Legal advice privilege remains for qualified lawyers only

23 January 2013. Published by Robert Morris, Partner

The Supreme Court has today rejected an attempt to extend legal advice privilege to legal advice given by professionals other than lawyers.

In Prudential Plc & Anor v Special Commissioner of Income and Tax & Anor [2013] UKSC1, the appellants (with the support of the accountancy profession) argued that they are not obliged to disclose documents in connection with purported tax avoidance scheme to the UK revenue authority, if those documents evidenced legal advice from the accountants with respect to tax law.  The Supreme Court (in a majority of 5-2) held that legal advice privilege is restricted to communications with a "qualified lawyer", thereby upholding the traditional policy grounds for such privilege.

The majority of the Supreme Court held that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers because:

  • Extending legal advice privilege to non-lawyer professionals would result in a currently clear and well understood principle becoming uncertain and could potentially lead to inconsistencies in application.
  • Extending legal advice privilege to non-lawyer professionals raises questions of public policy, which should be left to parliament to legislate for. 
  • Parliament has legislated in this field on a number of occasions on the assumption that legal advice privilege only applies to advice given by lawyers and so it would be inappropriate for the Supreme Court to extend the law.

The judgment is important and has practical implications for how individuals seeking advice on legal issues (such as tax law) might seek to protect their communications with non-lawyer professionals.  We shall write in more detail about the judgment and related issues in due course.

Click here to read the full judgment on the Supreme Court's website.

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