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On appeal from: [2015] EWCA Civ 173

 

Concerns the scope of the duty of confidentiality owed by HMRC in respect of the affairs of taxpayers. The Times published two articles on film schemes and tax avoidance which identified the claimant company’s CEO as one of two main providers of film investment schemes in the UK and informed readers that such schemes had enabled investors to avoid at least £5 million in tax. The article was based on an “off the record” interview that the Permanent Secretary for tax in HMRC gave.

Held: public bodies were not immune from the ordinary application of the common law, including the law of confidentiality. It was a well-established principle of the law of confidentiality that where information of a personal or confidential nature was obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient would owe a duty to the person from whom the information was received or it relates (in this case, the taxpayer).

Although this principle would be overridden by explicit statutory provision, in enacting the Commissioners for Revenue  and  Customs  Act  2005, Parliament cannot have envisaged that it was authorising HMRC officials a wide ranging discretion to disclose confidential information, limited only by the rationality test applied in judicial review claims, as this would significantly undermine the primary duty of confidentiality in s 18(1) of the Act. The correct interpretation of s 18(2)(a)(i) was that it permits disclosure to the extent reasonably necessary for HMRC to fulfil its primary function.

The fact that the Permanent Secretary did not anticipate his comments being reported was not a justification for making them.

For judgment, please download: [2015] UKSC 54
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court website (4 July 2016 morning session and afternoon session)