Practice and Procedure

Legal professional privilege only for lawyers, Supreme Court rules

PUBLISHED January 23, 2013

Wednesday 23 January 2013 by Michael Cross

The Supreme Court ruled today that legal professional privilege (LPP) applies only to qualified lawyers - solicitors and barristers.

The eagerly awaited decision, by a majority of 5:2, maintains the existing certainty about the scope of LPP. 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). The Society's chief executive, Desmond Hudson 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 ofcommon law. Legal professional privilege supports the process of law, speeding the conviction of the guilty and securing the acquittal of the innocent."

The case originated when Prudential Plc sought to withhold documents about a marketed tax avoidance scheme on the grounds of privilege. The Supreme 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 privilege should not be extended 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 Law Society will be hosting an audio webinar at 4pm on 30 January 2013. Tom Adam QC will be a guest.