Legal Advice Privilege is confined to advice given by lawyers

By Nicola Preston

R (on the application of PRUDENTIAL PLC and ANOR) v SPECIAL COMMISSIONER OF INCOME TAX and ANOR [2013] UKSC 1 

By a majority of 5:2 the Supreme Court has held that legal professional privilege is confined to advice given by lawyers and not any such advice given by other professionals. The case concerned accountants giving advice in a matter where HMRC had issued a notice under section 20 Taxes Management Act 1970 requiring disclosure to be made of certain documents relating to a tax avoidance scheme. P refused to disclose documents that contained legal advice from their accountants on the grounds that the documents were covered by legal advice privilege.

All of the Supreme Court noted that that there was a strong argument in principle for allowing the appeal. The majority, however, were of the view that it was a matter that had to be left to Parliament and that it was not for the courts to extend the scope of the privilege. There would also be issues as to who was covered by any extension to the current scope of the privilege – what is a ‘profession’?

Lord Sumption, dissenting (with whom Lord Clarke agreed), held that the privilege was the client’s privilege and it was in the public interest that access to legal advice could be made on the basis of absolute confidence. Thus there was no principled reason for distinguishing between lawyers and accountants (or others). Further, the common law could recognise the fact that much legal advice was given by non-lawyers and so there was no need to leave the matter to Parliament.

The majority, whilst recognising the inevitable logic of Lord Sumption’s view, concluded that the issue should be left to Parliament. Legal advice privilege (LAP) had been the subject of a number of reports, which had not resulted in any substantive change in the law. Further there some statutory exceptions (for example, in the case of licensed conveyancers). Those legislative provisions plainly assumed that LAP was restricted to advice given by lawyers. By allowing the appeal, the scope of LAP would be extended considerably, as it would not be restricted to such advice being given by accountants. Any change would leave to uncertainty and lack of clarity, as, in each case, it would be necessary to examine whether the advice/document in issue was “legal advice”. Accordingly, it was found that any extension involved a policy decision which, in all the circumstances, was to be left for Parliament and the appeal was dismissed.