IDG40530 - Sharing information outside of HMRC: sharing information with courts, tribunals and HMRC appeals: court orders
What is a ‘court order’?
A court order is issued by a Judge or Magistrate (or Sheriff in Scotland) and instructs a person to do, or refrain from doing, something. A ‘person’ may relate to an individual, company or another organisation.
A court order can be issued against persons not directly involved in a particular case and can be issued against government departments. However, not all court orders compel HMRC to release information. Guidance on which orders can be complied with, and which orders cannot, is provided within this guidance.
On rare occasions HMRC may wish to challenge the scope of a particular order or seek to overturn the order in whole or in part. If you think it may be necessary to take such action, you should contact your Security & Information Business Partner (SIBP) in the first instance.
Court orders addressed to HMRC will generally request specific information. The order will usually ask either for the information or our documents or other specific records that contain the information.
How do you identify an order from court that will enable you to lawfully disclose?
- Any order issued by a court should be clearly marked as such. Orders should be stamped with or at least include a copy of the court’s official seal. Some original court orders will also contain the signature from the judge however this is not necessary for the court order to be binding.
- Court Orders maybe served electronically, and the court seal maybe added to a printed copy and then scanned or added electronically. If the court order is served and sealed electronically, it should come from a approved court/government domain email address; if in doubt please confirm the email address by telephone contact with the court.
- If you are uncertain about whether a particular document constitutes a sealed order, you should clarify the matter by telephoning the court and/or by email for purposes of maintaining a audit trail. Contact details for the court will normally be given on the order and/or the original email.
- An order may be made against the Inland Revenue, Customs and Excise, Child Benefit Office or other part of HMRC. HMRC will accept these orders, but may limit Disclosures to the part of the organisation referred to in the text of the order.
- An order issued by a superior court (High Court) or Upper Tier Tribunal is sufficient to enable HMRC to disclose lawfully the requested information.
- If you receive an order from a inferior court such as a Crown Court, County Court, Magistrate’s Court or an Employment Tribunal, you should seek further guidance from the Information Policy & Dislosure team.
- If you receive a 'Coroner's Notice' see IDG40561
If the order requires you or anyone else to actually attend court, this is known as a witness summons (or citation in Scotland) (see IDG40540).
Legal basis for disclosure in response to court orders
S.18 of the CRCA 2005 provides two key exceptions to the duty of confidentiality that can provide a legal basis for disclosure. The exceptions below are permissive, and whilst they potentially enable HMRC to disclose, do not require HMRC to do so. Some court orders will be binding on the crown and HMRC, but this will be because it either comes from a superior court with inherent jurisdiction (see below for more information) is a court has a statutory provision they can make orders under that make the court order binding.
Where the court order is made in connection with civil proceedings that relate to HMRC functions the relevant legal basis that HMRC officials may rely on to disclose is s.18 (2) c of the CRCA 2005. Civil proceedings that relate to HMRC functions include but are not limited to litigation before courts where a HMRC decision/determination is being challenged. For more information on HMRC tribunals please see IDG40563.
Where the court order is made in connection with proceedings that do not relate to HMRC functions (usually where HMRC is not a party to the proceedings) the legal basis that HMRC officials may rely on to disclose in response to court orders is s.18 (2) e of the CRCA 2005. For more information on court orders where HMRC has no involvement please review IDG40580.
Whether to disclose in response to a court order
The below sets out the approach to be followed for orders from different types of courts. There is flowchart that illustrates the process to follow as well here.
Superior Courts
Orders of the superior courts, such as the Supreme Court, Court of Appeal, High Court, Crown Court and Upper Tier Tribunal are all binding on the Crown (and therefore on HMRC), as are ‘demands’ from the Enforcement of Judgments Office in Northern Ireland. The Family Division of the High Court is part of the High Court but family matters are also dealt with by district judges in county courts and in Family Proceedings courts, which are specialist Magistrates’ courts.
Inferior Courts
Inferior courts are county, magistrates’ courts and first tier Tribunals; they do not have inherent jurisdiction like superior courts but can still be legally binding.
