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
- R (Prudential plc and another) v. Special Commissioner of Income Tax and another [2013] UKSC 1
- Press summary, The Supreme Court of the United Kingdom, 23 January 2013
- Construction Industry Law Letter, March 2013, pp.3309-3314
Learn more about our Hong Kong office, Construction & Engineering and Litigation & Dispute Resolution practices.
Previously published on 22 April 2013
Visit us at www.mayerbrown.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2013. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.
