CH22250 - Information & Inspection Powers: conditions and safeguards: restrictions: legal professional privilege: wording of notices

Where you use a formal notice to seek documents or information that may include privileged items, the notice must contain a section along the following lines.

“You do not have to produce documents or provide information for which a claim for legal professional privilege can be made. This privilege can be waived but it can only be waived by the person to whom the privilege belongs. A third party cannot waive privilege but they can provide this information if they have the express permission of the person to whom the privilege belongs . It may assist progress of the tax position check if privilege is waived  but you would be giving up your right to keep the information or documents private.

Legal professional privilege is a complex area of the law that only properly applies in limited circumstances. I may wish to challenge any claim to legal professional privilege on the basis that I disagree that the documents or information being withheld properly fall within the scope of the privilege.

If you decide to withhold documents or information because legal professional privilege attaches to them, you must give me a list of each document or type of document withheld. Under the law you must send the list to reach me no later than user to insert actual date [20 working days after the date given for providing the information or document]. The list should say, for example, “I am not providing the following items because I think they fall within legal professional privilege: (1) letter dated xx/xx/xxxx from [name of client] to [name of lawyer] asking for advice on the law; (2) letter dated yy/yy/yyyy from [name of lawyer] to [name of client] giving advice on the law”. You do not have to describe a document if describing it would itself cause a dispute about privilege.

You should let me have all the items mentioned in the notice that are not on the list.”

The standard information notices held in SEES include these paragraphs as an option.

This is based on there being no agreement with the recipient of an earlier date by which the list is to be served. You should amend it if such a date has been agreed before the notice is issued.

See CH22254 for more detailed instructions about the procedure and tight time scales for action.

• If you receive a list of documents that the person is withholding under legal professional privilege, you have only 20 working days from receiving it to notify the person from whom it was received that there are items on the list that you still require and consider not to be privileged. If you miss that deadline you will not be able to enforce the notice in respect of the disputed items.
• If you receive a list of documents withheld and you wish to challenge the claim to legal professional privilege you must make an urgent referral to Central Policy, Tax Administration Advice before taking any further action.

FA08/SCH36/PARA23 (3) & (4)

SI 2009/1916