County court orders are made under section 54 of the County Court Act 1984 (CCA 1984), and are binding on the Crown (and therefore HMRC), consequently you should generally disclose in response to County court orders, subject to the following;
• you are satisfied the order is valid and legitimate, confirm with the issuing court if needed.
• Orders from the County Courts can bind the Crown and therefore bind HMRC in accordance with section 54(4) CCA 1984 in the following circumstances;
o An order from a County Court or tribunal which seeks information from HMRC before the commencement of legal action (under s.52 CCA 1984) will be binding where HMRC is likely to be a party to a proposed legal action or where any proposed legal action involves property.
o An order from a County Court seeking information from HMRC;
- once substantive proceedings have commenced, and
- one of the parties has applied for the order,
will be made under s.53 and therefore binds HMRC whether or not HMRC is a party to proceedings. That is commonly the situation where the prospective claimant is planning to bring an action against a person’s former employers, but doesn’t know who they are or where they are, and is looking to us for the necessary information (usually ‘facing cards’).
The following scenarios illustrate the application of where county court orders will be binding;
• s.53 applies where there are existing proceedings between Party A and Party B, and one of those applies to the court for a non-party, Party C, to disclose;
• s.52 applies where there are no existing substantive proceedings, but it is likely that Party A will bring proceedings against Party B in the future, in which case Party A or Party B can apply to the court for an order that the other disclose documents. S.52 doesn’t allow the court to order Party C to disclose.
• If the order has already been made prior to the proceedings been instituted, we may consider applying to have it set aside, please liaise with Information & Disclosure Policy (IPD) in the first instance via the ipd.disclosure mailbox.
• If we are simply being invited to consent to the proposed application, we should point out that s.53 applies only where the proceedings have already begun, and suggest that the application be made in the High Court instead.
For disclosures in response to court orders from First tier Tribunals and Magistrate courts, please seek advice from Information and Disclosure Policy in the first instance.
Procedure you must take
Court orders must always be treated with the highest priority. It is a criminal offence to disobey a court order without good reason (‘contempt of court’) so you must treat any court order as ‘urgent’.
- Take responsibility at the earliest stage to ensure that the court order is dealt with even if you are not the ‘specialist’ in the area, or your office is not responsible for the customer’s records.
- Familiarise yourself with the nature of the order or request you have received and inform your manager that an order from court has been received.
- Use the guidance in this section to decide whether the order enables you to disclose lawfully.
If you are content that you have lawful authority to disclose, you should provide the requested information. You must ensure that any instructions on the court order regarding who the information should be provided to are followed.
Child Benefit Office
Within Child Benefit Office (CBO) court orders are to be sent immediately by internal post to the CBO Customer Relations Unit (see IDG80100 for contact details).
Family Law
Many court orders are brought under family law and require HMRC to disclose information in respect of either a child or adult.
If the order requests information in respect of a child, it should be sent immediately to the Child Benefit Office (CBO) Customer Relations Unit (see IDG80100 for contact details).
If the order requests information in respect of an adult, it will only provide you with lawful authority to disclose if the order is:
- Made “In the inherent jurisdiction of the High Court” and no specific Act is quoted on the face of the order;
- Signed by a High Court judge; a deputy High Court judge; a section 9 judge; a district judge of the Principle Registry of the Family Division of the High Court or a district judge of any District Registry of the Family Division of the High Court.
Guidance for the courts on preparing such orders and a draft form of order has been sent to HM Courts Service. Click on the following link for a copy of the draft order (web)
Enforcement of Judgements Office
If you receive a demand from the Enforcement of Judgements Office it will be requesting the disclosure of HMRC information under the Judgements Enforcement (Northern Ireland) Order 1981. Although the disclosure request will be called a ‘demand’, the power being exercised is classed as a ‘summons’ and at Paragraph 15 it states that an order of the office has the same effect as a High Court Order. This means that HMRC is permitted to disclose information under S18(2)(e) of the Commissioners for Revenue and Customs Act 2005.
Further guidance
If after reading this guidance you are still unsure whether you need to comply with an order, you should contact your Security & Information Business Partner (SIBP).
Devolved administrations
This guidance applies throughout Great Britain and Northern Ireland.