Many land agents, surveyors and other professionals routinely provide legal advice to their clients. If a matter becomes contentious, do the relevant files and correspondence have to be disclosed, or are they ‘privileged’ and therefore protected from disclosure?

The short answer to that question is that it depends on whether the documents are ‘privileged’. Privilege is a legal right which allows a person to resist compulsory disclosure of documents and information in legal proceedings, including Arbitration. The justification for this is that it is important for businesses and individuals to be able to obtain clear advice from a lawyer, without the threat that the advice received will have to be disclosed.

A document will only be considered privileged if it falls within the category of either ‘Litigation Privilege’ or ‘Legal Advice Privilege’.

Litigation Privilege

Litigation privilege only arises when litigation is in prospect, pending or existing. From that moment on any communications between the client and their lawyer or agent, or between one of them and a third party, will be privileged if they come into existence for the sole or dominant purpose of either giving or receiving legal advice in connection with the litigation or collecting of evidence for use in the litigation.

For litigation privilege to apply, the communications must be confidential. In addition the litigation must be litigation in which the client is or may become a party and the litigation must have commenced or be in reasonable prospect.

Legal Advice Privilege

This privilege covers all correspondence between the client and their lawyer, whether or not litigation is in reasonable prospect.

The question of whether legal advice privilege extends to legal advice given by anyone other than a member of the legal profession was considered by the Supreme Court in R (on the application of Prudential PLC) v Special Commissioner of Income Tax and another [2013] UKSC 1.

By a majority of five to two, their Lordships held that legal advice privilege is confined to the legal profession. The Supreme Court rejected the argument that it should be extended to professional advisers outside of the legal profession; in this case accountants giving legal advice on tax.

Whilst this may seem unfair, hope may not be lost in that the Supreme Court said that the question whether legal advice privilege should be extended to cases where legal advice is given by professional people, who are not qualified lawyers, was a question of policy which should be left to Parliament. That said, we are three years on since the Supreme Court’s decision and it looks unlikely to be on the agenda for the foreseeable future.

Conclusion

Land agents, surveyors and other professional advisors should be mindful that any communications with their clients, including any advice, will be disclosable in Court or Arbitration proceedings if it was before any litigation was in reasonable prospect. The veil of legal advice privilege remains solely with the legal profession.