Ipsofactoj.com: International Cases [2002] Part 12 Case 13 [HL]


HOUSE OF LORDS

Coram

Morgan Grenfell & Co Ltd

- vs -

Special Commissioner

LORD NICHOLLS OF BIRKENHEAD

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD HOBHOUSE OF WOODBOROUGH

LORD SCOTT OF FOSCOTE

16 MAY 2002


Judgment

Lord Nicholls of Birkenhead

My Lords,

  1. I had had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal.

    Lord Hoffmann

    My Lords,

  2. In the 1990's Morgan Grenfell ("MG") marketed a simple tax avoidance scheme to create chargeable gains for clients who had available capital losses. The gain arose out of a premium paid by MG for a long lease of property held by the client, which then took an underlease at a rack rent. The efficacy of the scheme depended upon the client being able to deduct the rent and MG being able to deduct the premium as trading expenses. The client's position was uncontroversial but MG's was more problematic. MG contended that the long lease was a trading asset and that the premium was a payment on revenue account. The Inland Revenue disagreed. It said that the purchase of the lease fell outside the scope of MG's trading activities and that it was a capital asset. The premium was therefore a capital payment.

  3. The issue was debated between MG's tax advisers and the revenue in the case of a scheme which had been sold to Tesco. There is no dispute that MG were completely open about the way the scheme operated. They did not conceal any relevant transactions. But the inspector asked to see documents relating to the advice which MG had obtained from leading counsel and solicitors about whether the scheme would work. MG objected on two grounds. 

    • First, that the documents were irrelevant. They would show no more than the opinions of the lawyers about the legal effect of transactions which had been fully disclosed.

    • The second was that they were protected by legal professional privilege ("LPP").

    The inspector invoked his power under section 20(1) of the Taxes Management Act 1970 (as substituted by section 57(1) of and Schedule 6 to the Finance Act 1976 and amended by section 142 of the Finance Act 1989):

    Subject to this section, an inspector may by notice in writing require a person:

    (a)

    to deliver to him such documents as are in the person's possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to:

    (i)

    any tax liability to which the person is or may be subject, or

    (ii)

    the amount of any such liability ...

  4. On 28 September 1999 the inspector issued a notice under the section, demanding a wide range of documents relating to the advice MG had sought and received in connection with the Tesco transaction. MG issued judicial review proceedings to quash the notice on the grounds of ultra vires, contending,

    • first, that the documents could not reasonably be thought to contain relevant information and 

    • secondly, that the Act upon its true construction did not entitle the inspector to require delivery of documents subject to LPP.

  5. The Divisional Court (Buxton LJ and Penry-Davey J) rejected both arguments and dismissed the application. On the first point, the court accepted that the inspector could reasonably consider that the "perception" of the transactions by MG and its advisers revealed by the documents might throw light on whether they formed part of MG's ordinary trading activities. On the second, they held that the general terms of section 20(1) ("such documents as are in the person's possession or power") could not be qualified to exclude documents subject to LPP.

  6. In the Court of Appeal (Schiemann and Sedley LJJ and Blackburne J) MG did not pursue the first point and the Court of Appeal agreed with the Divisional Court on the second. It is solely on the construction of the Act that MG appeal to your Lordships' House.

  7. Two of the principles relevant to construction are not in dispute. First, LPP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates Court, Ex p B [1996] AC 487. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the Convention (Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637) and held by the European Court of Justice to be a part of Community law: A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878.

  8. Secondly, the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication. The speeches of Lord Steyn and myself in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 contain some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.

  9. Section 20(1) contains no express reference to LPP and the question is therefore whether its exclusion must necessarily be implied. For this purpose it is necessary to examine section 20(1) in its context. It was first enacted as part of a group of sections dealing with the powers of tax authorities to obtain information, inserted into the 1970 Act by section 57(1) of and Schedule 6 to the Finance Act 1976. These sections have since been amended and amplified on a number of occasions but the revenue do not suggest that the amendments have changed the meaning which the relevant words in section 20(1) had in 1976. It is therefore sufficient to consider the 1976 provisions, the material part of which are for convenience reproduced as an appendix to this opinion.

