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HMRC internal manual

Compliance Handbook

From
HM Revenue & Customs
Updated
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Information & Inspection Powers: conditions and safeguards: restrictions: legal professional privilege: what is legal professional privilege

Legal professional privilege imposes an important restriction on what you can require a person to provide or produce in an information notice, see CH22246.

Legal professional privilege is a very important common law rule that protects from disclosure certain communications between a legal professional and the person who is their client. This applies whether the communications are held by the legal professional or the client.

It is recognised in the rules about our information powers that are set out in FA08/SCH36(23).

Information is privileged if a claim to legal professional privilege, or in Scotland confidentiality of communications, could be maintained in legal proceedings.

There are two types of legal professional privilege:

Legal Advice Privilege

This applies to documents or information containing confidential communications between a lawyer and their client for the purpose of obtaining or giving legal advice. The Supreme Court has decided that this type of privilege does not apply to an accountant’s legal advice (for example on tax law), see CH22654.

Legal Litigation Privilege

This applies to documents produced for the dominant purpose of contemplated or actual litigation and advice from lawyers for that purpose.

There is a similar restriction that means that we cannot require information relating to the conduct of an appeal in an information notice, see CH22160, but this is not legal litigation privilege.

FA08/SCH36 (23)