Sharing information outside of HMRC: sharing information with courts, tribunals and HMRC appeals: disclosures to litigation friends
What is a litigation friend?
Where a person lacks capacity, they are not able to represent themselves in Court, and are required to have a “litigation friend”, who conducts proceedings on their behalf. The test for lacking capacity is established by the Mental Capacity Act 2005.
Children - persons under 18 - are normally also required to have a litigation friend. Although the Court has a discretion to allow a child to conduct litigation themselves, the default position is that they are required to have a litigation friend.
What is the difference between a litigation friend and a Court of Protection deputy?
A litigation friend and a “deputy” appointed by the Court of Protection are different and the distinction between the two is important for HMRC’s purposes.
A litigation friend is a person who acts in Court proceedings on behalf of a person who lacks capacity or a child. A litigation friend is usually a friend or relative of the person concerned. A litigation friend has no authority to act in matters outside the immediate Court proceedings.
The Court of Protection is able to appoint a deputy to make decisions on behalf of a person who lacks capacity or on behalf of a child. A deputy is able to make decisions in relation to any of the matters which the Court of Protection specifies in the Order appointing him or her. A deputy’s role can, therefore, be much wider than the role of a litigation friend.
Can HMRC make disclosures of information to a litigation friend or a Deputy of the Court of Protection?
As ever HMRC is prohibited by section 18(1) Commissioners for Revenue and Customs Act 2005 (“CRCA”) from disclosing information held in connection with its functions unless one of the exceptions to section 18(1) applies. For more information, please refer to IDG40120.
If HMRC is directly involved in litigation in which one of the other parties is assisted by a litigation friend or a deputy, HMRC should follow any orders for disclosure issued by the court. HMRC should comply with any requirement to disclose to a litigation friend or deputy. (This comes under the exception at section 18(2)(c) CRCA.)
Otherwise, HMRC can disclose to a litigation friend or deputy if there is a valid Order of the High Court requiring HMRC to disclose information to a litigation friend or deputy. (This comes under the exception at section 18(2)(e) CRCA.)
- If the order is made by a court other than the High Court section 18(2)(e) may not apply - before disclosing, please contact Information Policy and Disclosure at firstname.lastname@example.org if you are unsure.
Litigation friends hold no authority to act on behalf of a person outside the Court proceedings in which they are involved. Unless HMRC is involved in litigation with a litigation friend or there is a valid Order of the High Court, disclosure is prohibited by Section 18(1) of the CRCA.
Additionally, however, a Deputy of the Court of Protection may have the authority to provide consent on behalf of a person who lacks capacity. If that is the case then disclosure will be permitted under section 18(2)(h) CRCA. A copy of the Order of the Court of Protection appointing the deputy should be obtained to check the scope of the authority given to him or her to confirm that the deputy has this authority.
What documents should be presented to enable HMRC to disclose the requested information?
If disclosure has been ordered by the High Court, HMRC should obtain a copy of the court order. HMRC should establish that the court order is sealed and should not disclose documents beyond the scope of the order.
If the person requesting disclosure claims to be a deputy appointed by the Court of Protection, HMRC should obtain a copy of the sealed Court Order appointing him or her. HMRC should check whether the deputy is authorised to provide consent on behalf of the person to whom the information relates. The Order may also set the duration of the deputy’s appointment. If the Order confirms that the deputy is able to provide consent on behalf of the protected person, disclosure will be permitted under section 18(2)(h) of the CRCA.