The Law Society has hailed a Supreme Court ruling – by a majority of 5:2 – that legal professional privilege only applies to members of the legal profession.
In the case of R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1, Prudential sought to establish that privilege extended to advice given by accountants at Pricewaterhouse Coopers in relation to a marketed tax avoidance scheme.
Giving the leading judgment, Lord Neuberger said: “...we should not extend [LPP] 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.”
The judge said he reached this conclusion for three connected reasons, which together persuaded him that what the court was being asked to do by Prudential was a matter for Parliament rather than for the judiciary.
These were that:
- The consequences of allowing Prudential’s appeal were 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;
- The question whether [LPP] should be extended to cases where legal advice is given from professional people who are not qualified lawyers raised questions of policy which should be left to Parliament; and
- Parliament had enacted legislation relating to [LPP], which, at the very least, suggested that it would be inappropriate for the court to extend the law on [LPP] as proposed by Prudential.
Law Society chief executive Desmond Hudson said: “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.”