Summary and implications

The Court of Appeal has held that legal professional privilege (LPP) will not apply to any professionals other than qualified lawyers. The appeal was brought by Prudential Plc against the High Court’s refusal to extend LPP to tax advice given by its accountants. The Law Society of England and Wales was granted permission by the Court of Appeal to intervene based on their belief that the benefit of LPP should remain solely with qualified barristers and solicitors (see link to our previous bulletin).

The consequences of the ruling are:

  • LPP only extends to qualified lawyers: barristers, solicitors and in-house counsel (and by extension to foreign qualified legal advisors) and not other professionals such as accountants;
  • only Parliament can extend LPP; and
  • there is no breach of Human Rights involved in limiting the benefit of LPP to members of the legal profession.

Background

Prudential applied for judicial review of the decision by HM Revenue and Customs (HMRC) to issue notices requiring them to disclose documents relating to a perceived tax avoidance scheme. Prudential argued that these documents came under the protection of LPP because they included documents from their accountants, the substance of which was legal advice on tax implications.

To date LPP has only been available to qualified lawyers however Prudential argued that whether LPP applied, should be determined by the function of the advisor, not their professional status.

High Court outcome

The High Court (click here for a link to our briefing note on the High Court judgment) confirmed that:

  • only documents containing tax advice from a lawyer could benefit from the protection of LPP;
  • they were only disclosable to HMRC where the client had given consent; and
  • advice from non-lawyers would not fall under the protection of LPP.

The High Court’s reasoning was based on case law that LPP should only apply to members of the legal profession. It stated that public interest in the disclosure of relevant documentation to HMRC outweighed the merit of extending LPP to cover accountants or other non-lawyers.

The common law doctrine of legal professional privilege

There are two types of LPP which protect communications against disclosure:

  • Legal Advice Privilege –between a lawyer and their clients relating to the giving of legal advice; and
  • Litigation Privilege –between a lawyer and their client and between either the lawyer or the client and a third party (such as a witness) which relate to existing or contemplated litigation.

Court of Appeal outcome

The Court of Appeal judgment followed Widen Pump Engineering (Widen Pump Engineering Co v Fusfeld [1985] FSR 159) in holding that the protection afforded by LPP applied only to qualified lawyers, and by extension foreign legal professions. The judgment stated that:

  • the function of the advisor in giving advice on the law, whilst relevant, was not determinative; LPP would only cover those with the status of a qualified lawyer;
  • Parliament has not created any statutory extension of LPP to legal advice sought from and given by accountants on tax matters. As such it is not open to the court to extend the protection of LPP;
  • even if the scope of LPP should be extended “the appropriate scope for that extension is a matter for Parliament, not for the courts”;
  • Article 8 of the European Convention of Human Rights protects the privacy of communications between a client and their lawyer. It does not extend the protection to communications from someone other than a qualified lawyer. Extending the scope of protection would make it “lamentably uncertain”;
  • whilst the High Court’s decision was upheld, the Court of Appeal took issue with Charles J’s suggestion that the scope of LPP should be reduced as it applies in relation to lawyers; and
  • Permission to Appeal to the Supreme Court was denied.

Comment

This judgment serves to confirm that the protection afforded by LPP is something that the courts regard as both the bastion of qualified lawyers and essential in the defence of our human rights. The unwillingness of the courts to extend LPP seems to be fuelled by a desire for certainty and to ensure the privilege is not exploited.

What the decision does not do is make it completely clear whether the qualified lawyer needs to be working in chambers or at a firm of solicitors to benefit from LPP. With greater fluidity between the big professional service providers there are many “qualified lawyers” working outside the traditional legal profession. Do they benefit from LPP?

However, it seems likely that, particularly following the recent ECJ case of Akzo Nobel, which denied LPP to in-house counsel in the context of EC competition investigations, we have not heard the last of arguments as to the proper scope of LPP. No doubt the accountants are presently lobbying their friends in Parliament to redress their perceived competitive disadvantage.