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Agassi serves double ace

/ 10 December 2005

David Whiscombe

Towards the end of last year the Court of Appeal held that endorsement payments made by Nike and Head to Andre Agassi’s non-UK-resident company were not subject to tax under the “non-resident entertainers” scheme. Mr Agassi has now won a second victory in recovering costs against the Revenue. This of itself is unexceptional; but the circumstances will be interesting to specialist tax advisers.

Mr Agassi was a “litigant in person”. Lest this conjures up visions of Mr Agassi swapping tennis whites for wig and gown and personally appearing in the High Court, we should explain that this simply means that he did not instruct his Counsel through solicitors: instead, his accountants instructed Counsel under the BarDIRECT scheme. The rule on recovery of costs is that such a litigant is not able to recover fees paid to a non legally qualified assistant for work which would normally have been done by a solicitor. However, he is able to recover disbursements. It thus became necessary for the Court to decide whether the work done by the taxation specialists was such as would normally have been done by a solicitor (and non-recoverable) or a disbursement (and potentially recoverable).

The Court held that at least part of the work was of such an esoteric nature that specialists would have been needed even if a solicitor had been instructed to conduct the appeals; and therefore recoverable as costs.

OK: not many of us are going to be worrying about whether our fees are recoverable under CPR 48.6. More to the point is the significance of the judicial recognition that there do exist areas of law where great expertise may reside with professionals other than solicitors. Once that is established, will perhaps the next bastion to fall be legal professional privilege, which is at present jealously guarded by the legal profession? In a world where even the Courts recognise that the reality is that expert legal advice is daily provided by non-legally qualified advisers, for how much longer can legal professional privilege continue to be denied to such advisers, we wonder?

 

This article was later published by TaxationWeb.

David Whiscombe

Consultant

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