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 Employment Tribunal proceedings. HMRC argued that the redacted passages in emails and interview notes were not covered by the secondary evidence principle.
The bank brought an application under the Information Notice: Resolution of Disputes as to Privileged Communications Regulations 2009. The Tribunal reviewed the disputed documents. As regards the Hogan Lovells Report and Annexes, the Tribunal rejected HMRC’s arguments, holding that each of the documents was created for the dominant purpose of obtaining or giving legal advice and were not merely the “end products” of advice given. As regards the Hogan Lovells Report and Annexes and the Slaughter and May Opinion, it also held that privilege had not been lost through the dissemination of the advice within the Barclays group, and that case law does not require an audit trail or a register of everyone with access to be provided in order that a claim to privilege can be sustained: the relevant question is whether confidentiality has been maintained. As to waiver in the related Employment Tribunal proceedings, the Tribunal held there was no waiver, because the disputed documents were never placed before the Employment Tribunal and the references to them in those proceedings were purely narrative. As regards some of the redacted passages in emails and interview notes, the Tribunal rejected the bank’s arguments and held that the secondary evidence principle did not apply, ordering that those redactions be lifted.
The decision is likely to be of interest to corporate clients and their advisers, because it confirms that reports from external lawyers obtained in the context of whistleblowing, compliance, or other fact-finding investigations can still attract privilege where the dominant purpose test and other requirements for legal advice privilege are met.
Tamara Oppenheimer KC and Leonora Sagan acted for the Appellant, Barclays Bank PLC, instructed by Freshfields LLP. Chloe Carpenter KC acted for HMRC leading Giselle McGowan at Serle Court.
The judgment of the First-tier Tribunal can be accessed here.