  10. The argument for the revenue is essentially that Parliament has provided a number of specific safeguards and restrictions for the protection of the taxpayer, including an express preservation of LPP for documents in the possession of a barrister, advocate or legal adviser. It therefore necessarily follows that no wider qualification of the general words of section 20(1) was intended.

  11. The first form of safeguard is some form of judicial or administrative control, graduated according to the intrusiveness of the power. Thus the inspector's power to require delivery of documents under section 20(1) or (3) requires the consent of a general or special commissioner: subsection (7). Consent is not needed only if the Board of Inland Revenue itself makes the request under section 20(2). Likewise, only the Board may give a notice under section 20(1) or (3) to a barrister, advocate or solicitor: section 20B(3). Notices to tax accountants under section 20A(1) (see section 20A(3)) and searches under section 20C(1) require the consent or warrant (as the case may be) of "the appropriate judicial authority", which in England means a circuit judge: section 20D(1)(a).

  12. The second restriction is the preservation or creation by section 20B(2) of a limited form of litigation privilege in tax appeals, analogous to that enjoyed by a party to civil or criminal proceedings. A notice by an inspector under section 20(1) or (3) cannot require the taxpayer to produce "documents relating to the conduct of a pending appeal by the ["him"]". For some reason which seems to me unclear, this privilege does not protect the taxpayer when the notice has been given by the Board: see R v Inland Revenue Commissioners, Ex p Taylor (No 2) (1990) 62 T.C. 578, 593. It is in any case a litigation privilege which does not cover the same ground as (though it may overlap with) LPP. It applies to documents relating to the conduct of an appeal by, for example, a taxpayer in person, and not merely communications and documents relating to the obtaining of legal advice. On the other hand, it is confined the documents relating to a tax appeal, whereas LPP applies to legal advice whenever sought and for whatever purpose. The distinction between LPP and litigation privilege is succinctly stated by Lord Denning MR in Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223, 243-244.

  13. The third restriction is that an inspector cannot give notices under section 20(1) or (3) or section 20A(1) to a barrister, advocate or solicitor. The decision to give such a notice must be taken at a higher administrative level, by the Board.

  14. Fourthly, by section 20B(9), a tax accountant (defined by section 20D(2) to include anyone who assists someone else in the preparation of his tax returns or accounts and so possibly including a lawyer) cannot be required by notice under section 20(3) to deliver "documents which are his (the accountant's) property and originate as working papers of that relationship."

  15. Fifthly, sections 20B(8) and 20C(3) deal specifically with LPP, but only in relation to documents in the possession of the lawyer. They cannot be required to be delivered by a notice under section 20(3) or 20A(1) without the client's consent and they cannot be seized or removed under section 20C(1).

  16. In my opinion the first four safeguards or restrictions are concerned with questions so distinct from LPP that they provide no basis for any implication that it was intended to be excluded. The provisions for judicial or administrative control are intended to prevent abuse of the statutory powers. In the present case, for example, the special commissioner who consented to the notice under section 20(1) was required to be satisfied that "in all the circumstances the inspector is justified in proceeding under this section": section 20(7). That involves a judgment as to whether the inspector was acting reasonably. It requires the special commissioner to balance the public interest that the inspector should have information needed to make a correct assessment against the interests of the taxpayer in not having his privacy invaded further than necessary: compare R v Inland Revenue Commissioners, Ex p T C Coombs & Co [1991] 2 AC 283. But LPP does not involve such a balancing of interests. It is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice: see the R v Derby Magistrates' Court, [1996] AC 487.

  17. The second restriction by reference to litigation privilege also gives rise to no implication about LPP. It may well give rise to the implication that no litigation privilege was to exist other than in the circumstances specified in section 20B(2), as was held by the Court of Appeal in R v Commissioners of Inland Revenue, ex parte Taylor (No. 2) (1990) 62 T.C. 578, 593. But it has no bearing on LPP.

  18. The provision which requires that a notice to a barrister, advocate or solicitor should be given only by the Board does not in my opinion take the matter any further. It is entirely consistent with the preservation of LPP, which indeed is expressly preserved in such a case by section 20B(8).

