The Supreme Court has confirmed that the protection of legal professional privilege ("LPP") does not extend beyond exchanges that individuals/companies have with their lawyers with a view to obtaining legal advice and therefore does not apply to advice given by accountants, or other professionals. The case did not address any questions relating to litigation privilege (i.e. confidentiality attaching to communications about actual or contemplated litigation).

This is of importance to all organisations, whether private, public or third sector, as exchanges with such non-legal professionals can be highly sensitive. If LPP does not attach to these communications, then they risk having to disclose them, no matter how damaging. As such, this case reaffirms the importance of organisations and their non-legal advisers considering carefully the nature and content of such exchanges.

Background

LPP is a common law rule of evidence founded on public policy which prohibits disclosure (whether through the production of documents or the answering of questions) of confidential legal advice passing between a solicitor or barrister and his client (in the case of legal advice privilege) and between lawyer and a client or third party (in the case of litigation privilege).

In 2010 the Court of Appeal decided that privilege only applies to advice given by members of the legal professions and cannot be extended without the intervention of Parliament to someone who is not a lawyer, even if the advice he is giving is legal advice and which he is competent to give. This decision was appealed to the Supreme Court.

Supreme Court

The Supreme Court dismissed the appeal noting that:

" Allowing the appeal would be likely to lead to a clear and well understood principle becoming unclear and uncertain. The Court would have to explore issues such as what constitutes a profession and whether that profession is one which ordinarily provides legal advice. As Lord Neuberger put it, "there would be room for uncertainty, expenditure and inconsistency, if the court had to decide such an issue".

" The question whether LPP should be extended to cases where legal advice is given of professional people who are not qualified lawyers raises questions of policy which should be left to Parliament.

" Parliament has recently enacted legislation which retains the principle of LPP being restricted to the legal profession.

Comment

The Judgment makes it clear that extending the parameters of this long-standing principle raises issues of policy which are for Parliament, however, whether Parliament will make time in the legislative calendar to address LPP is by no means clear.

Read R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents)