WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS
A post earlier this week looked at the issue of privilege and the third edition of the standard work on the topic. It is worthwhile looking at the decision in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase of shares)  UKFTT 82 (TC) where the First Tier Tribunal Tax Chamber. It is an example of how privilege can be waived by referring to legal advice in a witness statement, something all litigators must be wary of.
“In the circumstances of this case, we consider that it would be appropriate for the Tribunal to draw an adverse inference from the Appellant’s failure to disclose documents containing legal advice over which we have determined privilege has been waived.”
The Appellant appealed against a decision that it had not incurred a capital loss in a share transaction relating to a football club. Preliminary issues arose in relation to legal professional privilege.