Difficult to say anything without seeing the underlying Opinion

...and without seeing the Brief from the instructing solicitors that the Opinion is a response to, it's even harder to pass judgment.

I have huge difficulty accepting at face value an assertion from a junior counsel that a QC is "incompetent" or "criminally fraudulent" without something else to support it. For all I know he may be right, but without anything to substantiate it, it smacks of lazy writing and it's a cheap shot. You don't become a QC by being fick.

I don't do tax but I have instructed counsel on other matters before, and it's fair to say that what you get out (the Opinion) is often very dependent on what you put in (your Brief) - you can get very different responses from even the same Counsel depending on what questions you ask. If for some reason you want an Opinion that supports a particular view, you ask the questions that will generate that view; you don't ask the questions that might illicit responses that undermining it.

Also consider that there are subtleties in what the QC might have been asked: eg "Are we safe to say that this Scheme should work?" is a very different question to "Will this Scheme work?"

Plus, there are often two very legitimate views on what a particular legal point means - and the blogger is likely to have a very different perspective (if he does a lot of work for the Treasury) of what the 'legal reality' is from someone who does a lot of work arguing against the Treasury's position (which I'm presuming the QC who wrote the Opinion does). It doesn't necessarily make either of them right.

Furthermore, the blogger is looking at this from an ethical perspective - he doesn't like avoidance Schemes and he doesn't think his profession should be involved in it. That's like saying arms manufacturers or tobacco companies or abortion clinics shouldn't be entitled to receive legal advice either ? slippery slope.

Whilst I don't doubt that there are Counsel who are 'friendlier' to the 'Houses' referred to in the article, it's a bit of a stretch to say that that makes them incompetent or negligent without knowing all of the facts. By way of example, there are plenty of criminal trials where the Crown and Defence can call upon a variety of expert witnesses who might hold very differing, justifiable, views of whether a particular interpretation is correct or not. Does that make the expert who ends up on the losing side wrong, or negligent? No, it just means that on the day the Court preferred the opposing expert opinion.

As someone whose job it is to actually advise clients, rather than write Opinions to be read by lawyers or make fancy arguments in court, the blogger is off his rocker if he thinks the answer is to this problem is to make the QC in question responsible to the tax payer at the bottom of the chain, with whom he has no contact or other relationship, and about whom he knows nothing. How can you ever advise on that basis?

It is for the tax payer to take his own legal advice as to whether a Scheme works or not. If he is willing to delegate that job to the IFA, then that's his choice. It is for the IFA to take his own legal advice as to whether the Scheme he is selling works or not - if he is willing to delegate that job to the 'House', then again that is his choice. It is for the House to take its own legal advice on whether the Scheme works - which is where the Opinion sits. If there is flagrant mis-selling of a dodgy product, then the tax payer has a remedy against the IFA (who can claim from the House, who can claim from the Barrister if he indeed was negligent). That is how our legal system has been working, quite satisfactorily, for hundreds of years.

Opening those at the top of the chain to claims from those at the bottom, when there is no client or contractual relationship, is a can of worms and would in practice mean no-one would ever give any advice on anything - the only way you can be 100% sure that your advice is correct, is if the Supreme Court (or ECJ/ECHR where applicable) rules in your favour. I can count the number of clients who would be willing to pay for that using the toes on my hand.

If you want to crack down on avoidance schemes, the targets are the Houses and IFAs that sell them ? make them financially culpable when the Schemes don't work, and they will soon change their selling practices or learn to ask Counsel more searching questions about the Schemes that they have come up with. When they start suing/stop instructing these supposedly bad apple QCs for giving bad advice, those QCs will change how they give Opinions (or not given them at all). Punishing someone for giving a legal opinion that is essentially 'Yes, that might plausibly work' seems (to me) to be an arse-about-tit way of doing it.

Posted By: CWC on August 8th 2014 at 10:35:25

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