PROFESSIONAL PRIVILEGE AND THE TAX MAN

2002 ◽  
Vol 61 (3) ◽  
pp. 499-544
Author(s):  
John Tiley
Keyword(s):  
Judicial Review ◽  
Income Tax ◽  
Statutory Interpretation ◽  
House Of Lords ◽  
Legal Professional ◽  
Court Of Appeal

R. (on the application of Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2002] 3 All E.R. 1 is an exercise in statutory interpretation in which different courts came to diametrically opposite views. The Revenue were trying to decide how MG, the taxpayer, should be assessed in relation to certain transactions and so asked MG to supply certain documents. MG declined, in part because these documents consisted of advice which MG had obtained from leading counsel and solicitors about whether the scheme behind the transactions would work; so the issue was the scope and nature of legal professional privilege (“LPP”). The Revenue asked for—and obtained—the consent of the Presiding Special Commissioner (His Honour Stephen Oliver Q.C.) for the issue of a notice by them to MG under Taxes Management Act 1970, s. 20(1), which allows an inspector by notice in writing “to require a person to deliver to him such documents as are in the person’s possession or power and which … contains information relevant to any tax liability of that person”. MG applied for judicial review to quash the notice, failing before the Divisional Court ([2000] S.T.C. 965, Buxton L.J. and Penry-Davey J.) and the Court of Appeal ([2001] EWCA 329, [2001] S.T.C. 497, Schiemann, Sedley L.JJ. and Blackburne J.), so that all six judges were for the Revenue; MG must therefore have been both delighted and perhaps surprised when a unanimous House of Lords, led by Lord Hoffmann, decided in its favour.

scholarly journals R Ex P Raissi v Secretary of State for the Home Department, Court of Appeal, (Civil Division) [2008] All ER (D) 215 (Feb)

2012 ◽  
Vol 20 (1) ◽  
pp. 239-246
Author(s):  
Bolanle Opadokun
Keyword(s):  
United States ◽  
Judicial Review ◽  
Federal Aviation Administration ◽  
The United States ◽  
September 11Th ◽  
The United Kingdom ◽  
Secretary Of State ◽  
House Of Lords ◽  
United Kingdom Government ◽  
Court Of Appeal

GUILTY BY ASSOCIATION?The case of Lotfi Raissi, an Algerian pilot, who was denied compensation under the ex gratia scheme has been reported by many national newspapers. It is likely that we have not heard the last of it, as it is possible for the Secretary of State to appeal against the decision of the Court of Appeal to the House of Lords. The case1 concerned a judicial review appeal application by Mr Raissi. On September 21st 2001, he was arrested in his home following a letter dated September 17th 2001, from the United States Embassy in London addressed to the Metropolitan Police asking them for information about him. The FBI believed that Raissi may have been involved in the September 11th 2001 atrocities. There was also a further request, from the United States Embassy to the United Kingdom government on September 27th 2001, to arrest Raissi for extradition purposes. It was alleged that he had given false information to the Federal Aviation Administration (FAA) when he wanted to renew his licence.

public policy, a particularly favoured device in the 1960s and 1970s. Reliance on public policy rationale can be referred to as the ‘grand style’ or the ‘teleological’ approach. Cases may also turn on the form of the statute itself, that is, its internal context. Much of the analysis engaged in here is at the level of the internal. However, never forget the external world context. Judges who rigidly adopt the internal approach are often referred to as formalists. Such judges say that they do not create law, they find it. They find it by following the pathways of the rules of statutory interpretation by moving within the document this is the statute. A closer consideration of the simplest definitions of the rules of statutory interpretation enables the classification of the literal rule as the formalist approach and the mischief rule as the teleological approach. The golden rule, of course, allows one to ignore the formalist approach of the literal rule. It is most likely to result in a teleological approach as the judge, through the golden rule, is released from formalism! (See Figure 3.2, above, in Chapter 3.) 4.8.2 Case study of Mandla v Dowell Lee Read the extract from the judgment of Lord Fraser in the case of Mandla v Dowell Lee [1983] 1 All ER 118 in Appendix 1 and then read and reflect on the following discussion based upon the reading of the judgment as giving examples of formalism and a teleological approach. The case of Mandla v Dowell Lee involved the interpretation of legislative provisions in the Race Relations Act 1976 and went through both appellate courts (the Court of Appeal and the House of Lords) surrounded by much publicity. The crux of the case concerned whether Sikhs constituted an ethnic group and could claim the protection of the Race Relations Act 1976. The Court of Appeal decided that Sikhs did not constitute a racial group and could not claim the protection of the Race Relations Act. It was an unpopular decision, taken two days before Lord Denning MR’s retirement as Master of the Rolls (the senior judge in the Court of Appeal) and caused rioting in the streets before a quick reversal of the Court of Appeal’s decision by the House of Lords. The particular legislative provisions were ss 1 and 3 of the Race Relations Act 1976. Section 3 was the gateway provision. If this section gave Sikhs protection, then the Act applied and the claim under s 1 could be made. More particularly, the entire case revolved around the interpretation of three words. The meaning of the word ‘ethnic’ in s 3 and the meaning of the words ‘can’ and ‘justifiable’ in s 1. The case is a good example of the movement from theoretical rules to their interpretation and application in reality; a movement from rules in books, to the legal construction of reality. It is also a good illustration of the power of the appellate court to determine the meaning of legislation. The facts of the case were that Mr Mandla, a Sikh, wanted his son to go to a private secondary school. The child was offered a place which was subsequently revoked when the father informed the school that the child would not remove his turban as school uniform rules required. The headmaster stated that the rules concerning uniform were rigid and that other Sikh pupils removed turbans during

