Privileged papers

Application to exclude documents on ground of without prejudice rule

In a preliminary hearing before the substantive one concerning the taxpayer’s UK residence HMRC wished to exclude reference to some documents in the taxpayer’s skeleton argument because they were subject to without prejudice privilege. The taxpayer opposed the application.

The First-tier Tribunal referred to Lord Griffiths’ explanation of the without prejudice rule in Rush & Tomkins v Greater London Council [1989] AC 1280. In essence it governs the admissibility of evidence and prevents statements made during negotiations being used in court to establish an admission.

The judge said he had read the documents in question and agreed that the contents referred to negotiations ‘genuinely aimed at settlement’. Therefore they were privileged and should not be admitted in evidence.

On the taxpayer’s contention that HMRC had taken a long time to raise the issue – three years – the judge agreed...