R (on the application of Ingenious Media Holdings plc and another) (Appellants) v Commissioners for Her Majesty’s Revenue and Customs (Respondent) [2016] UKSC 54

Summary

HMRC is subject to a statutory duty to keep taxpayer information confidential. A senior HMRC official leaked information to the press. The case concluded (i.a.) that disclosure of confidential information, ‘in confidence’, is still a breach of confidence. The rest of the case is specific to revenue confidentiality legislation, but this point may have general relevance to the law of confidence.

On 19 October 2016, the Supreme Court ("SC") overturned the Court of Appeal's ("CA") decision that disclosure of information about an individual taxpayer by the former Permanent Secretary for Tax at the HMRC – Mr David Hartnett – to The Times journalists was justified under Section 18 (2) (a) of the Commissioners for Revenue and Customs Act 2005 (the "Act"). It, therefore, allowed the applicants' appeal against the decisions of the lower courts dismissing their claim for a judicial review of Mr Hartnett's decision to so disclose this information.

Facts

On 14 June 2012, Mr Hartnett gave an 'off the record' interview to two The Times journalists about tax avoidance. More specifically, this case concerns the discussion they had about film investment schemes involving film production partnerships. Among other things, Mr Hartnett provided the journalists with information about the tax activities of Mr Patrick McKenna, who devised such schemes and utilised their associated tax relief, and Ingenious Media Holdings plc ("Ingenious"), of which Mr McKenna is the founder and CEO. Mr Hartnett gave the following reasons for disclosure:

• It was in the interests of HMRC to "establish good relations with the financial press";
• Newspaper publication was an effective means of conveying HMRC's views on "elaborate tax avoidance schemes"; and
• The journalists may have had information which was useful to HMRC.

Ingenious and Mr McKenna brought an application for the judicial review of Mr Hartnett's decision to disclose information about their tax activities to The Times. Both Sales J at first instance and the CA were reluctant to approach Mr Hartnett's decision as if they were the 'primary decision makers', dismissing the application.

Judgment

The SC decided the three main issues as follows:

• Interpretation of disclosure permitted under section 18 (2) (a) of the Act and, in particular, the definition of 'function' under section 18 (2) (a) (i): Section 18 (2) (a) permits disclosure by HMRC officials of information held in connection with a function of HMRC if such disclosure is "made for the purposes of a function of" HMRC. Lord Toulson interpreted 'function' narrowly and stated that, "I take section 18 (1) to be intended to reflect the ordinary principle of taxpayer confidentiality… [i.e. that stated in the case of Marcel v Commissioner of Police of the Metropolis [1992] Ch 225] to which section 18 (2) (a) (i) creates an exception by permitting disclosure to the extent reasonably necessary for HMRC to fulfil its primary function" i.e. the collection and management of revenue only. 
• The courts' approach to reviewing HMRC's conduct: Here, Lord Toulson disagreed with the decision of the lower courts, "that it was not for them to approach the disclosures made by Mr Hartnett as if they were the primary decision makers…the question of breach of confidentiality is one for the court's judgment".
• 'Off the record' interview: The message was clear from Lord Toulson – "…an impermissible disclosure of confidential information is no less impermissible just because the information is passed on in confidence…"

The full judgment is available here.