UK: The Scope Of Legal Advice Privilege: The Supreme Court’s Decision In "R(Prudential And Another)"

Article by Ramya Nagesh, pupil at 6 Kings Bench Walk

Introduction

The right of a person to discuss certain matters with their lawyer, no matter how nefarious, without fear of their confidence being broken is one that has been recognised since the 16th Century. This is for good reason – without it, there is little incentive for the client to talk with candour and so to obtain proper legal advice. However, the Supreme Court recently considered (in Regina (Prudential plc and another v Special Commissioner of Income Tax and another (Institute of Chartered Accountants of England and Wales and Others Intervening) [2013] UKSC 1) whether Legal Professional Privilege, specifically Legal Advice Privilege ("LAP"), could apply to advice given by other professionals. This was taking into account that the advice was legal advice that the person was qualified to give and would have attracted privilege had it been given by a legal professional.

The Supreme Court held by a 5-2 majority that it could not (Lord Clarke of Stone-cum-Ebony and Lord Sumption JJSC dissenting). In delivering the decision, the majority accepted that the logical, principled approach was to extend LAP to non-legal professionals, but considered that for a number of reasons such extension was one that was properly left to Parliament.

Factual Background

In 2004, the Prudential group of companies, in accordance with advice given by PricewaterhouseCoopers ("PwC"), implemented a tax avoidance scheme devised by PwC. The aim of the scheme was to give rise to a substantial tax deduction in Prudential (Gibraltar) Ltd, to be set off against its profits which were ordinarily chargeable to corporation tax in the United Kingdom.

The inspector of taxes responsible for this aspect of the Prudential group's liabilities requested disclosure of certain documents relating to implementation of the scheme for his inspection. Prudential disclosed many of the requested documents, but refused to disclose certain documents on the ground that they were subject to LAP. The inspector of taxes accordingly sought, and received, authorisation from the Special Commissioners. It was that authorisation that formed the subject of the Prudential group's application for judicial review. The application was rejected by Charles J on the ground that LAP did not extend to advice, even if identical in nature, provided by a professional who was not a qualified lawyer. His decision was upheld by the Court of Appeal, and subsequently fell for consideration by the Supreme Court. The Supreme Court handed down its judgment on 23 January 2013.

Majority Decision

The decision of the majority emphasised that LAP is universally understood as applying to advice given by lawyers, so to allow the appeal would be changing the ambit of the privilege. Therefore, the majority considered that to allow the appeal would be to extend the existing law in a way that was more appropriately left to Parliament. There were three main reasons for this finding: first, the consequences of allowing the appeal would be hard to assess and likely to lead to a clear principle becoming an unclear one; second, the question of whether LAP should be extended raises questions of policy best left to Parliament; third, Parliament has legislated in the field on the basis that LAP is limited to advice given by members of the legal profession. The indications generally are that Parliament, the courts, textbook writers and the writers of relevant reports consider that the current breadth of LAP is not as wide as the appellants would suggest. At the very least, it would therefore be inappropriate for the court to effect such a "profound change" to the scope of LAP.

The majority emphasised, however, that their decision did not mean that as a matter of pure logic or principle LAP should not be extended to advice given by non-legal professionals. Two tenets of LAP are that it exists to ensure that a person can seek and obtain legal advice with candour and full disclosure, and that it exists for the benefit of the client and so may only be waived by the client; it does not exist to protect the legal profession. In light of this, logic suggests that privilege could be applicable to communications with professional people who are qualified to give expert legal advice in a particular field, and just happen not to work within the legal profession. In the present day, legal advice is no longer limited to professional lawyers; the specific example of tax advice illustrates this.

Dissenting Opinions

Lord Clarke of Stone-cum-Ebony and Lord Sumption JJSC delivered dissenting opinions, approaching the decision with greater emphasis on principle. They considered that acceptance of the appellants' basic submission would not involve any change to the principles governing LAP; it would merely involve recognising the reality of the provision of legal advice in the present day. In support of their overall conclusions, the minority emphasised that: firstly, LAP is the client's privilege; secondly, that LAP depends on the public interest in promoting the client's access to legal advice on the basis of absolute confidence; thirdly, that LAP is not dependent on the status of the adviser.

Furthermore, historically lawyers were distinguished from other professionals, such as priests or doctors, not as alternative sources of legal advice but as providers of other forms of advice. The references in the cases to 'lawyers' therefore merely reflected the assumption that lawyers were the only source of skilled professional legal advice. This assumption is no longer correct. For example, the routine resort to accountants for legal advice on tax appears to have been common since the 1960s.

Given these factors, the minority considered that there could be no principled reason for distinguishing between the advice of solicitors and barristers on the one hand, and accountants on the other. They added that consistent with this view was the fact that the courts have in recent times expanded the categories of lawyer whose advice may attract privilege, to salaried legal advisers and foreign lawyers. This reflected both the functional character of LAP and the law's willingness to recognise the "changing patterns of professional life" (per Lord Sumption JSC); it accorded with the function of the courts to ensure that changes in legal, commercial or social practice are properly reflected in the application of the law.

Conclusion

The decision of the Supreme Court highlights some interesting questions of principle attaching to legal professional privilege in general, and LAP in particular. This historic right has operated relatively safely in the knowledge that its application to lawyers not only presented clean and clear boundaries, but accurately reflected the fact that people sought expert legal advice only from lawyers. The Supreme Court's decision highlights the fact that is no longer the case. Interestingly, notwithstanding the result, the Court was in broad agreement that as a matter of pure principle the scope of LAP should be extended. The arguments for extending the application of LAP are strong ones: until that decision is taken, however, businesses seeking tax advice would do well to bear in mind the freshly emphasised boundaries of privilege.

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