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 passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. However that privilege extended only to advice by professional or qualified lawyers. Amongst other things, beyond the case law, this was demonstrated by a rejection of a proposal for it to be extended to accountants, and acceptance of its extension to patent agents, and other statutory distinctions.
Whilst there may be a logic in extending the privilege, a decision must come from Parliament.
Lord Sumption dissented saying: ‘the law is that legal professional privilege attaches to any communication between a client and his legal adviser which is made (i) for the purpose of enabling the adviser to give or the client to receive legal advice, (ii) in the course of a professional relationship, and (iii) in the exercise by the adviser of a profession which has as an ordinary part of its function the giving of skilled legal advice on the subject in question. The privilege is a substantive right of the client, whose availability depends on the character of the advice which he is seeking and the circumstances in which it is given. It does not depend on the adviser’s status, provided that the advice is given in a professional context. It follows, on the uncontested evidence before us, that advice on tax law from a chartered accountant will attract the privilege in circumstances where it would have done so had it been given by a barrister or a solicitor. They are performing the same function, to which the same legal incidents attach.’
Lord Clarke said: ‘Legal advice privilege is a creature of the common law. As such it should be capable of redefinition to cater for changed conditions. If principle requires that it should apply to situations to which it was previously thought not to apply, I can see no reason why this court should not so state, unless prevented from doing so, either expressly or necessary implication, by statute.’
Judges:
Lord Neuberger, President, Lord Hope, Deputy President, Lord Walker, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed
Citations:
[2013] WLR(D) 20, [2013] UKSC 1, UKSC 2010/0215
Links:
Bailii, Bailii Summary, SC Summary, SC
Statutes:
Taxes Management Act 1970 20(1)(a), Trade Mark Act 1994 87, Copyright, Designs and Patents Act 1988 280
Jurisdiction:
England and Wales
Citing:
At First Instance – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
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. . .
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 . .
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 – Berd v Lovelace 1576
A solicitor served with process to testify, ordered not to be examined. Thomas Hawtry, gentleman was served with a subpoena to testify his knowledge touching the cause in variance ; and made oath that he hath been, and yet is a solicitor in this . .
Cited – Greenough v Gaskell 17-Jan-1833
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of . .
Cited – Upjohn Company v United States 13-Jan-1981
Worldlii United States Supreme Court – When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made . .
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 – 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 – Slade v Tucker CA 1880
Sir George Jessel MR said that legal advice privilege is to be ‘confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client.’ . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
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 – Attorney-General v Mulholland CA 1963
The court rejected a claim for protection from disclosure of matters passing between journalists and their sources: ‘it is said that however these questions were and however proper to be answered for the purpose of this inquiry, a journalist has a . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
Cited – Dormeuil Trade Mark ChD 1983
Parties had together applied to register a trade mark. Later one applied and the other opposed, and application. At various times they had been represented by trade mark agents and solicitors. Protection against discovery was now sought as to . .
Cited – Lawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .
Cited – Macfarlan v Rolt 1872
Communications between a client and his foreign lawyers were treated as being entitled as a matter of course to the same legal advice privilege as communications with English lawyers in like circumstances. . .
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 – 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 – In re Duncan, decd, Garfield v Fay 1968
Ormrod J rejected a submission that where foreign lawyers are involved no privilege is recognised by an English Court if privilege is not recognised by the municipal law of the forum of the foreign lawyer. He said: ‘The basis of the privilege is . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Creditors of Wamphray v Lady Wamphray 1675
An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’ . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 4-Feb-1981
Sir Gordon Slynn AG discussed legal advce priviege: ‘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 from the basic . .
Cited – Van Der Mussele v Belgium ECHR 23-Nov-1983
There is discrimination only if the cases under comparison are not sufficiently different to justify the difference in treatment. This expressed by saying that the two cases must be in an ‘analogous situation’. The social security system is a . .
Cited – Campbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Dennis v Codrington 1579
A counsellor not to be examined of any matter, wherein he hath been of couunsel.- The plaintant seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel ; it is ordered he shall not be compelled by . .
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 – McLeod v McLeod 1744
. .
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 . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Birmingham Corporation v West Midlands Baptist (Trust) Association Inc HL 1969
There had been a substantial delay of many years after the order for compulsory purchase was made, with a substantial increase in value after the service of the notice to treat.
Held: The physical condition of the reference land and its . .
Cited – Parry-Jones v The Law Society CA 1969
The Society had, for regulatory purposes, exercised a power under the 1957 Act to call upon the plaintiff, a solicitor, to produce for inspection accounts and other information relating to the conduct of his clients’ affairs. He sought an injunction . .
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 . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Taxes Management
Updated: 18 May 2022; Ref: scu.470523