  19. Finally, section 20B(9) is a curious provision which appears designed to protect the proprietary interest of the tax accountant in his working papers: compare Chantrey Martin v Martin [1953] 2 QB 286 and Gomba Holdings UK Ltd v Minories Finance Ltd [1988] 1 WLR 1231. It has nothing to do with LPP.

  20. Although I appreciate that the revenue rely upon the inference to be drawn from the cumulative effect of these various provisions, I do not consider that even cumulatively they come anywhere near giving rise to an implication that LPP was intended to be excluded. In my opinion, the revenue stand or fall by the express references to LPP in sections 20B(8) and 20C(3). If these are consistent with the preservation of LPP for documents in the hands of the taxpayer, the other provisions are no more than makeweights.

  21. The argument for the revenue on sections 20B(8) and 20C(3) is simple. If Parliament intended to preserve LPP in general, why did it specifically provide for its preservation in respect of documents in the possession or power of a lawyer? The inescapable inference is said to be that LPP was not intended to be preserved for documents in the possession or power of the taxpayer. This was the view of the Divisional Court, the Court of Appeal and also Bingham LJ in R v Inland Revenue Commissioners, Ex p Taylor (No 2) (1990) 62 T.C. 578, 593-594.

  22. I see the force of this argument but I think that it has difficulties which were not fully addressed either in the Court of Appeal or in the Taylor case. Why should Parliament want to preserve LPP for documents in the hands of the lawyer but not for documents (which may well be copies or originals of the same documents) in the hands of the taxpayer? The irrationality of such a scheme was commented upon by Advocate General Sir Gordon Slynn in A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878, 913-914:

    If one considers the real purpose of the protection...I can for my part see no justifiable distinction between such documents in the hands of the lawyer and in the hands of the client. If the lawyer has one copy and the client another, both should be protected. The request and the reply, if relating to legal advice, are of the same nature. To tell the client that if he leaves his documents at his lawyer's office they will be protected, but that, if he keeps them himself, they are not seems to me indefensible and likely to encourage, e.g. the giving of oral advice if it is unfavourable advice, and the destruction or transfer to the lawyer's office of documents. It would be quite extraordinary that if the lawyer's documents were, by chance, left at the client's premises, the day the inspector called, they must be produced, but that if the lawyer took his file away with him, they would not. In my opinion the rule covers communications between lawyer and client made for the purpose of obtaining or giving legal advice in whoever's hands they are and whether legal proceedings have begun or not. It covers also the contents of that advice (given orally or in writing), in whatever form it is recorded - whether in a letter or in a summary or in a note or in minutes.

  23. Mr. Brennan QC, for the Inland Revenue, said that there was no real anomaly because the inspector could indirectly obtain documents in the possession of the lawyer by applying to the taxpayer. He would have to produce them on the ground that, although in the lawyer's possession, he was entitled to them as against the lawyer and they were accordingly in his "power". The purpose of section 20B(8) was to prevent the lawyer from being placed in a situation in which he had a statutory duty which conflicted with his duty to his client. It eliminated conflict by providing that the duty to the client prevailed. If the revenue wanted the documents, they had to serve a notice on the client.

  24. I do not find this an adequate explanation. If Parliament had simply wanted to spare lawyers the difficulty of deciding which master to serve, it could just as easily have removed the problem by providing that documents in the hands of lawyers also had to be produced. Why should it have chosen to say that they could not be produced without the client's consent? If the client's consent is required when the documents are in the hands of the lawyer, why should it not be required when they are in the hands of the client himself? It seems to me strange to say that the lawyer could not produce the documents without the client's consent, but leave it to be inferred that a client served with a notice under section 20(1) would be obliged to give his consent. The documents in the hands of the lawyer might be in the "power" of the client but then again they might not. They might be attendance notes or similar documents belonging to the lawyer. Or he might have a lien over them for his fees. On any view, the revenue's entitlement to the documents would be subject to chance events in the way Sir Gordon Slynn described.

  25. Despite these difficulties, one is bound to ask why Parliament should have dealt expressly with documents in the hands of the lawyer but not with those in the hands of the client. LPP is, after all, a single privilege, for the benefit of the client, whether the documents are in his hands or that of his lawyer. When the lawyer is served with a notice under section 20(3) or 20A(1), he has no privilege of his own but may, indeed must, assert that of his client.

