Wednesday, 23 January 2013

Legal Advice Privilege

[Thanks to Laurie Anstis of Boyes Turner for preparing this case summary]
Does legal advice privilege (in England and Wales) extend beyond the traditional legal professions of solicitor, barrister and chartered legal executive (and their foreign equivalents)?

No, says the majority of the Supreme Court in R (on the application of Prudential plc) v Special Commissioner of Income Tax.

In that case, Prudential sought to claim legal advice privilege in respect of legal advice provided by accountants in connection with a tax avoidance scheme.

Giving the leading judgment, Lord Neuberger acknowledged that there was a "strong case in logic" for the expansion of legal advice privilege to cover a wider field of professional advisors, but held that it was preferable in the interests of certainty for the principle to retain its traditional boundaries, and that any expansion of the principle should be a matter for Parliament rather than the courts.

In dissenting judgments, Lords Sumption and Clarke considered that modern conditions required the protection to extend to professional legal advice on a more general basis, not limited to the traditional legal professions.

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