do they really think that the VAT should be levied?  If not, will they lobby their UK counterparts who, after all, are in charge of HM Treasury on this matter?  I suspect not.  The Liberal Democrats press release can be found here.

To Wales and the news that Welsh supermarkets have seen a massive drop in the use of plastic bags when they charge for them.  A 5p bag levy was introduced across Wales last year.  A report on this from the Daily Mail online can be found here.  Good to see the Daily Mail outlining the situation in the other parts of the UK.

The Spanish Government has announced a general tax amnesty offering taxpayers the chance to disclose irregularities in their past affairs without being prosecuted or penalised. The cost is a one-off payment of 10% of all undeclared assets and rights.  This follows similar measures in Greece and Italy.  More information on the Spanish amnesty can be found here.

Have a good weekend.

Outer House case considering the interpretation of missives between two builders for the sale of land at Broomhouse in Glasgow. The land was to be sold by Bellway to Persimmon for £4.16m. Bellway were to undertake works before the sale and the date of entry was tied to Bellway’s completion of these works (which involved the upgrading of a road and construction of a roundabout).

In terms of the missives, if the works were not completed before the longstop date, Bellway were to offer an alternative site of comparable size and value to Persimmon. In a previous decision Lord Glennie found that, although Bellway were not breach of contract at the point they failed to complete the works, the alternative site they offered to Persimmon was not of comparable size and value and, following the failure to offer an alternative site, Bellway were then in breach of contract.

Persimmon’s letter giving notice that they were rescinding the contract referred only to the fact the works had not been completed in time and not to the failure to provide an alternative site. In these proceedings Bellway argued that, as they were not limited to only one opportunity to offer a suitable alternative site, the contract was still open for performance and they were not in breach of contract. However, Lord Glennie found that the contract had been validly rescinded by Persimmon’s letter. In doing so he confirmed the principle that, providing the intension to rescind is clear, the fact that no reason is given or the wrong reason is given is not normally significant. Further, although Persimmon failed to issue an ultimatum notice [1] before rescinding the contract, even if they had served an ultimatum, Bellway would have been unable to comply as they did not have a comparable site in their land bank at the relevant time. Also, as Bellway’s argument had been that the alternative site they had offered fulfilled the requirements of the contract, the service of an ultimatum notice would have served no purpose.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.