  26. I think that the explanation may lie in Parry-Jones v Law Society [1969] 1 Ch 1. The Law Society had a statutory power to make rules to enforce compliance with the Solicitors' Accounts Rules and Solicitors' Trust Accounts Rules and had made rules which entitled it for this purpose to require a solicitor to produce documents relating to his practice [or any trust] of which he was a solicitor trustee to an appointed investigator. Mr. Parry-Jones objected to such a request on the ground that some of the documents contained confidential information relating to clients which could not be disclosed without their consent. He issued a writ claiming an injunction to restrain the Law Society from proceeding with its request. Buckley J struck out the writ as disclosing no cause of action and his order was affirmed by the Court of Appeal.

  27. Lord Denning MR dealt with the matter as follows, at pp 6-7:

    We all know that, as between solicitor and client, there are two privileges. The first is the privilege relating to legal proceedings, commonly called legal professional privilege. A solicitor must not produce or disclose in any legal proceedings any of the communications between himself and his client without the client's consent. The second privilege arises out of the confidence subsisting between solicitor and client similar to the confidence which applies between doctor and patient, banker and customer, accountant and client, and the like. The law implies a term into the contract whereby a professional man is to keep his client's affairs secret and not to disclose them to anyone without just cause ... This particularly applies in the relationship of solicitor and client. The solicitor is not to disclose his client's affairs to anyone at all except under the most special and exceptional circumstances. In reliance on these principles, Mr. Parry-Jones says that the accountant sent by the Law Society should not be allowed to see documents or information relating to a client's affairs ... In my opinion the contract between solicitor and client must be taken to contain this implication: the solicitor must obey the law, and, in particular, he must comply with the rules made under the authority of statute for the conduct of the profession. If the rules require him to disclose his client's affairs, then he must do so.

  28. Diplock LJ gave a judgment to similar effect, at p 9:

    So far as Mr. Parry-Jones' point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence. What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed, between a solicitor and client. Such a duty exists not only between solicitor and client, but, for example, between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void.

  29. Salmon LJ agreed.

  30. One could hardly imagine a stronger Court of Appeal, but I am bound to say that I have difficulty with the reasoning. It is not the case that LPP does no more than entitle the client to require his lawyer to withhold privileged documents in judicial or quasi-judicial proceedings, leaving the question of whether he may disclose them on other occasions to the implied duty of confidence. The policy of LPP requires that the client should be secure in the knowledge that protected documents and information will not be disclosed at all. The reasoning in the Parry-Jones case suggests that any statutory obligation to disclose documents will be construed as overriding the duty of confidence which constitutes the client's only protection. In the present proceedings, however, it is accepted that the client is protected by LPP and that this can be overridden only by primary legislation containing express words or necessary implication.

  31. It is unfortunate that the Court of Appeal was not referred to valuable judgments of the Supreme Court of New Zealand in Commissioner of Inland Revenue v West-Walker [1954] NZLR 191, which reached the opposite conclusion in the context of a statutory power to require the production of documents and information for the purposes of the administration of the taxing statutes. The New Zealand judges pointed out that LPP was not merely a rule of evidence but a substantive right founded on an important public policy.

  32. This is not to say that on its facts the Parry-Jones case was wrongly decided. But I think that the true justification for the decision was not that Mr. Parry-Jones's clients had no LPP, or that their LPP had been overridden by the Law Society's rules, but that the clients' LPP was not being infringed. The Law Society were not entitled to use information disclosed by the solicitor for any purpose other than the investigation. Otherwise the confidentiality of the clients had to be maintained. In my opinion, this limited disclosure did not breach the clients' LPP or, to the extent that it technically did, was authorised by the Law Society's statutory powers. It does not seem to me to fall within the same principle as a case in which disclosure is sought for a use which involves the information being made public or used against the person entitled to the privilege.

