Taylor
| Jurisdiction | UK Non-devolved |
| Judgment Date | 23 October 2017 |
| Neutral Citation | [2017] UKFTT 769 (TC) |
| Date | 23 October 2017 |
| Court | First Tier Tribunal (Tax Chamber) |
[2017] UKFTT 0769 (TC)
Judge John Brooks
Nicola Shaw QC, instructed by PricewaterhouseCoopers LLP, appeared for the appellant
Sebastian Purnell, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, appeared for the respondents
Procedure – Application to exclude certain documents on grounds of without prejudice privilege – Whether documents subject to without prejudice privilege – If so whether privilege been waived – Application allowed.
[1] By an application, dated 14 August 2017, HM Revenue and Customs (“HMRC”) seek to exclude certain documents (the “Documents”), and the reference to one of these in the appellant's skeleton argument, on the basis that these are subject to without prejudice privilege and should not be admitted in evidence. Alternatively, it is contended that the evidence should be excluded on grounds of irrelevance. The application is opposed by the appellant, Mr Nicholas Taylor, primarily on the grounds that, even if the material is subject to without prejudice privilege (which is not accepted), such privilege has been waived by HMRC.
[2] Mr Sebastien Purnell appeared for HMRC and Ms Nicola Shaw QC for the appellant. I am grateful to both for their clear and succinct submissions.
[3] The issue in this appeal, for which a substantive hearing with a time estimate of eight days is listed to commence on 8 December 2017, is whether Mr Taylor was resident and/or ordinarily resident in the United Kingdom in the years 2005–06, 2006–07 and 2007–08.
[4] In accordance with directions, the parties served on each other a list of documents on which each intended to rely. The Documents were included in the list provided by the appellant on 3 June 2014 and also that provided by HMRC on 27 June 2014. On 19 March 2015, as required by the directions, the appellant served a paginated bundle of documents “incorporating all the documents from each party's list” which included the Documents.
[5] On 28 April 2017, having received the bundle and appellant's skeleton argument, dated 24 April 2017 (the hearing was originally listed to commence on 8 May 2017 but was postponed on the application of both parties due to a family bereavement) HMRC wrote to the appellant's representatives, PricewaterhouseCoopers LLP, stating that they had, “a number of issues regarding the bundles” including the Documents which they said “contain without prejudice material which should be redacted.” The letter also referred to the reference to one of the Documents in the appellant's skeleton argument which “should be removed.” In the absence of any agreement by the appellant to exclude the Documents, HMRC made this application to the Tribunal.
[6] It is therefore necessary to consider:
- whether the Documents are subject to without prejudice privilege;
- if so, whether that privilege has been waived; and
- if the Documents are not subject to without prejudice privilege and/or privilege has been waived whether the material should nevertheless be excluded on grounds of irrelevance.
[7] As Lord Griffiths explained in Rush & Tomkins Ltd v Greater London Council [1989] AC 1280, at 1299:
The “without prejudice” rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head [1984] Ch 290 at 306:
That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co v...
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