In an important decision given today on how far the protection of legal privilege extends the Supreme Court has ruled that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give.
In a split decision of five to two (Lord Clarke and Lord Sumption dissenting), Prudential's appeal was dismissed. The majority held that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give. To do so would extend legal advice privilege beyond what are currently, and have for a long time been, understood to be its limits. The court considered that it is universally believed that legal advice privilege only applies to communications in connection with advice given by members of the legal profession and there are clear judicial statements of high authority to that effect.
It was felt that extending legal advice privilege to any case where legal advice is given by a person who is a member of a profession which ordinarily includes the giving of legal advice would be likely to lead to a clear and well understood principle becoming uncertain, because it is unclear which occupations would be members of a profession for this purpose.
There would be room for uncertainty, expenditure, and inconsistency, if the court had to decide whether a group constitutes a profession for the purposes of legal advice privilege. The court also considered that it is also unclear how a court would decide whether a profession is one which ordinarily includes the giving of legal advice. Where members of other professions give legal advice, it will often not represent the totality of the advice, so it may also be difficult to decide how to deal with documents which contain legal and non-legal advice.
The majority considered that a change in the law extending the legal advice privilege ought to be done by Parliament.
The full judgment can be found here
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