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 of common 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’.
James Bullock, head of litigation and compliance at international firm Pinsent Masons, said legal privilege should not be used as a marketing tool.
‘The restriction of legal professional privilege to advice given by a practising solicitor or barrister ensures that the advice in question is given by a person who is both professionally qualified and rigorously regulated. That is not to say that other professionals giving advice on the law are not, but in any extension of LPP that underlying principle needs to be maintained.’
He called for parliament to address the question of extension, following extensive consultation led by the Ministry of Justice rather than an interested party such as HM Revenue & Customs.
‘Even a die-hard lawyer like me accepts that the whole question of LPP should be looked afresh in the light of modern professional practice. However, the purpose underlying the rule must not be lost sight of. It is there to protect the client, not as a "privilege" for professionals in the ordinary sense of the word.’
Michael Izza, chief executive of the Institute of Chartered Accounts in England and Wales, described the current position on LPP as ‘unprincipled and anti-competitive for individuals and businesses who we believe should be able to seek the best professional advice upon the same terms whether from lawyers, accountants or indeed other appropriately qualified professionals’.
He said that parliament must, ‘as a matter of urgency’, find a way to resolve how issues such as LPP are addressed in multi-disciplinary practices.
The Law Society will host an audio webinar at 4pm on 30 January. Tom Adam QC will be a guest.