The Supreme Court has granted judicial review of a decision by Her Majesty's Revenue and Customs ("HMRC") to reveal confidential taxpayer information to a journalist. In R (on the application of Ingenious Media Holdings plc and another) v Commissioners for Her Majesty's Revenue and Customs  UKSC 54 the claimant ("Ingenious"), a media investment and advisory company, applied for judicial review against HMRC for revealing confidential information about it during an interview with a journalist from The Times.
- Public bodies such as HMRC are bound by common law obligations of confidence which are in addition to and more stringent than the obligations imposed by public law.
- The courts will take a dim view of "off the record" conversations in situations where public bodies are under obligations of confidence, and giving confidential information in confidence will not constitute a defence.
- Where there is an overlap between a judicial review claim and a claim that is substantively based on other areas of law, claimants should carefully consider how the claim is presented in order to avoid omitting references to other relevant areas of law – which the Supreme Court suggested had happened in this case.
In June 2012 David Hartnett, the then Permanent Secretary of Tax at HMRC, provided a background briefing to the press which included comments on Patrick McKenna (founder and CEO of Ingenious), HMRC's inquiries into his partnerships and HMRC's interest in his company Ingenious. Ingenious and its subsidiaries are an investment and advisory group focusing on the media and entertainment industries. The group promoted film investment schemes involving film production partnerships and such schemes used certain tax relief that was then available. The group stopped marketing the schemes when the tax relief ceased to be available.
The Times published two articles on film schemes and tax avoidance on 12 June 2012. These pieces included direct quotes from the transcript of the interview with Mr Hartnett. Additionally, Mr Hartnett was directly quoted as stating that Ingenious's film schemes allowed investors to avoid at least £5bn in tax.
Mr Hartnett maintained that the information given in the interview was strictly off the record and was not available for quotation. At the time the interview was given, HMRC had not yet come to a conclusion as to whether to challenge the validity of the schemes.
Both parties accepted that Mr Hartnett had given information to The Times about the tax activities of Mr McKenna and Ingenious and HMRC's thoughts about them based on the information about them held by HMRC. However, Mr Hartnett argued that his disclosure to The Times was in the interest of HMRC and therefore permitted under section 18 of the Commissioners for Revenue and Customs Act 2005 (the "Act"). This was because it was generally beneficial for HMRC to have good relations with the financial press and that they provided a conduit for disseminating HMRC's views on tax avoidance schemes. Mr Hartnett was of the opinion that the journalists might have had information of value to HMRC that would be revealed as the dialogue continued. Mr Hartnett emphasised that the interview was to be off the record and he did not think that his comments about Mr McKenna and Ingenious would be published.
The claim by Ingenious and Mr McKenna was brought by way of judicial review but in substance involved a claim for breach of confidentiality. In the High Court the claim failed because Sales J took the view that the court could only intervene if "Mr Hartnett could not rationally take the view that speaking to journalists as he did would assist HMRC in the exercise of its tax collection functions." Sales J dismissed the claim, finding that the disclosures were limited and meant to be off record so they were not irrational, were made for a legitimate purpose and were proportionate. The Court of Appeal upheld this judgment. The Court of Appeal held that the disclosures were made in "connection with a function" of HMRC and that a wide meaning should be given to section 18(2)(a)(i) of the Act which allows for disclosures of confidential information when done in connection with a function of HMRC. Further, the Court of Appeal declined to "review all the facts de novo as though it were the primary decision maker".
The Supreme Court unanimously reversed the decision.
Interpretation of Section 18
The Court noted that the lower courts had not been referred to the common law of confidence. When confidential information is received in the furtherance of a public duty, then the recipient will owe a duty to the provider (Marcel v Commissioner of Police of the Metropolis  Ch 225). This principle can be overridden by explicit statutory provisions. HMRC argued that section 18(2)(a)(i) of the Act was such a statutory provision.
The Court rejected this argument. It affirmed the principle that general words in a statute cannot override fundamental rights, and further said that "the more general the words, the harder it is likely to be to rebut the presumption" that the rights remain. Here the words "for the purposes of a function of the Revenue and Customs" were deemed to be too general to rebut the right to confidentiality, especially where the relevant purpose was related to HMRC's media relations strategy.
The Court also said that section 18 cannot be interpreted in a vacuum and instead the confidentially conferred by section 18(1) is "intended to reflect the ordinary principle of taxpayer confidentiality" rather than being a purely statutory right.
Court's approach to HMRC's Conduct
Because the case had initially been brought as a judicial review, the lower courts had proceeded on the basis that it was a matter for HMRC to decide whether or not it was justified in disclosing the confidential information, subject to public law restrictions on the exercise of that power such as the requirement to act reasonably.
In contrast, the Supreme Court affirmed that it is a matter for the court to decide whether there has been a breach of the duty of confidentiality based on the facts. This principle is relevant even where the person or body owing the duty of confidentiality holds a public office or is a public body. The law relating to confidential information accordingly imposed a more stringent restriction on disclosure by HMRC than was imposed by public law alone.
The Court did not go so far as to say that the disclosure by a public official of confidential information could never be justified and gave the example of HMRC officials engaged in an anti-smuggling investigation which was in danger of being wrecked by journalistic investigations and where for operational reasons it would be justified for HMRC to take the journalist into its confidence. But such cases would inevitably be exceptional.
Confidential Nature of the Interview
HMRC sought to rely on the fact that it provided the information to The Times on a confidential basis. The Court made it clear that "impermissible disclosure of confidential information is no less impermissible just because the information is passed on in confidence" and so the fact the briefing was "off the record" was irrelevant.
The most obvious consequence of the decision is that public bodies which hold confidential information will need to closely consider the general law of confidence before making disclosures of that information, and should not interpret any relevant legislative provisions which might appear to authorise disclosure in a vacuum. In more general terms, the judgment confirms that there will be circumstances where a decision which might seem defensible on pure public law grounds may nonetheless place a public body in breach of its common law duties of confidentiality.