The Scope Of Legal Advice Privilege: The Supreme Court’s Decision In 'R(Prudential And Another)'

Article by Ramya Nagesh, pupil at 6 Kings Bench Walk

Introduction

The right of a person to discuss certain matters with their lawyer, no matter how nefarious, without fear of their confidence being broken is one that has been recognised since the 16th Century. This is for good reason - without it, there is little incentive for the client to talk with candour and so to obtain proper legal advice. However, the Supreme Court recently considered (in Regina (Prudential plc and another v Special Commissioner of Income Tax and another (Institute of Chartered Accountants of England and Wales and Others Intervening) [2013] UKSC 1) whether Legal Professional Privilege, specifically Legal Advice Privilege ("LAP"), could apply to advice given by other professionals. This was taking into account that the advice was legal advice that the person was qualified to give and would have attracted privilege had it been given by a legal professional.

The Supreme Court held by a 5-2 majority that it could not (Lord Clarke of Stone-cum-Ebony and Lord Sumption JJSC dissenting). In delivering the decision, the majority accepted that the logical, principled approach was to extend LAP to non-legal professionals, but considered that for a number of reasons such extension was one that was properly left to Parliament.

Factual Background

In 2004, the Prudential group of companies, in accordance with advice given by PricewaterhouseCoopers ("PwC"), implemented a tax avoidance scheme devised by PwC. The aim of the scheme was to give rise to a substantial tax deduction in Prudential (Gibraltar) Ltd...