Legal Advice Privilege: For Legal Professionals Only

Legal Advice Privilege: For Legal Professionals Only

The Supreme Court has made it clear it wants to keep the nomenclature ‘legal’ within very strict limits.

In R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1 the question before the Supreme Court was whether a professional (or group of professionals) other than lawyers, who give advice that is identical in content and nature to that given by a lawyer, can be granted legal advice privilege (LAP).

In this case, Prudential plc were given legal advice from accountants Pricewaterhouse Coopers (PwC) relating to a tax avoidance scheme (‘the scheme’). PwC adapted the scheme for the benefit of the Prudential group of companies, who implemented the scheme through a series of transactions (‘the transactions’).

HMRC got wind of the scheme and considered it necessary to look into the details of the transactions. They served notice under section 20B (1) of the Taxes Management Act 1970 giving Prudential the opportunity to make available specified classes of documents. Prudential refused to disclose certain documents (‘the disputed documents’) on the ground that Prudential was entitled to claim legal advice privilege in respect of them, because they related to the seeking (by Prudential) and the giving (by PwC) of legal advice in connection with the transactions.

Prudential issued an application for judicial review challenging the validity of those notices. Charles J rejected the application on the grounds that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer. His decision was upheld, substantially for the same reasons, by the Court of Appeal (by Mummery, Lloyd and Stanley Burnton LJJ).

The Supreme Court, by a majority of five to two (Lord Clarke and Lord Sumption dissenting), dismissed the appeal. Lord Neuberger gave the lead judgment for the majority.

Reasons for the judgment

The majority held that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give. To do so would extend legal advice privilege beyond what are currently, and have for a long time been, understood to be its limits.

According to the judgment, it is universally believed that legal advice privilege only applies to communications in connection with advice given by members of the legal profession – ‘which, in modern English and Welsh terms, includes members of the Bar, the Law Society, and the Chartered Institute of Legal Executives (CILEX) (and, by extension, foreign lawyers)’ (at [29]).

Lord Neuberger cited clear judicial statements of high authority to that effect in Minter v Priest [1930] AC 558, 581, Lord Atkin said that a ‘[professional] communication pass[ing] for the purpose of getting legal advice … must be deemed confidential’, and added that it should be ‘understood that the profession is the legal profession’.

More recently, the view that LAP is confined to advice from lawyers was repeated by Lord Denning MR in Attorney General v Mulholland [1963] 2 QB 477, 489-490, in a passage approved by Lord Edmund-Davies in D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 243–244. Therefore the current editions of textbooks on privilege and evidence, as well as more than one significant official report, have proceeded on this basis.

What are the risks of extending privilege?

Extending legal advice privilege to any case where legal advice is given by a person who is a member of a profession which ordinarily includes the giving of legal advice would be likely to lead to a clear and well understood principle becoming uncertain, because it is unclear which occupations would be members of a profession for this purpose.

There would be room for uncertainty, expenditure, and inconsistency, if the court had to decide whether a group constitutes a profession for the purposes of legal advice privilege. It is also unclear how a court would decide whether a profession is one which ordinarily includes the giving of legal advice. Where members of other professions give legal advice, it will often not represent the totality of the advice, so it may also be difficult to decide how to deal with documents which contain both legal and non-legal advice.

A matter for Parliament

Furthermore, the judgment concludes that the extension of legal advice privilege to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament. The consequences of extending legal advice privilege should be considered through the legislative process, with its wide powers of inquiry and consultation and its democratic accountability. The extension of legal advice privilege to professions other than lawyers may only be appropriate on a conditional or limited basis, which cannot appropriately be assessed, let alone imposed, by the courts. Parliament has, on a number of occasions, legislated in this field on the assumption that legal advice privilege only applies to advice given by lawyers. Therefore, it would be inappropriate for the Supreme Court to extend the law.

The dissenting judgment

The dissenting minority, Lord Clarke and Lord Sumption, consider that legal advice privilege extends to advice given by members of a profession which has, as an ordinary part of its function, the giving of skilled legal advice. Lord Sumption (at [114]) states:

The privilege is a substantive right of the client, whose availability depends on the character of the advice which he is seeking and the circumstances in which it is given. It does not depend on the adviser’s status, provided that the advice is given in a professional context.

Therefore, he holds, recognising the privilege attaching to the legal advice of accountants would not be extending the scope of legal advice privilege, it would be a correct reading of the law.

Lord Sumption maintains that the law has shown a ‘pragmatic willingness to recognise the changing patterns of professional life’.  The Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102, for example, extended LAP to salaried legal advisers since they were ‘performing the same function as a lawyer’.

Lord Clarke (at [142]) summed up his reading of the law as follows:

It seems to me to follow that, if the common law treats the information and advice as privileged in the case of A, principle requires that it must do the same in the case of B. The advice is the same legal advice in both cases and the expertise of the adviser in each case is broadly similar, if not the same. Indeed some accountants may be able to give more specialised legal advice than some solicitors.

References in square brackets are to paragraphs in the judgment.

Judgments are public documents and are available here.

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