Legal advice privilege: only for lawyers

The Court of Appeal has today handed down judgment confirming that legal advice privilege does not apply to any professional other than a qualified lawyer, i.e. a solicitor or barrister, or an appropriately qualified foreign lawyer: R (on the application of Prudential PLC & Anor) v Special Commissioner of Income Tax & Anor [2010] EWCA Civ 1094. In so doing, the court dismissed Prudential's appeal against the High Court's refusal to extend privilege to tax law advice given by accountants.

Herbert Smith represented the Law Society, which intervened in the appeal. The Court of Appeal judgment vindicates the Law Society's position that privilege should not be extended beyond the legal profession and that any such extension would require primary legislation.

Key points:

• The judgment confirms that legal advice privilege can be claimed only by clients of qualified lawyers. It is not available to clients of other professionals, regardless of whether the advice given is legal advice.
• The Court of Appeal disagreed with comments made by the judge at first instance suggesting that legal advice privilege might be restricted or removed even as regards legal advice given by lawyers.

Background

The case arose in the context of notices issued to Prudential by HM Revenue and Customs ("HMRC") under their statutory powers seeking documents relating to a widely marketed tax avoidance scheme. Prudential sought judicial review of the decision to issue the notices, arguing (inter alia) that the documents sought were protected by legal professional privilege. These included documents by which Prudential sought or received legal advice on tax matters from their accountants.

Prudential sought to argue that privilege should be available for advice on tax law given by accountants, and that the determining factor for the application of privilege should be the function of the advisor (i.e. advising on the law) rather than the status of the advisor (i.e. whether or not a lawyer).

Legal professional privilege

Legal professional privilege has long been established in the common law and, more recently, has been recognised as a fundamental human right protected by the right to privacy under Article 8 of the European Convention on Human Rights ("Article 8"). It is an absolute rule which entitles a client to refuse to disclose documents or answer questions relating to the subject matter of the privilege. As such, it conflicts with the general public policy that cases should be decided by reference to all available relevant evidence.

There are two main types of privilege recognised under English law:

• legal advice privilege, for communications between lawyers and their clients giving or obtaining legal advice; and
• litigation privilege, for communications between lawyers and their clients, or either of them and a third party, for the dominant purpose of seeking or obtaining legal advice, or preparing a party's case, in relation to contemplated litigation.

High Court decision

At first instance, Charles J held that he was bound by judicial precedent to find that privilege was available only to clients of lawyers and not accountants. However:

• He could see "real strength" in an argument that, given the public interest underlying legal advice privilege, the privilege should not relate to the nature of the legal qualification of the person giving the advice, and that a level playing field should be created between clients of lawyers and accountants as regards the disclosure of legal advice.
• He pointed out that a level playing field could also be created, not by expanding privilege to other professionals, but by restricting or removing privilege for legal advice given by lawyers outside the litigation context.

Court of Appeal decision

Like Charles J, the Court of Appeal held that it was bound by previous Court of Appeal authority to find that legal professional privilege is restricted, at common law, to advice sought from or given by members of the legal professions (Wilden Pump Engineering Co v Fusfeld [1985] FSR 159).

The Court of Appeal rejected Prudential's argument that Wilden Pump is no longer binding because of the impact of the Human Rights Act 1998. The court recognised that the privacy of communications between lawyer and client is protected by Article 8, but refused to conclude that the same article protects communications with other professionals for the purpose of obtaining legal advice.

The Court of Appeal went on to say that, even if it were not bound by previous authority, it would conclude that it is not open to the court to hold that legal professional privilege applies outside the legal profession, except as a result of relevant statutory provisions. The court emphasised the need for legal professional privilege to be clear and certain in its application, since it conflicts with the general public policy as to the disclosability of relevant evidence, and is to all intents and purposes absolute. The court commented that the rule is sufficiently clear and certain in its application to members of the legal profession, acting as such, but if it were to apply to members of other professions who give advice on points of law in the course of their professional activity, serious questions would arise as to its scope and application:

"To which accountants should it apply, given that 'accountant' does not by itself denote membership of any particular professional body, or the obligation to comply with any, or any particular, professional obligations? To which other professional advisers would it apply? To what areas of the law would it apply as regards the advice of any adviser who is not a lawyer as such?"

Only Parliament, the court concluded, can provide answers to these serious and important questions.

In its judgment, the court also noted that the question of whether legal professional privilege should be extended to accountants by statute has been addressed on a number of occasions over the last 40 years, but that Parliament has not as a result created any statutory extension of privilege to accountants. As the judgment comments, "Parliament's failure to change the law in this respect is not an accident".

Significantly, the Court of Appeal expressed its disagreement with Charles J's comments questioning whether legal advice privilege should be restricted or removed outside the litigation context. This issue was addressed in recent years in Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, in which the House of Lords overturned the Court of Appeal's judgment seeking to restrict the ambit of legal advice privilege within much narrower limits (see post). In that context, Charles J's attempt to re-open the issue might be seen as surprising, and it is helpful that the Court of Appeal has expressed its disagreement with his remarks.

Comment

This is an important judgment which reinforces the position of legal professional privilege at the heart of the administration of justice, and confirms that legal advice privilege remains limited to communications between lawyers and their clients.