ESM3370 - Considering the evidence: mutual intention
In the case of Dragonfly Consultancy Ltd v HMRC - see ESM7290, Henderson J found that as the IR35 legislation requires consideration of the arrangements a statement of intention forming part of the actual contractual arrangements should be taken into account and should not be dismissed without consideration.
Where the facts suggest that the arrangements are akin to employment, then a stated intention to the contrary will not be included in the hypothetical contract. In a suitable case there may be material which would justify the inclusion of such a statement in the hypothetical contract, however it should be considered in conjunction with all of the other evidence, i.e. it is likely to have no material impact on the hypothetical contract.
Henderson J did not rule out the possibility that there may be borderline cases where the stated intention of the parties could be of assistance.