The case of R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2010] EWCA Civ 1094 dealt with Section 20 Notices, served under s.20 Taxes Management Act 1970. Such notices required a taxpayer or third party to deliver documents which contained, or might contain, information relevant to the taxpayer’s tax liability. It had previously been established by the court that a Section 20 Notice does not require a person to disclose documents to which legal professional privilege (“LPP”) applies.

When such notices were served on Prudential, they argued that LPP applied to the material of which disclosure was sought. Where skilled professional advice on tax law is obtained from accountants, they argued, the common law rules of privilege apply to that advice. These arguments were dismissed by the court, and Prudential brought proceedings for judicial review of this decision. Prudential’s application was dismissed at first instance, and they appealed.

The Court of Appeal dismissed Prudential’s appeal and confirmed that LPP does not apply to any professional other than a qualified lawyer. The court did not have the ability to hold that LPP applies outside the legal profession, except as a result of relevant statutory provisions.  

LPP is an absolute rule, and so should be clear and certain in its application. This is the case when it is applied to members of the legal profession, however extending it to other professionals who give advice on points of law would raise serious questions of uncertainty as to the scope of the rule. To which professional advisors, exactly, would it apply? The court held that this was not an issue for the court, rather it was for Parliament to deal with by way of primary legislation.