Commentary

A7.226 DOTAS—scope of legal professional privilege

Administration and compliance

A7.226 DOTAS—scope of legal professional privilege

A7.226 DOTAS—scope of legal professional privilege

This article discusses the scope of legal professional privilege. For a more detailed case law discussion on the subject, see A7.227.

For a discussion of legal professional privilege in the context of:

  1.  

    •     provision of information to HMRC under HMRC's general information and compliance powers, see A6.604

  2.  

    •     the disclosure of tax avoidance schemes (DOTAS) regime, see A7.225 and A7.228

  3.  

    •     the penalties for enablers of defeated tax avoidance, see A4.573A

Definition of legal professional privilege

Under common law a client can assert confidentiality in relation to:

  1.  

    •     communications between the client and their lawyer made for the purpose of obtaining and giving legal advice

  2.  

    •     communications between the client or their lawyer and third parties the dominant purpose of which was the preparation for actual or contemplated litigation, and

  3.  

    •     items enclosed with or referred to in such communications and brought into existence for the purpose of obtaining the advice

In the House of Lords case of Francis & Francis1 both Lord Griffiths and Lord Goff thought that the Police and Criminal Evidence Act 1984, s 10 was intended to be a statutory

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