2012 ◽  
pp. 118-118
Keyword(s):  
Public Policy ◽  
Race Relations ◽  
Golden Rule ◽  
Statutory Interpretation ◽  
House Of Lords ◽  
School Uniform ◽  
1960S And 1970S ◽  
The 1960S ◽  
Internal Context ◽  
Court Of Appeal

New Zealand Court of Appeal: Judgment in Controller and Auditor–General V. Sir Ronald Dawson

1997 ◽  
Vol 36 (3) ◽  
pp. 721-743
Author(s):  
Michael Bvers
Keyword(s):  
New Zealand ◽  
Judicial Review ◽  
House Of Representatives ◽  
Income Tax ◽  
Cook Islands ◽  
Tax Haven ◽  
Inland Revenue ◽  
Auditor General ◽  
Court Of Appeal

On February 16, 1996 the New Zealand Court of Appeal rendered judgment on three applications for judicial review arising out of what had come to be known in New Zealand as the “Winebox Inquiry”. The Inquiry began as the result of certain documents being tabled (in a winebox) before the New Zealand House of Representatives. It was alleged that the documents implicated several New Zealand companies in the evasion of New Zealand income tax by the use of the Cook Islands as a tax haven, and that the New Zealand Inland Revenue Department and Serious Fraud Office had been incompetent at the least in failing to detect and prevent the abuse.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Psychiatric injury in breach of a relationship

Legal Studies ◽  
2007 ◽  
Vol 27 (1) ◽  
pp. 26-50 ◽  
Author(s):  
Peter Handford
Keyword(s):  
House Of Lords ◽  
The Usa ◽  
Damage Law ◽  
The Relationship ◽  
Court Of Appeal ◽  
Special Category

The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

states that if such a requirement existed any disadvantage, provided it was ‘clear and obvious and more than de minimis’ may be small. The message is very clear that Morgan is something of an aberration on this point, proceeding from an unwarranted reliance on a single appeal from India (Poosathurai) and, at an appropriate point, the House of Lords will override it. As Nourse LJ states (at p 399): ‘Although in CIBC Mortgages plc, judicial courtesy no doubt prevented Lord Browne-Wilkinson from saying so, my strong impression is that he thought its introduction into cases of presumed undue influence was no more appropriate than into cases of actual undue influence.’ A further uncertainty arising out of the decision in Morgan is that Lord Scarman does not make it clear which class of undue influence he was dealing with. Subsequently, the Court of Appeal in Bank of Credit & Commerce International SA v Aboody, adopted a threefold classification, namely: • Class 1 Actual undue influence. • Class 2A Presumed undue influence arising out of recognised relationships such as solicitor and client, etc. • Class 2B Presumed undue influence not based on a recognised relationship, but in which there is a relationship of trust and confidence. Lord Scarman at no point indicates which of the relevant categories the respondent in Morgan fell into. Vicarious undue influence

1995 ◽  
pp. 431-431
Keyword(s):  
Undue Influence ◽  
House Of Lords ◽  
Class 1 ◽  
Relationship Of ◽  
Court Of Appeal ◽  
Commerce International

Estoppel

2019 ◽  
Author(s):  
Kenneth Hamer
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
England And Wales ◽  
Res Judicata ◽  
The Supreme Court ◽  
Chartered Accountants ◽  
Court Of Appeal ◽  
Disciplinary Committee

The Supreme Court held that the doctrine of cause of action estoppel applied to successive complaints before a professional disciplinary body, that disciplinary proceedings were civil in nature and that therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the Disciplinary Committee of the Institute of Chartered Accountants in England and Wales (ICAEW). The Supreme Court so held in allowing an appeal by C-W, a chartered accountant, against the Court of Appeal, which had upheld the dismissal of his application for judicial review of the decision by the Committee to refuse to dismiss a second complaint based on the same facts of a first complaint that had been dismissed on the merits.

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