Finance (No. 2) Act 2017

Declarations about contents of legally privileged communications

44 (1) Subject to sub-paragraph (5), a declaration under this paragraph is to be treated by—

(a) HMRC, or

(b) in any proceedings before a court or tribunal in connection with a penalty under paragraph 1, the court or tribunal,

as conclusive evidence of the things stated in the declaration.

(2) A declaration under this paragraph is a declaration which—

(a) is made by a relevant lawyer,

(b) relates to one or more communications falling within sub-paragraph (3), and

(c) meets such requirements as may be prescribed by regulations under sub-paragraph (4).

(3) A communication falls within this sub-paragraph if—

(a) it was made by a relevant lawyer (whether or not the one making the declaration),

(b) it is legally privileged, and

(c) if it were not legally privileged, it would be relied on by a person for the purpose of establishing that that person is not liable to a penalty under paragraph 1 (whether or not that person is the person who made the communication or is making the declaration).

(4) The Treasury may by regulations impose requirements as to the form and contents of declarations under this paragraph.

(5) Sub-paragraph (1) does not apply where HMRC or (as the case may be) the court or tribunal is satisfied that the declaration contains information which is incorrect.

(6) In this paragraph “a relevant lawyer” means a barrister, advocate, solicitor or other legal representative communications with whom may be the subject of a claim to legal professional privilege or, in Scotland, protected from disclosure in legal proceedings on the grounds of confidentiality of communication.

(7) For the purpose of this paragraph, a communication is “legally privileged” if it is a communication in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications as between client and professional legal adviser, could be maintained in legal proceedings.