  33. In the light of the Parry-Jones case, it seems to me explicable that Parliament should wish to make it clear that even if the Court of Appeal was right in saying that the true basis for the client's right to prevent his lawyer from disclosing documents concerned with obtaining legal advice to the tax authorities (or any other non-judicial authorities) was a duty of confidence rather than LPP, no such disclosure could be required under sections 20(3) or 20A(1) without the client's consent. No such provision was of course required in the case of documents in the hands of the client himself, to which the duty of confidence was obviously irrelevant. Any protection to which such documents were entitled had to be based upon LPP and, so far as it existed, would be subject to the principle that it could be removed only by express language or necessary implication.

  34. Mr. Brennan showed us the debates on the provisions which become Schedule 6 of the 1976 Act in Standing Committee E and on Report in the House of Commons. He did not submit that they contained any material sufficiently unambiguous to be admissible under the principle in Pepper v Hart [1993] AC 193 but he produced them to show that the question of LPP was brought to the attention of the House. So it was, but I find no indication that the House was being told that the intention was to abolish or restrict it. On the contrary, the Chief Secretary to the Treasury (Mr. Joel Barnett), with the Solicitor-General (Mr. Peter Archer QC) in attendance, said to the Standing Committee (HC Debates) 10 June 1976, Vol VI, col 686:

    I should make it quite clear - even without my hon. and learned Friend sitting beside me - that the purpose of this part of the schedule is not to require privileged and confidential documents to be handed over to the Inland Revenue. That is certainly not the intention.

  35. It is certainly true that some opposition amendments which were said to be intended to ensure that LPP was preserved were not accepted by the Government. But this was because they were thought (rightly or wrongly) either to go beyond the scope of LPP at common law or to be unnecessary. The Parliamentary material does not therefore assist in showing a clear intention to override a fundamental human right.

  36. I therefore do not think that the provisions upon which the revenue relies are sufficient to create a necessary implication that LPP was intended to be excluded. This means that I respectfully think that the reasoning of Bingham LJ in R v Inland Revenue Commissioners, Ex p Taylor (No. 2) (1990) 62 T.C. 578, 593-594 was too broad. It suggests that because Mr. Taylor was the taxpayer, any documents subject to LPP could have been demanded, whether the beneficiary of the LPP was the client or himself. In my opinion, Mr. Taylor would have been entitled to refuse to produce documents in respect of which he personally was entitled to LPP, such as legal advice from counsel about his own tax affairs. But, as in Parry-Jones v Law Society [1969] 1 Ch 1, I do not suggest that the actual decision was wrong. In the Divisional Court the Inland Revenue accepted that, as the information was sought under section 20(2) for the purpose of determining Mr. Taylor's own liability to tax, it could be used only for that purpose. It could not, if subject to LPP, be used in connection with the tax liabilities of his clients. Glidewell LJ (at p 588) accepted this concession as correct and although he suggested that the revenue might make other use of a discovery that a particular document existed, I am not sure that this is right. It is not necessary to decide the point, but I do not think that the Inland Revenue were entitled to use any information supplied by Mr. Taylor for another purpose. In consequence, I do not think that the disclosure of the documents by Mr. Taylor in confidence for the limited purpose of determining his own tax liability infringed any LPP vested in his clients. If I am wrong about this and technically it did, then I think that to that extent the statute can be construed as having authorised it.

  37. On the other hand, I respectfully think that the decision of Millett J on a similar point in Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583 was wrong. The question was whether LPP could be overridden by a notice given by the Bank of England under section 39 of the Banking Act 1987 requiring production of documents which it "may reasonably require for the performance of its functions under this Act" (section 39(3)). The Act contained no express language excluding LPP but section 39(13) provided that the section should not "compel the production by a barrister, advocate or solicitor of a document containing a privileged communication made by him or to him in that capacity." Millett J said, at p 593, that subsection (13) must be taken "not only as making an exception to documents which may be required to be produced but also as marking the limits of that exception". The judge remarked that it might seem strange that "the Bank of England should be unable to compel the production of documents from the lawyer when it can compel their production from his client". I agree. But I do not think that the judge's answer, namely that "Parliament was not concerned to protect the interests of the client but those of the lawyer" is at all adequate. What are the interests of the lawyer? He has no interest in whether LPP is maintained or not. If the client chooses to divulge the information, there is nothing the lawyer can do about it. LPP is entirely in the interests of the client. For the reasons I have already given in connection with section 20(1) of the 1970 Act, I do not think that the existence of subsection (13) was a sufficient ground for finding a necessary implication that LPP had been excluded.

