[2025] UKUT 251 (AAC)

in Wiseman v HMRC[2022] UKFTT 00075 (TC) the First-tier Tribunal (Tax Chamber)was considering a notice which HMRC had issued to Mr Wiseman under paragraph 1 of Schedule 36 to the Finance Act 2008, requiring disclosure of certain documents so that HMRC could check his tax position for the tax year 2002/03. Mr Wiseman appealed against that notice, contending that some of the documents which it sought were subject to LPP. His representatives listed the documents which they considered were covered by LPP (the similarity to the procedure suggested, but rejected, in this case will be noted). HMRC did not accept that those documents were covered by LPP.Mr Wiseman therefore applied to the Tribunal for resolution of the dispute as to the scope of LPP applying to the documents being sought. It is clear from the report that the Tribunal was provided with copies of the contentious documents in order to see whether those documents (or indeed parts of them) were covered by LPP, and also to consider the possibility of redaction.

Wiseman v HMRC proceeded under a dedicated dispute resolution process (The Information Notice: Resolution of Disputes as to Privileged Communications Regulations 2009 (SI2009/1916)), but the same approach would be available and applicable to resolve the question as to whether LPP material was “reasonably required” by the IC in a Trigger B Part I Enquiry. It is, of course, possible that, in a given case, the alternative method suggested by the PSNI could be employed and might satisfy the IC that the relevant LPP material was not reasonably required.

As already noted, a Part I Enquiry is a Part I Enquiry, whether begun by Trigger A or Trigger B. If the PSNI’s primary submission, namely that the “reasonable requirement” qualification applies to any Part I Enquiry, is accepted, then the PSNI further argues that the Tribunal was wrong to hold in the alternative at [71] that the IChas power by way of necessary implication to compel the production to it of LPP material.

The question of necessary implication was dealt with by the Lord Justice Clerk in Scottish Legal Complaints Commission v Murray[2022] CSIH 46 at [31]-[40]. The headnote to this decision usefully summarises the principles applicable generally on this point: