Keywords: legal advice privilege, LAP, Prudential Group

In a recent English Judgment concerning R (Prudential plc and another) v. Special Commissioner of Income Tax and another [2013] UKSC 1, the Supreme Court, by a five to two majority, held that Legal Advice Privilege (LAP) only applies to advice provided by qualified lawyers.

In the present case, the issue concerned whether tax advice provided by the taxpayer's accountants was disclosable to an inspector of taxes for the purpose of investigating Prudential Group's tax liability.

The Court confirmed that "lawyers normally only give legal advice". Legal advice given by non-legal professionals would "often not represent the totality of the advice". The Court expressed difficulty in assessing communications where legal advice was only subsidiary or where a document contained both legal and non-legal advice.

The Court considered LAP should not be extended to advice given by non-legal professionals, "even where the advice [was] legal advice which that professional person [was] qualified to give".

The Court was concerned, if whenever LAP was claimed, a Court would have to closely examine "the qualifications or standing, and maybe the rules and disciplinary procedures" of a particular profession to determine whether the communication from that profession attracted LAP; this would create "uncertainty, expenditure and inconsistency". There would be the difficulty of deciding whether a profession was one which "ordinarily [included] the giving of legal advice".

References

  1. R (Prudential plc and another) v. Special Commissioner of Income Tax and another [2013] UKSC 1
  2. Press summary, The Supreme Court of the United Kingdom, 23 January 2013
  3. Construction Industry Law Letter, March 2013, pp.3309-3314

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Previously published on 22 April 2013

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