  38. The revenue say that it is important for them to have access to the taxpayer's legal advice in those cases in which liability may turn upon the purpose with which he entered into a transaction or series of transactions. This is particularly true of some of the anti-avoidance provisions. But there are many situations in both civil and criminal law in which liability depends upon the state of mind with which something was done. Apart from the exceptional case in which it appears that the client obtained legal advice for the purpose of enabling himself better to commit a crime (R v Cox & Railton (1884) 14 QBD 153) this is not thought a sufficient reason for overriding LPP. The court must infer the purpose from the facts.

  39. It is of course open to Parliament, if it considers that the revenue require such powers, to enact them in unambiguous terms. But there is also the Human Rights Act 1998 to be borne in mind. The appellants put forward an alternative submission that, if your Lordships agreed with the construction given to section 20(1) by the Court of Appeal, you should make a declaration that it was incompatible with the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). In the circumstances it is unnecessary for your Lordships to pronounce upon the point. It is however the case, as I have mentioned, that the European Court of Human Rights has said that LPP is a fundamental human right which can be invaded only in exceptional circumstances: see Foxley v UK (2001) 31 EHRR 25 p 647, para 44. Mr. Brennan said that the public interest in the collection of the revenue could provide the necessary justification but I very much doubt whether this is right. Nor is it sufficient to say simply that the power is not used very often. That is no consolation to the person against whom it is used. If new legislation is passed, it will have to be seen whether it is limited to cases in which the interference with LPP can be shown to have a legitimate aim which is necessary in a democratic society.

  40. I would allow the appeal and quash the notice.

    Lord Hope of Craighead

    My Lords,

  41. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hoffmann and Lord Hobhouse of Woodborough. I agree with them and for the reasons which they have given I too would allow the appeal.

    Lord Hobhouse of Woodborough

    My Lords,

  42. I agree that this appeal should be allowed. The question to be decided falls within a very narrow compass and since this House is differing from unanimous decisions of the courts below I will shortly state in my own words my reasons for agreeing with the Opinion of my noble and learned friend Lord Hoffmann.

  43. The question is one of statutory construction. It is now accepted for the purposes of this litigation that the documents in respect of which the right to demand production remains in dispute contain or may contain information relevant to a tax liability to which Morgan Grenfell may be liable or its amount and that they are documents which are subject to legal professional privilege (advice privilege) which has not been waived. It is likewise accepted that the character of the privilege is that described in the speech of Lord Taylor of Gosforth in your Lordships' House in Reg v Derby Magistrates' Court, ex parte 'B' [1996] AC 487: its character is absolute and [p.508] -

    .... if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client's individual merits.

    At the least, some and, more probably, all of these premises would benefit from further examination but they have not been the subject of argument on the present appeal. The question of construction is therefore whether the statute empowers the Revenue to require the delivery up to them of documents notwithstanding that they are covered by legal professional privilege.

  44. The next step in the legal analysis is also not disputed and was expressly adopted by the Court of Appeal. The principle of statutory construction is succinctly stated in a quotation from the speech of Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at p.131:

    Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

    The context in which Lord Hoffmann was speaking was human rights but the principle of statutory construction is not new and has long been applied in relation to the question whether a statute is to be read as having overridden some basic tenet of the common law. (Viscountess Rhondda's Claim [1922] 2 AC 339; B v DPP [2000] 2 AC 428) The protection given by the common law to those entitled to claim legal professional privilege is a basic tenet of the common law as has been reaffirmed by the case of 'B' (sup).

