UK Supreme Court clarifies scope of legal advice privilege

A recent decision of the UK Supreme Court has clarified the scope of legal advice privilege in limiting it to its traditional incumbents — lawyers.

Legal advice privilege applies to all confidential communications passing between a client and its lawyer (acting in their professional capacity) which have come into existence for the purpose of giving or receiving legal advice about what should prudently and sensibly be done in the relevant legal context. The privilege entitles a client to refuse inspection and or disclosure of confidential legal communications to third parties, including courts, tribunals, regulatory bodies and enforcement agencies. Once established, the privilege cannot be overridden, save in very limited circumstances.

In the case of R (on application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1, the UK Supreme Court considered the question of whether legal advice privilege extends (or should be extended) to legal advice given by someone other than a member of the legal profession, in this case in respect of tax advice given by an accountant to its client. The majority held that it did not and should not.

The Court found that although the documents in question would have attracted legal advice privilege if they related to advice provided by a lawyer, no such privilege extended to advice, even if identical in nature, provided by a professional person who is not a lawyer. While the Court unanimously agreed that there was a ‘strong case in logic’ for the expansion of the doctrine, the majority felt not only bound by traditional boundaries of the doctrine but considered that the difficulties in defining any extended privilege protection would result in a blurring of what has long been a ‘clear and well understood’ principle. For those of you who have ever had to consider the issue of legal advice privilege, you may feel that it is often far from being ‘clear and understood’ but, at least for now (in the UK and, likely, Channel Islands), it remains a lawyer’s privilege.