Should legal advice given by surveyors have to be disclosed in litigation? Despite their reservations, the Supreme Court has ruled that it does. Mathew Ditchburn explains.

Property professionals deal with a diverse range of technical matters. It is not unusual for them to have considerable legal expertise in their chosen field. Take, for example, the surveyor specialising in rent review, rights to light or dilapidations. Often they are brought in on day one, long before lawyers get involved. They may give a view of the law or the strengths and weaknesses of the client’s position, although no litigation is yet in prospect. If the matter subsequently ends up in court, does that confidential “legal” advice have to be disclosed to the client’s opponent, even if it harms their case?

Not an easy decision

Some might be horrified to learn that the answer is yes. This was the difficult question grappled with by the Supreme Court in R (on the application of Prudential Plc) v Special Commissioner of Income Tax1, decided in January this year. The case concerned legal advice given by tax accountants but it could have had far reaching consequences for all non-legal professionals giving advice about the law.

Where a client has any communication with their lawyer, they are entitled to object to another party seeing it due to legal advice privilege and the court cannot order it to be disclosed. This is to ensure full and frank communication between lawyers and their clients, without fear of it ever being used against them, which is universally accepted to be in the interests of justice. Privilege does not exist to protect the lawyer but is for the benefit of, and can only be waived by, the client.

Their Lordships concluded in the case by a majority of five to two that legal advice privilege should only apply to members of the legal profession and not to other professionals, even if they routinely give legal advice. It clearly was not an easy decision. Lord Neuberger, the President of the Supreme Court, who gave the leading judgment, said that there was a strong argument that legal advice given by the accountants should be privileged, concluding:

It is hard to see why, as a matter of pure logic… privilege should be restricted to communications with legal advisers who happen to be qualified lawyers, as opposed to communications with other professional people with a qualification or experience which enables them to give expert legal advice in a particular field.”

Privilege appears to have been restricted in this way simply because legal advice has traditionally tended to be given by lawyers and not other professionals. Any argument that lawyers enjoyed a “special position” because they were held to higher standards than other professions was viewed by the Supreme Court as seriously out of date; something more compelling was required in the modern world.

Despite all this, the Supreme Court refused to extend the rule to include non-lawyers. The reasons for refusal were purely pragmatic.

Risk of uncertainty

Lord Sumption, giving a dissenting judgment, said that legal advice given by any member of a profession that ordinarily gives legal advice should be privileged. The majority view was that this posed an unacceptable risk of uncertainty. First, what is a profession? Answering that may involve delving into the rules and procedures of a particular group of people. There was no doubt that surveyors and architects, for instance, were “professionals”, but the status of town planners and engineers seemed to be less obvious.

Second, while some surveyors and architects may ordinarily give legal advice, others may not. Should the issue be judged according to whether the profession generally (surveyors), a particular branch (rent review surveyors), or a particular member ordinarily gives legal advice?

Difficulties were foreseen in trying to work out whether advice given by a non-lawyer was “legal” or not. Say that a valuation surveyor advises on rental value under a rent review clause. That may well involve a point of law on which the surveyor is qualified to advise, but is it really legal advice? In truth, it will probably be a mixture of legal and non-legal advice and working out how to deal with that was something that the Supreme Court considered to be too complicated.

This might seem unfair, but any hope that the courts would change things has now gone.

However, it may not be the end of the story, since the Supreme Court said that it was a policy issue best left to Parliament to decide. At the same time, it is probably not an issue high on the Government’s current agenda and any statutory extension to legal advice privilege is likely to be limited to specific types of advice. Those unhappy with the present situation may have a long wait ahead of them.

Protecting clients against disclosure

What should property professionals do to protect clients against having to disclose legal advice? Here are a few suggestions:

  • involve lawyers at the beginning. A strategy can then be devised for dealing with privilege before any potentially damaging communications are produced;
  • avoid making unnecessary written records. A telephone call or meeting may be a better option if issues are to be discussed;
  • if you have to put something in writing, stick to the facts. It may seem helpful to provide a view as to the law or whether the client is in a good or bad position, but if the client has not asked for it, is it really necessary?
  • spot the dispute. Litigation privilege may be available. It applies to communications between a client and a third party made for the dominant purpose of use in legal proceedings already commenced or reasonably in prospect, or for the purpose of obtaining legal advice from a solicitor in relation to those proceedings;
  • record the dispute. Once litigation is reasonably in prospect, it should be noted on file and in the communication itself, which should ideally be headed “Privileged and confidential – for the purposes of litigation” or similar;
  • if litigation privilege is not available, legal advice should be obtained through a lawyer. A report from a surveyor about, say, rental value for the purposes of rent review is unlikely to be privileged but advice from a lawyer on the legal consequences of that report or strategy for dealing with the review will be; and
  • let the lawyers do the leg work. They should direct the process of collecting the information necessary to produce legal advice.

An earlier version of this article was published in Estates Gazette on 30 March 2013.