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It was a busy and unusual summer for a number of reasons and it may be that a series of developments relating to HMRC powers, investigations and tax disputes were not top of everybody's agenda. We have therefore brought some key ones together in this update.
New legislation in Finance Act 2020 legislates retrospectively for HMRC to use artificial intelligence to carry out its functions. The article below was written for Tax Journal's September issue by Hannah Manning, Sophie Lloyd and Laura Jackson, and considers in particular some areas of potential concern in relation to HMRC's increasing use of automation, such as the raising of discovery assessments, business risk reviews and the assessment of discretionary penalties.
This briefing note addresses the impact of Brexit on matters relevant to civil judicial co-operation between the English courts and the courts of EU member states.
In the recent landmark decision of Sainsbury's v MasterCard,1 the Supreme Court confirmed that MasterCard and Visa's multilateral interchange fees ("MIFs") infringed Article 101(1) of the Treaty on the Functioning of the European Union ("TFEU"). The judgment also establishes the legal test that MasterCard and Visa must satisfy to be exempt under Article 101(3) TFEU, as well as the legal test for establishing pass-on.
The COVID-19 pandemic has caused unparalleled disruption to the judiciary, which has been presented with logistical hurdles as well as acute legal issues to tackle.
Allegations of dishonesty in English civil litigation – whether against individuals or corporate bodies – are not to be made lightly, and care must be taken over how they are pleaded. This is reflected in paragraph 8.2 of Practice Direction 16, which provides that a claimant must "specifically set out…any allegation of fraud" in the Particulars of Claim.
In this recent decision of Waksman J in the High Court, Barclays were held to have waived privilege in all contemporaneous communications with their lawyers regarding the validity of certain agreements which were the subject of the proceedings.
On 21 July 2020 the Government published draft clauses for inclusion in the Finance Bill 2021. These include several measures relating to the rules governing HMRC's ability to obtain information about taxpayers.
On 20 July 2020, the first trial under the Financial Markets Test Case Scheme (Scheme) began in the English Commercial Court before Lord Justice Flaux and Mr. Justice Butcher.
On 11 May 2020 the Government published practical guidance1 for employers on how to keep their workforce safe by implementing safety measures differentiated according to the activities undertaken, the physical spaces occupied by, and the demographic risk profiles associated with, relevant employees. Furthermore, in June 2020 the Government set out a timeline for retail stores to reopen2 which as of 4 July 2020 has been extended to include a set of further easements to other businesses and venues in the hospitality, personal care, accommodation and leisure space.
With the Brexit transition period due to expire on 31 December 2020, there is not much time left to prepare.
In this judgment, the court clarified the process that a professional services provider should follow when faced with a regulatory request for client documents, in circumstances where a party contends that all or a portion of those documents are privileged.
International businesses like English law and feel comfortable using London as a venue to resolve their disputes, particularly those with significant monetary, reputation or precedent value. Brexit will not affect the benefits of using English law or, in the round, the attraction of an English forum, be that the English courts or a London-seated arbitral tribunal.
HMRC frequently contact taxpayers to ask questions about their tax returns on an informal basis rather than under a statutory enquiry process. As the questions are informal, taxpayers can choose whether to engage with HMRC and it is perhaps this voluntary aspect that sometimes leads them to take a more relaxed approach than they would in a formal enquiry.
Welcome to the inaugural edition of our new newsletter, which is intended to capture the key developments in the English disputes arena over the past three months. We hope that you will find it an interesting read, whether you are a litigator, either in private practice or in-house, or a generalist wanting to keep abreast of the goings on in this space.
It is a well-known part of English litigation that an issue will only be determined by the courts once: there are no second chances to launch new arguments or seek different remedies. This is guarded by the doctrine of res judicata, which, together with its related rule of abuse of process, frequently bar a party from relitigating an issue.
Partner and Head of Tax, Emily Clark, discusses why gathering and reporting investor tax information is becoming an increasingly important issue for private equity funds.
In response to the unique disruption the COVID-19 emergency presents to the economy, the Cabinet Office has issued non-statutory guidance on responsible contractual behaviour in the context of the emergency. Released on 7 May 2020 and titled "Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency", this guidance calls for parties to contracts, including parties from both the private and public sectors, to act responsibly and fairly.
The transition towards a digitalised legal system has long been on HMCTS' cards, however it is only now that real strides have been taken to achieve this. In light of the Covid-19 outbreak, all hearings (insofar as possible) are taking place remotely, i.e. via a video calling platform.
The case of ACL Netherlands B.V. (as successor to Autonomy Corporation Limited) and others v Dr Michael Lynch and Sushovan Hussain, in which this firm acted for the Claimants (referred to here as "HPE" for ease), has attracted much media attention. The trial took place over 10 months before Mr Justice Hildyard in the period March 2019 to January 2020.