It is the court’s task to determine the effect of the law of England and Wales in respect of the fact s relevant to the case.

Paradoxically, therefore, where a tax adviser acts as an expert witness, one matter on which he cannot give evidence is on his primary area of expertise: the content of the revenue law and of its application to the facts.

In giving evidence, however, on such matters as what advice a reasonably competent tax adviser would have given had he been in the same circumstances as the adviser alleged to have been negligent, it is inevitable that his evidence will refer to the expert’s understanding of the legal effect of the provisions relevant to the allegedly negligent advice.

Long before the matter comes to court, the litigating solicitor will require the support of a taxation expert to fully understand all the elements of his client’s case. A taxation expert will not only provide to the litigator his opinion on matters on which he might give evidence were the case to proceed to a hearing, but also on the application of the revenue law relevant to the allegedly negligent advice.

His advice will be of importance in relation to all of the elements of the case; that is, as to duty, breach, causation and quantum.

In the Example, a client alleges professional negligence in respect of tax advice on enterprise investment scheme (EIS) deferral relief.

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