Commentary

A7.227 DOTAS—case law on legal professional privilege

Administration and compliance

A7.227 DOTAS—case law on legal professional privilege

A7.227 DOTAS—case law on legal professional privilege

This article discusses notable cases on legal professional privilege. For a the definition and scope of legal professional privilege, see A7.226.

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

Legal professional privilege—case law

Morgan Grenfell

In Morgan Grenfell1, 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) (power to call for documents, since replaced by FA 2008, Sch 36). 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 DOTAS

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