Interesting Decision on Confidentiality
Ingenious Media Holdings went to the Court of Appeal for a judicial review against HMRC on the grounds that Dave Hartnett, HMRC’s permanent secretary for tax at the time in question, had breached the confidentiality provisions of the Revenue & Customs Act as well as the rights to privacy and enjoyment of possession under the European Convention on Human Rights. Mr Hartnett had met two reporters from The Times and, when he believed he was off the record, had claimed the financial services provider marketed avoidance schemes, the allegations were published.
The Judge at the Court of Appeal said the Revenue should be free to make factually correct disclosures that did not involve the private affairs of taxpayers but which did have the effect of reducing avoidance schemes that the Department believed to be ineffective. In his opinion taxpayers thinking about investing in schemes that HMRC considered not to work would expect officials to be able to publicise their concerns. He felt that there was no evidence of damage to the company’s reputation in that The Times journalists were already aware of the firm’s involvement in film investment schemes. He also disagreed that potential loss of custom came within enjoyment of possession as a loss of future income is not such a loss. In his opinion it was entirely in the public’s interest for HMRC to let its views on film schemes to be known.
It is an interesting question as to what Mr Hartnett would have had to have said for the Judge to have ruled in favour of Ingenious in these circumstances.
Date: 28th April, 2015
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