How to do a compliance check: information powers: rules that apply to all notices: resolving disputes about legal professional privilege: process when a notice is given in correspondence: referring the dispute to the tribunal
Once you have told the person which documents you consider are not privileged and that you still need to see the person must
- give you the disputed documents or
- make an application to the tribunal to consider and resolve the dispute.
They must make the application within a reasonable time to be agreed between you and the person. In any event, the application to the tribunal must be made within 20 working days, see CH230400, of receipt of your letter disputing privilege.
You should not regard it as a lack of co-operation if the person does not agree a date and chooses to wait until the twentieth working day before making their application to the tribunal.
When the person makes their application to the tribunal they must also send to the tribunal copies of the documents that remain in dispute.
If you do not receive notification from the tribunal by the latest time that you would expect to do so if the person took the full 20 working days allowed by the rules, you should assume that their claim to privilege has not been pursued. If they have not sent you the documents you should commence action to impose a £300 penalty for failure to comply with the notice, see CH270100.
Your penalty warning letter should be adapted along the following lines
‘We told you on dd/mm/yyyy that we are challenging your claim to privilege and told you that you should send us the disputed documents or refer them to the tribunal. We have not received the documents and have not been notified by the Tribunal Service that you have referred the disputed documents to them. Unless we receive by dd/mm/yyyy the documents from you or confirmation from the Tribunal Service of their referral we will assess a penalty of £300 for the failure to comply with the notice.’
Under these circumstances the person may
- appeal against the penalty and pursue their claim to privilege before the tribunal at the same time, or
- appeal against the penalty and make a late referral to the tribunal under the LPP dispute resolution procedures.
At this point no decision has been made by the tribunal about either the validity of the penalty or whether the relevant outstanding documents are privileged. You should therefore stand over the penalty, until the tribunal makes its decision.
If the tribunal then decides that the relevant outstanding documents are privileged, then the person is not liable to a penalty and the notice will have been complied with. If the tribunal considers that only some or none of the outstanding documents are privileged then the notice has not been complied with, and the penalty will stand. See CH230500 about how the dispute may be resolved.
For further guidance about making applications to the tribunal see ARTG7590.