  45. It is accepted that the statute does not contain any express words that abrogate the taxpayer's common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B v DPP [2000] 2 AC at 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

  46. In the present case the statutory language falls a long way short of meeting this criterion. The arguments advanced by the Revenue are fully discussed in the Opinion of my noble and learned friend. I agree with his conclusion. At best from the point of view of the Revenue the legislation is equivocal. Left to myself I would incline to the view that the implication, if any, is that the Legislature was intending to preserve the legal professional privilege of the taxpayer rather than abrogate it; otherwise, why preserve it in respect of documents in the hands of the adviser when the client has not consented to waive the privilege? Further, the argument that a general public interest in collecting revenue for the Executive suffices (in peace-time) implicitly to override the basic right and public interest represented by legal professional privilege is contrary to the authorities and the principles which the Revenue accept that those authorities lay down.

  47. The present appeal thus falls to be decided applying the well-established principles of statutory construction to be found in English law. The appellants do not need the assistance of the Human Rights Act or the Convention. The judgments of the European Court of Human Rights in Foxley v UK (33274/96), 31 EHRR 25, and the European Court of Justice in A M & S Europe v The Commission (Case 155/79), [1983] QB 878, show a general recognition of the importance of legal professional privilege.

  48. There were cited to your Lordships decisions of the courts of other common law jurisdictions which have also arrived at conclusions very similar to those of your Lordships in this case. I do not wish to add anything to what my noble and learned friend has said in this connection nor to what he has said about the English authorities which will now have to be read with the judgment of this House. Attention has rightly been drawn by my noble and learned friend to what was said by Glidewell LJ in R v Commissioners of Inland Revenue ex parte Taylor (No.2) 62 TC 578 at p.588 concerning the implicit restriction upon the use which may be made of documents which are obtained under a statutory power and its possible interaction with the question whether a client's privilege will be infringed by requiring the disclosure of documents by the professional adviser. It is a general principle that where a power is given for a particular purpose it is not permissible to use that power for a collateral purpose.

    Lord Scott of Foscote

    My Lords,

  49. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he has given I, too, would allow the appeal.

APPENDIX

20

(1)

Subject to this section, an inspector may by notice in writing require a person to deliver to him such documents as are in the person's possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to any tax liability to which the person is or may be subject, or to the amount of any such liability.

(2)

Subject to this section, the Board may by notice in writing require a person to deliver, to a named officer of theirs, such documents as are in the person's possession or power and as (in the Board's reasonable opinion) contain, or may contain, information relevant to any tax liability to which he is or may be subject, or to the amount of any such liability.

(3)

Subject to this section, an inspector may, for the purpose of enquiring into the tax liability of any person ("the taxpayer"), by notice in writing require any of the persons who in relation to the taxpayer are subject to this subsection to deliver to the inspector or, if the person to whom the notice is given so elects, to make available for inspection by a named officer of the Board, such documents as are in his possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to any tax liability to which the taxpayer is or may be, or may have been, subject, or to the amount of any such liability.

(4)

The persons so subject are—

(a)

the taxpayer's spouse, and any son or daughter of his;

(b)

in so far as the inspector's enquiries relate to liability of the taxpayer in respect of income, profits or gains that were, or may have been, derived from—

(i)

any business (past or present) carried on by the taxpayer or his spouse, or

(ii)

any business (past or present) with whose management either of them was concerned at a material time,

any person who is carrying on a business, or was doing so at a material time, and any company whether carrying on a business or not.

....

(7)

Notices under this section are not to be given by an inspector unless he is authorised by the Board for its purposes; and—

(a)

a notice is not to be given by him except with the consent of a General or Special Commissioner; and

(b)

the Commissioner is to give his consent only on being satisfied that in all the circumstances the inspector is justified in proceeding under this section.

....

(9)

To the extent specified in section 20B below, the above provisions are subject to the restrictions of that section.

20A

(1)

Where after the passing of the Finance Act 1976 a person—

(a)

is convicted of an offence in relation to tax (whenever committed) by or before any court in the United Kingdom; or

(b)

has awarded against him a penalty incurred by him (whether before or after the passing of that Act) under section 99 of this Act,

and he has stood in relation to others as tax accountant, an inspector authorised by the Board for the purpose of this section may by notice in writing require the person to deliver to him such documents as are in his possession or power and as (in the inspector's reasonable opinion) contain information relevant to any tax liability to which any client of his is or has been, or may be or have been, subject, or to the amount of any such liability.

For this purpose section 20(8) above applies, substituting "the client" for "the taxpayer."

....

