Documents not privileged

The taxpayer appealed against a notice issued under FA 2008 Sch 36 para 1 to provide certain documents. He was in dispute with HMRC about a termination payment made to him.

He claimed some of the required papers were legally privileged because they were in connection with a compromise agreement between his solicitor and the HR department of his former employer.

The taxpayer said he was claiming litigation privilege – rather than legal advice privilege – which he asserted applied to communications between his lawyer and third parties.

The First-tier Tribunal referred to the decision in Three Rivers District Council and others v Bank of England (No 6) [2004] UKHL 48 which concerned both legal advice privilege and litigation privilege.

Lord Rodger in that case had made clear that litigation privilege covered all documents in litigation in progress; it did not protect items that related to the settling...