R ((1) Ingenious Media Holdings plc and (2) Mr Patrick McKenna) v Commissioners for Her Majesty’s Revenue and Customs
Reference:  UKSC 54
Court: Supreme Court
Judge: Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Toulson
Date of judgment: 19 Oct 2016
Summary: Ingenious Media v HMRC – Judicial Review – Breach of Confidence – “off the record” – publicity – Supreme Court – statutory construction – common law
Instructing Solicitors: Olswang LLP for C1 and C2; HMRC Solicitors Office for D
The first claimant (C1) and its subsidiaries was an investment and advisory group specialising in the media and entertainment industries; the second claimant (C2) was the founder and CEO of C1. C1 had run a number of investment schemes which minimised tax for its clients, using reliefs available at the time. In June 2012 a senior HMRC official discussed film investment schemes and tax avoidance with two journalists from The Times; the discussion was recorded and understood to be “off the record”. The Times subsequently published two articles about film schemes and tax avoidance containing reference to C1 and C2. The articles made clear that information about C1 and C2 had come from a senior official at the defendant, HMRC, (D). At the time of the discussion C1 and C2 had ceased operating the schemes (because the tax relief was no longer available) and HMRC had not yet decided whether to challenge their validity.
D’s duty of confidentiality is written into statute as section 18 of the Commissioners for Revenue and Customs Act 2005 (“the 2005 Act”).
C1 and C2 brought a claim for judicial review of D’s actions in disclosing information to the journalists. The High Court and Court of Appeal had found for D on the basis, broadly, that s.18(2)(a)(i) of the 2005 Act provided an exception to the duty of confidentiality in respect of disclosure “made for the purposes of a function of the Revenue and Customs” and that the disclosures were connected to the collection of tax, not irrational, proportionate and “off the record”.
1)What is the proper construction of the section 18(2)(a)(i) read with the other provisions of the Act?
2) What is the proper approach of the court in judging the conduct of D’s senior official?
3) What is the significance of the official’s understanding that his interview with the journalists was to be off the record?
Generally, the perception of the claim by the courts below had been influenced by its having been brought by way of an application for judicial review rather than as a claim for breach of a duty of confidentiality. The lower courts had only scarcely been referred to the common law of confidentiality.
It is a well-established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes. The principle is sometimes referred to as the Marcel principle. The duty owed can be overridden by explicit statutory provisions.
1)The proper construction of s.18(2)(a)(i) required that it reflect the principle of construction known as the principle of legality: that fundamental rights cannot be overridden by general or ambiguous words and, in the absence of express language or necessary implication, the courts presume that general words are intended to be subject to the basic rights of the individual. On this basis the subsection was required to be interpreted narrowly and to reflect the ordinary principle of taxpayer confidentiality: section 18(2)(a)(i) created an exception by permitting disclosure only to the extent reasonably necessary for D to fulfil its primary function. A general desire to foster good relations with the media in the hope of obtaining information in the future or to publicise D’s views about tax avoidance schemes could not possibly justify a senior or any other official of D discussing the affairs of individual taxpayers with journalists.
2) Although the courts below had approached the matter as a review on public law principles of an administrative act – and so had declined to view the matter as the primary decision maker – the question of breach of confidentiality was one for the court’s judgment, applying established principles of law to its own judgment of the facts.
3) “Off the record” can bear different shades of meaning, including “strictly confidential” or “not to be directly quoted or attributed”. But an impermissible disclosure of confidential information is no less impermissible just because the information is passed on in confidence.
This case reinforces the point that judicial review is not the only course of action available to challenge the conduct of a public body. The Supreme Court thought it important to emphasise that public bodies are not immune from the ordinary application of the common law, including the law of confidentiality.
As to the width of the exemption at issue, similar exemptions in respect of confidentiality can be found in other statutes governing law enforcers and regulators – s.393(2)(a) of the Communications Act 2003, for example, concerning general restrictions on disclosure of information by Ofcom. The Supreme Court’s view of the construction of the particular exemption in the 2005 Act may therefore be of wider interest.
The Court’s clear finding that a breach of confidence remains a breach irrespective of the conditions attached to it by the person committing the breach is, even if not surprising, a salutary reminder about the dangers of ‘off the record’ disclosures.