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The Court of Appeal (CoA) has ruled that legal professional privilege cannot be extended to accountants offering tax advice.
The decision has been welcomed by Law Society president Linda Lee for giving “clarity and confirmation” on when legal privilege arises.
The appellant, Prudential, had instructed Blackstone Chambers silk Lord Pannick QC to attempt to extend legal privilege to accountants providing legal tax advice.
This came after HMRC issued a Section 20 notice requiring Prudential to deliver documents that HMRC believed contained information relevant to Prudential’s tax liability. Prudential argued that the documents were privileged information.
In the CoA, Pannick argued that privilege is a judge-made rule and therefore it was down to the court to determine that it should apply when advice is provided rather than who it is provided by.
In its judgment the CoA rejected this stating that the scope of legal privilege was a matter for Parliament to decide rather than the courts. “Failure to change the law in this respect is not an accident,” the judgment handed down by Lord Justice Lloyd said.
Initially Prudential had brought a judicial review case in a bid to extend professional privilege. In a ruling given last October the court expressed sympathy with the claimant’s case but ruled against it stating: “”LPP is linked to the legal profession and not to just the purpose and nature of the advice and assistance.”
Nevertheless, the ruling said there were wider policy issues that needed to be discussed further.
At the Court of Appeal the Law Society and Bar Council intervened in support of defendants the special commissioner of income tax and HM Inspector of Taxes Philip Pandolfo. The Institute of Chartered Accountants in England and Wales intervened on behalf of the appellant.
Lee at the Law Society said: “The courts have long taken the approach that legal advice privilege does not attach solely because of the purpose and nature of the advice but also because the advice emanates from a member of the legal profession. Today’s judgement reaffirms that notion.”
Blackstone Chambers’ Lord Pannick QC led Conrad McDonnell of Gray’s Inn Tax Chambers, instructed by PricewaterhouseCoopers Legal head of litigation Agnes Quashie.
Blackstone Chambers’ Charles Flint QC was instructed by Simmons & Simmons partner Colin Passmore for intervener the Institute of Chartered Accountants in England and Wales.
Devereux Chambers’ Timothy Brennan QC led Blackstone Chambers barrister Diya Sen Gupta and Laura McNair-Wilson, also of Devereux, instructed directly by HMRC for the second respondent, HM Inspector of Taxes Philip Pandolfo.
Fountain Court’s Bankim Thanki QC led Ben Valentin of 3-4 South Square, instructed directly by the Bar Council.
Brick Court Chambers’ Sir Sydney Kentridge QC and Tom Adam QC also of Brick Court were instructed by Herbert Smith partner Heather Gething for the Law Society.