Source: Tax Journal 27 October 2016
The Supreme Court in Ingenious Media has overturned the decisions of the High Court and the Court of Appeal, holding that the former permanent secretary for tax, David Hartnett, breached HMRC’s duty of confidentiality when making off the record comments to journalists from The Times.
The Supreme Court concluded that although the case was brought by way of judicial review, the question was whether HMRC had breached its common law duty of confidentiality.
The Supreme Court unanimously agreed that briefings to journalists of this sort, irrespective of the fact they were made off the record, had breached that duty.
The judgment emphasises that HMRC’s duty of confidentiality is a fundamental duty owed to the taxpayer and aligned with the common law duty.
In practice, it is likely that HMRC will now be increasingly wary of making disclosures, unless they fall squarely within a specific exclusion or are overwhelmingly justified.
The judgment is embarrassing for HMRC and we may see some changes in how HMRC conducts itself, particularly with regard to the press. At the same time, HMRC will consider itself free to rely on this judgment in continuing to deny information to bodies such as the public accounts committee.
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