Hugh Brown v The Information Commissioner & Anor
[2024] UKFTT 857 (GRC)
Alun Davis v Information Commissioner
25 April 2024
[2024] UKFTT 336 (GRC)
First-tier Tribunal
Someone asked HMRC for legal advice on taxing mastectomy bras. HMRC refused, citing legal privilege. A court agreed with HMRC, saying the public interest in keeping legal advice secret was stronger than the public interest in seeing it, especially since there were other ways to challenge HMRC's decision.
Key Facts
- •Alun Davis requested information from HMRC regarding legal advice used in letters to Michelle Donelan MP about the customs classification of mastectomy bras.
- •HMRC refused the request citing legal professional privilege (LPP) under section 42 of the Freedom of Information Act 2000 (FOIA).
- •The Information Commissioner upheld HMRC's decision.
- •Davis appealed to the First-tier Tribunal (FTT).
- •The appeal centered on the public interest balance in disclosing the legal advice, given Davis's belief that HMRC's classification was legally incorrect.
Legal Principles
Legal professional privilege (LPP) protects confidential communications between client and legal advisor made for the dominant purpose of seeking and giving legal advice.
Section 42 FOIA, R v Derby Magistrates Court, ex p B [1996] AC 487
Section 42 FOIA is a qualified exemption; the public interest in maintaining the exemption must outweigh the public interest in disclosure.
Section 2(2)(b) FOIA, DBERR v O’Brien v IC [2009] EWHC 164 QB, Corderoy and Ahmed v Information Commissioner [2017] UKUT 495 (AAC)
In LPP cases, the in-built public interest in non-disclosure carries significant weight.
DBERR v O’Brien v IC [2009] EWHC 164 QB
Outcomes
The appeal was dismissed.
The Tribunal found that the public interest in maintaining LPP outweighed the public interest in disclosure. While acknowledging a public interest in transparency and accountability, the Tribunal determined that Davis's disagreement with HMRC's legal position, and his questioning of the lawyers' competence, did not constitute a sufficiently strong public interest reason for disclosure, especially given alternative legal avenues for challenging HMRC's decision.