The First-tier Tribunal (Tax Chamber) has upheld a claim to legal professional privilege over whistleblowing documents in Barclays Bank PLC v The Commissioners for His Majesty’s Revenue and Customs (TC/2024/04876).
HMRC had sought disclosure of documents relating to an internal investigation at Barclays Bank PLC, commissioned following a whistleblower’s report alleging that the bank’s sale of securitisation notes to Luxembourg group entities in 2014-2015 breached the bank’s tax principles and applicable legal requirements. The documents included a report by Hogan Lovells into those allegations, together with a 2015 tax opinion provided by Slaughter and May. The bank argued that those documents were protected by legal advice privilege and so were exempt from production under paragraph 23 of Schedule 36 to the Finance Act 2008. The bank also redacted certain passages in emails and interview notes, contending that the redacted sections were protected as secondary evidence of legal advice privilege.
HMRC challenged the claim to privilege over the Hogan Lovells Report and Annexes on the basis that the documents were created for the dominant purpose of fact-finding and in order for the bank to comply with internal whistleblowing policies. As regards both the Hogan Lovells Report and Annexes and the Slaughter and May Opinion it further argued that any privilege had been (i) lost by virtue of the dissemination of the documents within the bank or (ii) waived in later, related...
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