Alun Davis v Information Commissioner
[2024] UKFTT 336 (GRC)
Refinitiv UK Holdings Limited & Anor. v The Commissioners for HMRC
22 February 2023
[2023] UKFTT 222 (TC)
First-tier Tribunal
A company didn't want HMRC to see some private documents related to a company restructuring. A judge agreed that the documents were protected because they were confidential lawyer-client communications, so HMRC couldn't see them.
Key Facts
- •Refinitiv UK Holdings Limited and Thomson Reuters Group Limited (Applicants) challenged HMRC's information notices requesting documents related to 'Project Vista'.
- •Project Vista aimed to align Thomson Reuters' corporate structure and transfer pricing with OECD BEPS guidelines.
- •HMRC argued the documents were relevant to determining the applicability of the Diverted Profits Tax.
- •Applicants claimed legal professional privilege (LPP) over the disputed documents.
- •The Tribunal determined the application without a hearing, reviewing written submissions.
Legal Principles
Legal professional privilege (LPP) protects confidential communications between a client and lawyer for the dominant purpose of giving or receiving legal advice.
R (Jet2.com Ltd) v Civil Aviation Authority [2020] QB 1027 at [96]
Litigation privilege applies to communications for the sole or dominant purpose of conducting contemplated litigation.
Three Rivers District Council v Governor of the Bank of England (6) [2005] 1 AC 610
The burden of proving LPP lies on the party claiming it.
West London Pipeline Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) at [86]
Advice on implementing a corporate structure is not primarily advice for litigation purposes, even if litigation is contemplated.
The Financial Reporting Council Ltd v Frasers Group Plc [2020] EWHC 2607 (Ch)
Schedule 36 of the Finance Act 2008 allows HMRC to issue information notices, but not for privileged information.
Finance Act 2008, Schedule 36
The 2009 Regulations provide a procedure for resolving disputes regarding privileged information.
Information Notice: Resolution of Disputes as to Privileged Communications Regulations 2009
Outcomes
The Tribunal allowed the application.
The Tribunal found that the disputed documents were subject to Legal Advice Privilege (LAP) as they formed part of a continuum of communications with the dominant purpose of providing legal advice to senior decision-makers. Litigation privilege did not apply as per the High Court's decision in Frasers Group.