A7.227 Case law on legal professional privilege
This article discusses some notable cases relating to legal privilege.
In Morgan Grenfell & Co Ltd1, the issue was whether a bank was saved by legal privilege from having to disclose details of advice received from tax counsel and solicitors about a tax scheme pursuant to a notice issued under TMA 1970, s 20(1). The House of Lords held that legal professional privilege was a fundamental human right and could only be removed by express language or necessary implication.
This case is not, however, directly relevant to the issue of the scope of privilege because it dealt with a narrow (but important) point of statutory construction (whether TMA 1970, s 20 over-rode legal privilege), and by the time the case reached the Lords it had been accepted by HMRC that the documents were subject to legal professional privilege which had not been waived. It is likely that as a result of this decision, the express exemption for privilege contained in the FA 2004, s 314 was not actually necessary, because such an exemption would have beden implied. However, as noted in A7.225, the inclusion of an express privilege