Documents are subject to legal advice privilege

The applicants (R and TR) asked the First-tier Tribunal to consider whether particular documents requested by HMRC in an information notice (FA 2008 Sch 36 para 35) were subject to legal professional privilege. The enquiry related to the diverted profits tax.

The First-tier Tribunal which had been provided with copies of the disputed documents and was therefore ‘in a better position to determine whether or not legal professional privilege applies’ held that the documents between the TR in-house legal team and senior executives were subject to litigation privilege because they were primarily concerned with the implementation of an alternative corporate structure.

However legal advice privilege applied because the documents were part of a continuum of communications which had a dominant purpose of providing legal advice to the in-house legal team and senior decision makers.

The report explained that legal advice privilege applies to confidential communications between a...