The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. The privilege given under the Act by virtue of the Morgan Grenfell decision was limited to legal advice given by lawyers. The link between legal advice privilege and members of the legal profession is a natural one and part of the inter-relationship of a lawyer’s professional duties, including a lawyer’s duties to the court, and the administration of justice. Legal advice privilege does not extend to advice given by accountants on tax law in circumstances, such as the present, where if the accountant had been a solicitor the claim to Legal Professional Privilege would not be one based on litigation privilege.
Charles J said: ‘[there is] a compelling, and indeed unanswerable, case that in modern conditions accountants have the expertise to advise on tax law and it is firms of accountants, rather than firms of solicitors, who do give such advice and represent clients in disputes with the revenue on many aspects of their tax affairs. Further many firms of accountants now employ lawyers to advise on tax and what they, and qualified accountants in the same firm, do in this context is the same . . So, in my view, [it has been] shown that accountants do what lawyers are described as doing in the cases that establish [LAP]. This has been the case for some time and in my view an equivalent position can be said to exist in respect of other professions.’
Charles J
[2009] EWHC 2494 (Admin), [2009] STI 2770, [2009] BTC 680, [2010] ACD 10, [2010] STC 161, [2010] 1 All ER 1113, [2009] NPC 113
Times, Bailii
Taxes Management Act 1970
England and Wales
Citing:
Cited – Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Wilden Pump Engineering Co v Fusfeld CA 1985
The 1977 Act conferred privilege on any communication involving patent attorneys made for the purpose of proceedings before the Comptroller of Patents or the Patents Appeal Tribunal. The defendants claimed privilege for all communications with their . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Bolton v Liverpool Corporation HL 1833
The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Moseley v The Victoria Rubber Co ChD 1886
There is no general professional privilege covering communications between a person and his patent agent. Communications between a client and his solicitor who was also the client’s patent attorney were not privileged if the solicitor received them . .
mentioned – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Cited – New Victoria Hospital v Ryan EAT 3-Feb-1993
Privilege from disclosure is only to attach to ‘qualified legal advisers’.
Tucker J referred in an obiter passage to advisers ‘such as solicitors or counsel’, and thus it was said that he was not seeking to limit legal professional privilege . .
Cited – Minter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
Cited – Mfongbong Umoh, Regina v 1987
. .
Cited – M and W Grazebrook Ltd v Wallens 1973
Communications between the client and his non-lawyer representative, and communications between that representative and third party witnesses, are privileged despite the fact that the representative may have no professional qualification. Sir John . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners CA 1972
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a . .
Cited – Chantry Martin v Martin CA 1953
The court was asked as to working papers brought into existence by chartered accountants in the preparation of an audit of a client’s books.
Held: Those working papers were the property of the chartered accountants and not the client. Jenkins . .
Cited – Calley v Richards CA 8-Jul-1854
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and . .
Cited – Fountain, Administrator of Crump, v Young, 28-Nov-1807
If the client mistakenly thinks the person he is obtaining legal advice from is a lawyer but the person is not in fact a lawyer then no privilege attaches . .
Cited – Regina v Commissioners of Inland Revenue, Ex Parte Tamosius and Partners QBD 10-Nov-1999
Officers executing a search warrant under the Taxes Management section could properly have accompany them, a legally qualified person who could make immediate assessments of any claim for protection for materials at the property searched by way of . .
Cited by:
Appeal from – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
At First Instance – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Legal Professions
Updated: 01 November 2021; Ref: scu.376144