Only lawyers’ advice is protected by legal privilege – Supreme Court Ruling
23 Jan, 2013
Law Society: Lawyers’ duties and responsibilities “aren’t available as Pick n Mix”
The Supreme Court, by a majority of 5:2, has decided that legal professional privilege (LPP) only applies to qualified lawyers – solicitors and barristers.
The decision maintains the existing certainty about the scope of LPP, an important human right of clients. It confirms that ”There is no doubt that the justification for [LPP] is as valid in the modern world as it was when it was first developed by the courts.”
The Law Society had intervened in the Supreme Court case of Prudential PLC and Prudential (Gibraltar) Ltd v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes).
Prudential had asked the court to declare that LPP also protected the advice given by its accountants in relation to a marketed tax avoidance scheme.
The rule of LPP gives communications between a lawyer and their client absolute confidentiality, so that the advice cannot be disclosed to the court or third parties without the client’s consent.
The Supreme Court, the UK’s highest court, in agreement with the Court of Appeal, emphasised that extending LPP communications to other professionals, such as accountants, was a matter for parliament, not for the courts. In the leading judgment Lord Neuberger said:
“…we should not extend LAP 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.
“I reach this conclusion for three connected reasons, which together persuade me that what we are being asked to do by Prudential is a matter for Parliament rather than for the judiciary. First, the consequences of allowing Prudential’s appeal are hard to assess and would be likely to lead to what is currently a clear and well understood principle becoming an unclear principle, involving uncertainty. Secondly, the question whether [LPP] should be extended to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament. Thirdly, Parliament has enacted legislation relating to [LPP], which, at the very least, suggest that it would be inappropriate for the court to extend the law on [LPP] as proposed by Prudential.”
Law Society Chief Executive Desmond Hudson (pictured) said today: “A lawyer’s duties and responsibilities to the client and to the courts are not available on a Pick ‘N’ Mix basis. The relationship between a solicitor or barrister and his or her client is a precious human right, tested and refined by centuries of common law. Legal professional privilege supports the process of law, speeding the conviction of the guilty and securing the acquittal of the innocent.”
The judgment will be available on www.supremecourt.gov.uk