(3)

A notice is not to be given to any person under this section unless with the consent of the appropriate judicial authority; and that authority is to give his consent only on being satisfied that in all the circumstances the inspector is justified in so proceeding.

....

(5)

To the extent specified in section 20B below, the above provisions are subject to the restrictions of that section.

20B

(1)

Before a notice is given to a person by an inspector under section 20(1) or (3), or under section 20A, the person must have been given a reasonable opportunity to deliver (or, in the case of section 20(3), to deliver or make available) the documents in question; and the inspector must not apply for consent under section 20(7) or, as the case may be, section 20A(3), until the person has been given that opportunity.

(2)

A notice under section 20(1) does not oblige a person to deliver documents relating to the conduct of any pending appeal by him; a notice under section 20(3) does not oblige a person to deliver or make available documents relating to the conduct of a pending appeal by the taxpayer; and a notice under section 20A does not oblige a person to deliver documents relating to the conduct of a pending appeal by the client.

"Appeal" means appeal relating to tax.

(3)

An inspector cannot under section 20(1) or (3), or under section 20A(1), give notice to a barrister, advocate or solicitor, but the notice must in any such case be given (if at all) by the Board; and accordingly in relation to a barrister, advocate or solicitor for references in section 20(3) and (4) and section 20A to the inspector there are substituted references to the Board.

....

(8)

A notice under section 20(3) or section 20A(1) does not oblige a barrister, advocate or a solicitor to deliver or make available, without his client's consent, any document with respect to which a claim to professional privilege could be maintained.

(9)

A notice under section 20(3) does not, in the case of a person who (in the course of a business carried on by him) has stood in relation to another as tax accountant, oblige that person to deliver or make available documents which are his (the accountant's) property and originate as working papers of that relationship.

20C

(1)

If the appropriate judicial authority is satisfied on information on oath given by an officer of the Board that—

(a)

there is reasonable ground for suspecting that an offence involving any form of fraud in connection with, or in relation to, tax has been committed and that evidence of it is to be found on premises specified in the information; and

(b)

in applying under this section, the officer acts with the approval of the Board given in relation to the particular case,

the authority may issue a warrant in writing authorising an officer of the Board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant, and search them.

....

(3)

On entering the premises with a warrant under this section, the officer may seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned in subsection (1) above.

But this does not authorise the seizure and removal of documents in the possession of a barrister, advocate or solicitor with respect to which a claim to professional privilege could be maintained.

....

20D

(1)

For the purposes of section 20A and section 20C above, "the appropriate judicial authority" is -

(a)

in England and Wales, a Circuit judge;

(b)

in Scotland, a sheriff; and

(c)

in Northern Ireland, a county court judge.

(2)

For the purposes of sections 20 and 20A, a person stands in relation to another as tax accountant at any time when he assists the other in the preparation of returns or accounts to be made or delivered by the other for any purpose of tax; and his clients are all those to whom he stands or has stood in that relationship.


Cases

R v Derby Magistrates Court, Ex p B [1996] AC 487; Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637; A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; Stradling v Morgan (1560) 1 Pl 199; R v Inland Revenue Commissioners, Ex p Taylor (No 2) (1990) 62 T.C. 578; Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 22; R v Inland Revenue Commissioners, Ex p T C Coombs & Co [1991] 2 AC 283; R v Derby Magistrates' Court, [1996] AC 487; Chantrey Martin v Martin [1953] 2 QB 286; Gomba Holdings UK Ltd v Minories Finance Ltd [1988] 1 WLR 1231; Parry-Jones v Law Society [1969] 1 Ch 1; Commissioner of Inland Revenue v West-Walker [1954] NZLR 191; Pepper v Hart [1993] AC 193; Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583; R v Cox & Railton (1884) 14 QBD 153; Foxley v UK (2001) 31 EHRR 25; Viscountess Rhondda's Claim [1922] 2 AC 339; B v DPP [2000] 2 AC 428

Legislations

Taxes Management Act 1970: s.20(1)

Finance Act 1976: s.57(1), Sch.6

Finance Act 1989: s.142

Authors and other references

Standing Committee (HC Debates) 10 June 1976, Vol VI


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